Ryan Mount v Dover Castle Metals Pty Ltd

[2021] FWC 5515

[2021] FWC 5515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ryan Mount
v
Dover Castle Metals Pty Ltd; Matthew Haindl; George Tucker; Simon Tripp
(C2021/2383)

DEPUTY PRESIDENT EASTON SYDNEY, 3 SEPTEMBER 2021

Application to deal with general protections contraventions involving dismissal – Stay application – whether the proceedings ought to be stayed pending the outcome of High Court decisions – whether the interests of justice are contrary to a grant of stay – application for stay refused.

Stay Application

[1] On 27 April 2021 Mr Ryan Mount applied to the Fair Work Commission (“the FWC”) under s.365 of the Fair Work Act 2009 (Cth) (“the FW Act”). Mr Mount claims that he was an employee of Dover Castle Metals Pty Ltd (“Dover”) and that he was dismissed by Dover in contravention of the General Protection provisions of the FW Act. Mr Mount also alleges Dover contravened the whistle-blower protection provisions of the Corporations Act 2001 (Cth) (Corporations Act). Mr Mount’s claim is against Dover and three personal respondents - Matthew Haindl, George Tucker and Simon Tripp - who are alleged to be accessories to Dover’s contraventions of the FW Act and of the Corporations Act.

[2] Generally the FWC’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368 of the FW Act. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction 1 upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s.368(3)(a) in relation to the dispute.

[3] Mr Mount was engaged as the Chief Executive Officer of Dover for a period of approximately three weeks. The Respondents assert that Mr Mount was not an employee of Dover but was engaged as an independent contractor. The Respondents maintain that Mr Mount does not have legal capacity to properly make an application under s.365 because he was not an employee and therefore could not have been “dismissed” within the meaning of that section.

[4] To date there have been two days of evidence and a further day of closing submissions. On 5 August 2021, at the conclusion of submissions the third day, I reserved my decision.

[5] The Respondents have made an application that these proceedings be stayed until after the High Court delivers judgment in two pending matters. On 31 August 2021 the High Court heard an appeal from the decision of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631, [2020] FCAFC 122 (“Personnel”). On 1 September 2021 the High Court heard an appeal from the Full Court’s decision in Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114, [2020] FCAFC 119 (“Jamsek”). Both Personnel and Jamsek concern the common law tests for distinguishing between employees and independent contractors. The High Court has now reserved its decision in each matter.

[6] It is relevant to note that on 4 August 2021 the High Court delivered judgment in WorkPac Pty Ltd v Rossato [2021] HCA 23 (“Rossato”). In Rossato the High Court considered the nature of casual employment, including the significance of express terms, the relevance of conduct during the life of the contract and the relevance of labels applied by contracting parties. It may be that the High Court’s approach to casual employment contracts in Rossato signals a different approach to contracts of service and contracts for services more generally.

[7] Mr Fredericks of Counsel continued his appearance for the Respondents to argue the stay application. Mr White SC appeared for Mr Mount and opposed the stay.

[8] There was no material dispute between the parties about the applicable principles:

(a) a moving party has a prima facie right to have their action tried in the ordinary course and the burden is on the party seeking a stay to show that it is just and convenient that the Commission interfere with those rights 2;

(b) an applicant’s right of access to the Commission and a Court must not be lightly refused. 3 It is a grave matter to interfere with this entitlement by a stay of proceedings4;

(c) Any grant of stay must be in the interests of justice overall, with each application for a stay being determined on its own merits 5;

(d) courts and the Commission can only act on the law as it is, and cannot speculate on alterations in law that may be made in the future 6;

(e) if an important case is known to be subject to appeal, it may be reasonable and properly in the public interest not to decide a case on the same lines until the result of the case under appeal has become known 7;

(f) delaying the determination pending the decision of the High Court was not improper or incapable of justification where the decision of the High Court would clarify or settle the law 8; and

(g) stay applications pending legislative changes can be distinguished from stay applications pending an appeal. There is a greater level of certainty in appeal matters that the relevant point will be addressed, particularly where the decision of the higher court (cf Commission) will declare the law on the relevant topic with retrospective effect. 9

The Respondents’ Submissions

[9] The Respondents rely on the recent decision of the Full Bench in Deliveroo Australia Pty Ltd v Franco[2021] FWCFB 5015 (“Deliveroo”). In Deliveroo the Full Bench found that in all likelihood Personnel and Jamsek will provide authoritative guidance on the principles to be applied in determining whether a relationship is one of the employment or independent contracting. The Respondents say that granting of a stay is the “appropriate course of action” considering the Full Bench’s approach in Deliveroo.

[10] The Respondents submit that there is sufficient level of certainty that the High Court will address the ongoing applicability of the ‘multiple indicia’ or ‘whole of the relationship’ approaches to determining the nature of a personal services engagement, and that it is of “fundamental importance” that the Commission adopts the correct approach in making decisions about such matters.

[11] Therefore, submits the Respondents, there is a prima facie compelling case that the stay should be granted.

[12] The Respondents submit that there are no factors that weigh against the granting of a stay. The Respondents correctly note that the granting of a stay would not cause any wasting of the FWC’s time or resources, nor would granting a stay cause interference or delay for parties in other matters. The Respondents have not been slow to apply for a stay in the circumstances.

[13] The Respondents accept that a stay would delay Mr Mount’s ability to progress his general protections claim but says it should not be assumed that there will be excessive delay in the Court handing down its decisions (relying on Thornton v Repatriation Commission (1981) 35 ALR 485 at 492).

[14] Mr Mount does not seek reinstatement and is obliged to take reasonable steps to mitigate his loss and as such, the Respondents say “his life is not on hold pending the determination of a claim for reinstatement”.

[15] The Respondents submit that the proceedings are at a “relatively early stage of the overall litigation process” and that any declaration of the law by the High Court on this issue will have a retrospective effect (referring to Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 503-504).

[16] The risk in not granting the stay, according to the Respondents, is that the proceedings might be decided by the FWC on an approach which the High Court states is not appropriate, which is an outcome that could not be in the public interest or fair to the parties.

[17] The Respondents’ written submissions conclude as follows:

“Accordingly, while there is clearly some prejudice to Mr Mount, it cannot counteract or outweigh the fundamental importance of the pausing of the proceedings until the High Court issues what will likely be authoritative guidance on the key issue for determination in the current proceedings.”

[18] Mr Fredericks further submitted that refusing the stay would cause an injustice to the Respondents because they would be at risk of having to defend proceedings in a court (meaning a general protections court application in relation to a dismissal) that they might not otherwise have to defend. More significantly, the personal respondents would be at risk of defending civil penalty proceedings (meaning proceedings relating to a dismissal alleging contraventions of civil remedy provisions) that they might not otherwise have to defend.

The Applicant’s Submissions

[19] Mr Mount opposed the stay. Mr White SC on behalf of Mr Mount suggested that it is not at all clear that the two matters pending in the High Court will have any relevance to his application. Mr White noted that both Personnel and Jamsek involve forms of tripartite arrangements, which do not arise in his application, and neither matter involves “the simple situation where the worker had entered into a written contract with the person who paid him”, which Mr Mount says was the situation for him.

[20] Mr Mount sought to distinguish the Full Bench’s decision in Deliveroo on the basis that the Personnel and Jamsek matters in the High Court are likely to have importance for workers in the “gig” sector of the economy more broadly, as does the Full Bench’s deliberations in Deliveroo.

[21] Mr Mount further distinguished his circumstances from Mr Franco’s circumstances in Deliveroo by reference to the fact that Mr Franco had the benefit of ongoing orders securing his livelihood.

[22] Mr Mount relied upon evidence of prejudice he says he would suffer if a stay order was made. Mr Mount’s evidence suggests that since his dismissal Dover and one of its directors, Mr Tucker, have made untrue statements about Mr Mount that “are hindering [him from] obtaining new employment”. Mr Mount says his expertise and experience is in managing mining companies, including junior mining companies as an executive, and raising capital for those companies. It is not necessary to recite in any detail the specific aspects of the evidence led by Mr Mount, and to do so ironically might exacerbate any prejudice to him, suffice to say that I am prepared to accept the self-evident proposition that Mr Mount has a significant interest in progressing his application as expediently as possible to minimise any damage for him in his employment market. I do not make any findings of fact about whether Mr Tucker has said anything, true or untrue, adverse to Mr Mount’s interests.

Consideration

[23] Whilst there was some debate between the parties about precisely how the relevant the High Court’s pending decisions might be to Mr Mount’s application, I am prepared to accept that the Personnel and Jamsek cases are important cases “on the same lines”  10 as Mr Mount’s matter and that therefore there is some public interest in not deciding Mr Mount’s case until the result of the other cases are known. There are, as Mr Mount submitted, some material points of distinction between the respective cases, however there is a likelihood that the High Court will consider the relevance of conduct during the life of the contract and the relevance of labels applied by contracting parties in the context of delineating between employment contracts and contracts for service.

[24] The central question to determine in Mr Mount’s wider application is whether he was an employee of Dover, in order to determine whether he was dismissed by Dover within the meaning of s.365 of the FW Act. This question is “on the same lines” as Personnel and Jamsek.

[25] In Deliveroo the Full Bench considered the context in which the appellant applied for a stay and then turned their minds to the interests of the opposing party, observing that “it is obviously necessary to take into account the interests of Mr Franco”. 11 In Deliveroo, Mr Franco had succeeded at first instance and had the benefit of final relief by way of a reinstatement order. The reinstatement order had been stayed earlier by consent on terms reproduced in the Full Bench’s decision (at [6]). Importantly, the Full Bench found that granting of the stay “would not cause financial prejudice” to Mr Franco at all.12

[26] Each application for a stay must be determined on its own merits and the primary question is whether it is in the interests of justice overall to grant the stay.  13 I therefore need to consider the relevant interests of the parties in the context of the nature of the proceedings before the FWC. The statutory context in which this dispute arises is a material consideration.

[27] The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (“Milford”) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:

(a) The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).

(b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).

(c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).

(d) that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).

(e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).

(f) in so determining the limits of its authority the FWC may determination matters of fact (at [71]).

(g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and

(h) the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).

[28] In my view there is next to no practical prejudice to the Respondents if I refuse the stay application but there is significant practical prejudice to Mr Mount if I do so.

[29] The obvious prejudice to Mr Mount if I grant the stay is that the stay will significantly interfere with his prima facie right to have his action tried in the ordinary course. Even assuming that there will not be an excessive delay in the High Court handing down its decisions, 14 Mr Mount’s claim will potentially be delayed by some months. In the context of the time limits in s.366 (21 days) and s.370 (14 days) of the FW Act, which stand in stark contrast to the time limit in s.544 (6 years) for other civil remedy provision enforcement proceedings, a delay of some months is significant.

[30] The potential prejudice to the Respondents only arises if:

a) a stay is not granted; and

b) I decide the matter against the Respondents; and

c) the High Court’s judgment subsequently improves the Respondents’ argument that Mr Mount was not an employee; and

d) the improvement in the strength of the Respondents’ argument is significant enough to change the outcome.

[31] The most prejudice that could arise from this confluence of circumstances is that the Respondents might have to defend a general protections claim (based on dismissal from employment) when they might not otherwise have to do so.

[32] Even this kind of prejudice is highly unlikely to eventuate because the Respondents will otherwise have to defend proceedings in relation to the termination of Mr Mount’s engagement:

a) Mr Mount also relies on alleged contraventions of the Corporations Act arising from the termination of his engagement with Dover and he is likely to persist with those claims even if he is not successful before me.

b) Mr Mount can commence a general protections claim against Dover and its alleged accessories as a former independent contractor.

c) noting that Mr Mount does not have standing to seek civil penalties against alleged accessories under the Corporations Actat all (either as an ex-employee or as an independent contractor), Mr Mount nonetheless has standing to seek civil penalties under the FW Act against the personal respondents as a former independent contractor.

[33] It is therefore highly unlikely that the Respondents will have to defend proceedings in relation to the termination of Mr Mount’s engagement in a court that they would not otherwise have to defend if a stay is not granted.

[34] I accept the Respondents’ submission that Mr Mount does not (and should not) have his life on hold pending the determination of a claim for reinstatement, which is a factor that supports the granting of a stay.

[35] I have considered Mr Mount’s evidence of difficulties he has experienced in seeking new employment in his chosen field and noted his submissions that a prolonging of his claim might exacerbate his difficulties in mitigating his loss, which point slightly in favour of declining a stay.

[36] In weighing up all the above factors I am not satisfied that it is in the interests of justice overall to grant a stay. The Respondents have not established that it is just and convenient to grant a stay.

[37] The Respondents’ application for a stay is refused.

DEPUTY PRESIDENT

Appearances:

Mr M White SC for the Applicant
Mr G Fredericks of Counsel for the Respondents

Hearing details:

2021.
Sydney (By Telephone)
24 August.

Printed by authority of the Commonwealth Government Printer

<PR733548>

 1  Ward v St Catherine’s School [2016] FCA 790 at [3].

 2   Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253. See also Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [7] and [17].

 3   Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19 citing St. Pierre v. South American Stores (Gath & Chaves) Ltd [1936] 1 K.B. 382 at 398.

 4   Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [5], Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 at [9], Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

 5   Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [17].

 6   Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253.

 7   City of Sydney Council v Satara [2007] NSWCA 148 at [23]-[25] citing Re Yates Settlement Trusts [1954] 1 All ER 619 at 621.

 8   Thornton v Repatriation Commission (1981) 52 FLR 285 at 292

 9   Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [10] citing Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 at 534. See also Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 503-504.

 10   City of Sydney Council v Satara [2007] NSWCA 148 at [23]-[25] citing Re Yates Settlement Trusts [1954] 1 All ER 619 at 621.

 11   Deliveroo Australia Pty Ltd v Franco[2021] FWCFB 5015 at [6].

 12   Ibid.

 13   Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [17].

 14   Thornton v Repatriation Commission (1981) 52 FLR 285 at 292