SANGARE v Department of Infrastructure

[2015] FCCA 1795

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANGARE v DEPARTMENT OF INFRASTRUCTURE [2015] FCCA 1795

Catchwords:
PRATICE AND PROCEDURE – Application for summary dismissal – application refused.

INDUSTRIAL LAW – Dismissal – alleged contravention of a general protection – adverse action – discrimination on grounds of race – whether proceedings prohibited because complaint in Australian Human Rights Commission extant – where complaint in Australian Human Rights Commission made in contravention of prohibition in s.725 of the Fair Work Act2009.

Legislation:  

Fair Work Act 2009, ss.351, 361, 725, 727, 727(2), 728, 732, 732(2)
Australian Human Rights Commission Act 1986 s.46PH(1)(i)

Birch v Wesco Electrics (1996) Pty Ltd [2012] FMCA 5

Applicant: SOULEYMANE SANGARE

Respondent: DEPARTMENT OF INFRASTRUCTURE

File Number: DNG 6 of 2015

Judgment of: Judge Jarrett

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Brisbane

Delivered on: 14 May 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the Respondent: Mr Currie

ORDERS

1. The application for summary dismissal filed on 13 March 2015 is refused.

2. The applicant file and serve any affidavits upon which he wishes to rely by 4pm on 4 June 2015.

3. The respondent file and serve any affidavits upon which it wishes to rely by 4pm on 25 June 2015.

4. Pursuant to Part 27 of the Federal Circuit Court Rules 2001, the matter be referred to mediation before a Registrar of this Court.

5. The application be adjourned to a date to be fixed for directions in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

DNG 6 of 2015

SOULEYMANE SANGARE

Applicant

And

DEPARTMENT OF INFRASTRUCTURE

Respondent

REASONS FOR JUDGMENT

ex tempore

1. By his proceedings filed on 12 March, 2015 the applicant seeks relief pursuant to the Fair Work Act 2009. He claims that he was dismissed from his employment with the respondent in contravention of a general protection. More particularly, he claims in the proceedings that he was discriminated against, in breach of s.351 of the Fair Work Act.

2. In these proceedings, according to his amended written submissions that were filed on 13 May, 2015 he claims the sum of $2,367,850 by way of compensation for the contravention of the Fair Work Act alleged by him against the respondent.

3. By its response, the respondent seeks that the applicant’s application be summarily dismissed. It argues that these proceedings have been commenced in contravention of a prohibition set out in the Fair Work Act, about which I will say a little more in due course.

4. This application, then, is the hearing of the respondent’s application to summarily dismiss the principal proceedings.  Before I move to a consideration of the application in terms of the rules of this Court and the legislative provisions relied upon by the respondent, it is necessary to set out some facts.

5. These facts are uncontroversial, having regard to the applicant’s submissions that were filed in these proceedings originally on 12 May, 2015 the respondent’s written submissions filed on 29 April, 2015 and the applicant’s amended outline of submissions filed on 13 May, 2015. 

6. The chronology need only be brief.  In October, 2014, it seems that the respondent employed the applicant as an engineer.

7. The contract, at that stage, was for a period of two years.  According to the outlines there may be some dispute about the nature of the employment contract, but what is clear is that by 17 December, 2014 that contract of employment was brought to an end by the respondent.  The respondent, for the reasons described in the applicant’s amended written submissions, determined to terminate the applicant’s employment.  On the same day, the applicant made an application to the Fair Work Commission notifying a general protections dispute relating to his dismissal.

8. A conference was convened by the Commission to deal with the dispute on 22 January, 2015. It is important to note that, at the conclusion of the conference, the Commissioner did not issue a certificate pursuant to s.369 of the Fair Work Act.

9. On 19 February, 2015 the applicant made a complaint to the Australian Human Rights Commission.  His complaint arose out of the same factual substratum as his application to the Fair Work Commission:  it arose out of the termination of his employment by the respondent and the circumstances in which he alleges that occurred.  He made complaints to the Australian Human Rights Commission about discrimination because of race, racial hatred, and victimisation.

10. On 26 February, 2015 the Fair Work Commissioner that conducted the conference in January of 2015 issued a certificate under s.369 of the Fair Work Act. The issue of that certificate, of course, is a statutory precondition to the jurisdiction of either this Court or the Federal Court in an application alleging dismissal in contravention of a general protection. These proceedings, as I have already indicated, were commenced by the applicant filing his application on 12 March, 2015.

11. On 27 April, 2015 the applicant’s complaint to the Australian Human Rights Commission was terminated pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act 1986. That is a termination on the basis that the Commission was of the view that there was no reasonable prospect of the matter being settled by conciliation. When the Fair Work Commission issued its certificate pursuant to s.369 of the Fair Work Act, and when the Australian Human Rights Commissioner terminated the complaint pursuant to s.46PH(1)(i) of the Australian Human Rights Act, the applicant was given advice that he could commence proceedings in the Federal Circuit Court or the Federal Court of Australia.

12. The advice given by both of the commissioners in their certificates was, of course, correct:  the applicant could commence proceedings in this Court, but, as the facts of this case demonstrate, the information given by those certificates was also apt to mislead because it did not contain all of the information that was relevant to the question of whether this Court would be seized of jurisdiction in the matter.  It is the potential lack of jurisdiction in the matter, for the reasons that I am about to discuss, that informs this application for summary dismissal.

13. Section 725 of the Fair Work Act provides:

    A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

14. Section 727 of the Fair Work Act applies if a general protections Fair Work Commission application has been made by, or on behalf of, the applicant in relation to the dismissal, and that application has not been withdrawn by the applicant, or the person who made the application, or it has not failed for want of jurisdiction, or it has not resulted in the issue of a certificate under s.369 of the Fair Work Act.

15. Section 727(2) defines a general protections FWC application as:

    an application under s.365 for the Fair Work Commission to deal with a dispute that relates to the dismissal.

16. The applicant had made such an application on 17 December, 2014. A certificate in respect of that application pursuant to s.369 of the Act was not issued until 26 February, 2015.

17. Section 728 provides that that section applies if a general protections court application has been made by, or on behalf of, the person in relation to the dismissal, and that application has not been withdrawn by the person who made the application, or it has not failed for want of jurisdiction.

18. Finally, s.732 provides that that section applies if an application or a complaint under another law has been made by, or on behalf of, the person in relation to the dismissal, and the application or complaint has not been withdrawn by the person who made the application, or it failed for want of jurisdiction.

19. Section 732(2) defines the phrase “application or complaint under another law” as an application or a complaint made under a law of the Commonwealth or a law of a State or Territory. That section is apt to capture the complaint made by the applicant to the Australian Human Rights Commission on 19 February, 2015.

20. The respondent argues that when these proceedings were commenced on 12 March, 2015, s.725 of the Fair Work Act prohibited the applicant from making the application because he had a complaint on foot in the Australian Human Rights Commission. That complaint was not terminated until 27 April, 2015. Thus, the making of this application was in contravention of s.725 of the Act.

21. In Birch v Wesco Electrics(1996) Pty Ltd [2012] FMCA 5, Lucev FM, as his Honour then was, considered in considerable detail, the operation of s.725 of the Fair Work Act. Commencing at paragraph 29 of his Honour’s judgment, his Honour, with the greatest of respect, undertakes a thorough and erudite discussion of that section, the way in which it was intended to operate by the legislature and the way it does, in fact, operate.

22. At paragraph 61 of that decision, his Honour says this:

    61. Section 725 of the Fair Work Act imposes a personal prohibition on a person making a second application or complaint of a kind to which one of sections 726 to 732 of the Fair Work Act applies when there has already been made an application or complaint of a kind to which one other of sections 726 and 732 of the Fair Work Act apply. That meaning:

    (a) is plain on the face of the statute; 

    (b) was intended by the Commonwealth Parliament, as confirmed by the extracts from the Fair Work Bill Explanatory Memorandum set out above;  and

    (c) is confirmed by relevant case law.

    62.    A dismissed person may therefore make: 

    (a) a general protections court application;  or

    (b) an application under a State or Territory anti-discrimination or equal opportunity law “in relation to” their dismissal,

    but not both.

    63. Therefore, s.725 of the Fair Work Act acts as a personal prohibition on Ms Birch making a second complaint of a kind to which s.732 of the Fair Work Act applies, that is, from making the Equal Opportunity Complaint, provided that the Equal Opportunity complaint is a matter “in relation to” Ms Birch’s dismissal. It is to that issue the Court now turns.

23. There is no reason to doubt the judgment of Lucev J in Birch v Wesco Electrics.  According to his Honour’s reasons, there was a personal prohibition that acted against the applicant from making a complaint with the Australian Human Rights Commission.  As Birch v Wesco Electrics demonstrates, injunctions might be granted against an applicant who seeks to pursue or commence proceedings in breach of s.725 of the Act.

24. The view I have come to is that the application made by the applicant to the Human Rights Commission was, by reason of s.725 of the Fair Work Act, invalid. It was made in breach of the personal prohibition set out in that s.725 of the Fair Work Act to which I have referred.

25. Given that the application was invalid, it was, in my view, of no effect. The applicant could have been injuncted from pursuing it. If it was invalid and of no effect, then the commencement of the present proceedings was not proscribed by s.725 of the Fair Work Act. That is to say, because the complaint to the Australian Human Rights Commission was made in breach of that personal prohibition set out in s.725 of the Act, its existence does not affect the validity of the present proceedings.

26. In those circumstances, and that being the only basis upon which the respondent moves to have the application summarily dismissed, the application for summary dismissal must fail.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 14 May, 2015.

Associate: 

Date:  6 July 2015