Sara Hayes v Aldi Stores a Limited Partnership

[2017] FWC 2369

[2017] FWC 2369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Sara Hayes
v
Aldi Stores - A Limited Partnership
(C2017/1063)

COMMISSIONER WILLIAMS PERTH, 1 MAY 2017

Applications to amend a s.773 application to a s.365 application and change identity of the Respondent.

[1] This matter concerns an application made by Ms Sara Hayes (Ms Hayes or the Applicant) under s.773 of the Fair Work Act 2009 (the Act). The Respondent identified on the application is Aldi Stores – A Limited Partnership (Aldi or the Respondent).

[2] In the Respondent’s response to the application the Respondent identifies itself as ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership).

[3] The Respondent objects to the application on the basis that the employer is a constitutionally covered entity and therefore Ms Hayes was entitled to make a general protections application under s.365 of the Act.

[4] A telephone conference was conducted during which the jurisdictional objection raised by the Respondent was discussed. Subsequently the Applicant’s representative has applied pursuant to s.586 of the Act for this application to be amended to be an application made under s.365 of the Act and for the Respondent’s name to be amended to reflect the Respondent as identified in the employer’s response.

[5] Directions were issued for the parties respectively to provide written submissions regarding the applications to amend.

Submissions

[6] In support of the applications to amend it was submitted on behalf of the Applicant that at the time of making the application the Applicant believed the Respondent was not a corporation. The basis for that belief was the particulars provided by the Respondent on her contract and her payslips which both referred to the Respondent as being a limited partnership.

[7] It is submitted that the application was filed within 21 days of the Applicant’s dismissal.

[8] In this case it is submitted that this application is at its initial stage of the proceedings and the Applicant has now taken appropriate steps to rectify the jurisdictional issue without delay.

[9] It is submitted that there is no substantial change in the process and the relief that can be provided to the Applicant if her current application made under s.773 is changed to be instead an application under s.365 of the Act.

[10] It is submitted in this instance the Applicant would suffer a significant injustice if she could not have her substantive application heard.

[11] If the current application is not amended the Applicant would need to file a fresh application under s.365 of the Act which would be clearly out of time. It is submitted that it is onerous for the Applicant to have to make a fresh application and to convince the Commission that there are exceptional circumstances that warrant an extension of time being granted for that late application.

[12] The Applicant submits that the irregularity in the application is only one of form and does not alter her application in any substantial way.

[13] The Respondent opposes the application to amend the type of application and submits that the Applicant was entitled to make a general protections application under s.365 of the Act because of the nature of the alleged conduct and because the Respondent is a constitutional corporation.

[14] The Respondent submits the discretion in s.586 of the Act does not extend to making such a change as is sought here. The Respondent submits that the change requested goes beyond that of form and is a substantial and substantive change that alters the nature of the application.

[15] It is submitted that s.725 of the Act means the Applicant is barred from making a s.365 general protections application until after this s.773 application is withdrawn.

The legislation

[16] The relevant sections of the Act here are set out below.

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[17] As can be seen above s.365 of the Act concerns allegations that a person was dismissed in “...contravention of this Part...”. The sections of the Act in Part 3–1 General protections concerning contraventions that could involve dismissal are ss.340, 343, 346, 348, 351, 352, 355 or 358. The sections respectively are set out below.

“340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).”

“343 Coercion

(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b) exercise, or propose to exercise, a workplace right in a particular way.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply to protected industrial action.”

“346 Protection

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note: This section is a civil remedy provision (see Part 4-1).”

“348 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note: This section is a civil remedy provision (see Part 4-1).”

“351 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti‑discrimination law:

(aa) the Age Discrimination Act 2004;

(ab) the Disability Discrimination Act 1992;

(ac) the Racial Discrimination Act 1975;

(ad) the Sex Discrimination Act 1984;

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti‑Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination Act of the Northern Territory.”

“352 Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4-1).”

“355 Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) employ, or not employ, a particular person; or

(b) engage, or not engage, a particular independent contractor; or

(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note: This section is a civil remedy provision (see Part 4-1).”

“358 Dismissing to engage as independent contractor

An employer must not dismiss, or threaten to dismiss, an individual who:

(a) is an employee of the employer; and

(b) performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note: This section is a civil remedy provision (see Part 4-1).”

“773 Application for the FWC to deal with a dispute

If:

(a) an employer has terminated an employee’s employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

“772 Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c) non-membership of a trade union;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) absence from work during maternity leave or other parental leave;

(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Note: This subsection is a civil remedy provision (see Part 4-1)...”

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

“725 General rule

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.”

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”

“730 Unlawful termination FWC applications

(1) This section applies if:

(a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).

(2) An unlawful termination FWC application is an application under section 773 for the FWC to deal with a dispute that relates to dismissal.”

[18] Section 366 of the Act requires that an application under s.365 must be made “within 21 days after the dismissal took effect”.

[19] Section 774 of the Act requires that an application under s.773 must be made “within 21 days after the employment was terminated”.

Consideration

[20] A Full Bench of the Commission considered the powers provided to the Commission by s.586 of the Act in the matter of Peter Ioannou v Northern Belting Services Pty Ltd [[2014] FWCFB 6660]:

“[14] In Mihajlovic, the Full Bench decided that the premature filing of an unfair dismissal application constituted an irregularity in the manner in which the application was made and was capable of waiver under s.586(b) of the Act.

[15] The question as to whether s.586 allows the amendment of a s.394 application so that it becomes a s.365 application has not previously been considered by a Full Bench of the Commission, although there has been at least one decision of a single member of the Commission allowing such an amendment. In other cases, applicants have decided to withdraw their unfair dismissal applications and to make fresh applications under s.365.

[16] Where a new application is made under s.365, the application must be accompanied by the prescribed application fee (s.367 and reg.3.02 of the Fair Work Commission Regulations 2009) and must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (s.366(1)). If an extension of time is sought, s.366(2) provides that the Commission may allow a further period in which to make the application if it is satisfied that:

“... there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.

[19] The legislative scheme for an unfair dismissal application is quite distinct from that pertaining to a general protections application. The matters for consideration by the Commission in determining whether there has been an unfair dismissal are specified in the Act as well as the remedies and relief available and the matters relevant to the determination of such remedies. The general protections provisions of the Act, in Chapter 3, Part 3-1 include a range of different protections (including in relation to workplace rights, industrial activities and discrimination) which are defined in the Act and which do not involve a broader assessment of “unfairness” or “harshness” against statutory criteria.

[20] The general protections are civil remedy provisions the contravention of which can lead to the imposition of financial penalties and a reverse onus of proof applies in relation to the reasons for taking adverse action. The determination of general protections applications by a court involves the exercise of judicial power whereas the Commission exercises arbitral power in respect of s.394 applications. The remedies available are also different. A compensation order made by a court is not capped and is not contingent on reinstatement being inappropriate. Injunctive relief is also available. Further the discretion to allow a further period within which to make a s.365 application is exercisable subject to similar but not the same considerations.

[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.

[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.

[23] The other reason for our conclusion relates to the provisions of Division 3, Subdivision B of Part 6-1 (Multiple Actions) of the Act. These provisions deal with cases involving a dismissal where more than one cause of action might be available for the same conduct or circumstances.

[24] We consider that the use of any power under s.586(a) of the Act to allow an unfair dismissal application to be converted into a general protections application is not permissible having regard to the multiple actions provisions of the Act. The exercise of the power under s.586 for the benefit of the applicant would achieve for the applicant indirectly that which is directly prohibited by the multiple actions provisions.

[25] The general rule in regard to applications and complaints relating to dismissal is set out in s.725. The effect of the section is to bar a person from bringing multiple actions in relation to the same dismissal. The section is in the following terms:

“725 General rule

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.”

[26] Section 729 deals with unfair dismissal applications:

“729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[27] Section 727 deals with general protections Commission applications:

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”

[28] In relation to the present matter, the effect of s.725 is that the applicant must not make an application in relation to his dismissal under s.365 unless the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy (s.729(1)(b)). In other words, s.725 of the Act operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission.

[29] The applicant’s submission that the power in s.586 should be exercised so as to allow the applicant to pursue the “more appropriate” cause of action misses the point. The multiple action provisions are, for amongst other reasons, designed to allow that to happen. The Explanatory Memorandum to the Fair Work Bill 2008 makes this clear. It provides:

“2710. In all cases the anti-double dipping provisions will not apply where the initial application has:

● been withdrawn; or

● failed for want of jurisdiction.

2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”

[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.

[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act. (References omitted)

[21] The Full Bench in that matter was concerned with an application to amend an application made under s.394 of the Act so that it was taken to have been an application made under s.365 of the Act.

[22] In this case before the Commission as currently constituted the application is to amend this s.773 application to make it a s.365 application. This raises in my view not identical but certainly similar concerns to those the Full Bench found made the application to amend beyond the power of s.586 of the Act.

[23] Whilst there are some similarities between s.365 and s.773 there are also significant differences. The range of alleged contraventions that can fall within the scope of s.365 is broader than could fall within the scope of s.773. The reasons an employer must not terminate an employee’s employment specified in s.772 (1) when compared with the reasons or circumstances specified in ss.340, 343, 346, 348, 351, 352, 355 or 358 of the Act demonstrate that s.772 (1) is considerably narrower.

[24] Whilst both applications under s.365 and s.773 must be made within 21 days this respectively is “after the dismissal took effect” and “after the employment was terminated” which are similar but different requirements.

[25] Whilst the difference in the legislative scheme between s.365 and s.773 is certainly less stark than concerned the Full Bench when comparing s.365 and s.394 they are different kinds of applications.

[26] The Full Bench concluded that that s.586 of the Act does not provide a source of power to revoke or set aside an application nor to correct or amend an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision. 1 I am of the view that this conclusion equally applies in this matter.

[27] In addition the effect of s.725 is that the Applicant must not make an application in relation to her dismissal under s.365 where an application under s.773 has been made and the circumstances provided for in s.730 (1)(b) or s.730(1A)(b) and (c) and (d) do not apply. In this case the Applicant’s s.773 application has not been withdrawn nor has it failed for want of jurisdiction nor has a certificate been issued.

[28] Consequently I am satisfied that s.725 of the Act precludes the Applicant from making a s.365 application whilst the Applicant’s s.773 application is extant. As the Full Bench decided 2 what the Applicant now seeks is for the Commission to exercise power under s.586 which would indirectly achieve that which is directly prohibited by s.725. I am bound to apply the decision of the Full Bench in this case and conclude that it is not permissible to exercise the power under s.586 to convert a s.773 application into a s.365 application.

[29] The appropriate course for the Applicant in this instance if she seeks to make an application under s.365 of the Act is to first discontinue this application that she has made under s.773.

[30] Accordingly the amendment the Applicant seeks to change this application to a s.365 application is rejected.

[31] Noting there is no objection from the Respondent to the application to correct the name of the Respondent to reflect the employer’s true legal identity I will amend the Respondent to read “ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership).”

[32] An Order [PR592527] will be issued accordingly.

COMMISSIONER

Final written submissions:

Applicant, 4 April 2017.

Respondent, 19 April 2017

 1   [2014] FWCFB 6660 at [22].

 2 Ibid., at [24].

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<Price code C, PR592526>