Sarah Etemi v Canterbury Child Care Centre
[2011] FWA 5936
•12 SEPTEMBER 2011
[2011] FWA 5936 |
|
DECISION |
Fair Work Act 2009
s.773—Termination of employment
Sarah Etemi
v
Canterbury Child Care Centre
(C2011/5225)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 12 SEPTEMBER 2011 |
Application to deal with an unlawful termination dispute - application to amend application
[1] On 22 July 2011 Ms.Sarah Etemi applied under s.773 of the Fair Work Act 2009 for Fair Work Australia to deal with an unlawful termination dispute. The matter was listed for conciliation. This conference was cancelled when the Canterbury Child Care Centre advised that it had not been served with a copy of the application. Service was effected and a new conference was listed for 31 August 2011.
[2] Canterbury Child Care Centre then applied on 22 August 2011 for the matter to be dismissed on jurisdictional grounds without a hearing or conference. Ms.Etemi, who was unrepresented, responded on two occasions. I decided not to vacate the conference or dismiss the matter at that stage. Canterbury Child Care Centre advised that it would only attend the conference by telephone.
[3] The applicant and her representative, Mr Peter Hull, attended the conference. Ms Sally Crawford-Brown, Director, and Ms Jane Webb, Owner, of the Canterbury Child Care Centre and their representative, Ms Alexandra Klimovics of Mason Sier Turnbull attended by telephone.
[4] Mr.Hull made a number of submissions, including that the application be amended pursuant to s.586 so that it was made under s.365 rather than s.773. He submitted that there was no change of substance if the amendment was made, the applicant had been unrepresented, and the applicant claimed that she had received advice to make the application under s.773.
[5] Canterbury Child Care Centre opposed the amendment application on various grounds, and argued that the matter should be dismissed. It submitted that Ms.Etemi was not eligible to make an application under s.773, as she was entitled to make an application under s.365, and s.723 prevents such an application in those circumstances. It also submitted that if an amendment was made it should be provided with adequate particulars of the allegations made against it.
[6] Given the views of the parties the matter was conducted by conference (ss.397-399).
Statutory Provisions
[7] Section 773 provides that an application may be made if a termination of employment is in contravention of certain prohibitions contained in s.772. However, s.723 provides:
‘Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.’
[8] Section 365 provides:
‘Application for FWA to deal with a 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 FWA for FWA to deal with the dispute.’
[9] The distinction between section 365, which is contained in Part 3-1 of the Act, and s.772, which is contained in Part 6-4 of the Act, is explained in paragraph 1342 of the Explanatory Memorandum to the then Bill:
‘Part 3-1 does not rely on the external affairs power in the Constitution in the same way as the existing unlawful termination protections (which apply to all employees in Australia). To maintain existing protections, Division 2 of Part 6-4 provides for unlawful termination protections for employees who do not have a remedy under this Part. This ensures that every employee in Australia has a remedy for unlawful termination.’
[10] I am satisfied that Ms.Etemi is entitled to make an application under s.365. Indeed no real issue with that proposition was taken by Mr.Hull. The question then arises of whether or not the application should be amended as sought.
Authorities
[11] In Visscher v. BHP 1a Full Bench of the then Australian Industrial Relations Commission considered the terms of s.111(1)(p) and (q) as it then was:
‘The extent of the powers conferred by s.111(1) is not defined. It is extremely wide. In re Coldham; ex p. Australian Building Construction Employees and Builders Labourers Federation Gibbs CJ, Wilson and Dawson JJ were concerned with, amongst other powers, those in s.41(1)(k) and (l) of the Conciliation and Arbitration Act 1904. Those two subparagraphs were in very similar terms to s.111(1)(p) and (q) of the Act. Their honours said:
“This Court of course recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees’ Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies “in relation to” “any . . . proceedings before the Commission”. The word “proceedings” has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s.41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s.41 are inapplicable to the particular proceedings in question.”
It is particularly relevant to the argument advanced by Mr Visscher that the Court would permit the use of the power in circumstances where a notice is so defective that it fails to institute the desired proceeding. In that case it is still open to the Commission to use the power. Raffaelli C’s action in correcting the record is well within the scope of s.111(p) and (q) as discussed in Coldham.’
[12] In Maher v. Mulgowie Fresh Pty Ltd 2 Collier J granted an application to amend an application filed pursuant to s.773 of the Fair Work Act 2009 in circumstances similar to the present, namely that the applicant was entitled to file an application pursuant to s.365 and was therefore prevented by s.772 from making an application pursuant to s.773. Collier J considered the relevant Federal Court Rules relating to amending documents, and said:
- The application to amend the application comes very early in this litigation.
- There are no case management issues which might persuade the Court to refuse the application for leave to amend, as contemplated in Aon Risk Services Australia Limited v Australian National University(2009) 239 CLR 175.
- I note Ms Brace’s submissions concerning the absence of common law or statutory authority for an order to amend the substantive application as sought by Mr Maher. However I consider that O 13 r 2(7) of the Federal Court Rules confers on this Court power of sufficient breadth to do so.
- No prejudice has been demonstrated by Mulgowie should the Court grant Mr Maher leave to amend his substantive application. So, for example:
- I note Mr Maher’s claim that he was not legally represented before Fair Work Australia, and fell into error in respect of the legislative basis of his application. I note further that this error was not drawn to his attention by Fair Work Australia, which issued a certificate pursuant to s 777.
- It is common ground that Mr Maher is out of time to commence a fresh application before Fair Work Australia. He would be significantly prejudiced should the Court refuse him leave to amend his existing substantive application.
- I note that the objectives of the Act include the provision of workplace relations laws that are fair to working Australians (s 3(a)) and which enable fairness and representation at work and the prevention of discrimination (s 3(e)). In my view, and in the apparent absence of prejudice to Mulgowie, it would be inconsistent with the Acts’ objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint.’
‘In this case I see no reason why the Court should not grant leave to Mr Maher to amend his substantive application on the terms he has sought. I form this view because:
- Mulgowie has not identified any costs incurred by it which would be thrown away should leave be granted to Mr Maher to amend his application;
- It appears that no new factual or legal issues would be raised by the amendment to the substantive application, other than the substitution of the statutory basis of the application;
- Mulgowie has been on notice of Mr Maher’s intentions with respect to seeking leave to amend the substantive application since Mr Tayler’s letter of 2 March 2010.
Decision
[13] Firstly, it is clear that there is jurisdiction to grant the application, having regard to Visscher, Maher and other decisions. Section 586 is in almost identical terms to the old s.111(1)(p) and (q) considered in Visscher.
[14] Secondly, the question arises of whether or not I should do so as a matter of discretion. In this matter Ms.Etemi was unrepresented and made an understandable mistake, namely failing to take into account the distinction between s.365 and s.773, and she claims that she was advised to make a s.773 application. There are no case management issues which might persuade me to refuse the application for leave to amend, such as arose in Aon Risk Services Australia Limited v. ANU 3, where the High Court concluded that case management objectives of timely and cost-effective resolution of disputes should be followed because of the lengthy delay and the fact that the employer would face a completely new case. There is some authority for the proposition that if the amendment fundamentally alters the nature of the application I should not do so: eg. Haydon4, where the amendment was not a fundamental alteration, and other decisions where it was, such as Bennett5, Winters6, and Reisenberg7.
[15] The present matter does not involve a fundamental alteration in the nature of the application. It is the same matter but brought under a different section of the Act, to rectify an understandable failure to distinguish between s.365 and s.773. The amendment is sought at an early stage in the proceedings, and no prejudice to the employer or additional costs appear to be relevant.
[16] On the other hand if Ms.Etemi was forced to withdraw the application and lodge another application it would be out of time, and therefore there would need to be exceptional circumstances justifying an extension of time (s.366). There would be significant prejudice to Ms.Etemi. Given the objects of the Act it would it ‘would be inconsistent with the Act’s objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint’, as Collier J concluded in Maher. The circumstances before me are similar in nature to those dealt with by Collier J in Maher, where he allowed the amendment sought.
[17] I did however accede to the reasonable request made by Ms.Klimovics that the employer be given full and adequate particulars of the case against it, now that Ms.Etemi is represented. I directed that a draft amended application be provided within seven (7) days which provided those full and adequate particulars. An amended application was forwarded to me and to the employer on 6 September 2011.
[18] Pursuant to s.586 I allow amendment of the application lodged by Ms.Etemi so that it is in the form filed on 6 September.
DEPUTY PRESIDENT
Appearances:
Mr Peter Hull for the applicant
Ms Alexandra Klimovics of Mason Sier Turnbull for the respondent
1 Munro J, Duncan SDP, Roberts C, PR937708, at 19
2 Collier J, Federal Court of Australia, [2010] FCA 439 at 22
3 (2009) 239 CLR 175
4 [2008] AIRC 403
5 [2007] AIRC 212
6 [2008] AIRC 863
7 [2010] FWA 4216
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