Silvana Cokuzovska v Jetstar Airways Pty Ltd
[2022] FWC 1411
•6 JUNE 2022
| [2022] FWC 1411 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Silvana Cokuzovska
v
Jetstar Airways Pty Ltd
(C2022/1741)
And
Ms Janelle Nedy
v
Jetstar Airways Pty Ltd
(C2022/1743)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 6 JUNE 2022 |
General protections application involving dismissal; determination of material facts prior to issuance of a certificate; jurisdiction of the Commission
This is a decision pursuant to s 589(3)(a) of the Fair Work Act 2009 (Cth) (Act) in relation to substantive applications made under s 365 of the Act by Ms Nedy and Ms Cokuzovska on 13 and 15 March 2022 respectively.
The question considered in this decision has been answered twice recently by the Commission,[1] having been raised by the same lay representative, in a similar factual context. That question is whether the Commission is empowered and obliged to determine or issue an opinion on the material facts in applications made pursuant to s 365 of the Act prior to the issuance of a certificate under s 368(3)(a). The answer to that question is no. Brief reasons are provided below.
The applications were joined by consent and directions were issued for the filing of submissions in relation to the question. In the absence of any objection,[2] I have decided to determine the applications on the papers without holding a hearing.
The argument
The applicants seek that the Commission makes findings or issues an opinion on the material facts of the dispute because:
(a)without knowing the material facts, the applicants cannot assess their respective position in respect of the dispute, nor can the parties overcome their disagreement as to disputed facts;
(b)there is nothing in the Act which restricts or limits the Commission from determining the material facts;
(c)an unspecified principle of law compels determination of material facts;
(d)it is an obligation on all jurisdictions;
(e)under s 397 of the Act the Commission is bound to determine the material facts of unlawful terminations;
(f)of the Evidence Act 1995 (Cth) s 191(1) (which defines what an “agreed fact” is); and
(g)of the time-honoured conventions of the Rule of Law, natural justice and procedural fairness (and decency, morality and ethics).
The material facts sought to be ascertained relate to the science of COVID-19, the lawfulness (and seemingly the existence) of unspecified government directions in relation to COVID-19 vaccinations and an assortment of allegations against the respondent, its related companies and high-level executives of those companies. They do not need to be set out.
There is also another point which seems to be both a material fact sought to be ascertained and an argument as to why the Commission is empowered and obliged to determine it. The respondent wrote to certain employees offering them the opportunity to recharacterise their dismissal as a resignation. The applicants contend this is fraudulent and have made a complaint to the Australian Federal Police. In the absence of determining this matter, it is said that the Commission will be complicit in an alleged fraud in breach of s 186(4) of the Act on the basis that the Commission “must be satisfied that the agreement does not include any unlawful terms.”[3]
Consideration
The nature of the Commission’s jurisdiction as it relates to applications made under s 365 is well understood. The process is both “informal” and of an “essentially preliminary character.”[4] It is preliminary in the sense that it is not determinative, as in the facts and the law’s application to them are not determined. This is evident from the manner in which the Commission can deal with applications under s 365, which is helpfully summarised by the President of the Commission in Kara Le at [10]:
[10] The FW Act limits how the Commission may deal with general protections applications involving dismissal. Section 368(1) provides that if an application is made to the Commission under s.365, the Commission must deal with the dispute, other than by arbitration. The note to s.368(1) says that the Commission may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.
The decision in Kara Le concerned an application by the same lay representative for a Full Bench to determine material facts in respect of general protections applications made under s 365 of the Act. There, the President concluded at [13] as follows:
[13]A s.368(3) certificate has not been issued to the Applicant or any of the other 9 individuals identified at [5] above, and the conditions in s.369(1) have not been satisfied in respect of the Applicant or any of the other 9 individuals. The Commission’s jurisdiction to deal with their applications is presently limited to dealing with them in a non-determinative way, such as by conference.
Consistent with the decision in Kara Le, on 8 April 2022 in response to an interim application by the same lay representative, Wilson C declined to make findings or issue an opinion on material facts in Marczenko.[5]
I am satisfied, having regard to the Commission’s role in dealing with general protections disputes involving dismissal under s 365 of the Act, and consistent the reasoning set out by the President in Kara Le, that the Commission has no jurisdiction to determine the material facts as sought.
Dealing specifically with the matters raised by the applicants in the arguments set out at [4] of this decision:
(a) Noting that the Commission’s capacity to deal with applications pursuant to s 365 of the Act is entirely dealt with in Part 3–1, the Act necessarily limits and restricts determination of the materials facts in applications under s 365.
(b) To the extent that the applicants refer to ss 397 and 186(4) of the Act, these provisions relate to the Commission’s unfair dismissal jurisdiction and enterprise agreement jurisdiction respectively. It follows that they do not directly bear upon the present applications which have been made under s 365 of the Act.
(c) While the basis of the applicants’ submissions concerning fundamental social and legal concepts is insufficiently clear, those principles do not compel the determination of material facts as contended.
(d) While the applicants demand the material facts be ascertained to assess their respective positions, this is not a matter that bears upon the way in which the Commission may deal with applications made pursuant to s 365 of the Act.
Next steps
Section 368(3)(a) of the Act provides as follows:
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect;
…
The state of satisfaction to be reached is concerned with the dispute, which means the dispute arising from a dismissal.[6]
It is apparent that the Commission’s attempts to resolve the disputes were impaired by reason of the applicants’ representative’s insistence that the Commission is obliged to first determine the material facts.
The respondent seeks the issuance of a certificate pursuant to s 368(3)(a) on the basis that it considers that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. However, the applicants’ views in respect of this matter are not known.
In these circumstances, Ms Nedy and Ms Cokuzovska are invited to advise my chambers by 4:00pm on 9 June 2022 whether a further conciliation conference is sought in respect of their applications under s 365 of the Act. Such a request may be made on the understanding that the applicants’ lay representative is not entitled to appear at a further conference as of right and the Commission may refuse the representative permission to appear as an exercise of the Commission’s discretionary powers in s 589 of the Act taking into account the matters in ss 577 and 578 of the Act.
In the absence of a response from Ms Nedy and Ms Cokuzovska within the timeframe specified at [16], a certificate pursuant to s 368(3)(a) of the Act will issue in respect of both applications.
DEPUTY PRESIDENT
[1] Ebony Marczenko v Jetstar Airways Limited; Catherine Virdo v Jetstar Airways Limited; Ashleigh Marie Wilson v Jetstar Airways Limited[2022] FWC 904 (Marczenko); Mrs Kara Le v Virgin Australia Airlines Pty Ltd[2022] FWC 269 (Kara Le)
[2] Directions dated 13 May 2022 at [3]
[3] Applicants’ submissions dated 15 May 2022
[4] Shea v Truenergy Services (No 1) (2012) 204 FCR 456 at [90] (Shea (No 1))
[5] Marczenko at [19]
[6] Shea (No 1) at [85]
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