Sophokleous v Dennis Scott and Company Pty Ltd
[2020] FCCA 891
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOPHOKLEOUS v DENNIS SCOTT AND COMPANY PTY LTD & ORS | [2020] FCCA 891 |
| Catchwords: WORDS AND PHRASES – “in relation to”. |
| Legislation: Fair Work Act 2009, ss.365, 368, 394, 725, 726, 727, 728, 729, 730, 731, 732, 733, 772, 773, 776 |
| Cases cited: Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237 O'Grady v Northern Queensland Company Limited (1990) 169 CLR 356 |
| Applicant: | KYLIE SOPHOKLEOUS |
| First Respondent: | DENNIS SCOTT AND COMPANY PTY LTD |
| Second Respondent: | RENE SCHOLL |
| Third Respondent: | DOMINIQUE KENCALO-SCHOLL |
| File Number: | SYG 2567 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6 April 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Miles |
| Solicitors for the Applicant: | Haywards |
| Counsel for the Respondents: | Mr M Easton |
| Solicitors for the Respondents: | Carroll & O'Dea |
ORDERS
The application in a case filed on 20 December 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2567 of 2019
| KYLIE SOPHOKLEOUS |
Applicant
And
| DENNIS SCOTT AND COMPANY PTY LTD |
First Respondent
| RENE SCHOLL |
Second Respondent
| DOMINIQUE KENCALO-SCHOLL |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant was employed by the first respondent as Business Development Manager and Sales Manager. She was dismissed on 1 August 2019.
On 13 August 2019 the applicant made a worker’s compensation claim (“Compensation Claim”) alleging that she suffered a stress related injury, together with anxiety and depression, as a result of the way she had been treated by the respondents when she was an employee of the first respondent. She arguably expanded her claim later to allege that her dismissal contributed to the injury she alleged she suffered.
On 2 October 2019 the applicant commenced this proceeding alleging unlawful adverse action in the form of dismissal (“General Protections Claim”) and other, related contraventions of the Fair Work Act 2009 (“FW Act”). She also alleges that the first respondent’s directors, the second and third respondents, were involved in the alleged contraventions.
On 20 December 2019 the respondents filed an application in a case in which they sought the following orders:
1The Applicant is permanently restrained from proceeding with, or taking any further action or steps in or in relation to, her general protections court application in relation to her dismissal from her employment with the First Respondent.
2.The claims in paragraphs 3, 4, 23-30, 32(b), 37-42, 51-53, 54(b), 55(a)(ii), 55(c)(ii) and 55(d) of the Applicant's Statement of Claim filed on 8 November 2019 are permanently stayed pursuant to Rule 13.10(a) or Rule 13.10(c) of the Federal Circuit Court Rules.
3.The proceedings against the Second Respondent and the Third Respondent are permanently stayed pursuant to Rule 13.10(a) or Rule 13.10(c) of the Federal Circuit Court Rules.
4.Paragraphs 5, 31, 32(a), 48 and 55 of the Applicant's Statement of Claim filed on 8 November 2019 are permanently stayed insofar as those paragraphs relate to the Applicant's general protections court application.
The respondents refer to and rely on s.725 of the FW Act which prohibits persons from bringing more than one proceeding “in relation to” a particular dismissal. The present proceeding is plainly an application “in relation to” the applicant’s dismissal on 1 August 2019 and the respondents contend that the Compensation Claim is also an application or complaint “in relation to” that dismissal. As the applicant put it in her written submissions responding to the application in a case:
The single issue that the Court must determine is whether the Application for workers compensation made by Ms Sophokelous [sic] under the Workers Compensation Act 1987 (NSW) … is an application or complaint made under a law of NSW in relation to the dismissal as provided for in section 732 of the Fair Work Act.
If the Compensation Claim is an application or complaint “in relation to” the dismissal of 1 August 2019, the applicant is prevented by s.725 from seeking relief “in relation to” that dismissal in this proceeding.
These reasons concern the respondents’ application in a case. For the reasons that follow, it will be dismissed.
LEGISLATIVE PROVISIONS
Fair Work Act
The FW Act relevantly provides that:
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.
…
728 General protections court applications
This section applies if:
(a)a general protections court 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.
…
732 Applications and complaints under other laws
(1)This section applies if:
(a)an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b)the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2)An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3)For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.
Federal Circuit Court Rules
Rule 13.10 of the Federal Circuit Court Rules 2001 (“Rules”) provides that:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…
(c)the proceeding or claim for relief is an abuse of the process of the Court.
STATEMENT OF CLAIM
The particular paragraphs of the Statement of Claim to which the respondents objected are set out in the annexure to these reasons.
EVIDENCE
The respondents relied upon three affidavits of their solicitor, Janine Smith, sworn on 19 December 2019, 7 and 21 February 2020 respectively. Ms Smith’s evidence was that:
a)on 1 August 2019 the first respondent dismissed the applicant for misconduct;
b)on or about 13 August 2019 the applicant lodged the Compensation Claim under s.65 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Act 1987 (NSW);
c)on or about 19 August 2019, the applicant made a general protection application to the Fair Work Commission relating to her dismissal and on 30 September 2019 a certificate under s.368 of the FW Act was issued;
d)on 1 October 2019 the applicant’s Compensation Claim payments increased;
e)the applicant commenced this proceeding on 4 [recte 2] October 2019; and
f)on 2 December 2019 the first respondent’s worker’s compensation insurer advised the solicitors acting for the first respondent in this proceeding that “one of Ms Sophpkleous [sic] workers compensation claim relates to her dismissal from employment with Dennis Scott and Company Pty Limited”.
Various documents produced on subpoena were annexed to Ms Smith’s affidavits. Most relevantly they were:
a)the applicant’s workers compensation claim form dated 13 August 2019 in which she alleged that she had been injured on 19 June 2019, which the form said was the date she ceased work. She said that the injury/condition “occurred” on 28 March 2019 and that she had:
Suffered ongoing victimisation, bullying, perpetually ignored and harassed by Rene Scholl, Dominique Kencalo-Scholl and Patricia Waine following the death of my father David Burke on 13 March 2016.
She alleged that this conduct had caused her:
Stress related injury, anxiety and depression. All areas of my body have been affected, in particular my mental wellbeing.
b)a statement dated 13 August 2019 given by the applicant to the workers compensation insurer’s investigator in which she said that events surrounding her dismissal were putting a lot of stress on her and
My husband and I don't sleep..[sic] We are completely consumed by this. I have never felt such despair in all my life.
c)the report of the insurer’s investigators dated 9 October 2019 who stated that the applicant had identified two causes of her psychological injury being:
i)the behaviour and actions of the first respondent following the death of her father; and
ii)the termination of her employment; and
d)a medico-legal report obtained by the insurer in which a medical expert diagnosed the applicant as having an adjustment disorder with depressed mood. The report also said:
In this case, the death of her father and the subsequent exclusion of herself and her husband from the family business are the stressors to which she has reacted.
RESPONDENTS’ SUBMISSIONS
The respondents submitted that a claim in relation to dismissal could be made under the Workers Compensation Act and referred in that regard to ss.9 and 11A of that Act. They argued that it would be consistent with the statutory context and purpose of s.725 (namely, to prevent an applicant from being twice compensated for one dismissal) for a workers compensation claim to be an application or complaint “in relation” to dismissal if the injury the subject of the claim was a result of a dismissal. The respondents argued that the applicant’s Compensation Claim was indeed such a proceeding because:
a)her 13 August 2019 statement says that:
95.Dominic [sic] and Rene are going to be hauled in front of a court eventually. She has lost 50 per cent of our workforce and we will be pursuing them with adverse action proceedings following our unlawful terminations. I can’t believe this.
96.My husband and I don’t sleep. We are completely consumed by this. I have never felt such despair in all my life.
b)the workers compensation claim form states that her injury was “stress-related injury, anxiety and depression. All areas of my body have been affected, in particular my mental wellbeing”;
c)according to the insurer’s investigation report, one of the two core work-related issues which led to her psychological injury was the termination of her employment; and
d)the applicant relied upon the same facts and events in her Compensation Claim as in this proceeding.
The respondents also cited authorities discussing the scope of the term “in relation to” in support of their contention that the Compensation Claim was “in relation to” the dismissal.
The respondents further submitted that because the Compensation Claim had been made before this proceeding was commenced, those elements of this case that related to the dismissal were invalidated by the FW Act and ought to be struck out.
APPLICANT’S SUBMISSIONS
The applicant did not dispute that s.728 applied to this proceeding or that s.725 operated as a personal prohibition on bringing this proceeding if another one of the sections in subdiv.B of div.3 of pt.6 of the FW Act (ss.726 to 733) was engaged. The issue was whether her Compensation Claim was “an application or complaint made under a law of NSW in relation to the dismissal as provided for in s.732 of the [FW Act]”.
The applicant submitted that s.732 did not apply to the Compensation Claim because that claim concerned an injury arising during the course of her employment, ie prior to her dismissal. Specifically, she argued that her claim had referred to the respondents’ conduct in the period before she took sick leave in June 2019, rather than to the dismissal which had occurred twelve days before the claim form was completed and signed. She submitted that the application was therefore not “in relation to” the dismissal. She pointed out in this connection that:
a)the injury had first come to light on 27 March 2019;
b)from 19 June 2019 she had been unable to work;
c)her psychiatrist was of the opinion that her psychiatric injury had been predominately caused by her workplace conflict with the directors of first respondent and reported that her symptoms had commenced around 25 March 2019; and
d)even if her injury were taken to have started on 23 July 2019, being date of her injury as recorded by the insurer, it nevertheless occurred prior to her dismissal.
The applicant submitted that although she had included in her statement to the insurer’s investigator events that occurred after the onset of her injury, this did not necessarily mean that her Compensation Claim was in relation to her dismissal.
As to the proper construction of the FW Act, the applicant argued that the words “in relation to” when used in s.732 refer not only to the relevant application or complaint being one which is “in relation to” the dismissal but to the law under which the application or complaint is brought also being “in relation to” dismissal. She submitted that s.732(2) pointed to the “other” law under which the application or complaint was made having to be one which could provide a remedy “in relation to the dismissal”. The implication of this argument was that for s.725 to be engaged in this case, the Workers Compensation Act had to be a law “in relation to” dismissal.
In support of that argument, the applicant postulated the situation of a person injured in a motor vehicle accident who was subsequently dismissed from his or her employment and who made a claim for compensation, presumably under the relevant motor accidents compensation regime. She argued that even if the injured person’s claim included an element for loss of employment, the complaint did not thereby become one in relation to dismissal because:
… the legislative scheme is in relation to injuries caused by motor vehicle collisions and does not provide any remedy in relation to dismissal.
The applicant argued that the Workers Compensation Act was not a law “in relation to” dismissal, except in relation to its proscription on dismissals within six months of an injury which is not an issue in this case. The argument ran that the primary purpose of the Workers Compensation Act was to provide for the compensation and rehabilitation of workers who suffer injury arising out of, or in the course of, their employment. The applicant argued that s.11A, relied on by the respondents, did not provide any remedy for dismissal.
The applicant submitted that the Court should conclude that, for the purposes of s.732 of the FW Act, a claim made under the Workers Compensation Act for compensation in relation to an injury is not an application or complaint under a law in relation to dismissal.
CONSIDERATION
Authorities
In Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237 Lucev FM dealt with the interaction of ss.725, 728 and 732 of the FW Act. His Honour considered a number of authorities in which the meaning of the words “in relation to” was considered, including O'Grady v Northern Queensland Company Limited (1990) 169 CLR 356, HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 and Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510.
In HP Mercantile Pty Ltd v Commissioner of Taxation Hill J said about the words “relates to” in s.11-15(2)(a) of the A New Tax System (Goods and Services Tax) Act 1999, Stone and Allsop JJ agreeing:
It was common ground that the words “relates to” are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found. (emphasis added) (at 563)
In Travelex Ltd v Commissioner of Taxation, French CJ and Hayne J said, citing Hill J’s comments in HP Mercantile v Commissioner of Taxation:
It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the inquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights. (references omitted) (at 519-520 [25])
Lucev FM concluded in Birch v Wesco Electrics that:
The phrase “in relation to” does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”. (references omitted) (at 259-260 [74])
His Honour concluded that the statutory purpose of s.725 is to limit an applicant to a single remedy in relation to a particular dismissal, the purpose implicit in the explanation of the relevant division in paras.2707-2716 of the Explanatory Memorandum to the Fair Work Bill 2008.
Scope of subdiv.B of div.3 of pt.6 of the Fair Work Act
The present issue is whether both this proceeding and the Compensation Claim are proceedings, using that term loosely, “in relation to” the applicant’s dismissal from the first respondent’s employ.
At the outset, I record that I do not accept the applicant’s argument that the words “in relation to” require the law under which the non-FW Act claim is made to be a law “in relation to” dismissal. Section 725 says that:
A person who has been dismissed must not make an application or complaint … in relation to the dismissal … .
Section 728 speaks of
(a)a general protections court application [that] has been made … in relation to the dismissal …
and s.732(1) speaks of:
(a)an application or complaint under another law [that] has been made … in relation to the dismissal … .
Those provisions all speak of an application or complaint made in relation to the dismissal. Importantly, they focus on the nature of the allegations made in each application or complaint, not on the sort of law under which the allegation or complaint is made. The terms of s.732(2) do not compel a different conclusion. Its reference to an application or complaint being made “under another law” relates only to the fact and nature of the allegation being made, not to its merits and whether the law relied on actually applies to the dispute.
The conclusion that the laws under which proceedings are brought are not relevant to the s.725 prohibition is supported by the fact that ss.728 and 732, or ss.726, 727, 729, 730 and 731 for that matter, do not apply if the proceedings they refer to has failed for want of jurisdiction. That implies that, until that point, a proceeding is a proceeding “in relation to” a dismissal notwithstanding that it has been brought under an inapplicable law: cf Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342 at 364-365 [93]-[98].
Meaning of “in relation to” in subdiv.B of div.3 of pt.6 of the Fair Work Act
As the authorities indicate, the meaning that is to be attributed to the words “in relation to” when they are used in subdiv.B of div.3 of pt.6 of the FW Act is to be determined by reference to their context. Given that those words are used in every section in that subdivision, including s.725 to which every other section in the subdivision is linked, the relevant context is the subdivision itself, considered as a whole. It is necessary therefore to consider how those words are used in the subdivision.
Section 726 relevantly provides:
726 Dismissal remedy bargaining order applications
(1) This section applies if:
(a)a dismissal remedy bargaining order application has been made by, or on behalf of, the person in relation to the dismissal; and
…
(2)A dismissal remedy bargaining order application is an application for a bargaining order made on the ground that the person was dismissed in contravention of the good faith bargaining requirement in paragraph 228(1)(e).
The relationship between a dismissal and an application or complaint of the sort referred to in s.726 is that the former is an essential element of the cause of action alleged in the latter. The rights and wrongs of the dismissal are the application or complaint’s central concern.
Section 727 relevantly provides:
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
…
(2)A general protections FWC application is an application under section 365 for FWC to deal with a dispute that relates to dismissal.
Section 365 concerns applications to the Fair Work Commission in which it is alleged that an employee has been dismissed in contravention of the general protections provisions of the FW Act. The relationship between a dismissal and an application or complaint of the sort referred to in s.727 is that the former is an essential element of the cause of action alleged in the latter.
Section 728, which was quoted earlier, relevantly provides:
728 General protections court applications
This section applies if:
(a)a general protections court application has been made by, or on behalf of, the person in relation to the dismissal …
“General protections court application” is defined in s.368(4) as:
… an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
Such an application concerns applications to a court in which it is alleged that an employee has been dismissed in contravention of the general protections provisions of the FW Act. The relationship between a dismissal and an application or complaint of the sort referred to in s.728 is that the former is an essential element of the cause of action alleged in the latter.
Section 729 relevantly provides:
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
…
(2)An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
Section 394 of the FW Act provides that a person who has been dismissed may apply to the Fair Work Commission for a remedy for unfair dismissal. The relationship between a dismissal and an application or complaint of the sort referred to in s.729 is that the former is an essential element of the cause of action alleged in the latter.
Section 730 relevantly provides:
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
…
(2)An unlawful termination FWC application is an application under section 773 for the FWC to deal with a dispute that relates to dismissal.
Section 773 provides that if an employee’s employment has been terminated in contravention of subsection 772(1) of the FW Act, the employee may apply to the FWC for relief. Subsection 772(1) provides that an employer must not terminate an employee’s employment for any one of a number of listed reasons. Unlawful dismissal, described as termination of employment, is an essential element of a proceeding to which s.730 applies, with the consequence that the relationship between a dismissal and such a proceeding is that the former is an essential element of the cause of action alleged in the latter.
Section 731 relevantly provides:
731 Unlawful termination court applications
This section applies if:
(a)an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; …
“Unlawful termination court application” is defined in s.776(4) as:
… an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).
Unlawful dismissal, described as termination of employment, is an essential element of a proceeding to which s.731 applies, with the consequence that the relationship between a dismissal and such a proceeding is that the former is an essential element of the cause of action alleged in the latter.
Section 732 was quoted earlier and is headed “Applications and complaints under other laws”. It concerns actions or complaints brought under laws other than the FW Act and relevantly provides:
732 Applications and complaints under other laws
(1) This section applies if:
(a)an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; …
Section 733 provides:
733 Dismissal does not include failure to provide benefits
For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.
In the context of the proceedings with which this subdivision of the FW Act is concerned, by excluding claims associated with or dependent on a dismissal, that provision has the effect of limiting the scope of the words “in relation to the dismissal” in the other sections in the subdivision to claims which are concerned with a dismissal itself.
It was noted earlier that s.725 of the FW Act is concerned to prevent an applicant from having more than one of the various sorts of proceedings referred to subdiv.B of div.3 of pt.6 on foot at the same time. To achieve that outcome, the nine sections in that subdivision must operate together in an integrated manner. The use of common terminology in nine sections which have to operate together in an integrated manner points to that terminology having a common meaning across all of those provisions. That is to say, the fact that the provisions of subdiv.B of div.3 of pt.6 have an integrated operation is a strong indication that the words “in relation to” have the same meaning wherever they are used in that subdivision.
It was observed earlier that ss.726, 727, 728, 729, 730 and 731 are concerned with proceedings in which an employee’s dismissal from his or her employment is an essential element of the relevant cause of action provided by the FW Act. That in turn indicates, at least in relation to those sections and the proceedings to which they refer, that s.725 is concerned to prevent multiplicity or duplicity of proceedings in which a particular dismissal is an essential part of the cause of action. There is no reason to suppose that s.725 seeks to do in relation to s.732 and actions under “other” laws anything different from what it does in relation to the FW Act proceedings referred to in ss.726, 727, 728, 729, 730 and 731, namely to limit applicants to one pending proceeding in which a particular dismissal is an essential element of the cause of action. Section 733 supports such a conclusion by making it clear that claims to other, subsidiary rights are not part of the subdivision’s scheme.
Those considerations lead to the conclusion that to be, for the purposes of s.732, an application or complaint under a law other than the FW Act that is “in relation to” a dismissal, a proceeding must be one in which the dismissal is an essential element of the cause of action alleged.
Is the Compensation Claim a proceeding “in relation to” the dismissal?
I have found that for an application or complaint to be a proceeding “in relation to” a dismissal for the purposes of subdiv.B of div.3 of pt.6 of the FW Act, the alleged dismissal must be an essential element of the cause of action alleged. The central question in this proceeding is whether the Compensation Claim is such an application or complaint and I have concluded that it is not.
The cause of action alleged in the Compensation Claim is injury suffered by the applicant. Certainly it seems that the fact of the dismissal will be relied on as a matter which is causative of or has contributed to the injury alleged but the dismissal will only be a matter of fact perhaps supporting a finding of injury, not an element of the cause of action grounding the claim. The alleged injury is the essence of the cause of action pressed in the Compensation Claim. I should record, although it is not relevant to that conclusion, that I accept the combined effect of ss.9 and 11A of the Workers Compensation Act is that in certain circumstances a person will be entitled to a remedy under that Act for psychological injury caused by a dismissal.
CONCLUSION
I find that the Compensation Claim is not an application or complaint that falls within the scope of s.732 of the FW Act. That being so, there is no objectionable duplicity of proceedings and the respondents’ application in a case will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 22 April 2020
ANNEXURE
A The Parties
…
3. The Second Respondent Rene Scholl ("Mr Scholl"):
(a) is a natural person;
(b)was at all material times a 50% shareholder of Dennis Scott & Co;
(c)at all material times a servant or officer or agent of Dennis Scott & Co;
(d)was at all material times a director of Dennis Scott & Co; and
(e)is the father of the Third Respondent.
4.The Third Respondent Dominique Kencalo-Scholl (“Ms Kencalo-Scholl”):
(a)is a natural person;
(b)was employed as an office assistant from 1998 - 2002 until she left to live overseas. She was paid as a part-time technical assistant from July 2011 until the death of David Burke on 15 March 219 [sic]. In this period she never had an active role in the business nor attended the premises.
(c)at all material times since 25 March 2019 she performed a role as a servant or officer or agent of Dennis Scott & Co;
(d)at all times since 31 May 2019 a director or de facto director of Dennis Scott & Co; and
(e)is the daughter of the Third Respondent.
B Jurisdiction of the Federal Circuit Court
5.Ms Sophokleous is an employee affected by each of the contraventions of sections 44 and 340(1) of the Fair Work Act and has standing to commence the proceedings pursuant to section 539 item 11 of the Fair Work Act.
…
Stop Bullying Application
23.Ms Sophokleous was absent from the workplace from 19 June 2019, claiming sick leave.
24.On 21 June 2019 Ms Sophokleous made a complaint to Mr Scholl in relation to workplace bullying.
Particulars
Letter from Ms Sophokleous to Mr Scholl dated 21 June 2019.
25. Mr Scholl did not reply to Ms Sophokleous' complaint.
26.On 3 July 2019 Ms Sophokleous made an Application in the Fair Work Commission for an order for the Dennis Scott & Co, Mr Scholl and Ms KencaloScholl to stop their bullying conduct of Ms Sophokleous and Mr Sophokleous. ("Stop Bullying Application")
27.The bullying behaviour alleged in the Stop Bullying Application included that:
(a)Mr Scholl and Ms Kencalo-Scholl had become extremely hostile, making it a very difficult environment to be in with constant accusations, abuse and bullying of both Mr Sophokleous and Ms Sophokleous, withholding wages and cancelling corporate credit cards without notice;
(b)Mr Scholl screamed at Mr Sophokleous and accused him of lighting a chemical fire at the end of June 2019 in an industrial bin. The fire was in fact caused by Mr Scholl himself, disposing of chemicals inappropriately.
28.A conference, pursuant to section 592 of the Fair Work Act, to deal with the Stop Bullying Application was scheduled for 11am on 2 August 2019.
29.On 1 August 2019 the solicitors for Dennis Scott & Co wrote to the solicitors for Ms Sophokleous stating that:
(a)Ms Sophokleous had been dismissed on 1 August 2019 with immediate effect; and
(b)As Ms Sophokleous was no longer employed by Dennis Scott & Co, it was their view that the Commission had no jurisdiction to deal with her Application.
Particulars
Email from Ms Janine Smith to Mr Phil Hayward dated 1 August 2019 at 3:49 pm.
30.On 1 August 2019 the solicitors for Dennis Scott & Co wrote to the Fair Work Commission:
(a)Stating that Ms Sophokleous had been dismissed on 1 August 2019 with immediate effect; and
(b)as Ms Sophokleous was no longer employed by Dennis Scott & Co, requesting that:
(i)Dennis Scott & Co be excused from filing a Response;
(ii)The Conference Hearing be vacated; and
(iii)The Application be dismissed.
Particulars
(i)Email from Ms Janine Smith to Mr Victor Song dated 1 August 2019 at 3:56 pm.
(ii)Letter from Ms Janine Smith to Mr Victor Song dated 1 August 2019 and attached to the email at (i).
Dennis Scott & Co's dismissal of Ms Sopholkleous [sic]
31.On 1 August 2019 Mr Scholl and Ms Kencalo-Scholl on behalf of Dennis Scott & Co dismissed Ms Sophokleous from her employment, effective immediately.
Particulars
(i)Email from Mr Rene Scholl to Ms Sophokleous dated 1 August 2019 at 3:20 pm.
(ii)Letter from Dennis Scott & Co to Ms Sophokleous, signed by Mr Scholl and Ms Kencalo-Scholl dated 1 August 2019 and attached to the email at (i).
32. The purported reasons for the dismissal of Ms Sophokleous:
(a)concerned events allegedly occurring between 1 April 2019 and 2 July 2019; and
(b)Included that Ms Sophokleous had made the complaint pleaded at paragraph 24 above.
E. Contraventions of the Fair Work Act;
Ms Sophokleous's workplace rights
37.Ms Sophokleous has workplace rights as defined in section 341 of the Fair Work Act in that Ms Sophokleous had the right to:
(a)initiate proceedings under the Fair Work Act; and
(b)make a complaint or inquiry in relation to her employment;
Particulars
Section 341(1) of the Fair Work Act.
38.In sending the letter dated 21 June 2018 as pleaded at paragraph 24 above, Ms Sophokleous exercised or proposed to exercise the workplace right pleaded in paragraph 37(b).
39.In making the Stop Bullying Application, Ms Sophokleous exercised or proposed to exercise the workplace rights pleaded in paragraph 37.
Adverse action
40.By dismissing Ms Sophokleous on 31 July 2019 Dennis Scott & Co took adverse action against Ms Sophokleous as defined in item 1(a) of the table in section 342 of the Fair Work Act. (“Adverse Action”)
41.Dennis Scott & Co took the Adverse Action for reasons that included:
(a)that Ms Sophokleous exercised the workplace rights pleaded in paragraph 37; and/or
(b)that Ms Sophokleous proposed to exercise the workplace rights pleaded in paragraph 37; and/or
(c)to prevent the exercise by Ms Sophokleous of the workplace rights pleaded in paragraph 37.
Particulars
(i)Paragraph 32(b) above;
(ii)Ms Sophokleous relies upon section 361 of the Fair Work Act.
42.By taking the Adverse Action, for reasons that included the reasons alleged in paragraphs 41(a), (b) and/or (c) or any of them, Dennis Scott & Co contravened section 340(1) of the Fair Work Act. (“First Contravention”)
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G. Failure to pay long service leave
48.In the premise of paragraph 43 above, Ms Sophokleous' services were terminated by Dennis Scott & Co for reasons other than Ms Sophokleous' serious and wilful misconduct.
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H. Involvement of Mr Scholl in the contraventions
51.Mr Scholl was a person involved, as defined in section 550(2)(a) and (c) of the Fair Work Act, in the 1st Contravention in that he:
(a)received the complaint made by Ms Sophokleous pleaded in paragraph 24 above;
(b)was a Respondent to the Stop Bullying Application made by Ms Sophokleous;
(c)participated in or assented to the Adverse Action by Dennis Scott & Co; and
(d)the reasons of Dennis Scott & Co in taking the Adverse Action include the reasons of Mr Scholl.
I. Involvement of Ms Kencalo-Scholl in the contraventions
52.Ms Kencalo-Scholl was a person involved, as defined in section 550(2)(a) and (c) of the Fair Work Act, in the 1st Contravention and the 2nd Contravention in that she:
(a)knew that Ms Sophokleous had made the complaint pleaded in paragraph 24 above;
(b)was a Respondent to the Stop Bullying Application made by Ms Sophokleous;
(c)participated in or assented to the Adverse Action on behalf of Dennis Scott & Co; and
(d)the reasons of Dennis Scott & Co in taking the Adverse Action include the reasons of Ms Kencalo-Scholl.
J. Loss and Damage
53.By reason of the contraventions of sections 340(1) and 351(1) of the Fair Work Act by Dennis Scott & Co, Ms Sophokleous has suffered loss and damage:
(a)Offence, humiliation and distress;
(b)Loss of income and other benefits as an employee of Dennis Scott & Co; and
(c) Damage to personal and professional reputation.
K. Orders
54.Ms Sophokleous seeks declarations that Dennis Scott & Co has contravened:
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(b) section 340(1) of the Fair Work Act;
55. Ms Sophokleous seeks the following orders:
(a)Pursuant to subsection 546(1) of the Fair Work Act a penalty be imposed on Dennis Scott & Co in respect of its contraventions of:
(i) Sections 44 and 117 of the Fair Work Act; and
(ii) section 340(1) of the Fair Work Act.
(b)Pursuant to subsection 546(3)(c) of the Fair Work Act the penalties referred to in paragraph (a) be paid to Ms Sophokleous.
(c)Pursuant to subsection 545(2)(b) of the Fair Work Act an order that Dennis Scott & Co pay Ms Sophokleous compensation for loss that Ms Sophokleous has suffered because of the contraventions of:
(i) sections 44 and 117 of the Fair Work Act; and
(ii) section 340(1) of the Fair Work Act.
(d)Pursuant to subsection 545(2)(c) of the Fair Work Act an order that Dennis Scott & Co reinstate Ms Sophokleous to her position as Business Development Manager.
(e)In the alternative to paragraph (d) above:
(i) Pursuant to subsection 543 of the Fair Work Act an order that Dennis Scott & Co pay Ms Sophokleous compensation for loss that Ms Sophokleous has suffered because of the failure to pay Ms Sophokleous' safety net contractual entitlements to notice.
(ii) An order that Dennis Scott & Co pay Ms Sophokleous long service leave in the amount of $17,432.90.
(f)Interest on the amount ordered pursuant to paragraphs (c) and (e).
(g)The amounts in paragraphs (a), (b), (c), (e) and (f) be paid within 28 days.
(h)Such other order as the Court sees fit.
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