Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane
[2023] FWCFB 170
•29 SEPTEMBER 2023
| [2023] FWCFB 170 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Tilers Trade Outlet (Vic) Pty Ltd
v
Julia Cochrane
(C2023/4839)
| JUSTICE HATCHER, PRESIDENT VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT CROSS | SYDNEY, 29 SEPTEMBER 2023 |
Appeal against decision in transcript of Commissioner Matheson at Sydney on 26 July 2023 in matter number C2023/2548.
Tilers Trade Outlet (Vic) Pty Ltd (appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Matheson issued ex tempore on 26 July 2023. The Commissioner published her reasons for the decision on 18 August 2023.[1] The decision concerned a general protections application involving dismissal (the Application) lodged by Ms Julia Cochrane (respondent) pursuant to s 365 of the Fair Work Act 2009 (Cth) (FW Act). The appellant objected below to the Commission dealing with the application on the basis that there was no jurisdiction to do so because the respondent had failed to plead material facts in support of the assertions in the application that, in dismissing her, the respondent had contravened ss 340, 343, 344 and 351 of the FW Act, and further contended that the application could not be amended to remedy this.
In her decision, the Commissioner dismissed the appellant’s objection and allowed the application to proceed under s 368 of the FW Act. In its appeal, the appellant contended that the decision was attended by appealable error, and that it would be in the public interest for permission to appeal to be granted.
Background
In the appeal, there was no challenge to the findings of fact made by the Commissioner. The facts of the matter can therefore be summarised largely by reference to those findings.
The respondent’s employment was terminated on 3 May 2023. On 5 May 2023, the Respondent lodged a Form F8 — General protections application involving dismissal. On 8 May 2023, the respondent lodged an amended Form F8. In summarising the contents of the original and amended Forms F8, the Commissioner found:
[49] I have considered the Form F8 filed by the Applicant. Both parties took me to this signed document dated 8 May 2023. On page 1 of the Form F8 the text appears ‘This is an application for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009’. Statements by the Applicant in that Form F8 suggest that she knew that she was ineligible to bring an unfair dismissal claim because the minimum employment period had not been satisfied but this does not mean that an application in an alternative jurisdiction cannot be made. Indeed, that the Applicant knew she could not make an unfair dismissal claim suggests that a general protections application is what was she intended.
[50] At section 3.1 of the Form F8 the Applicant sets out a timeline of events the Applicant says occurred in the lead up to and around the time her dismissal. In the Form F8, question 3.2 asks ‘which sections of the Fair Work Act did the employer contravene when they took, threatened or organised the above actions against you[?]’. In response to this question, the Applicant has ticked a number of boxes on the form including those next to sections 340, 343, 344 and 351. The Applicant has also completed other parts of the Form F8.[2]
On 19 May 2023, the appellant filed a Form F8A in response to the Form F8 raising its jurisdictional objection to the application:
The Applicant is required to plead the material facts in support of the assertion that the Respondent has contravened sections 340, 343, 344 and 351 of the Act (as stated in Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro[2022] FWCFB 66).
FWC[’s] power to deal with a dispute under section 368 is only enlivened if an application is properly made under section 365 of the Act (as stated in Coles Supply Chain v Milford [2020] FCAFC 152)[.]
The Applicant has not pleaded any material facts and the application should be dismissed under s 587 of the Act.
On 29 May 2023, the Commission wrote to the parties informing them that the application was to proceed to a conference before a Commission staff conciliator. That conciliation conference was not able to proceed as the respondent pressed that its objection needed to be determined first.[3]
On 15 June 2023, the respondent filed an additional annexure which it sought to be added to the amended Form F8. The annexure relevantly stated:
1. The Applicant’s claim moving forward will be confined to an alleged breach of section 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (the FWA).
2. Prior to 2 May 2023, all signs indicated that the Applicant’s employment was continuing. Among other things, the Applicant had recently passed her probation period and had been issued a new employment contract with a significant salary increase and additional hours of work.
3. On 2 May 2023 the Applicant contacted Kathleen Guardiano (Guardiano) by telephone and made a complaint in relation to her employment regarding the aggressive and belittling tone and manner of Guardiano’s email correspondence from earlier that day (the Complaint).
4. Immediately after making the Complaint the Applicant was directed to attend a meeting the following morning.
5. On 3 May 2023 the Applicant attended the scheduled meeting and was dismissed effectively immediately (the Dismissal). No detailed reasons were provided for the Dismissal.
6. In making the Complaint, the Applicant was exercising a workplace right to do so under section 341(1)(c)(ii) of the FWA. This exercise was underpinned by, among other things, section 21 of the Occupational Health and Safety Act 2004 (Vic).
7. In effecting the Dismissal, the Respondent took adverse action against the Applicant within the meaning of section 342 of the FWA.
8. In breach of section 340(1)(a)(ii) of the FWA, the Respondent took this adverse action against the Applicant because of her exercise of her workplace rights. This is evidenced by, among other things, the temporal proximity between the Complaint and the Dismissal.
9. The Applicant relies on the reverse onus of proof in section 361 of the FWA. In the above circumstances, we do not consider that the Respondent has a reasonable prospect of discharging that onus.
Legislative framework
Sections 365, 366 and 368 of the FW Act are contained in Subdiv A of Div 8 of Pt 3-1. They provide:
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.
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC 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.
368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(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; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
The Commission’s role in relation to applications under s 365 of the FW Act is to deal with such applications by way of conciliation or mediation under s 368 of the FW Act. If satisfied that all reasonable attempts to resolve a dispute under s 365 have been or are likely to be unsuccessful, the Commission must issue a certificate under s 368(3). Section 370 of the FW Act imposes a substantial restriction on applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s 368(3)(a) in relation to the dispute.[4]
Appeal principles
Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] In GlaxoSmithKline Australia Pty Ltd v Makin[6] a Full Bench of the Commission identified considerations that might attract the public interest:
… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7]
The reasons for the decision under appeal
In the Commissioner’s reasons for her decision, after summarising the submissions of the parties, the Commissioner confirmed that the key issue for determination was whether in, accordance with s 365(b) of the FW Act, Ms Cochrane had alleged that she was dismissed in contravention of Part 3-1 of the FW Act.[8]
The Commissioner noted the appellant’s submission that the Form F8 provided no basis
for a conclusion that the adverse action took place for a prohibited reason, and that Ms Cochrane specifically contended that there was no prohibited reason, stating in response to question 3.3 that ‘I believe I have been discriminated against for no good reason… I believe that none of this makes any sense and, could there be an ulterior motive for letting me go?’
The Commissioner found that the appellant’s submission ‘turns to merits rather than jurisdiction’,[9] noting that question 3.3. of the Form F8 invited further explanation about the contraventions alleged, and observed that at question 3.3 the Ms Cochrane referred, among other things, to:
[52]…[her] belief she has been discriminated against and that there is no “good” reason for this and posits that there may be an “ulterior motive” for the dismissal. If this matter ultimately ends up before a court of competent jurisdiction or the Commission on the basis of agreement, questions about the further assertions and their relevance to the allegations made would need to be dealt with at that juncture.
After making observations regarding the common occurrence of applications containing irrelevant material, especially in the case of self-represented parties, the Commissioner found as follows:
[54] However, question 3.2 of the Form F8 expressly asked “which sections of the Fair Work Act did the employer contravene when they took, threatened or organised the above actions against you”. The Applicant has answered this question and in doing so, I consider that she has, in effect alleged that she was dismissed in contravention of Part 3.1. There is no further stipulation in s.365 that the allegation needs to be made or particularised in a certain way.
[55] The fact of the Applicant’s dismissal and that the applicant alleges she was dismissed in contravention of Part 3-1 means that the requirements in s.365 have been met and pursuant to s.368 of the Act, that means that the Commission must deal with the dispute other than by arbitration. Having made my determination, I dismissed the Respondent’s objection and proceeded to deal with the application as required by s 368.[10]
Grounds of appeal and appeal submissions
By an amended notice of appeal, the appellant advances the following five grounds of appeal:
1. The Commissioner erred in finding that the Respondent had alleged that she was dismissed in contravention of Part 3.1 of the Act.
2. The Commissioner erred in finding that the Respondent had satisfied the requirements of section 365 of the Act by ticking the box(es) that appear in question 3.2 of Form 8 (General Protections application involving dismissal) in circumstances where the application as a whole made clear that the application did not allege a contravention of Part 3-1 but did allege that the dismissal was unfair.
2A. The Commissioner erred in finding at [52] that 3.3 of the application only serves to invite a further explanation about the contravention alleged. 3.3 does more than invite a further explanation. It requires a primary explanation of how the alleged actions have contravened the sections identified. Such explanation is necessary for the Appellant to understand the Respondent’s case, and for the Commission to properly conciliate the matter and to determine whether it has jurisdiction . The Commission should have looked at the application as a whole to determine whether or not, it alleged a contravention of the part.
3. In doing so, the Commissioner erred in finding the FWC had jurisdiction under section 368 of the Act to deal with the matter, including convening a conference.
4. In doing so, the Commissioner erred in issuing the, or indicating that the FWC will issue a[] certificate under section 368 of the Act.
The appellant submits that Ms Cochrane’s application, read as a whole, was clearly referring to an unfair dismissal. In this respect, the appellant pointed to the contentions in her application that:
·she ‘would like the company and the director to be held liable for terminating my employment, without just cause’;
·‘there is no reason for this [dismissal], and no termination letter’;
·‘I believe that Kate Guardiano was protecting herself… assuming she believed an unfair dismissal action could ensure (however as I have not been employed the required 12 months I know that claiming this was not allowable) …I have not been issued any warnings’;
·‘I was terminat[ed] without any suitable explanation’; and
·she was an ‘UNJUSTLY TERMINATED EMPLOYEE’ [sic].
The appellant submits that the essence of the general protections provisions is that they protect persons from adverse action taken for particular reasons but, in this case, it was clear that Ms Cochrane did not allege that the action was taken for a particular reason and indeed alleged that there was no reason for the adverse action. To make the situation even clearer, it was submitted, she alleges that the termination was ‘unfair’, which was entirely contrary to the statutory scheme. In assessing whether the criterion for a valid application in s 365(b) was met, the Commission should have looked at the application as a whole to determine whether or not it alleged a contravention of the relevant Part of the FW Act.
The appellant submits that in this case there was a clear public interest that mandated the grant of permission to appeal under s 604(2). Considerable resources are spent by respondents in answering claims that in reality are unfair dismissal claims dressed up as general protections claims, made by applicants who seek relief for dismissals that they consider unfair but are unable to litigate because they have not passed the qualifying period of employment. Further, considerable resources of the Fair Work Commission are also expended in dealing with these matters as are the resources of the Federal Circuit and Family Court and the Federal Court at a later stage. The appellant submits that, given the generally ‘no cost’ regime created by s 570 of the FW Act, many respondents will settle such cases even though they are entirely meritless. The decision, it was submitted, was in error for the reasons stated, the decision should be quashed, and Ms Cochrane’s application dismissed.
Consideration
Notwithstanding that there are five grounds of appeal, the notice of appeal in truth only raises one issue: did the respondent satisfy the requirement for a competent application in s 365(b) of the FW Act?
In Coles Supply Chain v Milford, the Full Court of the Federal Court determined that the Commission’s powers to deal with a dismissal dispute under s 368 are only enlivened if an application is properly made under s 365.[11] The Full Court said:
The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b), but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact. [12]
[emphasis in original]
All that is required for satisfaction of the criterion in s 365(b) of the FW Act is that there be an allegation the relevant person was dismissed in contravention of Pt 3–1 of the FW Act. On its ordinary meaning, a person alleges something if they assert it without proof.[13] The relevant jurisdictional fact required by s 365(b) is that the allegation of a contravention of Pt 3-1 has been made. In satisfying itself that it has a competent application before it, the Commission is not required to undertake an assessment as to whether there have been facts pleaded which might reasonably support the allegation. Nor does it need to consider whether the allegation has any merit or is reasonably arguable, noting that s 587(2) of the FW Act prohibits the Commission from dismissing an application under s 365 on the ground that it is frivolous or vexatious or has no reasonable prospects of success.
We consider, as did the Commissioner at first instance,[14] that the criterion for a valid application in s 365(b) was clearly satisfied by Ms Cochrane. Question 3.1 of the standard Form F8 asks: ‘Describe the actions of the employer, including any reasons given for your dismissal, that led you to make this application’. In response to this, Ms Cochrane described in both her original and amended application the facts and circumstances pertaining to her dismissal, including that (in substance) no reason, or at least no reason that she understood, was given for her dismissal, nor was she given a termination letter.
Question 3.2 of the Form F8 next asks: ‘Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?’ Importantly, immediately below this, the form states (in the form of an information note): ‘A general protections application should only be made if your employer took adverse action against you because you have the protections described in or more sections of the Fair Work Act listed below’. Beneath this are boxes referring to each of the relevant provisions of Divs 3, 4, 5 and 6 of Pt 3-1 of the FW Act. Ms Cochrane put crosses in the boxes beside the references to ss 340, 343, 344 and 351 in both her original and amended applications. That cannot be understood as anything other than an allegation that her dismissal by the appellant contravened Pt 3-1.
That Ms Cochrane’s application contained contentions which, arguably, may seem to be more directed to the proposition that her dismissal was in some general sense ‘unfair’ does not gainsay the proposition that she has alleged that her dismissal contravened Pt 3-1. It is not the task of the Commission to assign a general characterisation to an application made pursuant to s 365 by ‘reading it as a whole’, as the appellant suggests; as already stated, the Commission’s task is simply to ascertain whether an allegation that the relevant dismissal contravened Pt 3-1 has been made in order to satisfy itself that the criterion for a valid application in s 365(b) has been met.
Finally, we note that this is not a case where there is any issue about the applicant having filed the wrong type of application by mistake. Ms Cochrane made a clear allegation of contravention of Pt 3-1 in her original application and repeated it in her amended application. If there remained any doubt, a clearly articulated allegation of a contravention of s 340(1)(a)(ii) of the FW Act was made by lawyers acting on her behalf in the proposed annexure to the amended application filed on 15 June 2023. It is clear therefore that the appellant has at all relevant times intended to proceed with a general protections application involving dismissal.
For the above reasons, we are not satisfied that the appellant has advanced a reasonably arguable case that the Commissioner’s decision was attended by appealable error. The Commissioner reached her decision using an orthodox approach to the determination of the application and was correct in her jurisdictional determination that an application had been properly made under s 365 of the FW Act. We are not satisfied that it would be in the public interest to grant permission to appeal, and nor are we satisfied that we should otherwise exercise our discretion to grant permission. Permission to appeal is refused, and a certificate pursuant to s 368(3)(a) of the FW Act will now be issued.
Order
We order that permission to appeal is refused.
Costs
In her written submissions in the appeal, the respondent sought an order for costs pursuant to s 611 of the FW Act. The following directions are made:
(1)The respondent shall file an itemised claim for costs using Form F6, and submissions in support of that claim, by 5:00 pm (AEDT) on Friday, 13 October 2023.
(2)The appellant shall file submissions in response to the respondent’s costs submissions by 5:00 pm (AEDT) on Friday, 27 October 2023.
PRESIDENT
Appearances:
I Latham, counsel, with L Burke, solicitor, for Tilers Trade Outlet (Vic) Pty Ltd.
M Kriewaldt, solicitor, for Julia Cochrane.
Hearing details:
2023.
Sydney, with video link to Melbourne using Microsoft Teams:
21 September.
[1] [2023] FWC 2071.
[2] Ibid at [49]-[50].
[3] Ibid at [3].
[4] Ward v St Catherine’s School [2016] FCA 790 at [3].
[5] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[6] [2010] FWAFB 5343, 197 IR 266 at [27].
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[8] [2023] FWC 2071 at [42].
[9] Ibid at [52].
[10] Ibid at [54]-[55].
[11][2020] FCAFC 152, 279 FCR 591, 300 IR 146 at [63].
[12] Ibid at [54].
[13] Macquarie Online Dictionary.
[14] [2023] FWC 2071 at [54].
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