Vanden Driesden v Edith Cowan University
[2012] FMCA 735
•10 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VANDEN DRIESEN v EDITH COWAN UNIVERSITY | [2012] FMCA 735 |
| INDUSTRIAL LAW – Jurisdiction – general protections court application – certificate issued under s.369 of Fair Work Act 2009 (Cth) – necessary degree of conformity between certificate and dispute in application to Fair Work Australia under s.365 of Fair Work Act 2009 (Cth) – whether jurisdiction for claims based on alleged complaints not included in application to Fair Work Australia. LIMITATION OF ACTIONS – General protections court application – applicable limitation – whether 6 years or 14 days. WORDS AND PHRASES – “in relation to”. |
| Fair Work Act 2009 (Cth), ss.2(1), 12, 340(1)(b), 342(1), 351, 365, 366, 369, 370, 371, 535, 539, 544, 562, 566 Fair Work Bill 2008 (Cth), Explanatory Memorandum, para.1475 Federal Magistrates Act 1999 (Cth), s.45(1) Federal Magistrates Court Rules 2006 (Cth), rr.1.03(1), 4.05, 7.01, 10.01(3)(j), 14.01 Limitation Act 2005 (WA), ss.13, 14 |
| Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82; [2006] WASC 281 Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237; [2012] FMCA 5 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd (2011) 211 IR 250; [2011] FMCA 535 Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352 Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431; [2010] FMCA 569 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors(1964) 112 CLR 125 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 Newman v East Yarra Friendly Society Pty Ltd t/as My Chemist Pharmacy [2011] FCA 1262 O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447; [2012] FMCA 186 Poole v Rod Baker & Co (2011) 207 IR 264; [2011] FMCA 357 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Bain & Ors; Ex parte Cadbury Schweppes Australia Limited & Anor (1984) 159 CLR 163 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 Shea v TruEnergy Services Pty Ltd (No. 1) [2012] FCA 628 Suh & Ors v Minister for Immigration & Citizenship (2009) 175 FCR 515; [2009] FCAFC 42 The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 43 Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 Verge & Anor v Devere Holdings Pty Ltd & Ors [2008] FMCA 591 Wardley Australia Ltd & Anor v State of Western Australia (1992) 175 CLR 514 Watches of Switzerland v Savell [1983] IRLR 141 Wintle v RUC Cementation Mining Contractors Pty Ltd(No.2) [2012] FMCA 459 |
| O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” (2012) 86 ALJ 478 |
| Applicant: | CYNTHIA VANDEN DRIESEN |
| Respondent: | EDITH COWAN UNIVERSITY |
| File Number: | PEG 43 of 2012 |
| Judgment of: | Lucev FM |
| Hearing dates: | 15 June and 6 July 2012 |
| Dates of Last Submission: | 15 June and 6 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 10 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Hammond |
| Solicitors for the Applicant: | Fiocco’s Lawyers |
| Counsel for the Respondent: | Ms E Moran |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
That:
(a)paragraphs 8-21 of Annexure A to the Applicant’s Form 4 filed 2 March 2012 be struck out; and
(b)otherwise, the Respondent’s Application in a Case filed 30 May 2012 be dismissed.
The costs, if any, of the Application in a Case be reserved to the next directions hearing.
The matter be adjourned to a directions hearing at 10.15am on 15 October 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2012
| CYNTHIA VANDEN DRIESEN |
Applicant
And
| EDITH COWAN UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
Application
On 30 September 2011 Dr Cynthia Vanden Driesen’s[1] 22 years of employment with Edith Cowan University,[2] was terminated, allegedly on the grounds of redundancy. Subsequently, on 2 March 2012, Dr Vanden Driesen filed her substantive application before the Court.[3] The Application is a general protections court application under the Fair Work Act 2009 (Cth)[4], alleging that ECU took adverse action against her, in various forms, up to the time of her dismissal in 2011. The claims made by Dr Vanden Driesen are contained in Annexure A to the Application.[5]
[1] “Dr Vanden Driesen”.
[2] “ECU”.
[3] “Application”.
[4] “FW Act”.
[5] “Claim”.
The Application asserts that:
a)Dr Vanden Driesen worked for ECU initially as a lecturer, and then a senior lecturer, from 1988 until she was given notice by ECU that she would be made redundant on 30 June 2011, and she was subsequently dismissed by ECU on 30 September 2011;[6]
b)the conduct and behaviour of Dr Vanden Driesen’s line manager, Associate Professor Susan Ash,[7] towards Dr Vanden Driesen over the period from 2008 to 2011 was conduct that prevented Dr Vanden Driesen from exercising her workplace rights pursuant to the Edith Cowan University Academic Staff Union Collective Agreement 2009,[8] because Professor Ash caused Dr Vanden Driesen humiliation, discomfort and prevented her from participating in decision-making processes without fear of harassment, intimidation and unfair treatment;[9]
c)Dr Vanden Driesen was the subject of protracted and unlawful inquiries into her conduct, which prevented her from exercising a workplace right, from in or about October 2009 for a period of over 12 months, which caused Dr Vanden Driesen humiliation, discomfort and prevented her from participating in decision-making processes without fear of harassment, intimidation and unfair treatment;[10]
d)Dr Vanden Driesen was repeatedly refused reasonable travel requests throughout the course of her employment from June 2010 to June 2011;[11]
e)from March 2011 to September 2011 Dr Vanden Driesen was excluded from engaging in the development of curriculum, resulting in Dr Vanden Driesen lodging a series of grievances over her exclusion, which in themselves were subsequently mishandled, in contravention of her workplace rights;[12]
f)Dr Vanden Driesen was subjected to an unsubstantiated allegation of unsatisfactory performance in May 2011;[13] and
g)from about May 2011 through to September 2011 Dr Vanden Driesen was subject to an arbitrary redundancy process in which she was unlawfully made redundant, on the grounds of age and race, as a result of preferential treatment provided to other ECU employees.[14]
[6] Claim at paras.8, 19, 22 and 71.
[7] “Professor Ash”.
[8] “Collective Agreement”. See Claim at paras.22-28.
[9] Claim at para.24.
[10] Claim at paras.29-38.
[11] Claim at paras.39-40.
[12] Claim at paras.45-58.
[13] Claim at paras.59-67.
[14] Claim at paras.68-85.
Dr Vanden Driesen made an application to Fair Work Australia[15] under s.365 of the FW Act which was the subject of a conference before FWA on 17 February 2012. That conference failed to resolve the dispute. A certificate was issued under s.369 of the FW Act.[16] The Section 369 Certificate was in the following substantive terms:
[15] “FWA Application” and “FWA” respectively.
[16] “Section 369 Certificate”.
An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Dr Cynthia vanden Driesen alleging she was dismissed by Edith Cowan University in contravention of Part 3-1 of the Act.
Fair Work Australia conducted a conference to deal with the dispute on 17 February 2012.
Pursuant to s.369 of the Act, Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
The Application can then be summarised in the following terms:
a)since in or about 2008, ECU consistently prevented Dr Vanden Driesen from exercising her workplace rights, with reference to the Collective Agreement, in breach of s.340(1)(b) of the FW Act;[17]
b)ECU has engaged in conduct that constituted “adverse action” within the context of s.342(1), Item 1(a) of the FW Act, in that ECU dismissed Dr Vanden Driesen from her employment;[18]
c)ECU has engaged in conduct that constituted “adverse action” within the context of s.342(1), Item 1(b) of the FW Act, in that ECU injured Dr Vanden Driesen in her employment;[19]
d)ECU has engaged in conduct that constituted “adverse action” within the context of s.342(1), Item 1(c) of the FW Act, in that ECU altered Dr Vanden Driesen’s position of employment to her prejudice;[20]
e)ECU has engaged in conduct that constituted “adverse action” within the context of s.342(1), Item 1(d) of the FW Act, in that ECU discriminated against Dr Vanden Driesen;[21] and
f)further, or in the alternative, ECU has taken adverse action against Dr Vanden Driesen by discriminating against her by virtue of her age and race, in contravention of s.351(1) of the FW Act.[22]
[17] Claim at paras.25, 28, 31, 35, 37, 38, 44, 49, 52, 63 and 65.
[18] Claim at para.66.
[19] Claim at paras.67, 76 and 77.
[20] Claim at paras.76 and 78.
[21] Claim at paras.76 and 79.
[22] Claim at para.82.
Application in a case
On 30 May 2012 ECU filed an application in a case.[23] The Application in a Case, presently before the Court for judgment, seeks that:
[23] “Application in a Case”.
a)i) paragraphs 8-21;
ii)the last two sentences of paragraph 62;
iii)the second sentence, third sentence and last sentence of paragraph 68; and
iv)paragraphs 80 to 82,
of the Claim be struck out;
b)order 1 of the Court’s orders of 22 May 2012 be varied so that the requirement to provide standard discovery be limited to the period 2 March 2006 to 2 March 2012;
c)Dr Vanden Driesen provide further and better particulars as set out in Annexure A to the Application in a Case; and
d)in an application made orally at hearing, and referred to in written submissions, that interrogatories be answered.
The Application in a Case originally came before the Court on 15 June 2012, on which date judgment was reserved. In Melbourne, on the same day, and unbeknown to this Court, the Federal Court delivered judgment in Shea v TruEnergy Services Pty Ltd (No.1).[24] Shea dealt with the nature of the dispute in a general protections court application arising from an application to Fair Work Australia under s.365 of the FW Act to deal with that dispute, and:
a)the issuance of a certificate under s.369 of the FW Act;
b)the necessary degree of conformity between the dispute and the certificate; and
c)whether the Federal Court had jurisdiction to hear claims which were not included in an application to FWA leading to the issuance of a certificate by FWA. That same issue had been argued before this Court on 15 June 2012, as part of the strike-out application in the Application in a Case. Subsequently, by way of consent orders, the parties filed further supplementary written submissions dealing with the judgment in Shea, and came before the Court on 6 July 2012 to address those submissions.
Strike out
The Section 369 Certificate issue
[24] [2012] FCA 628 (“Shea”).
ECU’s initial submissions
ECU’s submissions in relation to this issue were as follows.
a)the FWA Application is under s.365 of the FW Act. The parties participated in a conciliation process before FWA. The Application alleges multiple adverse actions. The last of these actions is the dismissal of Dr Vanden Driesen in 2011 and the earliest of which appears to date from 2008. The Application includes matters dating from 1991, and Dr Vanden Driesen has stated that she is not prevented from applying for an order for a contravention of a civil remedy provision in relation to these events;
b)this Court does not have jurisdiction to consider matters earlier than 6 years before the date of the Application to this Court for the reasons set out below;
c)FWA issued the Section 369 Certificate on 17 February 2012. The jurisdiction of the Court is founded upon the Section 369 Certificate;
d)the repeated use of the word “dispute” in s.371 of the FW Act indicates that the dispute to be dealt with by the Court must be the same dispute in respect of which a certificate was issued by FWA under s.369 of the FW Act;
e)section 544 of the FW Act separately provides that an application in relation to contravention of a:
i)a civil remedy provision;
ii)a safety net contractual entitlement; and
iii)an entitlement arising under subsection 542(1),
is to be “made within 6 years after the day on which the contravention occurred”;
f)an application under s.365 of the FW Act in respect of a contravention involving dismissal is subject to two stringent limitation periods:
i)a 60-day limitation period in respect of the initial application to FWA;[25] and
[25] FW Act, s.366.
ii)a 14-day limitation period for the subsequent application to this Court following the issuance of a certificate under s.369 of the FW Act by FWA,[26]
and each is more stringent than otherwise would apply under the six-year limitation period in s.544 of the FW Act;
g)Dr Vanden Driesen’s interpretation, that the operation of ss.544 and 371(2) of the FW Act means that the six-year limitation period in s.544 of the FW Act has no application to these proceedings and that orders for contraventions of matters outside the six-year limitation period may be sought, would have the effect that so long as a general protections court application related to dismissal is made within 14 days of the issuing of a certificate by FWA under section 369 of the FW Act, the application may seek orders in relation to non-dismissal adverse action claims which occurred at any time in the past; and
h)Dr Vanden Driesen’s interpretation is inconsistent with the scheme of the FW Act because it:
i)renders nugatory both the 60-day time limit under s.366 of the FW Act, and the subsequent 14-day time limit under s.371(2) of the FW Act, by imposing no time limitation period for non-dismissal-related adverse actions alleged in conjunction with a dismissal-related application;
ii)requires no temporal or causal relationship between the additional non-dismissal adverse actions alleged and the dismissal which founds the application;
iii)subverts the operation of Part 3-1, Subdivision B of the FW Act, which provides for a separate stream in which non-dismissal-related general protections court applications may be brought, and which is itself subject to the six-year time limit in s.544 of the FW Act; and
iv)is contrary to the position which applies to almost all civil litigation in which limitation periods apply and in which a six-year limitation period is common.[27]
[26] FW Act, s.371(2).
[27] Limitation Act 2005 (WA), s.13.
ECU therefore seeks an order under r.7.01 of the Federal Magistrates Court Rules 2006 (Cth)[28] that:
a)paragraphs 8 to 19 be struck out; and
b)paragraphs 20 to 21 be struck out to the extent that these paragraphs refer to matters which occurred more than 6 years before the date of the Application,
as matters which do not fall within the jurisdiction of the Court.
[28] “FMC Rules”.
Dr Vanden Driesen’s initial submissions
Dr Vanden Driesen’s submissions in relation to this issue were as follows:
a)it is arguable that contraventions that occurred more than 6 years before the date of a general protections court application are actionable under s.340 of the FW Act;
b)the Application is brought as a “general protections court application”;[29]
[29] FW Act, ss.12, 370(2).
c)a “general protections court application” is an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to contravention of Part 3-1 of the FW Act;[30]
[30] FW Act, ss.370(2) and 539.
d)in this case, Dr Vanden Driesen seeks, amongst other grounds of relief, an order that there has been a contravention of a civil remedy provision, being the general protections provisions contained in Part 3-1 of the FW Act;
e)Dr Vanden Driesen agrees that under s.371(2) of the FW Act a general protections court application must be made within 14 days after the Section 369 Certificate was issued. Note 1 to s.544 of the FW Act states that the 6 year time limit “does not apply in relation to general protections court applications”;
f)it cannot be the case that a shorter time period in relation to contraventions apply, having regard to:
i)section 366 of the FW Act, under which an application to bring a dispute relating to dismissal under Part 3-1 of the FW Act must be brought within 60 days (of the dismissal, not the contraventions);
ii)section 371(2) of the FW Act, which states that a general protections court application must be brought within 14 days after a certificate is issued under s.369 of the FW Act by FWA subsequent to unsuccessful attempts to resolve the dispute; and
iii)the plain meaning of Note 1 to s.544 of the FW Act;
g)even if the Court considers that the issue of time limits is uncertain, “the statutory words should be given a liberal interpretation in order to implement the object of the legislation”;[31]
h)the statutory construction of that time limit for the contravention of a general protection as set out in Part 3-1 of the FW Act is not limited to 6 years, provided the application is brought within the time frames stipulated by ss.366 and 371(2) of the FW Act;
i)there is a clear line of authority to support the proposition that limitation questions should only be determined in interlocutory proceedings in the clearest of cases;[32] and great care must be exercised to ensure that an applicant is not improperly deprived of the opportunity for a hearing, but where argument demonstrates that the case is clearly untenable a case may be dismissed;[33] and
j)it is inappropriate at this interlocutory stage, especially in the absence of any evidence before the Court, that the jurisdictional issue be dealt with insofar as time limits are concerned.
The judgment in Shea
[31] Citing Watches of Switzerland v Savell [1983] IRLR 141 at 146 per Waterhouse J, cited in Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at 196 per McHugh J.
[32] Citing Wardley Australia Ltd & Anor v State of Western Australia (1992) 175 CLR 514.
[33] Citing General Steel Industries Inc v Commissioner for Railways (NSW)& Ors (1964) 112 CLR 125 at 130 per Barwick CJ.
In Shea the respondent sought to strike out claims based on three of five complaints alleged in the statement of claim as a reason for the dismissal of the employee, Ms Shea. It was alleged that because the three complaints did not appear in Ms Shea’s application to FWA made under s.365 of the FW Act, they were not the subject of the certificate issued under s.369 of the FW Act, and that the Federal Court therefore had no jurisdiction to determine alleged contraventions based upon the three additional complaints.[34]
[34] Shea at para.2 per Dodds-Streeton J.
The question raised in Shea was succinctly summarised by the Federal Court as follows:
This application raises the question of the necessary degree of conformity between:
(a) the claims made in an application to Fair Work Australia (“FWA”) pursuant to s 365 of the Fair Work Act 2009 (Cth) (“the Act”) alleging that a person’s dismissal was in contravention of Pt 3-1 of the Act; and
(b) the claims made in a subsequent “general protections court application in relation to the dispute” within the meaning of s 371(1) of the Act.[35]
[35] Shea at para.1 per Dodds-Streeton J.
The Federal Court set out the relevant legislative provisions, as follows:
The Act relevantly provides:
Division 8 — Compliance
Subdivision A — Contraventions involving dismissal
365 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.
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.
367 Application fees
….
368 Conferences
(1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute.
(2) Despite subsection 592(3), FWA must conduct the conference in private.
369 Certificate if dispute not resolved
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
370 Advice on general protections court application
(1) If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.
(2) 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.
371 General protections court applications
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.[36]
[36] Shea at para.25 per Dodds-Streeton J.
The Federal Court then turned to deal with the Court’s jurisdiction under s.371 of the FW Act, which jurisdiction is, in civil matters, the same as the jurisdiction of this Court.[37] Uncontroversially, it observed that a Section 369 Certificate is a pre-condition to the Federal Court’s jurisdiction to deal with a dispute.[38]
[37] FW Act, ss.562 and 566.
[38] Shea at paras.26-29 per Dodds-Streeton J, citing Newman v East Yarra Friendly Society Pty Ltd t/as My Chemist Pharmacy [2011] FCA 1262 at para.5 per North J (“East Yarra Friendly Society”). And likewise in this Court: see Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447 at 470 per Lucev FM; [2012] FMCA 186 at para.50 per Lucev FM (citing East Yarra Friendly Society); Poole v Rod Baker & Co (2011) 207 IR 264 at 270 per O’Sullivan FM; [2011] FMCA 357 at paras.24-25 per O’Sullivan FM.
The Federal Court in Shea referred to a judgment of this Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd[39] in which the issue of the necessary degree of correlation between the dispute expressed in the application to FWA and the dispute in the application in that case arose, and where this Court held that it had no jurisdiction in relation to a new point arising after the issuance of a certificate under s.369 of the FW Act.[40]
[39] (2011) 211 IR 250; [2011] FMCA 535 (“Active Tree Services”).
[40] Shea at paras.35-36 per Dodds-Streeton J, referring to Active Tree Services IR at 255 per Coker FM; FMCA at paras.29-32 per Coker FM.
In discussing the legislative provisions the Federal Court observed that the “dispute” in s.365 of the FW Act was not otherwise defined in the FW Act, but may be “characterised” as a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1 of the FW Act.[41] The Federal Court went on to observe that s.365 of the FW Act “identifies the dispute at a high level of generality by reference to the occurrence of a person’s dismissal alleged to be in contravention of Part 3-1, and permits an application … to deal with ‘the dispute’ thus identified.”[42] The Federal Court concluded that s.365 of the FW Act did not expressly, or implicitly, provide that “the dispute” precisely coincides with the content of the application to FWA, but rather permitted that application to be made to FWA to deal with the dispute.[43] The Federal Court went on to observe that:
In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.[44]
[41] Shea at para.55 per Dodds-Streeton J.
[42] Shea at para.63 per Dodds-Streeton J.
[43] Shea at para.63 per Dodds-Streeton J.
[44] Shea at para.64 per Dodds-Streeton J.
The Federal Court then went on to deal with the language of s.371(1) of the FW Act, and in particular the reference to a general protections court application “in relation to the dispute”. Having observed that even if “the dispute” was limited to the applicant’s substantial claims in the FWA application, the Federal Court then observed that “… a general protections court application made ‘in relation to’ that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis for the dispute in the FWA application remained.[45]
[45] Shea at para.70 per Dodds-Streeton J.
Having referred to the High Court’s judgments in Project Blue Sky Inc & Ors v Australian Broadcasting Authority[46] and O’Grady v The Northern Queensland Company Limited[47] the Federal Court said that:
[77] … the context of Subdiv A does not support the limitation of the dispute in s 371(1) to that contained in the FWA application. Moreover, the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.
[78] So to hold would endorse a one-sided and temporally limited characterisation of “the dispute” comprising only the claims and contentions of the applicant set out in the FWA application. It not only excludes developments after the issue of the certificate, but takes no account of the respondent’s possible claims or the possible enlargement or alteration of either party’s claims in the FWA conference and conciliation process. If the dispute were restricted to its content prior to the issue of the certificate, there is no obvious reason to limit it to the applicant’s claims made at the outset in the FWA application.[48]
[46] (1998) 194 CLR 355 at 387 per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28 at para.87 per McHugh, Gummow, Kirby and Hayne JJ (“Project Blue Sky”).
[47] (1990) 169 CLR 356 at 367 per Dawson J, 374 per Toohey and Gaudron JJ and 376 per McHugh J (“O’Grady”).
[48] Shea at paras.77-78 per Dodds-Streeton J.
Having considered the aims of the relevant subdivision with respect to the dismissal of employees in relation to the avoidance of litigation,[49] the Federal Court concluded that:
[91] … on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application.
[92] If, contrary to that view, the relevant dispute is thus limited, a general protections court application “in relation to” that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute.
[93] In the present case, the statement of claim is, … a general protections court application which is “in relation to” the dispute set out in the applicant’s FWA application. While one of the three additional complaints in the statement of claim is apparently a repetition of the substance of a complaint referred to in the FWA application, it was made to a different person on a later date. The other two additional complaints are not identifiable in the FWA application.
[94] Nevertheless, all three additional complaints clearly arise from the same factual matrix and, as part of the narrative, would (even if excluded as an independent basis for relief) be relevant and admissible in relation to claims based on the two complaints in the FWA application. In my opinion, however, because the general protections court application including claims based on the three additional complaints is “in relation to” the dispute contained in the applicant’s FWA application, the court has jurisdiction even if (contrary to the views expressed above) the narrow meaning of dispute advocated by the respondent applies.
[95] It follows that, … the court has jurisdiction in relation to the applicant’s claims based on the three complaints which were not alleged in her FWA application.[50]
[49] Shea at paras.80-90 per Dodds-Streeton J.
[50] Shea at paras.91-95 per Dodds-Streeton J.
ECU’s further submissions – Section 369 Certificate issue
Following the handing down of the Shea judgment ECU, pursuant to the Court’s orders dated 26 June 2012, made further submissions as set out hereunder.
ECU submitted that a judgment of a single judge of the Federal Court does not bind a Federal Magistrate. Rather:
The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this [Federal] [C]ourt (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this [Federal] [C]ourt. The correct principle is that a judgment ought to be followed “unless it is plainly wrong”.[51]
[51] Citing Minister for Immigration & Multicultural & Indigenous Affairs vSZANS (2005) 141 FCR 586 at 592 per Weinberg, Jacobson and Lander JJ; [2005] FCAFC 41 at para.38 per Weinberg, Jacobson and Lander JJ (“SZANS”).
With respect to the Shea judgment ECU submitted that:
a)in Shea, Ms Shea alleged that the dismissal was a form of adverse action taken against her because she exercised a workplace right by making each of five complaints in contravention of s.340(1) of the FW Act.[52] The initial FWA application in the Shea case identified only two complaints which resulted in the alleged termination. Ms Shea therefore sought to supplement a number of additional elements (being additional complaints) under the rubric of her workplace rights claims under s.340 of the FW Act;
[52] Shea at paras.12-17 per Dodds-Streeton J. There was no allegation of discrimination in Shea as is pleaded in Dr Vanden Driesen’s Claim.
b)the Federal Court found that it had jurisdiction in relation to Ms Shea’s allegations based on the three additional complaints, under the rubric of the adverse action claim under s.340 of the FW Act, which were not alleged in her FWA application;
c)Shea concerned the interpretation of the words “in relation to the dispute” for the purposes of the proper interpretation of ss.365 and 371 of the FW Act. The Federal Court made the following findings in Shea:
i)the first step in the statutory scheme under s.365 of the FW Act is to identify the “dispute”;
ii)the dispute under s.365 of the FW Act was to be characterised as a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1 of the FW Act;
iii)that the three additional complaints (in relation to which the dismissal occurred) arose from the same "factual matrix" and would be relevant and admissible in relation to claims based on the application to FWA under s.365 of the FW Act;
iv)that because the general protections court applications included claims based on the three additional complaints which were “in relation to” the dispute, being the dispute concerning the dismissal, the Federal Court had the requisite jurisdiction;[53] and
v)correctly understood, Shea stands for the proposition that the phrase “in relation to the dispute” “presupposes a direct connexion” between any new additional complaints and the dispute under s.365 of the FW Act concerning a person’s dismissal allegedly in contravention of Part 3-1 of the FW Act, and to the extent that it is said that Shea does not stand for that proposition then it is in conflict with the majority decision in O'Grady, is plainly wrong, and should not be followed;
d)the proposition set out in Shea, properly interpreted and applied to this case, is that Dr Vanden Driesen could only bring a general protections court application “in relation to the dispute” where FWA has issued a certificate “in relation to the dispute”. In this case the “dispute” as referred to in ss.365 and 371 of the FW Act is the dispute concerning Dr Vanden Driesen’s dismissal, allegedly in contravention of s.340 of the FW Act;[54]
e)the new age, race and sex discrimination allegations pleaded in paragraphs 68 and 80 to 82 of the Claim under s.351(1) of the FW Act, which were not raised in the FWA Application, are not matters that are “in relation to the dispute”, being Dr Vanden Driesen’s dismissal; and
f)the allegation contained in paragraph 62 of the Claim in relation to a breach of clause 60 of the Collective Agreement is not a matter that is “in relation to the dispute”, being Dr Vanden Driesen’s dismissal.
[53] Shea at para.94 per Dodds-Streeton J.
[54] Shea at para.55 per Dodds-Streeton J.
With respect to the current facts in relation to the FWA Application ECU submitted that:
a)the FWA Application alleges contraventions of s.340(1)(b) of the FW Act, involving a dismissal dispute. There is no mention in the FWA Application of age, race or sex discrimination, or of any alleged contraventions of s.351 of the FW Act. This is different to Shea, as in Shea there was no additional adverse action or section of the FW Act relied upon, it was simply a matter of adding additional facts in relation to the same workplace right and the same adverse action;
b)there is no mention in the FWA Application of any contravention of clause 60 of the Collective Agreement which constitutes a new alleged adverse action and a new workplace right. Again, this is a situation different to Shea for the same reason as is set out above;
c)as the FWA Application alleged a contravention involving a dismissal the process in subdivision A of Division 8 of Part 3-1 of the FW Act applies. As indicated in Shea the relevant dispute, for the purposes of s.365 of the FW Act, is the dispute concerning Dr Vanden Driesen’s dismissal:
The dispute referred to in s 365 is not defined elsewhere in the legislation. It is simply assumed to co-exist with a person’s dismissal allegedly in contravention of Part 3-1. “The dispute” in s 365 may thus be characterised as a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1[55]
d)to the extent that any matters contained in an application made under s.365 of the FW Act are extraneous to a dispute concerning a person’s dismissal, those matters cannot be considered part of the “dispute”. The reasoning in Shea must be seen in this context - that the Court’s starting point is to presuppose that an application under s.365 of the FW Act is a dispute concerning a person’s dismissal.
[55] Shea at para.55 per Dodds-Streeton J.
In relation to the fresh claims of age, race and sex discrimination ECU submits as follows:
a)at paragraph 80 of the Claim, Dr Vanden Driesen pleads for the first time that ECU has “also” discriminated against her on the grounds of age. Dr Vanden Driesen pleads that when she was 70 she was targeted publicly by Professor Ash as not being capable of teaching evening classes.[56] It is not clear how the allegation that Dr Vanden Driesen was allegedly “targeted publicly by Ash” was in some way connected to Dr Vanden Driesen being 70 years old;
[56] Professor Ash was the applicant’s line manager.
b)the fresh allegation of age discrimination is not “in relation to the alleged dispute”, that is, the dismissal. Paragraph 80 of the Claim does not refer to the dismissal of Dr Vanden Driesen and is not in relation to the dismissal dispute;
c)in Shea, the employee was seeking to supplement further complaints within the confines of, or as part of an FWA application under s.340(2)(a) of the FW Act, in the context of a dispute about her dismissal. This is entirely different from the present case in which Dr Vanden Driesen seeks to add a discrimination dispute under s.351 of the FW Act, unrelated to her dismissal, which is not in relation to the dispute in the FWA Application, being a matter involving dismissal;
d)if Dr Vanden Driesen were able to add to the general protections court application wholly new adverse actions which are not in relation to the dismissal dispute this would undermine the scheme of the FW Act.[57] The dismissal stream in ss.365 to 371 of the FW Act assigns a mandatory role to FWA to assist in the management of applications under s.365 of the FW Act. FWA cannot fulfil this function if the conciliation process is rendered pointless by allowing applicants to circumvent that process by adding wholly new adverse actions, unrelated to and not connected with the dismissal dispute, once the dispute progresses to this Court or the Federal Court. This would greatly increase the administrative burden on the courts - a burden which the mandatory FWA conciliation process is designed to lessen;
[57] Shea at para.55 per Dodds-Streeton J.
e)the Minister contemplated the reasoning outlined above in introducing the FW Act in Parliament:
This Division sets out the compliance framework for contraventions of Part 3-1. In most cases where there has been a dismissal, the dispute will be dealt with at the first instance in a conference conducted by FWA. If the dispute remains unsettled after the conclusion of the conference, the dismissed employee can proceed to court.[58]
f)the term “dispute” for the purposes of ss.365 and 371 of the FW Act is tied to the dismissal. The Explanatory Memorandum contemplates two separate streams of general protections applications - a dismissal disputes stream and a non-dismissal disputes stream;
g)the reference in s.371 of the FW Act to a general protections court application “in relation to the dispute” requires “a direct connexion” to the dismissal dispute;[59]
h)the fresh claim of age discrimination is not “in relation to” the dismissal dispute;
i)paragraph 81 of the Claim alleges that ECU discriminated against Dr Vanden Driesen on the grounds of race. Paragraph 81 then pleads that that “at ‘Management for Performance’ interviews Ash told the Applicant that her emails were poorly written and punctuated, and needed to be improved...”. It is then alleged that Jill Durey[60] was asked to re-write Dr Vanden Driesen’s unit outlines. It is not clear how the alleged conduct of Ash and Durey in this regard represents race discrimination. In any event, none of these matters are “in relation to” the dispute in the FWA application, being a matter involving dismissal;
j)paragraph 68 of the Claim separately alleges discrimination against Dr Vanden Driesen on the grounds of age, sex and race by reference to an employee, Travis Kelleher.[61] This is a wholly new claim that is not expressly linked to the dismissal dispute and arguably is not even in relation to the dismissal dispute. Mr Kelleher is not an ongoing staff member, and was ineligible for the change management process (which was limited to ongoing staff) and which ultimately resulted in the redundancy of the Dr Vanden Driesen’s position. Accordingly, a point of comparison against Mr Kelleher could have no relevance to the dismissal and cannot be a matter “in relation to” the dismissal;
k)paragraph 62 in its last two sentences raises a wholly new matter in relation to cl.60 of the Collective Agreement, as well as a new dispute, concerning an “unsatisfactory performance” process which is said not to have been able to be conducted where an application for promotion process was on foot, as it was a breach of clause 60 of the Collective Agreement. This matter is neither expressly nor impliedly “in relation to” the dismissal. Dr Vanden Driesen’s employment terminated by reason of redundancy, not as the result of an unsatisfactory performance process;
l)given the statutory scheme under ss.365 to 371 of the FW Act recognising a distinct dismissal stream, it is noteworthy that the Dr Vanden Driesen’s written submissions of 15 June 2012 recognise that the applicant may need to make a new application to FWA in respect of the new discrimination claims which may not be in relation to the dismissal dispute; and
m)it follows that if these matters are not in relation to the “dispute” under s.371 of the FW Act, then they are not relevant in relation to any of the pleaded adverse actions.
[58] Fair Work Bill (Cth) 2008, Explanatory Memorandum at para.1475 (“Explanatory Memorandum”).
[59] O'Grady at 374 per Toohey and Gaudron JJ.
[60] Jill Durey was a colleague of Dr Vanden Driesen.
[61] “Mr Kelleher”.
Dr Vanden Driesen’s further submissions – Section 369 Certificate issue
Dr Vanden Driesen also made further submissions following the judgment in Shea, as follows:
a)in SZANS the Federal Court stated that “the correct principle is that a judgment [of a Federal Court Judge] ought to be followed [by a Federal Magistrate] unless it is plainly wrong”.[62]
[62] SZANS FCR at 592 per Weinberg, Jacobson and Lander JJ; FCAFC at para.38 per Weinberg, Jacobson and Lander JJ.
b)this is to be contrasted with ECU’s submission where they state that a judgment of a single judge of the Federal Court does not bind a Federal Magistrate;
c)Shea supports previous submissions made by Dr Vanden Driesen to the effect that the Court has the jurisdiction to hear the Claim as currently framed;
d)it is not in contention in this case that:
i)the FWA Application was made to deal with a dispute under s.365 of the FW Act;
ii)attempts to resolve the dispute were unsuccessful;
iii)FWA issued the Section 369 Certificate of the FW Act on 17 February 2012;
iv)the Application was made to this Court on 2 March 2012 under s.371 of the FW Act;
v)the Application contains complaints against ECU:
(1) under s.340(1) of the FW Act, alleging adverse action has taken place within the meaning of s.342(1); and
(2) under s.351 of the FW Act, alleging adverse action on the basis of discrimination.
e)the reasoning, in Shea is as follows:
i)a certificate under s.369 of the FW Act is a precondition of the Court’s jurisdiction to deal with the dispute.[63] There is no argument in this case that the Section 369 Certificate issued;
[63] See fn.38 above.
ii)a discussion about “the necessary degree of correlation between the dispute expressed in the FWA application and the dispute expressed in the court application” revolves around the meaning of the word “dispute” and whether a certificate has been issued “in relation to” the dispute;[64]
[64] Citing Shea at paras.30 and 60 per Dodds-Streeton J.
iii)in relation to the meaning of “dispute”, for the purposes of a general protections court application:
(1)“Section 365 does not expressly…or implicitly provide that “the dispute” precisely coincides with the content of the FWA Application. Rather it permits the application to be made to FWA to deal with the dispute”;[65]
[65] Shea at para.63 per Dodds-Streeton J.
(2)to confine “dispute” narrowly “would effectively expand the restriction imposed by Section 371(1) on an applicant’s right to access the court. The court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access”;[66] and
[66] Shea at para.67 per Dodds-Streeton J.
(3)“neither ss 366 nor 368 defines, identifies or describes “the dispute” differently from s 365 of the FW Act, which does not expressly state or indicate that “the dispute” is limited to the applicant’s substantive claims in the FWA application”,[67]
[67] Shea at para.69 per Dodds-Streeton J.
and the Federal Court has therefore interpreted “dispute”, for the purpose of s.371 of the FW Act, as having wide import;
f)Shea, however, goes further than that, for the Federal Court qualified its analysis of the meaning of “dispute” for the purpose of s.371 of the FW Act by reference to a discussion of the meaning of the words “in relation to” that precede the word “dispute” in s.371 of the FW Act, and makes it clear that:
… a general protections court application made “in relation to” that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained …[68]
[68] Shea at para.70 per Dodds-Streeton J.
g)the Federal Court discussed the meaning of the term “in relation to” with reference to the well known passage in Project Blue Sky to the effect that whilst the scope of the phrase “in relation to” is wide, it must be placed in context;[69]
[69] Project Blue Sky CLR at 387 per McHugh, Gummow, Kirby and Hayne JJ; HCA at para.87 per McHugh, Gummow, Kirby and Hayne JJ, cited in Shea at para.71 per Dodds-Streeton J.
h)the Federal Court makes it clear in Shea that “the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application”;[70]
[70] Shea at para.77 per Dodds-Streeton J.
i)the ultimate finding of the Federal Court in Shea is that:
… on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application…[71]
[71] Shea at para.91 per Dodds-Streeton J.
j)on a proper analysis of Shea the Federal Court suggests two possible approaches in relation to interpreting the words of s.371 of the FW Act:
i)first, an applicant’s claim is not limited to the substantive claim that was the subject of the FWA application.[72] On that basis, there can be no doubt that even if it can be proved by ECU that Dr Vanden Driesen had limited her claims in the FWA Application to adverse action claims under s.340(1) of the FW Act, she is not prevented from including her claims under s.351 of the FW Act in this Court, provided the initial precondition of a certificate having been issued under s.369 of the FW Act is met, which it was; and
ii)second, even if that analysis proves unpersuasive, and if the word “dispute” is to be construed narrowly, the dispute that is the subject of a general protections court application “could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained” ;[73]
k)ECU concedes in its submissions that the basis of Dr Vanden Driesen’s claim, being an adverse action claim under s.340(1) of the FW Act, has remained;
l)Dr Vanden Driesen’s discrimination claims, at paragraphs 68 and 80-82 Of the Claim comprise a suite of allegations made against ECU, within the context of the events leading to Dr Vanden Driessen’s dismissal on 30 September 2011;
m)on the tests set out in Shea, Dr Vanden Driesen’s claims fall within the parameters of a “dispute” for the purposes of the Application;
n)on the basis of the principles set out in Shea, the Court has jurisdiction to hear the Claim as currently framed;
o)the essential basis of the Claim remains, and all allegations are made within the context of the evidence supporting, the claim as made in FWA Application: that is, the conduct of ECU, its officers, servants or agents towards Dr Vanden Driesen which culminated in her dismissal; and
p)having regard to a proper analysis of the principles in Shea, this Court is obliged to follow Shea, and to find that the Claim satisfies the jurisdictional threshold imposed by s371(1) of the FW Act.
[72] Citing Shea at para.69 per Dodds-Streeton J.
[73] Shea at para.70 per Dodds-Streeton J.
Consideration
A Federal Court judgment by a single judge which is directly on point, as Shea is:
a)is binding on this Court;[74] and
b)at the very least, to be followed, unless plainly wrong.[75]
[74] Suh & Ors v Minister for Immigration & Citizenship (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 522 at para.29 per Spender, Buchanan and Perram JJ. This is the preferable view: see O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” (2012) 86 ALJ 478 at 488.
[75] SZANS FCR at 592 per Weinberg, Jacobson and Lander JJ; FCAFC at paras.35-39 per Weinberg, Jacobson and Lander JJ.
Although this Court, as presently constituted, prefers the former view expressed above, that is that a Federal Court judgment by a single judge which is on point is binding on this Court, a question which might arise on the latter view expressed above, and therefore needs to be addressed, is whether Shea is wrongly decided.
ECU argue that Shea:
a)stands for the proposition that the phrase “in relation to the dispute” requires, or presupposes, a direct connection, between any additional complaints by Dr Vanden Driesen and the dispute the subject of the FWA Application; and
b)to the extent that Shea does not stand for the above proposition, it is wrongly decided, and ought not to be followed by this Court.
In Birch v Wesco Electrics (1966) Pty Ltd[76] this Court observed as follows concerning the phrase “in relation to”:
[76] (2012) 257 FLR 237; [2012] FMCA 5 (“Wesco Electrics”).
66. In Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia the majority in the High Court of Australia found that a purchaser of foreign currency obtained rights that attached to, or were constituted by, the ability to use the currency, without which, property in the currency was worthless. Therefore, the supply of foreign currency (on the departure side of the customs barrier at Sydney Airport) was a supply “in relation to” the rights that attended upon ownership of that currency, and where it was evident that the currency was to be used overseas, the supply was therefore free from the imposition of the goods and services tax.
67. The principal majority judgment in Travelex observed that:
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.
and further that:
What the Act requires is that there be a supply "in relation to" rights; the operation of the Act does not call for attention to be given to the particular content of the rights.
68. In O’Grady v Northern Queensland Co Ltd it was said that:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act …. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship – is necessary ….
69. In O’Grady the phrase “in relation to” was said to be one which “subject to any contrary indication derived from its context or drafting history, … requires no more than a relationship, whether direct or indirect, between two subject matters”. It has also been said to be a phrase of wide and general import, not to be read down in the absence of some compelling reason to do so.
70. In HP Mercantile Pty Ltd v Commissioner of Taxation the Full Court of the Federal Court of Australia observed that:
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.
71. In Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission the Full Court of the Federal Court held that in determining whether a matter was “in relation to” another matter, “the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship.” In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O’Grady emphasised “the need for attention to the legislative context and purpose” and was “an example of the primacy of context”. ….
72. That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression. The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court. Context is also important to a consideration of whether the relationship need be:
a) direct or substantial;
b) indirect or less than substantial;
c) affecting one term of the relationship; or
d) affecting all of the terms of the relationship.
73. In Tooheys the “vital question” was said to be “whether the instrument “relates” and not whether it may be “related” by an examination of extraneous circumstances.”
74. 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”.[77]
[77] Wesco Electrics FLR at 257-260 per Lucev FM; FMCA at paras.66-74 per Lucev FM
As set out in the above extract from Wesco Electrics, it is clear from High Court and Federal Court cases subsequent to O’Grady that the phrase “in relation to” is not limited to a relationship of “direct connection” as submitted by ECU. The only reason that a “direct connection” was found to be required in O’Grady was because it had to be read, in context, where the relevant legislation required the jurisdiction of the Queensland Wardens Court to be exercised in all actions “arising in relation to mining”. It was the word “arising” which gave rise to the requirement of a “direct connection” in O’Grady.[78] O’Grady, read properly, does not support ECU’s argument.
[78] O’Grady at 374 per Toohey and Gaudron JJ: “Although “in relation to” is an expression of broad import, in context with “arising” it presupposes a direct connexion …”.
In Shea, the Federal Court, having cited passages from Project Blue Sky and O’Grady, concluded that “the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.”[79] That is not inconsistent with what this Court said in Wesco Electrics.[80] It follows that this Court is of the view that the Federal Court judgment in Shea is correctly decided as to the effect of the phrase “in relation to” in s.371 of the FW Act, and therefore not plainly wrong. It further follows that, insofar as it seeks to set up an absolute proposition, ECU’s submission that the phrase “in relation to” requires a direct connection between the relevant matters is wrong. It may or may not require a direct connection, depending upon the context.
[79] Shea at para.72 per Dodds-Streeton J.
[80] And in particular at para.72 in the quote from Wesco Electrics set out above.
Shea is a judgment directly on point and binding on this Court, unless (on the latter view set out above) it is plainly wrong. In the Court’s view, for all the reasons set out in Shea, it is not plainly wrong. Indeed, the views expressed in Shea accord, with respect, with the views of this Court as presently constituted.[81] It follows that the views expressed by this Court in Active Tree Services are no longer good law, and ought not to be followed. This Court will, therefore, follow the reasoning in Shea.
[81] The views expressed in Shea might also be said to accord with the historical view of “industrial disputes” under s.51(xxxv) of the Constitution and earlier Commonwealth industrial relations legislation. In R v Bain & Ors; Ex parte Cadbury Schweppes Australia Limited & Anor (1984) 159 CLR 163 at 168 per Murphy J it was said that: “… an industrial dispute may be diminished or ended or enlarged during the course of proceedings in the Commission.” The “Commission” there referred to was the then Commonwealth Conciliation and Arbitration Commission, a statutory forebear of FWA.
What did the Federal Court decide in Shea?
First, and principally, that a general protections court application is not limited to the substantive claims made in an FWA application.[82] Second, and in any event, that a general protections court application “in relation to” the “dispute” the subject of an FWA application can include new claims, additional to and different from those in an FWA application.
[82] Shea at para.91 per Dodds-Streeton J.
Dr Vanden Driesen’s claims, additionally to those made in the FWA Application, are, therefore, part of the Application, and will not be struck out on the basis that they were not included in the FWA Application.
Dr Vanden Driesen’s additional claims are also claims which are in relation to the dispute, the essential basis for which remains her dismissal from employment at ECU. In any event, dependent upon the evidence, the additional claims, including claims going to a number of workplace rights, and issues of performance and the retention of other staff, might relate to the criteria upon which Dr Vanden Driesen’s redundancy was assessed, and her dismissal therefore effected, and as such, at this stage, those claims should not be struck out.
Paragraphs 8-21 – generally
ECU’s submissions
ECU applies to strike out paragraphs 8 to 19 of the Claim on the bases that:
a)the matters referred to occurred between 9 years and 20 years before the termination of Dr Vanden Driesen’s employment in 2011, and therefore do not fall within the jurisdiction of the Court as they are matters alleged to have occurred more than six years before the date of the Application to this Court on 2 March 2012; and
b)further, or in the alternative, if the matters referred to in paragraphs 8 to 19 of the Claim are regarded as within the jurisdiction of the Court, as there is no temporal or causal link between any matter pleaded in paragraphs 8 to 19 of the Claim and any adverse action pleaded, the matters referred to are:
i)irrelevant to any matter pleaded as an adverse action in the Application;
ii)further, or in the alternative, will cause unwarranted delay in the proceedings; and
iii)constitute an abuse of the process of the Court; and
c)will cause prejudice to ECU, given the long lapse of time between the events alleged and any adverse action pleaded.
ECU submits that to the extent that paragraphs 20 and 21 of the Claim refer to matters which occurred more than six years before the date of the Application, ECU applies to strike out those paragraphs, and repeats the submissions set out above.
ECU submits that to allow Dr Vanden Driesen to pursue matters which produce prejudice, delay or abuse of process is inconsistent with the object of providing for the just, efficient and economic resolution of proceedings set out in the FMC Rules.[83]
[83] FMC Rules, r.1.03(1).
ECU submits that the matters raised in paragraphs 8 to 21 of the Claim will cause prejudice to ECU by putting it at risk of adverse findings based upon matters:
a)for which documentary evidence sufficient to respond adequately to the allegation is unlikely to exist;
b)which are highly unlikely to be within the recollection of relevant witnesses (for instance, the content of any oral representation made in a conciliation conference in the early 1990s);
c)which extend well beyond the date for which employee records are required to be kept by ECU pursuant to s.535 of the FW Act;
d)which are irrelevant to determining the real reason for the redundancy of Dr Vanden Driesen’s position in 2011 upon which the Application is founded;[84] and
e)which would put ECU to unreasonable cost and deployment of resources to search for any remaining records of matters which occurred between 9 years and 20 years before the end of Dr Vanden Driesen’s employment in 2011.
[84] Citing Barclay v the Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 221, 222, 233 and 234 per Gray and Bromberg JJ; [2011] FCAFC 14 at paras.28, 32, 34, 74 and 78 per Gray and Bromberg JJ (“Bendigo Regional Institute – Full Court”). But see now The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 43 overturning the majority judgement in Bendigo Regional Institute – Full Court.
ECU further submits that the matters raised in paragraphs 8 to 21 of the Claim will cause delay in the proceedings by requiring ECU to reply to matters through its evidence which are irrelevant to determining the reason for the redundancy of Dr Vanden Driesen’s position in 2011, or any other matter expressly pleaded as an adverse action as:
a)such matters lack any temporal or causal connection to the termination of Dr Vanden Driesen’s employment, and the pleadings disclose no presumed basis on which such connection exists;
b)the first date at which an “adverse action” is expressly pleaded in the Application appears to be 2008; and
c)Dr Vanden Driesen’s own list of discoverable documents discloses only two documents dated earlier than 2006. One is her original contract of employment dated 1989, and the other is described as a “copy of nomination for the Vice-Chancellor’s Staff Awards for Service, Professionalism and Enterprise” dated 2004. The paucity of Dr Vanden Driesen’s discovery in relation to pre-2006 matters suggests that such matters are not relevant to the proceedings.
The matters raised in paragraphs 8 to 21 of the Claim constitute an abuse of process:
a)for the same reasons as set out in the previous paragraph, and
b)because had Dr Vanden Driesen brought separate non-dismissal-related proceedings, no matter earlier than six years from the date of the Application could have founded such an application, by reason of s.544 of the FW Act.
Dr Vanden Driesen’s submissions
Dr Vanden Driesen made the following submissions:
a)the events set out in paragraphs 8-21 of the Claim relate to matters in question between the parties;
b)the alleged breaches of workplace rights relate to a long history of inappropriate conduct of various staff members of ECU towards Dr Vanden Driesen. The conduct did not occur in a vacuum;
c)events that relate to an ongoing pattern of inappropriate behaviour towards Dr Vanden Driesen by officers of ECU are relevant to the proceedings;
d)even if it is decided that events more than six years prior to the date the claim is commenced are not actionable, it does not alter the fact that whilst perhaps not decisive, in a case such as this “the determination of (the) questions involves characterisation of the reasons of the person who took adverse action. The state of mind or subjective intention of that person will be centrally relevant”.[85] The state of mind of the relevant officers of ECU does not just stop at 2 March 2006;
e)the events as pleaded by way of background are relevant and ought not to be struck out;
f)ECU has not provided any evidence as to the extent to which a search for documents would result in an unreasonable drain on resources. As such, this submission must be afforded little, if any, weight; and
g)ECU has also offered no evidence to support the contention that to resist the strike-out application would result in delay in proceedings. Again, as such, this submission must be afforded little, if any, weight.
[85] Bendigo Regional Institute – Full Court, FCR at 221 per Gray and Bromberg JJ; FCAFC at para.28 per Gray and Bromberg JJ.
Consideration
The first issue raised by ECU is a limitation issue. That is, that the matters alleged to have occurred prior to 2002 are not within the jurisdiction of the Court because they occurred more than six years ago. The submission must be rejected. It fails to distinguish between the time at which a cause of action arose, and the evidence which might be led in support of a cause of action. Two simple examples will suffice:
a)in an action for breach of contract, the limitation period in Western Australia is six years.[86] Thus, if a contract of employment was breached by a failure to pay an express period of notice on termination, an action in contract could be brought up to six years after the date of termination of employment. The bringing of that action would not, however, preclude evidence relevant to the express period of notice being led. That evidence might be:
i)a document, or documents, which predate the six year limitation period, in which the express period of notice is stated; or
ii)evidence of oral discussions resulting in agreement between the parties on an express period of notice, those oral discussions having occurred before the commencement of the six year limitation period;
b)in tort, an action for negligence arising from a workplace accident must be lodged within three years of the cause of action accruing.[87] Evidence of:
i)the care and maintenance of the workplace, or of any workplace machinery involved in the accident; and
ii)evidence of deficiencies in the workplace, or of any workplace machinery involved in the accident, being drawn to the attention of the manager of the workplace, or the employer of the person injured,
in relation to matters more than three years before the cause of action accrued would not be excluded by the limitation period.
[86] Limitation Act, s.13.
[87] Limitation Act, s.14.
And so it is in this case, events occurring outside of the relevant limitation period may be relevant to the alleged adverse action.
What then is the relevant limitation period in this case? For a general protections court application the limitation period is 14 days after a certificate under s.369 of the FW Act is issued, or such further period as a court allows on application made during or after those 14 days.[88] The application to FWA which gives rise to a certificate under s.369 of the FW Act must be made within 60 days after the dismissal took effect, or such further period as FWA allows.[89] These are the relevant limitation periods in respect of a general protections court application.
[88] FW Act, s.371(2).
[89] FW Act, s.366.
Section 544 of the FW Act, which imposes a general limitation period of six years in relation to contravention applications does not apply in relation to general protections court applications. This is evident on the face of s.371(2) of the FW Act which imposes the 14 day period of limitation for general protections court applications, “[d]espite s 544” of the FW Act, and in Note 1 to s.544 of the FW Act which provides that the section does not apply in relation to general protections court applications. Note 1 to s.544 of the FW Act does no more than reflect the terms of s.371(2) of the FW Act. The Court relies upon the provisions of ss.371(2) and 544 of the FW Act for its view, as Note 1 to s.544 of the FW Act is not a Statutory Note, it is therefore not part of the FW Act.[90] Excluding the application of s.544 of the FW Act does not open up an unlimited period of application, as seemed to be suggested by Dr Vanden Driesen’s submissions, but rather limits the period of application to that specifically enacted under s.371(2) of the FW Act, which follows on from the specific period of application enacted under s.366 of the FW Act in respect of FWA applications. Because the period in which applications may be made, or the limitation period, post-dates the date of an employee’s dismissal it makes patent the weakness in the submission by ECU that events outside of the limitation period are not within the jurisdiction of the Court. If that were so, events prior to the dismissal (and on a strict reading prior to the issuance of a certificate under s.369 of the FW Act) would be outside of the jurisdiction of the Court. Obviously, that cannot be the case, as it would exclude patently relevant evidence, and makes apparent the nonsense of ECU’s submission.
[90] Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327 at 338-339 per Lucev FM; [2011] FMCA 28 at paras.31, 34 and 35 per Lucev FM.
Finally, the Court notes, that in any event, no cause of action in respect of adverse action arises prior to 1 July 2009 which was the date upon which the relevant legislation came into effect[91]. Notwithstanding that, events prior to 1 July 2009 may still be relevant to an adverse action general protections court application if they are relevant to establishing that the adverse action ultimately taken, that is, taken after 1 July 2009, was taken for one of the reasons set out in s.340 of the FW Act. Thus, for example, the exercise of workplace rights in a period, say from 2007 to 2011, giving rise to a termination in 2011, would be evidence relevant to the alleged adverse action occurring in 2011. At this stage it is not apparent that any adverse action claim (as opposed to the evidence in support of the ultimate claim) in these proceedings predates 1 July 2009. Final determination on that issue will have to await a final hearing
[91] FW Act, s.2(1).
For the above reasons, ECU’s submission that the matters referred to in paragraphs 8-19, and to a more limited extent paragraphs 20-21, of the Claim are not within the jurisdiction of the Court under a general protections court application, have not been made out.
In relation to paragraphs 8-21 of the Claim generally, they simply set out a series of events:
a)in paragraphs 8-19 of the Claim, up until 2002; and
b)in paragraphs 20 and 21 of the Claim, from 2002.
In relation to paragraphs 8-19 of the Claim those events include:
a)the non-renewal of Dr Vanden Driesen’s contract of employment as a lecturer in the Department of English at ECU in or about December 1991;
b)a subsequent appeal to the Equal Opportunity Commission, and the outcomes therefrom leading to a further three years of employment with ECU;
c)the granting of tenure to Dr Vanden Driesen; and
d)the fact that Dr Vanden Driesen did not receive an academic promotion to senior lecturer until 2002, 13 years after she had commenced employment with ECU.
There is no link in paragraphs 8-19 of the Claim to the alleged adverse action in 2011. Nothing is specifically pleaded, or from which any necessary implication arises from what is pleaded, which establishes any link to the alleged adverse action in 2011. Furthermore, the timing of the events in paragraphs 8-18 of the Claim, going back to events between 1988 and 1994, also mitigates against them being related to the alleged adverse action occurring in 2011, especially in the absence of any pleading linking the events of 1988 to 1994 to the events of 2011. Likewise, para.19 of the Claim simply asserts the non-promotion of Dr Vanden Driesen during the period 1989 to 2002, and sets out a series of contributions that Dr Vanden Driesen alleges she made in the course of her employment during that period. Again, there is nothing to link those matters to the alleged adverse action occurring at least nine years later.
Paragraphs 20 and 21 of the Claim suffer from the same defect with respect to the non-promotion of Dr Vanden Driesen from the position of senior lecturer in the years that followed 2002.
It follows therefore that paragraphs 8-21 of the Claim ought to be struck out as they do not relate to, as presently pleaded, the alleged adverse action in 2011.
Discovery
Previous orders
On 20 March 2012 a consent order was made in the following terms:
In the absence of any agreement between the Parties as to limited discovery, the Parties provide standard discovery by 2 May 2012.
ECU’s submissions
ECU submits that:
a)the parties were unable to agree to limited discovery;
b)ECU has provided standard discovery of documents (in excess of 1000 documents) which fall within the period of six years before the date of the Application;
c)Dr Vanden Driesen’s List of Documents itself refers to only two documents earlier than six years before the date (being 2 March 2012) of the Application;
d)for reasons set out above in relation to :
i)the Court’s lack of jurisdiction; and
ii)further, or in the alternative, prejudice to ECU, delay in the proceedings and abuse of process,
ECU should not be required to provide discovery beyond the standard discovery of documents dated within six years of the Application which has already been provided; and
e)it would be inconsistent with the objects of the FMC Rules to require discovery which would hinder the just, efficient and economic resolution of the proceedings.[92]
[92] FMC Rules, r.1.03(1).
Dr Vanden Driesen’s submissions
Dr Vanden Driesen submits that as the discovery order sought relates to a modified discovery order having regard to the order sought with respect to striking out the Application (or parts thereof), her submissions with respect to ECU’s strike out application apply with equal force to ECU’s application in a case with respect to discovery.
Consideration
Given that paragraphs 8-21 of the Claim have been struck out it is not apparent what documents relevant to the three year period from in or about 2008 until Dr Vanden Driesen’s dismissal on 30 September 2011, which have not already been discovered by ECU, might remain to be discovered.
It nevertheless remains the case that if there are documents which are relevant to the alleged adverse action, but which date to before 2008, the parties (and not just ECU) are obliged to discover those documents. For reasons set out above,[93] there may be evidence, including documents which pre-date 2008, relevant to the disposition of the alleged adverse action. Having regard to that fact, together with the striking out of paragraphs 8-21 of the Claim, which seems to be the primary cause of concern with respect to allegedly “oppressive” discovery for ECU, the Court can see no reason to amend the existing discovery order. It suffices to observe that, given the scope and complexity of this matter, that such an order was necessary in the interests of the administration of justice. ECU’s Application in a Case insofar as it relates to an amended discovery order must therefore fail.
[93] See especially paras.43-47 above.
The above conclusion does not preclude a further application for specific or particular discovery, if appropriate, later in these proceedings.
Further and better particulars
It is unnecessary for the Court to deal with the application for further and better particulars as Dr Vanden Driesen has agreed to supply them to ECU.[94]
Interrogatories
[94] As to whether the Court would have granted the application it is unnecessary to comment, but in relation to the factors relevant to the exercise of the discretion to grant or not grant particulars in this Court see, for example, Doukidis v Williamson (2008) 6 ABC(NS) at 723-724 per Lucev FM; [2008] FMCA 1352 at paras.31-34 per Lucev FM (“Doukidis”), and cases there cited.
ECU’s submissions
ECU seeks a declaration under s.45(1) of the Federal Magistrates Act 1999 (Cth)[95] and r.14.01 of the FMC Rules that interrogatories be allowed to be served by ECU, and an order for the interrogatories sought.
[95] “FM Act”.
ECU seeks the declaration and order in the interests of the fair and expeditious conduct of the proceedings by allowing ECU to respond properly to the allegations raised, including through its affidavit evidence.
Dr Vanden Driesen’s submissions
Dr Vanden Driesen opposes a declaration and order with respect to interrogatories, as:
a)leave has not been sought by ECU to amend their initial application; and
b)having regard to orders relating to the provision of discovery on oath and witness statements, an order for interrogatories will only increase the cost of the proceedings, with little forensic benefit, contrary to the aims, objectives and principles of proceedings in this Court.[96]
[96] Citing Wintle v RUC Cementation Mining Contractors Pty Ltd(No 2) [2012] FMCA 459 at para.30 per Lucev FM.
Consideration
The Court has the power to order interrogatories.[97] The power to order interrogatories “is rarely used”.[98]
[97] FM Act, s.45 and FMC Rules, r.10.01(3)(j); Doukidis ABC(NS) at 728 per Lucev FM; FMCA at para.48 per Lucev FM.
[98] Doukidis ABC(NS) at 728 per Lucev FM; FMCA at para.48 per Lucev FM.
In traditional litigation interrogatories had their place. Increasingly, however, in the context of modern litigation with case management techniques, and forms for initiating actions which allow for a fulsome exposition of a case in essentially narrative form (as is often done, and has been done here, in relation to Form 4 alleging contravention of a general protection under the FW Act), the necessity for interrogatories is not obvious.[99] Furthermore, it is not obvious that interrogatories are necessary in this case at this stage, particularly when it will be necessary for the parties to file affidavits before hearing. It would only be after a consideration of any affidavits filed, together with relevant documents, that the Court might consider interrogatories to be necessary. In this Court, it is not unusual for a case to be run and determined on the basis of an application and affidavits, without a statement of claim or defence.[100] The Court is still generally not a court which requires pleadings, and is intended to be a court which operates at low cost with few interlocutory processes available.[101]
[99] Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82 at 84 per Martin CJ; [2006] WASC 281 at para.10 per Martin CJ: “… any lawyer looking at that pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have no difficulty in ascertaining those matters.”
[100] FMC Rules, r.4.05; Rana v University of South Australia (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para.75 per Lander J.
[101] Rana FCR at 355 per Lander J; FCA at para.75 per Lander J; Verge & Anor v Devere Holdings Pty Ltd & Ors [2008] FMCA 591 at para.17 per Lucev FM.
In Fair Work Ombudsman v Nerd Group Australia Pty Ltd[102] this Court observed that:
[102] (2010) 197 IR 431; [2010] FMCA 569 (“Nerd Group”).
20. In exercising any discretion, the Court must take into account the objects of the FM Act in s.3, the mode of operation of the Court in s.42 of the FM Act, and the objects of the FMC Rules in r.1.03, which make it apparent that the Court is intended to operate in a manner:
a) as informal as possible in the exercise of judicial power;
b) which is not protracted in its proceedings;
c) which resolves proceedings justly, efficiently and economically;
d) which uses streamlined procedures; and
e) that avoids undue delay, expense and technicality.
21. This Court’s objects and purposes reflect much of the modern approach to case management, particularly of interim or procedural applications, especially recognising the need for proceedings to be resolved justly, whilst placing emphasis on the need for efficiency, economy and the avoidance of delay and expense, and are not inconsistent with the approach adopted by the High Court in Aon Risk Services Australia Limited v Australian National University where it was said that in respect of procedural and case management issues, the following must be taken into account:
a) the paramount consideration of doing justice between the parties, but observing that a just resolution must have regard to any relevant legislative purpose or object;
b) modern principles of case management;
c) the avoidance of undue delay; and
d) the wastage of public resources.[103]
[103] Nerd Group IR at 437-438 per Lucev FM; FMCA at paras.20-21 per Lucev FM.
In the circumstances of this case, and bearing in mind that affidavits have not yet been filed, and having regard to modern case management techniques and the objects of this Court, the Court considers that interrogatories are presently unnecessary. To the extent therefore that ECU seeks in its Application in a Case a declaration and order with respect to interrogatories, that part of the Application in a Case must fail.
ECU’s affidavits
ECU sought leave to file the affidavits of Elizabeth Tacey Moran and Phillip Arthur Monger sworn or affirmed on 2 July 2012. Dr Vanden Driesen objected to the filing of those affidavits, and submitted that ECU chose not to file any evidence in support of its Application in a Case. At the hearing on 15 June 2012 Dr Vanden Driesen says that the Court made the observation during submissions by Counsel for ECU that there was no evidence before the Court in support of the second order sought by ECU in its application. Dr Vanden Driesen says that no leave was granted from the Court to file any additional affidavit evidence in support of the Application in a Case. Dr Vanden Driesen submits that ECU should not at such a late stage be granted leave to do so.
The affidavits do not materially assist with the disposition of the Application in a Case, particularly in circumstances where paragraphs 8 to 21 of the Claim have been struck out for reasons not related to the content of the affidavits, and where it is apparent that the application for a variation of this Court’s earlier discovery order has no substance, irrespective of the content of the affidavits. In any event, the affidavits were filed without leave, and late in the proceedings. To that extent, there is prejudice to Dr Vanden Driesen, and case management considerations mitigate against leave being granted to file the affidavits. The Court has therefore determined not to grant leave to file the affidavits of Ms Moran and Mr Monger.
Conclusion and orders
The Court has concluded that:
a)paragraphs 8-21 of the Claim ought to be struck out;
b)otherwise, ECU’s Application in a Case ought to be dismissed.
The question of costs can be reserved to the next directions hearing. The matter will be adjourned to a directions hearing next Monday, 15 October 2012 at 10.15am.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 10 October 2012
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