Wendy Eileen Buckley v Emerald Home Improvements Pty Ltd
[2023] FWC 668
•20 MARCH 2023
| [2023] FWC 668 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wendy Eileen Buckley
v
Emerald Home Improvements Pty Ltd
(U2021/9774)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 20 MARCH 2023 |
Application for an unfair dismissal remedy – Application dismissed on the ground that the application had no reasonable prospects of success, pursuant to s. 587(1)(c) of the Fair Work Act 2009.
Overview
On Monday 18 July 2022, I dismissed an application for an unfair dismissal remedy (substantive application), made under s. 394 of the Fair Work Act 2009 (FW Act), by Ms Wendy Buckley (Applicant). I dismissed the application under s. 587(1)(c) of the FW Act, following a hearing conducted on 16 March 2022 and 19 April 2022, because I accepted the Respondent’s submission that the application had no reasonable prospects of success.
The facts in the matter are novel and involve what is essentially a marital dispute between the Applicant and her estranged husband, Mr Bradley Rackley. The marital dispute was before the Family Court at the time of the hearing of the Applicant’s unfair dismissal application and in my view, the Applicant’s complaints, and the relief she seeks, should be the subject of those proceedings.
Emerald Home Improvements Pty Ltd is the Respondent to Ms Buckley’s unfair dismissal application. Ms Buckley was the Company Secretary of the Respondent until 13 September 2009, when she resigned that position. It is implicit that Ms Buckley maintains that she continued to be employed by the Respondent after her resignation as Company Secretary, although the capacity that Ms Buckley claims to have been employed in, and the duties she performed, is not clear. Mr Rackley was the sole Director of the Respondent and continued to hold that position at the time the application was heard. Mr Rackley responded to the application in his capacity as sole Director of the Respondent, albeit as “titular” director. Mr Rackley’s role with the Respondent is a matter to which I will return later.
The Applicant alleged that she was unfairly dismissed on 31 October 2021 after her wages ceased to be paid from 13 September 2021. The Applicant initially sought remedies including reinstatement, compensation for lost wages, accrued annual leave and superannuation and payment of wages for the period from 13 September 2021. The Applicant subsequently amended her claim for relief and indicated that she did not seek reinstatement, but rather compensation for her alleged unfair dismissal. Later the Applicant amended her position again, and indicated that she sought reinstatement, and compensation for unpaid wages during the period 16 October 2021 to the date of reinstatement.
Both the Respondent and the Applicant tendered an Order of the Federal Circuit and Family Court of Australia, made by consent on 14 October 2021 (the Family Court Order). The version tendered by Mr Rackley was redacted and the version tendered by the Applicant was not. The Family Court Order provided (among other things) that the Applicant was to operate Emerald Home Improvements Pty Ltd trading as Emerald Sheds, free of involvement of Mr Rackley. The Order also specified that Mr Rackley would operate a company known as Rackley industries Pty Ltd, free of the involvement of the Applicant.
The Applicant alleged that prior to the Family Court Order being made, Mr Rackley systematically removed money from the Respondent’s bank accounts so that by the time the Order was made the Respondent had no funds to pay the Applicant or creditors, and her wages ceased to be paid on 13 September 2021. Regardless of the truth of these allegations, the simple facts of the matter are that the Applicant was seeking reinstatement to a Company over which she had control, by virtue of the Family Court Order, at the time she was allegedly dismissed.
It is also the case that if the Respondent (through Mr Rackley) dismissed the Applicant on 31 October 2021, then the dismissal was inconsistent with the Orders of the Federal Circuit and Family Court issued on 14 October 2021. Presumably the Applicant was aware of those orders when they were made and that a purported dismissal could have had no effect, in circumstances where she controlled the entity that allegedly employed her, and Mr Rackley had no power to terminate the Applicant’s employment with the Respondent.
Further, any order for the payment of compensation could only be made against the Respondent and not against Mr Rackley personally. On the Applicant’s own case, the Respondent has no funds. The amounts claimed by the Applicant for unpaid wages and leave entitlements accrued prior to her alleged dismissal, are not amounts that the Commission is empowered to award in an application for an unfair dismissal remedy. Finally, while the Applicant’s allegations in relation to Mr Rackley’s conduct with respect to withdrawing funds from the Respondent’s bank account would likely be of interest to the Federal Circuit and Family Court, these are not matters over which the Fair Work Commission has jurisdiction.
In numerous Mentions and Directions hearings conducted prior to the substantive hearing, I informed the Applicant of my provisional view that the relief she was seeking was not a matter that could be dealt with by way of an unfair dismissal application and that the matters should be raised with the Applicant’s family law representative and not ventilated before the Fair Work Commission. Notwithstanding my provisional view, the Applicant pressed the application and the relief she seeks. Accordingly, I conducted a hearing to determine whether the Applicant’s unfair dismissal application should be dismissed on the grounds sought by the Respondent.
Legal representation
Pursuant to s. 596 of the FW Act, Mr Rackley (who appeared in his capacity as the sole Director of the Respondent) was given permission to be represented by a lawyer on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently, having regard to its complexity. In deciding to grant permission to the Respondent to be represented by a lawyer, I had regard to the novelty of the situation and the respective claims. I also had regard to the fact that both the Applicant and the Respondent have Temporary Protection Orders against each other under the Domestic and Family Violence Protection Act 2012 (Qld), which prevent each from contacting or attempting to contact the other, by any means, or asking someone else, other than a lawyer to contact the other. The Respondent’s legal representative alerted the Commission to the Temporary Protection Orders in an email dated 15 March 2022. The Applicant, who had not informed the Commission of the existence of the Temporary Protection Orders, responded to this email stating that on the last occasion the matter was before the Commission, Mr Rackley had made comments directed at her and that the Applicant hoped he could remain silent and not direct comments to her so that he would not breach the Order.
Although the proceedings were conducted by telephone, the Applicant said that hearing Mr Rackley’s voice triggered her and caused distress. Accordingly, I was of the view that the involvement of a lawyer would ameliorate this to some extent, on the basis that it would reduce the need for Mr Rackley to speak, while ensuring that his right to cross-examine the Applicant was protected ensuring a fair hearing for Mr Rackley. Further, Mr Rackley’s legal representative offered to facilitate cross-examination of Mr Rackley by having questions by Ms Buckley put through him. Ms Buckley accepted this offer. The Respondent was represented by Mr Philip Copeland, Copeland Workplace Law. Mr Copeland assisted the Commission and I record my appreciation of his conduct of the matter in difficult circumstances and his professionalism in assisting to provide fairness to both parties at the hearing.
Procedural history
In a Form F3 Response to the application, lodged by Mr Rackley, the Respondent objected to the substantive application on grounds including that it was out of time because it was lodged more than 21 days after the dismissal took effect and the Applicant was not dismissed. In the alternative, the Respondent argued that application for a remedy was “circular” given that the Applicant had sole control of the Respondent.
The Respondent also filed an application on 16 December 2021, seeking that the substantive application be dismissed on the grounds that:
· It was prohibited under s. 725 of the FW Act on the basis that the Family Court Order giving the Applicant sole control of the Respondent was an application by the Applicant under another law of the Commonwealth, in relation to the dismissal; or
· Because the Applicant has the power to reinstate herself, the application is frivolous or vexatious or has no reasonable prospects of success, as provided in s. 587.
I held a Mention/Directions conference on 21 December 2021 at which the issues in dispute between the parties were canvassed. The Applicant was directed to advise the Commission whether she intended to proceed with the substantive application, by Wednesday 17 January 2022. The Applicant did not comply with this Direction and was given a further opportunity to advise of her intention by 19 January 2022. On that date the Applicant advised that she wished to proceed with the substantive application.
On 20 January 2022, the Respondent sent correspondence to my Chambers summarising the basis upon which its application to dismiss was made and requesting that I dismiss the Applicant’s unfair dismissal application on my own motion. The email stated that if I was not minded do this, the Respondent wished to press its application that the substantive application be dismissed.
My Associate corresponded with the parties on 4 March 2022 advising that I declined to dismiss the substantive application on my own motion and that the matter would be listed for hearing to determine the Respondent’s application to dismiss the substantive application. The email sent by my Associate set out the grounds upon which the Respondent sought that the substantive application be dismissed and gave the Applicant until 11 March 2022 to provide any further response addressing ss. 387 and 725, 729, 731 and 732 of the FW Act, the text of which were set out in the email.
The matter was listed for hearing on 16 March 2022. At the hearing, the Respondent put its full oral submissions in support of the application to dismiss the substantive application. Those submissions addressed the matters set out in the Form F1 Application filed by the Respondent on 16 December 2021 and the email summarising its case sent on 20 January 2022. During the hearing, it was apparent that the Applicant did not have copies of her own material or that of the Respondent available to her, despite having been served with the Respondent’s material. The Applicant also made numerous references to additional material which she sought to provide to the Commission.
To ensure that the Applicant had every opportunity to respond to the application to dismiss the substantive application, I adjourned the hearing and indicated that I would provide an audio recording of the proceedings to the parties and that the Applicant would be granted a further period until 23 March 2022, to respond to the application to dismiss the substantive application. The Respondent received the audio recording. The Applicant maintained that she did not receive the recording.
Numerous attempts were made by my Associate to provide the audio recording of the 16 March hearing to the Applicant. On 17 March 2022, a link to the audio recording was sent to the Applicant, by email to the email address included in her Form F2 Application. An email was also sent to the Applicant on that date advising that the link had been sent and that if the Applicant had any difficulty accessing it, she should advise my Associate as soon as possible. Further, the email informed the Applicant that she had until 23 March 2022 to respond to the Respondent’s submission and that if she wished to file additional documents, these must be annexed to the response and their relevance explained. The Respondent was given until 30 March 2022 to file any submissions in reply. The matter was listed for further hearing on 4 April 2022.
On 21 March 2022, at 6.34 pm, the Applicant advised that she had not received the audio link. The link was resent on 23 March 2022 and the Applicant was requested to confirm her receipt of the link by close of business that day. The Applicant was granted until 28 March to file her response to the application to dismiss her unfair dismissal application. The Applicant again advised that she had not received the link. On 24 March the Respondent’s legal representative corresponded with the Applicant and the Commission suggesting that the Applicant authorise her local solicitors handling her family law matter, to receive the link on her behalf. The Applicant responded, rejecting this suggestion.
On 25 March 2022, the Respondent’s legal representative sent an email to the Commission contending, among other things, that the Applicant had behaved unreasonably by refusing to utilise her current solicitors in her family law matter to receive the link to the audio recording or to provide an alternative email address and again requesting that the Commission dismiss the Applicant’s unfair dismissal application, of its own motion. The Applicant responded on 27 March suggesting an alternative email address and contending that she should be given more time to prepare and research her case for unfair dismissal and to obtain legal advice.
On 29 March 2022, my Associate sent the audio link to the alternative email address supplied by the Applicant and emailed the parties to advise that this had been done and that I would vacate the current Directions and the hearing on 4 April 2022 and give the Applicant until 5 April 2022 to file her response material and the Respondent until 12 April to file any material in reply. The matter was listed for hearing on 19 April 2022. On 5 April 2022, (the date her material was required to be filed) the Applicant sent an email to my Chambers notifying that she had not received the audio link. The email went on to state:
“…however please note I still require an answer from the other side why my wages were stopped being paid on 13/9/21 which has not been answered. I also do not want my employment reinstated. I wish to (sic) compensation for unfair dismissal.”
By email on 5 April 2022, my Associate informed the Applicant that it was of concern that she had waited until 5 April 2022 to advise that the link had not been received and pointed out that extensions had already been granted and the hearing delayed, despite the Applicant failing to advise of this in a timely manner. The Applicant was also informed that in a final attempt to assist her to access the audio recording I would request that the Commission’s monitoring provider give the Applicant account details to enable her to download a copy of the recording directly from the provider. To facilitate this, the Applicant was required to complete an audio request form including terms of use which was sent to her on 5 April 2022. Further, the Applicant was advised that a copy of the audio recording would be sent to her on a USB, by registered post to the address set out in her Form F2 application. The Applicant was requested to reply to the email confirming that she had received it. The Applicant did respond to the email and did not complete the audio request form. The USB was sent to the Applicant by registered post.
On 6 April 2022, my Associate emailed the parties advising that no response had been received from the Applicant and that I considered that she had been afforded opportunities to access the audio recording of the hearing by four different methods: a link sent to her email address on 17 and 23 March 2022; a link sent on 29 March 2022 to the alternative email address provided by the Applicant; by downloading the recording using the on-line portal provided by the Commission’s monitoring and transcript provider; and by a USB containing the recording being sent by registered mail.
The email to the parties sent on 6 April 2022 also advised that the Commission had not received a completed terms of use document to allow the on-line recording to be accessed by the Applicant and that I considered that the Applicant had not availed herself of the opportunities she had been offered. It was reiterated that the Applicant had been given until 4.00 pm on 12 April 2022 to provide submissions or a statement in reply to the Respondent’s application to dismiss the substantive application and that the Respondent had been given until 15 April to respond to any matters raised by the Applicant. The Applicant did not respond to this email and did not file any additional material.
On 6 April 2022, the Respondent filed a copy of a letter sent on 26 November 2021 by the Applicant’s family law lawyers, to Mr Rackley’s family law lawyers, stating among other things that:
“It however seems that our client was without a wage from 13 September 2021. However, Emerald Home Improvements has been paid some funds since the 14th October 2021 and our client has since been paid her outstanding wages.”
The letter also states that if the Applicant is paid her unpaid leave entitlements and superannuation, she will withdraw her complaint for unfair dismissal. The letter is not marked “without prejudice”.
The facts
The relevant facts are as follows. Shares in the Respondent were held equally by the Applicant and Mr Rackley. The Applicant was the sole employee of the Respondent and held the role of Company secretary, which she resigned on 13 September 2021. In her Form F2 Application, filed on 1 November 2021, the Applicant stated that she was notified of her dismissal on 31 October 2021 and that it took effect on that date. The Applicant also stated that the notification of her dismissal was given by a member of the Queensland Police Service and no reasons for the dismissal were given by the Respondent. Further, the Applicant stated that she had not been paid her wages since 13 September 2021. The outcomes sought by the Applicant were reinstatement, payment of leave and unpaid wages and compensation for unfair dismissal. The Applicant said that she had sought assistance from the Queensland Police Service and was informed that this was a civil matter and that she had been informed by “Fair Work” that as she was a company secretary assistance would not be provided to her.
It appears from the material tendered by the Applicant that she had sought the assistance of the Fair Work Ombudsman in relation to a claim for unpaid wages, and that she claims to have been informed that assistance could not be provided if she held the role of Company Secretary. Appended to the Form F2 was a completed Form 370 Notification by officeholder of resignation, pursuant to the Corporations Act 2001, signed by Ms Buckley on 13 September 2021, advising of her resignation from the position of secretary of Emerald Home Improvements Pty Ltd. A letter of resignation from that position dated 13 September 2021 was also appended to the Form F2.
The Applicant sent numerous emails to the Commission said to be in support of her application. The difficulty with the approach adopted by the Applicant is that the documents emailed to the Commission by the Applicant related to proceedings in the Federal Circuit and Family Court and no explanation of their relevance in the Applicant’s unfair dismissal application was provided.
On 27 November 2021, the Applicant sent three emails to the Commission. The first email appended a spreadsheet said to relate to the bank account of Emerald Home Improvements Pty Ltd. The covering email stated that the Applicant ran the Company from January 2011 and had control of the bank account until 26 June 2021 when the Director (Mr Rackley) took over the account and removed her access. The Applicant also asserted that Mr Rackley “drained” the account for non-business purchases and that by 15 October 2021 there was nothing left. In the second email, the Applicant forwarded what appears to be a payslip, described by her in a covering email as “reports of unpaid entitlements I would like to be paid” and stating that the figures may change depending on the date of the termination of her employment.
In the third email sent to the Commission on 27 November 2021 the Applicant attached correspondence from an accountant dated 2 November 2021, sent to the Applicant’s family lawyers, indicating that prior to the Family Court orders amounts had been paid out of the Respondent’s bank account which did not appear to have been covered in the Orders. On 30 November 2021, the Applicant sent a further email to the Commission attaching an affidavit that appeared to have been tendered in her family law proceedings, which appended the correspondence from an accountant sent to the Commission on 27 November 2021 and an unredacted copy of what appear to be further Orders of the Federal Circuit and Family Court made following an interim defended hearing before a Senior Judicial Registrar on 9 November 2021. Those later orders appear to be dealing with allegations raised by the Applicant about Mr Rackley removing funds from the Respondent company.
In a Form F3 Response filed on behalf of the Respondent on 30 November 2021, the Respondent recorded its objections to the application on the grounds that the Applicant was not dismissed, and that the substantive application was lodged outside the time required in s. 394(2) of the FW Act, on the basis that the Applicant alleged that she was dismissed on 13 September 2021 and filed her unfair dismissal application on 1 November. The following factual assertions were also made in the Form F3:
· The Applicant was the sole employee of the Respondent and was employed to perform Company secretary duties and manage administrative aspects of the business including sales and payroll;
· The Respondent’s Director Mr Rackley was not aware that the Applicant had resigned her position as Company Secretary on 13 September 2021 until he was served with her unfair dismissal application on 5 November 2021;
· Notwithstanding her resignation, the Applicant continued to process her fortnightly salary payments up until 28 October 2021; and
· At no time did the Respondent’s Director or anyone else acting on behalf of the Respondent, notify the Applicant of the termination of her employment.
In response to the Applicant’s contentions, the Form F3 contains the following statement:
“Shares in the Respondent are held equally by the applicant and the applicant’s estranged husband Brad Rackley. Under consent Family Court Orders dated 14 October 2021 (attached) Mr Rackley relinquished his role in the respondent to the applicant ie. the Orders provide (amongst other things) that the applicant operate Emerald Home Improvements Pty Ltd trading as Emerald Sheds, free from any and all involvement from Mr Rackley (see Orders 20(a), 20(c) and 23).
Should the respondent’s jurisdictional objections not be accepted, the respondent submits that the applicant’s claims for leave, unpaid wages and compensation for dismissal are circular, since the applicant effectively controls the respondent and its finances.”
A redacted copy of the Family Court Orders issued on 14 October 2021 was appended to the Form F3 and provides at items 20(a), 20(c) and 23 as follows (with the Applicant for the purposes of the Family Court Orders being Mr Rackley and the Respondent being Ms Buckley):
“20. That within seven (7) days of the date of these orders, the parties do all acts and things and sign all necessary documents to give effect to the following:
a) The Applicant will provide the Respondent full and unrestricted access to all banking accounts in the name of Emerald Home Improvements Pty Ltd;
b) The Respondent will provide the Applicant full and unrestricted access to all banking accounts in the name of Rackley Industries Pty Ltd;
c) To restrict the Applicant’s access to Emerald Home Improvements Pty Ltd banking accounts as “view only”;
d) To restrict the Respondent’s access to Rackley Industries Pty Ltd banking accounts as “view only”.
21. That the Respondent is restrained by injunction from restricting and/or limiting the Applicant’s access to all banking accounts in the name of Rackley Industries Pty Ltd.
22. That the Applicant is restrained by injunction from restricting and/or limiting the Respondent’s access to all banking accounts in the name of Emerald Home Improvements Pty Ltd.
23. That unless otherwise agreed in writing between the parties, the parties are hereby restrained and an injunction shall issue restraining them from:
a) accessing or attempting to access any email addresses and/or accounts of the company and business run by the other;
b) contacting or attempting to contact any clients of the company or business run by the other; and
c) otherwise interfering in the management, operations or conduct of the company or business run by the other.”
The orders also restrict the Applicant and the Respondent in these proceedings from dealing with the shares of the businesses and on withdrawing funds from their bank accounts, paying accounts and acquiring assets above an amount of $35,000.00.
Application to dismiss substantive application
On 16 December 2021, the Respondent filed an application seeking that the substantive application be dismissed under s. 587(1) of the FW act on the grounds that it is frivolous or vexatious or has no reasonable prospects of success. In the Form F1 Application, the Respondent asserted that the only persons with any association with the Respondent company are Mr Rackley, who is the sole Director and 50% shareholder and Ms Buckley (Mr Rackley’s estranged wife) who is the sole employee and 50% shareholder. The Form F1 goes on to refer to the Family Court Orders, and to contend that on 31 October, the date the Applicant claimed to have been informed of her dismissal by a member of the Queensland Police Service, the Applicant had control of the Respondent by virtue of the Family Court Orders and was the only person with legal authority to effect a dismissal. It was also submitted that even if Mr Rackley authorised the Queensland Police Service to notify the Applicant of her dismissal, which is denied, any such purported termination would have no legal effect because of the Court Orders.
The Respondent’s submissions were further articulated in an email sent on 20 January 2022, and later in final submissions filed on 15 April 2022. In these submissions, additional grounds were advanced as follows. Firstly, it was contended that s. 725 of the FW Act prohibits the Applicant from making an unfair dismissal if an application of the kind set out in s. 732 has been made. Section 732 relevantly requires that:
a) An application has been made under another law of the Commonwealth;
b) The application is on behalf of Ms Buckley; and
c) The application is in relation to the dismissal.
It was submitted that the Order of the Federal Circuit and Family Court of Australia made under the Family Law Act 1975 (a law of the Commonwealth) on 14 October 2021, was made on application to the Court by Counsel for both the Applicant in those proceedings (Mr Rackley) and the Respondent (Ms Buckley) and that this satisfies the requirements that an application has been made on behalf of Ms Buckley. It is also contended that the application to the Federal Circuit and Family Court of Australia is “in relation to the dismissal”. Support for this contention is said to be found in the decision of Deputy President Bull in Gill v Karan Grewal Pty Ltd t/a Curry Place[1] which held that the phrase “in relation to” is to be defined according to the context in which it appears and does not relate to a tenuous or remote relationship. It was also observed in that case that the subdivision dealing with multiple actions, is intended to prevent a person from double dipping when they have multiple potential remedies relating to dismissal by seeking to limit a person to a single remedy.
It was submitted that in the present case, the remedy sought by the Applicant is circular because it is sought against a company that the Applicant controlled at the time she alleged that she was dismissed and will be made against that Company. In this regard, the remedy sought by the Applicant in her unfair dismissal application is: “Reinstatement of position, all leave and unpaid wages to be paid immediately. Compensation for dismissal.”[2] Orders for payment of leave and unpaid wages are outside the jurisdiction of the Commission. By email to the Commission at 9.32am on 5 April 2022 the Applicant amended the remedy sought stating: “I also do not want my employment reinstated. I wish to (sic) compensation for unfair dismissal.”
The Respondent submits that the Commission must not order compensation unless reinstatement is inappropriate. Reinstatement would not be inappropriate in the circumstances for reasons including that the Applicant:
· is already running the business of the Respondent, and has been since at least the date of the Order on 14 October 2021;
· is the only person who can legally operate the business of the Respondent[3]; and
· is legally required to run the day-to-day operations of the business of the Respondent and is restrained from disposing of the business of the Respondent[4].
Under ss. 391(3) & (4) of the FW Act, the FWC may also make an order to restore lost remuneration because of the dismissal. The Applicant’s evidence is that she has continued to perform work (without pay) from 13/09/21[5]. However, a letter dated 26 November 2021 from the Applicant’s solicitors to Mr Rackley’s solicitors in the Family Law Application states:
“It however seems that our client was without a wage from 13th September 2021. However, Emerald Home Improvements has been paid some funds since the 14th October, 2021 and our client has since been paid her outstanding wages.”10 (emphasis added)
The Applicant therefore was not dismissed but continued to work for the Respondent beyond 13 September 2021 (temporarily without pay) until at least when she was awarded sole control of the Respondent’s business under the Order dated 14 October 2021. Even if the Applicant was dismissed as variously claimed by her on 31 October 2021 and 13 September 2021 (which is denied), she has not lost any remuneration. Therefore, the only possible remedy available in her unfair dismissal application is reinstatement in accordance with s. 391 of the FW Act.
The Respondent contends that the remedy sought and obtained by the Applicant in her Family Law Application was (relevantly), unfettered control of the “management, operations or conduct” of the Respondent or its business from 14 October 2021. By virtue of the Order, the Applicant has the authority to reinstate herself (if indeed she was ever dismissed). Therefore, the (partial) outcome sought through the Applicant’s Family Law Application is to the same effect as the only remedy available to her through her unfair dismissal application (ie. reinstatement). In this particular context, the relationship between the 2 applications is neither tenuous nor remote. The Applicant is effectively “double dipping”. The Family Law Application satisfies the test in s. 732(1)(a) that it is “in relation to” the dismissal.
Since the Family Law Application was not withdrawn or failed for want of prosecution, s.732(1)(b) is satisfied. Therefore, under ss. 725 & 729 of the FW Act, the Applicant is prohibited from making the current unfair dismissal application, and it must be dismissed.
Secondly, in the alternative, the Respondent also sought that the application be dismissed under s. 587 of the FW Act on the grounds that it has no reasonable prospects of success and is frivolous or vexatious. The Respondent submitted that in relation to the potential remedies under ss. 390-391 of the FW Act:
· the Applicant has already achieved the legal authority to reinstate herself (if she was ever dismissed, which is denied) through the Order dated 14 October 2021;
· reinstatement would not be inappropriate for the reasons given in paragraph [40] above, therefore FWC must not make an order for compensation;
· the Applicant continued working for the Respondent at least up to 14 October 2021 so the continuity of her service has not been broken; and
· the Applicant has not lost any remuneration prior to 14 October 2021.
Therefore, the only remedy potentially open to the FWC to order in the Applicant’s unfair dismissal application is reinstatement. Since the Applicant has already achieved the legal authority to reinstate herself, the application should be dismissed under s. 587 of the FW Act.
Thirdly, (and also in the alternative) the Respondent submitted that the Applicant was not dismissed so does not satisfy the criteria under ss. 385(a) & 386 of the FW Act for being unfairly dismissed. Accordingly, the Commission does not have jurisdiction to deal with the application.
Consideration
I do not accept the submission that the Family Court application is an application of the kind set out in s. 732 of the FW Act. An application to the Federal Circuit and Family Court for orders concerning marital property differs fundamentally from an application for an unfair dismissal remedy under s. 394 of the FW Act. Those orders also concern child access arrangements and other matters. The fact that the Orders operate with respect to the entity that is the Respondent to the unfair dismissal application, is not sufficient to justify a finding that the Family Court application is an application in relation to the Applicant’s dismissal.
The Applicant has brought her unfair dismissal application in the capacity of putative employee. The Family Court application is brought based on the Applicant’s marital situation and the conduct of Mr Rackley in relation to that matter. Mr Rackley is a Director of the Respondent but on his own evidence has no control of the Respondent. Further, any order arising from the unfair dismissal application could not have been made against Mr Rackley personally. If the Applicant had an employment relationship with the Respondent, it existed independently of her marriage to Mr Rackley. The conduct the two applications deal with, is not related. The fact that the outcome of the Family Court proceedings may impact or intersect with the unfair dismissal application, is not sufficient to establish the requisite relationship.
The intention of the provisions in Chapter 6 Division 3 is to prevent multiple actions in relation to the same conduct. In circumstances where the Respondent does not accept that the Applicant has been dismissed, it is difficult to understand how the Family Court application relates to that conduct. In any event, for the reasons set out above, I do not accept that the unfair dismissal application is caught by the multiple action provisions in Chapter 6 Division 3 of the FW Act.
In relation to the application to dismiss the Applicant’s unfair dismissal application under s. 587 of the FW Act, I am satisfied that the unfair dismissal application has no reasonable prospects of success, for the following reasons. The unfair dismissal application has no utility. At every stage of the application, the Applicant has demanded to be told why Mr Rackley and/or the Respondent ceased to pay her wages prior to the alleged dismissal. Despite my efforts to direct the Applicant’s attention to matters relevant to an unfair dismissal application she has maintained her position. The Applicant has made it clear that the principal purpose of the application is to seek redress in respect of her allegations that Mr Rackley ceased to pay her prior to the alleged dismissal and drained money from the Respondent’s bank accounts immediately prior to the orders made by the Family Court. This is not a matter that can be the subject of proceedings before the Fair Work Commission. Both the marital dispute and any dispute in relation to unpaid wages, are properly matters within the jurisdiction of the Federal Circuit and Family Court and not the Fair Work Commission.
The unfair dismissal application is made against Emerald Home Improvements Pty Ltd. At the time of making the application, the Applicant controlled that entity. Mr Rackley could not have dismissed her. Any Order relating to the Applicant’s unfair dismissal application could only have been made against Emerald Home Improvements Pty Ltd and could not have been made against Mr Rackley personally. It is far from clear that the Applicant was dismissed. Even if it could be established that Mr Rackley purported to dismiss the Applicant, he had no authority to do so, because of an Order of the Federal Circuit and Family Court. The dismissal was of no effect and if there was an employment relationship the Applicant can re-establish that relationship by virtue of her control of Emerald Home Improvements. If that entity has no funds at present, for the Commission to reinstate the Applicant would be an exercise in futility.
These propositions have been put repeatedly to the Applicant and she has been given numerous opportunities to address the Commission on the utility of her application. Other than repeatedly demanding to be informed as to why Mr Rackley stopped paying her wages, the Applicant has advanced nothing to assist in progressing her case. I am also of the view that to have allowed the matter to proceed would have resulted in the Applicant using an unfair dismissal application for the collateral purpose of pursuing issues over which the Commission has no jurisdiction, in circumstances where she has proceedings before the Federal Circuit and Family Court which could address the issues she sought to advance before the Commission. This would have expended the time and resources of the Commission and exposed the Applicant to the potential for a costs application to be made against her.
It is not necessary that I make a finding in relation to whether the Applicant was dismissed.
Conclusion
For these reasons, I dismissed the Applicant’s unfair dismissal application under s. 587(1)(c) of the FW Act and issued an Order to that effect.
DEPUTY PRESIDENT
Appearances:
W Buckley, the Applicant.
P Copeland of Copeland Workplace Law for the Respondent.
Hearing details:
2022.
Brisbane (by Telephone):
March 16, April 19.
[1] [2018] FWC 870.
[2] Item 2.1 of the Form F2 Application.
[3] Exhibit A1 at [23].
[4] Exhibit A1, at [24].
[5] Applicant’s email to the Commission dated 20 Jan 2022, point 3.
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