[2014] FWC 1904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Bosco Alex
v
Costco Wholesale Australia
(C2014/2575)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 MARCH 2014

Application to deal with contraventions of the General Protections provisions involving a dismissal; whether application prohibited by section 725.

Introduction

[1] Mr Bosco Alex (Applicant) lodged an application under section 365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission) on 7 January 2014. Section 365 allows a person has been dismissed who alleges that he or she was dismissed in contravention of Part 3-1 of the Act, to apply to the Commission for the Commission to deal with the dispute.

[2] The Applicant was employed by Costco Wholesale Australia Pty Ltd (Respondent) until his dismissal from employment, which took effect on 21 December 2013.

[3] In his application to the Commission under section 365, the Applicant indicated that he had not made another claim to the Commission or to any other organisation regarding his dismissal. This information was incorrect. On 3 January 2014 the Applicant lodged with the Australian Human Rights Commission (AHRC) a complaint in which he alleged, inter alia, the dismissal from his employment on 21 December 2013 was discriminatory and related to his race and colour (AHRC Complaint).

[4] The Respondent has objected to the Commission dealing with the dispute because the application made by the Applicant under s 365 was prohibited by reason of his earlier AHRC Complaint, which had neither failed for want of jurisdiction nor been withdrawn.

[5] I have decided to dismiss the application for want of jurisdiction. These are my reasons for doing so.

Relevant statutory provisions

[6] Chapter 6 of the Act contains provisions dealing with multiple actions. Part 6-1, Division 3, Subdivision B of that Chapter contains provisions aimed at preventing multiple actions relating to a dismissal. So far as is relevant to this application, those provisions are as follows:

725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

. . .

727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

. . .

732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended. 1

[7] These provisions recognise that persons aggrieved by a decision to dismiss may have multiple avenues of redress and in so doing, they operate to prevent multiple actions being maintained in relation to the same dismissal. Put simply a person aggrieved by a dismissal may choose to seek a remedy in relation to his or her dismissal by following one of a number of avenues. Having made a choice, that person is prevented from making a second application or complaint for redress before the application or complaint first made has not been withdrawn or failed for want of jurisdiction.

Consideration

[8] The Applicant first complained of his dismissal to AHRC by lodging the AHRC Complaint on 3 January 2014. The AHRC Compliant is a complaint to which s.732 applies. When the Applicant purported to lodge his application under s.365 with the Commission, he had not withdrawn the AHRC Complaint and the complaint had not failed for want of jurisdiction. The application under s. 365 is an application of a kind referred to in s.727. Consequently, in purporting to make that second application, s.725 was invoked. That section prevents the Applicant from making the application under s.365.

[9] The Applicant has argued that the prohibition under s.725 does not apply because the AHRC Complaint deals with discrimination alleged to have occurred during employment and consequently was not a complaint to which s.732 applies. Whilst it is correct that the AHRC Complaint alleges discrimination during employment, there is little doubt that the Applicant also complains about the dismissal that is also the subject of the s.365 application. That this is so is apparent on the face of the AHRC Complaint 2.

[10] The Applicant also submitted that I should not dismiss the application because the role of the Commission in s.365 applications is to convene a conference as required but not deal with jurisdictional challenges. The Applicant referred to a number of single member decisions in support of his proposition, however the relevant authority is the Full Bench decision in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 3. That decision concerned an appeal from a decision of a Commissioner to dismiss an application made under s. 365 because the applicant in that case had not been “dismissed”. In upholding the appeal the Full Bench concluded that in determining whether the applicant in that case had been dismissed, the Commissioner was effectively determining the applicant’s legal rights under Part 3 – 1 of the Act, and that was not the role of the Commission in dealing with an application made under section 3654.

[11] This case is entirely different. Here we are not concerned with whether any of the constituent elements of a cause of action under Part 3 – 1 of the Act are established. Rather we are concerned with whether an application under s. 365 of the Act may be made to the Commission given the prohibition in s. 725. That question goes to the jurisdiction of the Commission to deal with this application under s. 365. It does not go to any question that will determine any legal rights that the Applicant might have under Part 3 – 1 of the Act. The jurisdiction of the Commission to conduct a conference under s. 368(1) of the Act is conditional on an application being made under s. 365. As s. 725 prohibits such an application in this case, there is no power under s. 368 to conduct a conference.

[12] I have given consideration to whether I would be able to exercise my discretion to waive any irregularity under s. 586 the Act in relation to the application in the event that the Applicant discontinued the AHRC Complaint 5. However I have decided that that power is not available in this case because the prohibition of making this application operated at the time that the application was made to this Commission and as such there is no valid application and no irregularity to correct. Furthermore, the subsequent withdrawal of the AHRC complaint merely removes the bar to making a s. 365 application after the withdrawal. It does not operate retrospectively to allow that which was prohibited on 7 January 2014. Even if I am wrong in this conclusion, I would not exercise my discretion in this case because to do so would undermine the very purpose that s. 725 is designed to achieve, namely the prevention of multiple applications being brought in relation to the same subject matter.

[13] After I had drafted this decision but before publishing it, the Applicant filed further submissions. I have decided to deal with those submissions notwithstanding their late filing. I also gave the Respondent the opportunity to file submissions in reply.

[14] In those submissions the Applicant says that he has discontinued the AHRC complaint although he did not provide any evidence to that effect. In consequence, the Applicant says that s. 725 no longer acts as a bar to the application and the Commission should conduct a conference. Further, he says that if a conference is not conducted and the application is dismissed, he would be without a remedy, and that is not the intended operation of s.725.

[15] The fact that the Applicant may have withdrawn his AHRC Complaint does not alter the effect of s. 725 on the application he made to this Commission on 7 January 2014 for the reasons given above in paragraph [12]. In any event, the Applicant has not provided any evidence of the purported withdrawal by him of the AHRC Complaint. The Respondent has provided correspondence from the AHRC which indicates the AHRC Complaint was terminated pursuant to s. 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (AHRC Act). Consequently, there has not been a withdrawal nor failure for want of jurisdiction of the AHRC Complaint. As to the alleged absence of a remedy, that is clearly not the case. An application to the Federal Court of Australia or the Federal Circuit Court of Australia alleging unlawful discrimination may be made under s. 46PO of the AHRC Act because the AHRC Complaint has been terminated.

[16] In the circumstances, I have concluded that s. 725 of the Act operated as a bar to this application being made because the AHRC Compliant is a complaint made under another law by the applicant in relation to the dismissal and it had not been withdrawn nor failed for want of jurisdiction within the meaning of s. 732.

Conclusion

[17] The application is dismissed because it was prohibited by s. 725 of the Act. An order dismissing the application is issued separately [PR548845].

DEPUTY PRESIDENT

Hearing details:

On the papers.

Written submissions:

Applicant, 3 March 2014

Respondent, (Submissions in reply) 5 March 2014

Applicant, (Further submissions) 17 March 2014

Respondent, (Further submissions in reply) 19 March 2014