General protections’ double dipping in the Fair Work Commission

The Fair Work Commission is required to process a general protections claim, including claim of adverse action for exercising a workplace right and unlawful dismissal because of prohibited discrimination. This arises from sec 365 of the Fair Work Act which provides that if a person has been dismissed and it is alleged that the dismissal is in contravention of that part of the Fair Act (which contains the genera protections) the person may apply to the Commission for the Commission to deal with the dispute.
It is a clumsy legislative device, for example why would it be assumed that there is a dispute? The whole of that part of the Fair Work Act is ridiculously drafted because it results from the dysfunctional drafting that always emanates from a committee and lawyers trying to jostle for the right to claim best contemporary drafting technique.
Be that as it may, for some time now there has been controversy amongst legal circles about what jurisdictional elements the Commission needs to be satisfied exist before dealing with such a claim. For example, does the Commission need to ignore the claim if it is out of time? Or what is required if there is some other jurisdictional objection since the Commission’s task is simply to conduct conciliation, or more correctly in a sec 368 conference, before issuing a certificate which permits the matter to proceed to the Federal Court or the Federal Circuit Court or the Commission in the very rare consent arbitration cases under sec 369.
In Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital [2013] FWCFB 6321 a Full Bench of the Commission determined that the Commission was not obliged to resolve a contest as to whether a person had been dismissed saying “For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”
In Hazledine v Wakerley and another (2017) FWCFB 500 delivered 23 January 2017 per Drake SDP, Dean DP and Saunders C a Full Bench was called upon in an appeal to determine whether or not the Commission when dealing with a sec 365 application was required to determine as a matter of jurisdiction whether an applicant was precluded from making the application in the face of an objection by the respondents to the effect that the application was jurisdictionally incompetent because the making of the application allegedly contravened the prohibition in sec 725 against the taking of multiple actions “in relation to the dismissal” since the applicant had previously launched proceedings in the Australian Human Rights Commission alleging unlawful discrimination by her employer in the context of her dismissal. In the general protections case the applicant had named two of her senior colleagues who she said played a role in her dismissal, so the parties were different.
The Full Bench made a number of points in its decision.
Firstly that the prohibition against “double dipping” was not limited to cases where the respondent was the employer and could offend the Fair Work Act where the respondents were different. Approving the decision of the very excellent Magistrate Lucev as he then was in Birch v Wesco Electrics (1996) Pty Ltd [2012] FMCA 5 who “emphasized”…… “ the personal nature of the prohibition imposed by s.725 of the Act; it acts upon the applicant, not the employer.”
Consequently, the Full Bench upheld the decision of Deputy President Kovacic at first instance namely that “We are satisfied that the Deputy President applied the correct statutory purpose to s.725 of the Act when deciding that Ms Hazledine’s general protections application was barred by the operation of subdivision B of Division 3 of Part 6-1 of the Act. “
Secondly that “We reject the contention that the Deputy President applied an incorrect legal test in connection with the phrase “in relation to the dismissal”. The Deputy President set out the proper test at paragraphs [30] to [31] of the Decision and then applied that test in reaching his conclusion that Ms Hazledine’s general protections application was barred by the operation of s.725 of the Act. In particular, the Deputy President considered whether there was a relationship, other than a tenuous or remote relationship, between Ms Hazledine’s dismissal and her general protections application. It is not surprising that the Deputy President concluded there was such a relationship in circumstances where Ms Hazledine contends in her general protections application that Mr Giddings and Mr Wakerely contravened s.362 and/or s.550 of the Act in connection with their involvement in the decision to dismiss Ms Hazledine.”
Thirdly that “The fact that different remedies are available under different statutes in connection with a range of statutory causes of action which an employee may pursue on their dismissal does not alter the clear words and purpose of s.725 of the Act. What s.725 requires is for an applicant to make an election between available statutory remedies in relation to their dismissal…….
In this case, the personal prohibition imposed on Ms Hazledine by s.725 of the Act required her to make an election between the remedies available under the Act and those available under the AHRC Act. That election did not prevent Ms Hazledine from pursuing remedies against each of AJG, Mr Giddings and Mr Wakerley, regardless of whether she commenced proceedings under the Act or the AHRC Act. Accordingly, we reject ground 3 of the Notice of Appeal.
And fourthly and fifthy that “The Deputy President clearly had regard to the definition of “dismissed” in the Act when considering the arguments raised by Ms Hazledine in relation to those matters.
It has never been in dispute that Ms Hazledine was employed and later dismissed by AJG. Nor has it been in dispute that neither Mr Giddings nor Mr Wakerley employed or dismissed Ms Hazledine at any time. However, the identity of the entity that employed and/or dismissed an applicant is not determinative of the question of whether a general protections application is in relation to the applicant’s dismissal.
In her general protections application, Ms Hazledine points to the fact that the letter from AJG to Ms Hazledine whereby her employment was terminated is authored by Mr Giddings. Ms Hazledine also contends in her general protections application that Mr Wakerley was involved in the decision to terminate Ms Hazledine’s employment. Ms Hazledine relies upon these links between Mr Giddings and Mr Wakerley to the decision to terminate her employment as the basis for contending in her general protections application that they have each “contravened section 362 and/or section 550 in relation to the termination of Ms Hazledine’s employment”. In those circumstances, we are satisfied that the Deputy President was correct to conclude that Ms Hazledine’s general protections application was an application “in relation to the dismissal” within the meaning of s.725 of the Act. Accordingly, we reject grounds 4 and 5 of the Notice of Appeal.
As to Ms Hazledine submission that Krongold v Leibowitz [2013] FWC 3738 is authority for the proposition that s.725 cannot operate when the respondents to the general protections application are different to the respondent to an AHRC complaint, a careful reading of Krongold reveals that the case was not decided on that basis. It is clear from paragraphs [17] to [19] of Krongold that the basis for the decision was the finding that the complaint to the AHRC was not one “in relation to dismissal”; the case was not decided on the basis that there were different respondents. The comments by the Deputy President at paragraph [9] of Krongold are obiter. In any event, for the reasons set out elsewhere in this decision, we do not consider that the fact that there may be different respondents to different applications or complaints is determinative of the question of whether such applications or complaints relate to the dismissal of the employee.”