FEDERAL COURT OF AUSTRALIA

Ward v St Catherine’s School [2016] FCA 790

REASONS FOR JUDGMENT

1    Ms Ward made an oral application on 22 June 2016 under r 16.52 of the Federal Court Rules 2011 (Cth) for leave to file a further amended statement of claim to add a general protections court application in relation to her dismissal from her employment to her then existing claims in the proceeding which she had commenced against St Catherine’s School under the Fair Work Act 2009 (Cth) (“the Act”) before her dismissal. The application for leave was opposed on the basis that the proposed application in relation to her dismissal could not be brought by reason of s 370 of the Act or should not otherwise be allowed. The parties were informed that leave was not granted and that reasons would be provided subsequently. That was done to enable Ms Ward to make an application to the Fair Work Commission if so advised and to enable other directions to be given in the existing proceeding in the Court on the day of the hearing for the preparation of the matter.

2    The principal proceedings were commenced by Ms Ward by originating motion dated 24 May 2016 against her then employer. The proceeding was listed for directions on 17 June 2016 when, on 16 June 2016, Ms Ward was dismissed from her employment by St Catherine’s. Counsel for Ms Ward made an oral application at the directions hearing on the following morning seeking interim injunctions to restrain St Catherine’s from acting upon the dismissal and for Ms Ward to be reinstated to her position as Deputy Principal with St Catherine’s until the trial of the proceeding. The oral application for interim injunctions was supported by an affidavit by Ms Jessica Dawson made on 17 June 2016 but which had been provided to those acting for St Catherine’s too close to the directions hearing for it to be dealt with on that day. The oral application for interim injunctions was therefore adjourned to 22 June 2016 to enable St Catherine’s to respond to the oral application and directions were given which required St Catherine’s to file by 20 June 2016 any affidavit in opposition of the application by Ms Ward for interim injunctions. An affidavit in opposition dated 20 June 2016 by Ms Clare Cannon was subsequently filed and served for the hearing on 22 June 2016.

3    Ms Ward, however, did not press her application for interlocutory injunctions on 22 June 2016, but instead sought leave to amend her originating motion, and her amended statement of claim, by adding to the principal proceeding a claim to challenge her dismissal. Section 370 of the Act imposes a substantial restriction upon a person making a general protections court application in the Federal Court in relation to a dismissal dispute. A person who has been dismissed and who alleges that the dismissal was in contravention of Part 3-1 of the Act may apply to the Commission for it to deal with the dispute, but s 370 of the Act prevents a general protections court application to be made unless the Commission has issued a certificate under s 368(3)(a) in relation to the dispute or the application includes an application for an interim injunction. A certificate under s 368(3)(a), if issued by the Commission, is to the effect that the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

4    It was submitted for St Catherine’s that the Court lacked jurisdiction to grant leave for Ms Ward to add the dismissal claim because s 370 of the Act prohibited such a claim being made unless either the Commission had issued a certificate or the application included an application for an interim injunction. The Commission had not issued a certificate under s 368(3)(a) and it was submitted by St Catherine’s that there was no current application for an interim injunction because the oral application which had been made on 17 June 2016 had been abandoned on 22 June 2016. Section 370 provides:

370    A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

Note 1:    Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2:    For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

In Hill v Compass Ten Pty Ltd [2012] FCA 761 Cowdroy J said at [31] that the provision “prohibits absolutely the making of general protections court applications” without the relevant certificate. It was submitted for Ms Ward, however, that the prohibition in s 370 did not apply because Ms Ward had made an oral application on the morning of 17 June 2016 for an interim injunction and, therefore, that the application came within the exception in s 370(b) of the Act. It was submitted for Ms Ward that the Court did not lack jurisdiction by reason of s 370 of the Act to join her dismissal claim to the existing proceeding because an application for an interim injunction had been made orally on 17 June 2016 and that the condition in s 370(b) had therefore been satisfied notwithstanding that an interim injunction was not being sought at the time when Ms Ward was seeking to join her dismissal claim to her existing proceeding.

5    Whether the prohibition in s 370 had been overcome by the oral application which had been made on 17 June 2016 may require more careful consideration in other circumstances, but in this case the application to join the dismissal claim should, in any event, be refused on discretionary grounds, making it unnecessary finally to decide the jurisdictional question. For present purposes, however, it is sufficient to deal with the argument about jurisdiction by noting that there was no application for an interim injunction in Ms Ward’s application at the time when she sought to add the dismissal claim to her proceeding against St Catherine’s, and that the Commission had not issued a certificate under s 368(3)(a) as contemplated by s 370(a)(i). Section 370(b) contemplates the existence of an application for an interim injunction at the time when the general protections court application in relation to a dismissal dispute is made in the Court. The “application” referred to in s 370(b) refers to an application made under s 366 and no part of the application in the principal proceeding had sought interim injunctions in respect of the dismissal until the oral application for interim injunctions was made on the morning of 17 June 2016. That application, however, was not pressed on 22 June 2016 and there was, therefore, no application which included an application for an interim injunction at the time when Ms Ward was seeking to add her dismissal claim to the existing proceeding. The use of the word “includes” in s 370(b) is significant and is not just a matter of grammar or form. The use of the word “includes” takes account of the practical need for the Court to have jurisdiction to deal with dismissal disputes where there may be a need for an interim injunction from the Court in circumstances which could not await the ordinary process of dispute resolution in the Commission as contemplated by the legislation. The jurisdiction for the Court to entertain a dismissal claim under s 370(b) is, in other words, linked to its jurisdiction to entertain applications for interim injunctions and is conferred upon the Court to ensure that it is able to deal with a dismissal claim where it arises in a case calling for an interim injunction. The process of dispute resolution by the Commission, as contemplated by the legislation, should in this case be allowed to proceed, whether or not the Court has jurisdiction to allow the dismissal claim to be added, where there was no longer an application for an interim injunction and the Commission has not given a certificate under s 370(3)(a).

6    The policy expressed in Division 8 of the Act is for dismissal disputes to be dealt with by the Commission rather than by the Court. Section 365 confers jurisdiction upon the Commission to deal with a dismissal dispute where the person dismissed alleges that the dismissal was in contravention of Part 3-1 of the Act. A circumstance in which such an application may be made to the Court is where a certificate has been issued by the Commission under s 368(3)(a) in relation to the dispute. That section provides:

(3)    If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a)    the FWC must issue a certificate to that effect; […]

[…]

It is significant that the certificate required by s 370(a)(i) to trigger a person’s entitlement to make an application to the Court, is a certificate in which the Commission expresses its satisfaction about a state of affairs concerning the ability of the dispute to be resolved by means other than arbitration. The entitlement under s 370 of the Act to make a general protections court application, in other words, is made to depend upon the Commission’s evaluation of the facts and circumstances bearing upon the prospects of the parties resolving their dispute about dismissal by means other than arbitration and proceedings in Court (unless their application included an application for an interim injunction). The statutory condition for a certificate from the Commission reveals a clear legislative policy that such dismissal disputes are to be dealt with by the Commission, and by dispute resolution procedures other than by arbitral and judicial determination, unless those procedures have been or are likely to be unsuccessful. The legislative policy is that Court processes to resolve such dismissal disputes are then only to be engaged when the Commission, as an independent statutory authority, is itself satisfied that those other means for resolution of the dismissal disputes are, or are likely to be, unsuccessful. It is not sufficient to enliven a litigant’s entitlement to bring a dispute to the Court for the dispute about dismissal to have been referred to the Commission unsuccessfully. Nor is it sufficient to enliven the entitlement to make a general protections court application in relation to a dismissal dispute that the dispute had been made to, and was pending in, the Commission. What is required to enliven the entitlement to make such an application to the Court is not the mere formality of a certificate by the Commission but, rather, the certification by the Commission of it being satisfied that the dismissal dispute is not able to be resolved by the alternative process specifically provided for by the legislature.

7    Ms Ward, as previously mentioned, did not have a certificate from the Commission under s 368(3)(a) as contemplated by s 370. That, of course, is unsurprising given that her dismissal had occurred only on 16 June 2016. However, the legislative policy revealed in the provisions is that dismissal disputes of the kind Ms Ward sought to add to her then existing proceeding in this Court should be dealt with by application to the Commission rather than by the Court (in the absence of an application for an interim injunction). The legislative policy that dismissal disputes be dealt with by the Commission, and by non-arbitral processes, militated against allowing Ms Ward to add her dismissal claim to that which she had previously commenced in the Court where there was no application for an interim injunction at the time of making her application to amend the pleading. The general protections court application in relation to the dismissal is one which should be made by Ms Ward to the Commission and for the Commission to deal with the dispute. Ms Ward’s application for leave to add the dismissal dispute to the existing proceeding was, therefore, refused.

Associate:

Dated:    7 July 2016