FEDERAL COURT OF AUSTRALIA

Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Tin (Staffing Services) Pty Ltd”.

2.    The originating application filed on 17 December 2019 be dismissed.

3.    The respondent’s interlocutory application filed on 26 March 2020 be dismissed.

4.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

1    This is an interlocutory application for the strike out of the entirety of the applicant’s “pleading” pursuant to r. 16.21 of the Federal Court Rules 2011 (Cth.) (the “Rules”). The respondent contends that the applicant’s “pleading” is ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; fails to disclose a reasonable cause of action; and is otherwise an abuse of the process of the Court. Briefly stated, the essential allegation that the unrepresented applicant makes in this proceeding is that the respondent, his former employer, dismissed him in contravention of a general protection afforded by the Fair Work Act 2009 (Cth.) (the “FW Act”). .

2    For the reasons that follow, the respondent’s interlocutory application is misconceived and is therefore dismissed. Nevertheless, the applicant’s proceeding is dismissed for want of jurisdiction.

Applicable Legislative Provisions

3    It is convenient to commence with the key provisions in the FW Act that are relevant to the applicant’s case.

Part 3-1 – General protections

4    Part 3-1 of the FW Act is entitled “General protections” and provides a range of general workplace protections. Div. 3 of Pt. 3-1 protects “workplace rights” (as defined in s. 341) and the exercise of those rights. Relevantly, by reason of s. 340, an employer is prohibited from dismissing an employee for exercising a workplace right.

5    Section 365 of the FW Act provides that a person who has been dismissed in alleged contravention of Pt 3-1 may submit an application to the Fair Work Commission (the “Commission”). It provides as follows:

Application for the [Fair Work Commission (“FWC”)] to deal with a dismissal 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 the FWC for the FWC to deal with the dispute.

6    Section 366 imposes a time limit on the making of an application under s. 365. It provides as follows:

Time for application

(1)    An application under section 365 must be made:

(a)    within 21 days after the dismissal took effect; or

(b)    within such further period as the FWC allows under subsection (2).

(2)    The FWC may allow a further period if the FWC 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.

7    Section 368 sets out how the Commission is to deal with a dismissal dispute. It provides:

Dealing with a dismissal dispute (other than by arbitration)

(1)    If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note:    The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.

(2)    Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note:    For conferences, see section 592.

(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; and

(b)    if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4)    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.

8    Section 370 sets out the conditions which enliven the Court’s jurisdiction to consider a dismissal dispute of the kind contemplated in s. 365. It provides:

Taking a dismissal dispute to court

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.

(Emphasis added.)

9    Rule 34.03 of the Rules sets out the method by which a person can make an application to this Court in relation to dismissal from employment in contravention of a general protection. It provides:

Application in relation to dismissal from employment in contravention of a general protection

(1)    A person who wants to make an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must file an originating application, in accordance with Form 79.

(2)    The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).

Note:    Rule 34.05 provides for an application for an order in relation to a contravention of section 351(1) of the Fair Work Act.

(3)    The application must be accompanied by a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

Note:    Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.

(4)    Subrule (3) does not apply to an application brought by a Fair Work Inspector.

(Emphasis added.)

Part 3-2 – Unfair Dismissal

10    Section 394 of the FW Act relevantly provides:

Application for unfair dismissal remedy

(1)    A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1:    Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2:    For application fees, see section 395.

Note 3:    Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2)    The application must be made:

(a)    within 21 days after the dismissal took effect; or

(b)    within such further period as the FWC allows under subsection (3).

…

Factual background

11    The applicant commenced employment with the respondent as a sales team member in February 2015. The respondent contends that, on 8 March 2019, the applicant resigned from his position and the respondent accepted that resignation. In contrast, the applicant denies that he resigned. He contends that he was unfairly dismissed by the respondent on 9 March 2019 after requesting a reduction in his working hours.

12    The procedural history would appear not to be in dispute. The applicant represented himself at all times. On 25 March 2019, the applicant made an unfair dismissal application to the Commission pursuant to s. 394 of the FW Act. On 16 April 2019, the parties participated in a conciliation. On 17 April 2019, the applicant lodged a Notice of Discontinuance with respect to his unfair dismissal application. On the applicant’s account, he did so on the basis that his case was not “purely about unfair dismissal” and involved other allegations such as underpayment, errors in his payslips, and outstanding leave loading and personal leave entitlements. On the same day, the applicant made a “general protections application involving dismissal” to the Commission pursuant to s. 365 of the FW Act. He alleged that the respondent had contravened s. 340 of the FW Act. That application was filed outside the 21-day period prescribed by s. 366 of the FW Act. The applicant therefore needed an extension of time.

13    The Commission determined that the applicant should not be allowed a further period within which to lodge his general protections application: Gao v. Tin Staffing Services [2019] FWC 5477. The Deputy President was not satisfied that “exceptional circumstances” existed for the purposes of s. 366(2) of the FW Act. The applicant sought to appeal that decision but was denied permission by the Full Bench of the Commission: Gao v. Tin Staffing Services [2019] FWCFB 8432. The Full Bench concluded at [18]-[19] of its decision:

We also do not consider that the Deputy President’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on the question of what constitutes “exceptional circumstances” for the purposes of s 366(2) of the FW Act. The matters identified by Mr Gao as justifying the grant of permission in the public interest lack any real connection to the subject matter of the decision, and we do not consider that they are such as to require the grant of permission under s 604(2).

We do not consider the grant of permission to be in the public interest nor do we consider that there is any basis upon which permission to appeal should be given. Permission to appeal is therefore refused.

14    Critically, because the applicant failed to secure an extension of time, his intended application under s. 365 was not before the Commission in the requisite sense to engage s. 368 of the FW Act. It follows that the Commission did not, and was not called upon to, issue any certificate under s. 368(3)(a).

The Applicant’s Originating Application

15    On 17 December 2019, the applicant filed an originating application in this Court alleging dismissal in contravention of a general protection under the FW Act (Form 79). That application was not accompanied by any other document. In the application, the applicant set out the claims which were before the Commission in respect of his alleged dismissal. Relevantly, the applicant stated that he “relies on s365 of the Fair Work Act 2009”. He thus purported to make a “general protections court application”, to use the language of s. 370. And he sought relief in the form of: unpaid wages, annual leave, loading, personal leave entitlements and superannuation; correction to his payslips; compensation from the time of the alleged unfair dismissal to the time he secured part-time employment; and an apology.

16    In response to the applicant’s originating application, the respondent filed an interlocutory application seeking “[t]hat the Applicant’s pleading be struck out, pursuant to Rule 16.21 of the Federal Court Rules 2011” and an order as to costs. This application was accompanied by an affidavit sworn by Mr Guy Israeli, solicitor for the respondent, on 23 March 2020. In broad terms, the respondent complained that: (i) the applicant had not clearly exposed the relevant cause of action; and (ii) the applicant’s originating application was not accompanied by a certificate issued by the Commission as required by r. 34.03 of the Rules.

First Case Management Hearing

17    At the first case management hearing before me on 26 March 2020, the applicant, with leave, was permitted to make submissions by telephone. I drew to his attention that his application needed to be accompanied by a certificate issued under s. 368(3)(a) of the FW Act in order to enliven the Court’s jurisdiction. I asked the applicant whether he had obtained such a certificate. Due to difficulties with the telephone connection, however, the applicant’s response was not discernible. I subsequently directed the applicant to send to my Chambers a written response addressing my question and the matters raised by the respondent’s interlocutory application.

18    In his written submissions, so far as is relevant, the applicant:

(a)    re-iterated that he relies upon s. 365 of the FW Act and characterised the genesis of his matter as the “general protections dismissal application” lodged with the Commission;

(b)    very properly conceded that no certificate was issued to him because the Commission refused his request for an extension of time to file the general protections dismissal application;

(c)    contended that the respondent’s interlocutory application was an abuse of process. In that respect, he alleged that the respondent had engaged in deceptive actions and had presented documents that were “false” or “illegal”; and

(d)    directed the Court to “Note 2” under s. 370 of the FW Act and the “Note” under r. 34.03(3) of the Rules.

Disposition

The respondent’s interlocutory application

19    The respondent’s interlocutory application may be dealt with swiftly as it is, with respect, misconceived on its face. The applicant has filed no “pleading”. He has only filed an originating application. The term “pleading” is defined in Sch. 1 (Dictionary) to the Rules as follows:

pleading means:

(a)    a statement of claim; or

(aa)    an alternative accompanying document referred to in rule 8.05; or

(b)    a statement of cross claim; or

(c)    a defence; or

(d)    a reply; or

(e)    any pleading after a reply;

but does not include:

(f)    an originating application; or

(g)    an interlocutory application

(h)    a notice of any kind; or

(i)    an affidavit.

(Emphasis added.)

20    It follows that there is nothing for the Court to strike out as the applicant’s originating application is clearly not a “pleading” upon which r. 16.21 of the Rules could operate. The respondent’s interlocutory application is therefore dismissed. That outcome, however, is of limited assistance to the applicant as he confronts a more fundamental obstacle.

The Court’s jurisdiction

21    In simple terms, the Court does not have jurisdiction to hear the applicant’s purported general protections court application. In other words, there is a “jurisdictional bar” to the Court adjudicating on whether he was dismissed in contravention of Pt 3-1 of the FW Act. That is because the applicant has not been issued a certificate pursuant to s. 368(3)(a) of the FW Act. It follows that pursuant to s. 370(a)(i) of the FW Act, an essential condition to the Court’s jurisdiction has not been satisfied: see Chen v. Birbilis [2016] FCA 661 at [18] per North J. The operation and rationale of s. 370(a)(i) was described by Pagone J. in Ward v. St Catherine’s School [2016] FCA 790 as follows (at [6]):

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.

(Emphasis added.)

I respectfully agree with his Honour’s observations.

22    The terms of s. 370(a)(i) are clear. The absence of the certificate cannot be overcome by the applicant’s conviction that he has been treated poorly by his erstwhile employer. The Court has no discretion in waiving the requirement for the certificate. The applicant’s reliance, therefore, on “Note 2” under s. 370 is, with respect, misguided as that note pertains to the Court’s discretion with respect to the time in which a general protections court application can be made.

23    For completeness, I note that it was not otherwise contended by the applicant that s. 370(b) of the FW Act applies. To elaborate, the applicant’s general protections court application does not include an application for an interim injunction (e.g. for reinstatement) so as to eliminate the need for a certificate: see Knight v. Visionstream Australia Pty Ltd [2017] FCA 1513 at [32] per O’Callaghan J.

Costs

24    To the extent the respondent seeks costs, I note that s. 570(2) of the FW Act confers a residual discretion on the Court, even if it is satisfied, for example, that the applicant instituted the proceeding without reasonable cause: Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492 at 502 [47] per Mortimer J. In the circumstances of this case, including the outcome of the respondent’s interlocutory application and the position of the applicant, I consider it appropriate to exercise that residual discretion in favour of the applicant. There will be no order as to costs.

Conclusion

25    For the foregoing reasons, I dismiss:

(a)    the applicant’s application filed on 17 December 2019 on the basis that the Court has no jurisdiction to hear and determine it; and

(b)    the respondent’s interlocutory application filed on 26 March 2020,

with no order as to costs

Associate:

Dated:    9 April 2020