Federal Court of Australia

McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding against the Second Respondent be dismissed for want of jurisdiction.

2.    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

COLLIER J:

1    Before the Court is an interlocutory application filed by the second respondent to this proceeding on 4 April 2024, seeking to have the matter against it dismissed for want of jurisdiction, or alternatively the applicant’s Statement of Claim struck out. The applicant in the substantive proceedings, Dr McGrory, appeared in Court this morning unrepresented. Both respondents were represented by Counsel.

2    I temporarily adjourned the proceedings to consider the interlocutory application of the second respondent. I have reached the view that the matter should be dismissed insofar as concerns the second respondent, with no order as to costs. Now follow my reasons for this decision.

BACKGROUND

3    On 1 December 2023 the applicant in this proceeding, Dr McGrory, filed an originating application under the Fair Work Act 2009 (Cth) making claims of adverse action, coercion, undue influence or pressure and misrepresentation against the first and second respondents.

4    To date, no evidence of Dr McGrory has been filed in this proceeding. Her statement of claim filed on 1 December 2023 however sets out her concerns at length. It does not appear to be in dispute that Dr McGrory had a contract of employment with the first respondent (Horizon One) signed 15 June 2023. It further does not appear contentious that Horizon One, which I understand conducts a business as a recruitment agency, placed Dr McGrory as a statistician with its client – the second respondent – on or about 19 June 2023. Ms Robyn White, the Assistant Secretary of the People Branch of the second respondent, deposed in her affidavit dated 27 March 2024 that the second respondent had a contractual relationship with Horizon One, and that the contract relating to the engagement of Dr McGrory with the second respondent was terminated on 14 September 2023.

5    Dr McGrory made an application to the Fair Work Commission (in the form of a Form F8 application) dated 5 October 2023. A copy of the application is annexed to Ms White’s affidavit. Dr McGrory identifies herself as the Applicant, being “the person who has been dismissed”.

6    In her application to the Fair Work Commission, however, Dr McGrory did not provide the legal name of the employer, as the application form required. Relevant details in the form provided by Dr McGrory were as follows:

    In response to the question “1.1 What date did you begin working for the employer?” Dr McGrory stated “19 June 2023.”

    In response to the question “1.2 What date were you notified of your dismissal?” Dr McGrory stated “14 September 2023.”

    In response to the question “1.3 What date did your dismissal take effect?” Dr McGrory stated “15 September 2023.”

    In response to the question “3.1 Describe the actions of the employer, including any reasons given for your dismissal, that have led you to make this application” Dr McGrory stated:

Out of the blue I was told by the host client I worked for via HorizonOne that there would be no more hours for me. The reasons were not adequately explained and came after many odd delays since the start of my employment with them. I received nothing in writing.

The procedures for termination of the contract set out in the contract I signed with the HorizonOne recruitment agency were not followed at all.

    In response to the question “3.2 Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?” Dr McGrory marked as relevant ss 340, 343, and 351 of the Fair Work Act.

    In response to the question “3.3 Explain how the actions you have described in question 3.1 have contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2” Dr McGrory stated:

The general protections laws protect most people from harmful (adverse) action and coercion. In addition, the employer should not take or threaten to take adverse action to force an employee to do something because of their features or attributes as that constitutes discrimination.

I believe what happened to me while employed under a contract by HorizonOne and working with host client the Australian Federal Government Department of Health contravenes all three prohibited actions mentioned above. Sadly, it is a pattern I have seen repeated many times before since moving to Australia, hence it is crucial to also find out who distributes this type of information and who co-ordinates the discrimination and coercion. It is an ongoing, escalting problem that has caused much devastation not just for me personally.

In the lead up to me being dismissed without any cause or justification, and without the proper procedure being followed, I was finding I wasn't being allocated enough work to do in some areas or being given direction when I asked for it. This was then followed by references being made to things that remind me of early childhood traumas, although it was just treated as a joke. Then comments were made again that alluded to things that remind me of how it is often brought up jokily in the Australian workplace that me and my baby sister, and possibly some deceased/missing toddlers, had I ruined some 'engagements' as they seem to put it, for some rich Middle Eastern people, by not performing or doing enough 'work', which in that sense means refusing to perform sex acts for adults (so just to be clear as I find many here claim they don't understand these things, that includes discrimination and harassment over refusal to perform acts on them, or with other children for their entertainment, or with dogs even for them to watch and enjoy), or running away from them if they tried to entice one as a child into their car or something. These incidents that mostly get referred to in the workplace date back to the late 70s before I was born, or to the early 80s when I was at most a toddler, although the owners and ring leaders are still very much active in ongoing crimes of a similar nature. Those rich persons seemed to have been clients of some inexplicably rich kiddie party supplies business formely owned as I understand it, by an airline worker who amassed a great fortune. The key issue in relation to workplace protections though is that then I was told there was no more work for me very soon after which suggests to me that's the real underlying cause of my dismissal here. It falls into a similar pattern to workplace abuse I have previously experienced in Australian workplaces.

The way I have been mistreated is shocking and it's destroying my life as the ongoing discrimination, coercive control and organised sham arrangements to bully and depress me have made it almost impossible for me to live, work and provide for my family safely here in addition to being linked to loss of family inheritance back in the 1980s and other payments and rewards for honest, lawful and hard work undertaken by me over the years since.

(errors in original)

7    On 17 November 2023 the Fair Work Commission issued a certificate under s 368 of the Fair Work Act. Relevantly that certificate was in the following terms:

CERTIFICATE UNDER SECTION 368

Fair Work Act 2009

s.365 - General protections

Matter No: C2023/6081

Applicant: Dr Clare anne McGrory

Respondent: Horizon One Recruitment Pty Ltd.

COMMISSIONER SCHNEIDER        PERTH, 17 NOVEMBER 2023

An application pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) was made by Dr Clare anne McGrory alleging they were dismissed by Horizon One Recruitment Pty Ltd. In contravention of Part 3-1 of the Act.

The Fair Work Commission conducted a conference to deal with the dispute on 17 November 2023.

Pursuant to s.368(3)(a) of the Act, the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

8    On 4 April 2024 the second respondent filed an interlocutory application seeking the following relief:

1.    The proceeding against the Second Respondent be dismissed for want of jurisdiction.

2.     In the alternative to paragraph 1 above, pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the Applicant’s Statement of Claim filed 1 December 2023 be struck out.

3.     Pursuant to s 570(2) of the Fair Work Act 2009 (Cth), the Applicant pay the Second Respondent’s costs of the proceeding.

4.     Such further or other orders as the Court sees fit.

9    This morning I heard the parties only as to jurisdiction and costs, on the basis that, if there was no jurisdiction for the Court to entertain the originating application against the second respondent, the proceeding against it should be dismissed without further argument.

SUBMISSIONS OF THE PARTIES

10    In respect of jurisdiction, in summary Mr Walpole for the second respondent submitted:

    Dr McGrory was engaged by the second respondent through the first respondent. The contractual relationship of the second respondent was with the first respondent rather than Dr McGrory directly.

    In respect of the proceedings before the Fair Work Commission:

(a)    the second respondent was not named as a respondent to Dr McGrory’s application to the Fair Work Commission;

(b)    the second respondent was not named as a respondent on the s 368 certificate issued by the Fair Work Commission;

(c)    at no stage has Dr McGrory made an application to the Fair Work Commission in respect of her dismissal that names the second respondent as a respondent;

(d)    the second respondent did not participate in the conciliation between Dr McGrory and the first respondent conducted by the Fair Work Commission on 17 November 2023, nor was it asked to do so.

    In respect of the second respondent, Dr McGrory has not satisfied the statutory preconditions invoking the jurisdiction of the Federal Court in respect of general protections claims arising from ss 365, 368 and 370 of the Fair Work Act. Dr McGrory has complied with the requirements of s 370 in relation to her dispute with the first respondent, but not with the requirements of s 370 in relation to her “dispute” with the second respondent.

11    In respect of the issue of jurisdiction, Dr McGrory submitted in summary:

    Although the second respondent was not explicitly named as a respondent to her application to the Fair Work Commission, or named on the s 368 certificate, the second respondent was explicitly named within Dr McGrory’s Fair Work Application Form F8, as was the first respondent.

    To any reasonable person “the dispute” would be taken to mean the situation described within the Form F8 which explicitly named both respondents.

    The commencement of proceedings by Dr McGrory in the Federal Court, which named both respondents, was at the suggestion of the Fair Work Commissioner.

CONSIDERATION

12    Relevant provisions of the Fair Work Act are as follows:

Section 365 Application for the 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.

…

Section 368 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).

…

(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.

...

Section 370 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;

…

13    Section 370(a)(ii) of the Fair Work Act was recently considered by Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829. Section 370(a)(ii) requires that a general protections court application be made within 14 days after the day a certificate under s 368(3)(a) is issued by the Fair Work Commission. As the general protections application in Kelly v Diocese was not filed within the 14 day period, the question for Logan J to determine was whether an extension of time should be granted in line with the discretion given to the Court under s 370(a)(ii) of the Fair Work Act. Relevantly his Honour observed:

44.    It seems to me that these statutory conditions are not mere limitations, but rather conditions of the kind to which Dixon J referred in the passage quoted from Parisienne Basket Shoes. They are conditions in respect of the Court’s jurisdiction. They are conditions which govern whether a person is entitled to invoke the Court’s jurisdiction.

(emphasis added)

14    The passage of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 referenced by His Honour reads (at 391):

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid.

15    Plainly Logan J in Kelly v Diocese found that s 370(a) of the Fair Work Act contained conditions, the fulfilment of which is necessary before the jurisdiction of the Federal Court is invoked. An applicant for a general protections dispute is therefore unable to invoke the Court’s jurisdiction unless: (1) a certificate is issued by the FWC under s 368(a) in relation to the dispute; and (2) a general protections court application is made within 14 days after the day the certificate is issued (unless otherwise extended by the Court).

16    In the present case Dr McGrory submitted that she intended the dispute in the Fair Work Commission to be referable to both respondents. I note that Dr McGrory is a litigant in person. Recently the Full Court observed in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79:

20    The appellant in this case is a litigant in person, and it is common for Courts to take a lenient view of the rules and the law in aid of such litigants: see for example Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [18], Blakeley v National Australia Bank [2018] FCA 796 at [51], BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5].

21    Nonetheless, as Colvin J went on to explain in Zaghloul at [18], the Court may be lenient in the standard of compliance which it exacts from a litigant in person, provided that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Nobarani v Mariconte [2018] HCA 36; (2001) 265 CLR 236 at [47], Platcher v Joseph [2004] FCAFC 68 at [104]‑[105].

17    Litigation is dependent on clear claims, being brought clearly, against specific named respondents. The Fair Work Commissioner plainly interpreted the application in the Fair Work Commission as raising Dr McGrory’s dispute only with Horizon One. This is not surprising, because, turning to the Form F8 – in particular paras 3.1 and 3.3 of that form, it is plain that Dr McGrory’s application was framed in terms of Horizon One being her employer, with the second respondent being only a “host client” with whom she was placed by her employer. Irrespective of Dr McGrory’s belief that there are duties of care owed her by both respondents, her claim in the Fair Work Commission did not identify the second respondent as her employer such as to constitute a dispute under the Fair Work Act.

18    Ms White gave evidence that the second respondent had no record of receiving any application lodged by Dr McGrory with the Fair Work Commission which related to an alleged contravention of Part 3-1 of the Fair Work Act, and that the second respondent took no part in the proceedings in the Fair Work Commission. This evidence is uncontested by any evidence of Dr McGrory.

19    In the circumstances I am satisfied that the provisions of ss 365, 368 and 370 of the Fair Work Act were not satisfied in respect of the second respondent, insofar as Dr McGrory alleged a “dispute” with the second respondent before the Fair Work Commission. There was no “dispute” in the Fair Work Commission between Dr McGrory and the second respondent such that Dr McGrory could now bring a complaint concerning the second respondent to this Court.

20    It follows that the Court lacks jurisdiction in respect of the claim by Dr McGrory against the second respondent, and that her proceeding against the second respondent be dismissed for want of jurisdiction.

COSTS

21    The second respondent has sought costs against Dr McGrory, pursuant to s 570 of the Fair Work Act. It submitted that:

33.     Section 570 of the Fair Work Act limits the circumstances in which an unsuccessful applicant in Fair Work proceedings is required to pay costs.

34.     Nonetheless, the Second Respondent submits that, if the Court dismisses the proceeding against the Second Respondent for want of jurisdiction, this is a case where it is appropriate to order that the Applicant pay the Second Respondent’s costs pursuant to s 570(2) of the Fair Work Act.

35.     Section 570(2) of the Fair Work Act provides:

Costs only if proceedings instituted vexatiously etc.

…

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c)     the court is satisfied of both of the following:

36.     If the Court accepts the Second Respondent’s submission that the proceeding against it ought to be dismissed for want of jurisdiction, then the Applicant ought to pay the Second Respondent’s costs of the proceeding. This is because:

(a)     the Applicant’s naming of the Second Respondent as a respondent (despite having not brought an application in the FWC concerning the Second Respondent) was an “unreasonable act or omission” given s 370 of the Fair Work Act. It caused the Second Respondent to incur the costs of responding to this proceeding which should not have involved it, given the non-compliance of s 370;

(b)     in the absence of compliance by the Applicant with s 370 of the Fair Work Act in respect of the Second Respondent, the Applicant instituted the proceedings against the Second Respondent without reasonable cause.

(footnotes omitted)

22    Dr McGrory, submitted, in summary:

    She did not have the funds to be able to pay costs, especially given she could not afford to pay a lawyer to represent her.

    This is a no costs jurisdiction.

    There is nothing vexatious about these proceedings.

    There is reasonable cause for the Applicant to have questioned what occurred during her employment as a contractor with the second respondent.

    She has undertaken no unreasonable acts or omissions that have caused the other party to incur the costs.

    She has attempted in good faith to have the Fair Work Commission mediate the matter before bringing it before the Court.

    The only requirement under s 370 of the Fair Work Act was that she obtained a certificate from the Fair Work Commission in relation to the dispute and that she filed her application with the Federal Court within the stipulated time. The certificate provided was in relation to the dispute as a whole, and the application was filed within the relevant time. As such she had complied with s 370 of the Fair Work Act.

23    As I observed in Parker v HG Innovations Pty Ltd (No 2) [2020] FCA 906:

[46]    Section 570 of the Fair Work Act is clear in its limitation of cases where an unsuccessful applicant in Fair Work proceedings is required to pay costs: see for example the following observations of Pagone J in Shamir v Commonwealth [2015] FCA 1463:

3.    …In Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 the Full Court at [9] approved the following passage from Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 at [8] summarising the relevant authorities concerning the exercise of the Court’s discretion under s 570(2)(a):

To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470 , 473. The relevant provisions reflect ‘a policy of protecting a party instituting proceedings from liability for costs’ and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60] . In Kangan Batman Institute it was said by the Full Court at [60] that ‘a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure’. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted ‘without reasonable cause’ was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no ‘substantial prospect of success’. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant’s own version of the facts. [See also Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370 at [43] ; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337at 342–3, [13]].

(emphasis added)

24    I am not satisfied that an award of costs against Dr McGrory in favour of the second respondent is justified in the present circumstances.

25    I note again that Dr McGrory is a litigant in person. It is clear from Dr McGrory’s submissions (including in Court this morning) that she understood the word “dispute” for the purposes of s 370 of the Fair Work Act to mean the entirety of her concerns with her placement by the first respondent in the workplace of the second respondent. I accept the submission of the second respondent that Dr McGrory was wrong in so believing. However the issue of what the “dispute” constituted in this case, in particular whether there had in fact been a dispute with the second respondent in the Fair Work Commission, was a proper and reasonable question to put before the Court today. As such, costs ought not be awarded pursuant to s 570 of the Fair Work Act.

Associate:

Dated:    23 July 2024