Employee Allowed to Amend Respondent in General Protections Application

FEDERAL COURT OF AUSTRALIA

[NAME] v [COMPANY] [2017] FCA 1513 Appeal from: [NAME] v [COMPANY] [2017] [NAME] 980

File number: VID 587 of 2017

Judge: O'CALLAGHAN J

Date of judgment: 13 December 2017

Catchwords: INDUSTRIAL LAW – where applicant made a general protections application to the Fair Work Commission in relation to her dismissal – where Fair Work Commission issued a certificate under s 368(3)(a) of the Fair Work Act 2009 (Cth) naming [COMPANY] as the respondent, rather than the applicant's actual employer, [COMPANY] – where applicant subsequently sought to substitute [COMPANY] as the respondent to the claim – whether s 368 of the Fair Work Act 2009 (Cth) operates so that an application by a dismissed employee to substitute one party for another as a respondent to a general protections application, which the relevant rules of court would otherwise readily allow, must be disallowed when the name of the proposed new respondent is not identical to the name of the party appearing on the certificate issued by the Fair Work Commission under s 368(3)(a)

Legislation: Fair Work Act 2009 (Cth), ss 365, 368, 369, 370 Federal Circuit Court Rules 2001 (Cth), rr 7.01, 7.03

Cases cited: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Rutherford v Hausner (2011) 212 IR 343 [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456

Date of hearing: 2 November 2017

Registry: Victoria

Division: Fair Work

National Practice Area: Employment and Industrial Relations

Category: Catchwords

Number of paragraphs: 40

Counsel for the Appellant: [redacted]

Solicitor for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

BETWEEN: [NAME]

Appellant

AND: [COMPANY]

Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 13 December 2017

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court of Australia on 12 May 2017 in MLG2576/2016 be set aside.

3. The matter be remitted to the Federal Circuit Court of Australia.

4. By 4:30 p.m. on 14 December 2017, the parties file and serve a written submission not exceeding three pages on the appropriate order, if any, to be made in respect of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J:

INTRODUCTION 1 The principal issue in this appeal is whether s 368 of the Fair Work Act 2009 (Cth) (the FW Act) operates so that an application by a dismissed employee to substitute one party for another as a respondent to a general protections application, which the Rules of Court would otherwise readily allow, must be disallowed when the name of the proposed new respondent is not identical to the name of the party appearing on the certificate provided by the Fair Work Commission (the Commission) certifying that the Commission had been unable to resolve the dispute between the employee and the employer. 2 The primary judge held that the answer to that question is yes: [NAME] v [COMPANY] [2017] [NAME] 980. In my view, for reasons set out below, he erred in so deciding.

Background 3 [NAME] (the applicant) was employed by [COMPANY] as a business systems analyst. She commenced employment on 7 March 2016. 4 On 17 August 2016, by a letter signed by [NAME], on behalf of [COMPANY], her employment was terminated effective immediately. 5 The applicant then made a "General Protection Application Involving Dismissal" to the Commission under s 365 of the FW Act, naming "the business that dismissed [her]" as [COMPANY]. She sought damages and the imposition of a penalty in respect of the contraventions alleged in that application. 6 A "Response to general protections application" was filed shortly thereafter on the behalf of [COMPANY] as "the organisation responding to the application". 7 Section 6 of the Response is headed "Jurisdictional Objections" and asks: "Do you have any jurisdictional or other objection(s) to the application?" The form then says: "Objections relate to why the applicant is not eligible to make an application to the Commission". The question was answered "No". 8 The Commission conducted a conference to deal with the dispute on 11 November 2016, and subsequently issued a certificate under s 368(3)(a) of the Act dated 21 November 2016 (the certificate). It named "[NAME]" as the applicant and "[COMPANY]" as the respondent. Relevantly, it provided as follows: An application pursuant to s 365 of the Fair Work Act 2009 (the Act) was made by [NAME] alleging she was dismissed by [COMPANY] in contravention of part 3-1 of the Act. The Fair Work Commission conducted a conference to deal with the dispute on 11 November 2016. Pursuant to s 368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. 9 The applicant then issued a general protections court application in the Federal Circuit Court of Australia ([NAME]) against [COMPANY] dated 29 November 2016. 10 Not long after commencing the proceeding, and following correspondence between the parties' legal representatives, the applicant accepted that she had in fact been employed by [COMPANY]. The parties then filed a minute of proposed consent orders requesting that the primary judge make an order on the papers that [COMPANY] be substituted as the respondent to the proceeding pursuant to r 7.03 of the Federal Circuit Court Rules 2001 (Cth) ([NAME]). 11 The parties then received an email from the judge's associate telling them that the primary judge did "not consent to the making of the proposed orders" and that "an appearance [would] be required in Court [on 22 February 2017]". 12 At the hearing on 22 February 2017 the primary judge made directions for the filing of submissions in relation to a question which he identified as being of concern to him, namely, whether the Court was empowered by rr 7.01 and 7.03 of the [NAME] to amend the name of the employer respondent to a general protections court application, to an entity not specified in the s 368 certificate. 13 On 24 February 2017, the applicant's solicitors asked the Commissioner to issue an amended certificate, but she declined to do so on the basis that "the matter [was] no longer before the Commission": [NAME] v [COMPANY] [2017] [NAME] 980 at [12]. 14 Both parties duly filed their written submissions. Although it had originally agreed to the name substitution, the respondent chose instead to contend that the Court had no power or jurisdiction to make the order changing the name of the respondent and filed submissions to that effect. The applicant filed submissions contending that it did. 15 What the primary judge described as a "jurisdictional hearing" took place on 12 May 2017. 16 The primary judge declined to make the order that the parties had agreed to because he found that it was necessary, as a matter going to the Court's jurisdiction to entertain the proceeding, that the respondent named in a general protections court application be the same as the respondent named in the certificate. 17 The primary judge further held that because he refused to allow the applicant to amend her claim, and because the applicant "did not dispute" that she had named the wrong employer, the entire proceeding should be dismissed. 18 These are the primary judge's reasons for doing so:

30. Section 365 provides for any person who has been dismissed to apply to the [NAME] for the "[NAME] to deal with the dismissal dispute". The [NAME] had jurisdiction to deal with the claim of the applicant as a dispute between the applicant and her employer. However, it is conceded the application that was lodged with [NAME] on her behalf (and the certificate that was issued by the [NAME]) named an entity as a matter of fact that was not her employer. [NAME], despite his artful submissions, did not submit it was permissible for the Court to go behind the [NAME] certificate or that there was authority on all fours with this case.

31. I note [NAME] placed great weight on the decision in [NAME] [v [COMPANY] (No 1) (2012) 204 FCR 456] but conceded it did not consider the issue in this case. The difficulty confronting the applicant in this matter (including the application for resort to the relevant rules of the Court to change the name of the parties) is that it is not disputed that the certificate, which is the jurisdictional prerequisite for the Court to deal with this matter, as a matter of fact named the wrong party.

32. The applicant doesn't dispute that her former employer was not referred to in the certificate issued by the [NAME] (or in the proceedings initiated on her behalf by her solicitor in the [NAME]) or when proceedings were commenced in this Court.

33. In the circumstances I am not satisfied it is appropriate to allow the applicant resort to the Rules to correct an error in the name of the respondent where there is no jurisdiction to deal with the dismissal dispute as the certificate did not refer to the applicant's former employer or the correct respondent. [The footnote to that paragraph reads: See as was noted in [NAME] at [9] that case was restricted to its own facts as was the decision in Rutherford v Hausner (2011) 212 IR 343.]

34. Given the absence of binding authority in support of the construction of the relevant provisions urged on the Court by the applicant, I accept the respondent's submissions and find that the Court should not amend the name of the respondent as sought by the applicant. Such an amendment would not be appropriate due to a lack of jurisdiction where to do so would mean these proceedings involve a respondent not specified in the section 368 certificate; and they do not relate to the respondent specified in the section 368 certificate.

For the reasons set out above I reject the applicant's submissions and order that the application filed 29 November 2016 should be dismissed. 19 For the reasons set out below, in my view, the primary judge was wrong to refuse the amendment sought. His Honour was also wrong to dismiss the proceeding.

Consideration 20 There are many reported cases in which some difficulty arises about whether an applicant should be permitted to substitute one respondent for another. Some of the older cases are discussed in detail in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 238-245 (per Dawson J), 249-251 (per Toohey J), 254-259 (per McHugh J). 21 Modern rules of court in all Australian jurisdictions, and in the United Kingdom, permit amendments to the name of a party which have the effect of substituting one party for another, if the mistake was genuine and was not relevantly misleading. 22 The [NAME] contain two rules about substituting parties, one that applies when no limitations point arises, the other when it does. 23 Rule 7.01(1) provides: "At any stage in a proceeding, the Court … may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit". 24 Rule 7.03 applies "if an application in a general federal law proceeding for leave to make an amendment is made after the end of a relevant period of limitation current at the date when the proceeding was started": [NAME], r 7.03(1). That rule does not apply in this case because no applicable period of limitation has ended. 25 Given the broad terms in which r 7.01 is cast, it cannot be doubted that when an applicant seeks to substitute one respondent for another, the rule is to be "interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description": Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 261 per McHugh J, with whom Brennan and Deane JJ agreed. Thus, here, [COMPANY] was identified by the applicant by the "particular description" of it being her employer. She was mistaken about that, but in circumstances where the mistake was induced by the letter of termination (signed on behalf of [COMPANY]), where her employer knew that it was the intended respondent, and where the employer participated in the Commission hearing, having also expressly stated that it took no jurisdictional objection (see [7] above), the mistake was obviously genuine and could not possibly have been misleading. 26 It follows that the amendment sought in this case was clearly permitted by r 7.01(1) of the [NAME]. 27 The issue that arises is whether s 368 of the FW Act alters that position. 28 It is convenient now to set out the relevant provisions of the FW Act. 29 Section 365 of the FW Act provides: Application for the [NAME] 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 [NAME] for the [NAME] to deal with the dispute. 30 Section 370 of the FW Act provides: Taking a dismissal dispute to court A person who is entitled to apply under section 365 for the [NAME] 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 [NAME] 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. 31 The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 states (at [44]) that s 370(b) "recognises that applicants may decide not to involve the [Commission] where urgent relief is sought and the allegations are particularly serious, facts in dispute are particularly complex, or the employer is unlikely to agree to consent arbitration" (which is dealt with in s 369 of the FW Act). 32 Section 370 is thus not an absolute "jurisdictional bar" to the bringing of a general protections court application, absent a certificate. If the general protections application includes a claim for an interim injunction (say, seeking reinstatement), a person entitled to apply under s 365, which of course includes a person who is dismissed, may by the express terms of s 370 make the application without first having the dispute dealt with by the Commission and without a certificate being issued. Although the Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 suggests that the carve out for cases involving a claim for interim relief may be limited to cases "where urgent relief is sought and the allegations are particularly serious, facts in dispute are particularly complex, or the employer is unlikely to agree to consent arbitration", the words of s 370 contain no such words of limitation. 33 In my view, and in any event, there is no warrant to read into s 370 words that do not appear in it. In particular, there is no reason why the words "certificate … in relation to the dispute" should be read as if the words "between the named parties and only the named parties" were added. Section 370 says nothing about the role of parties. And, as the appellant submitted, there is no obligation on a person being served with an application under s 365 to name the actual or true employer. That fact is reflected in the Commission's Form 8A, called a "Response to general protections application", which requires the party completing it only to provide "the details of the person or organisation responding to the application". 34 If it were necessary for there to be a precise coincidence between the name of the respondent on the Commission certificate and the name of the respondent in a general protections court application, it would also mean that in cases where an applicant seeks relief against persons involved in a contravention of (dismissal) provisions of the Act under s 550 of the FW Act, because they, for example, aided, abetted, counselled or procured the contravention, the certificate would also have to name each of them. But it is not the purpose of the process at the Commission that is commenced by the filing of a s 365 application for an applicant to plead its case against all possible named respondents. That process is both "informal" and of an "essentially preliminary character" and it would be "significantly compromised" if an applicant, in the context of seeking informal resolution, were required to identify each potentially liable party and to procure the Commission to name each of them in the certificate: cf [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456 at [90]. 35 In [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456 the Court held that "the dispute" referred to in s 371(1) of the FW Act is not limited to the applicant's substantial claim made at the Commission and that a general protections court application made "in relation to" a dispute can validly include new, additional or different claims from those in the Commission application, provided that the essential basis of the dispute remains: [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456 at [70]. [ADDRESS] held in that case that the phrase "in relation to" "indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the [Commission] application and the claims in the court application": [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456 at [77]. In those circumstances, it would be an odd result if, although there was no requirement for a strict nexus between the dispute at the Commission and the claims made in a subsequent legal proceeding, such a nexus was required between the name of the respondent appearing on the Commission certificate and the respondent named in the general court protections application. As Dodds-Streeton J observed in that case: "The court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access": [NAME] v [COMPANY] (No 1) (2012) 204 FCR 456 at [67]. In my view, the effect of the decision of the primary judge in this case creates a prohibition on curial access which finds no support in the words of the statute. 36 In Rutherford v Hausner [2011] FMCA 1033; (2011) 212 IR 343 the applicant sought leave to amend her application to change the name of the respondent which also appeared on the Commission certificate from "[NAME] ([NAME])" to "[COMPANY]". The latter company was her actual employer and the applicant had intended to name her employer. The respondent argued that any amendment to the application was "pointless" because the applicant did not have a certificate issued by [NAME] under s 369 of the FW Act "naming the proposed respondent" and, therefore, it was "not able to issue the proceedings in accordance with s 371 of the Fair Work Act". 37 [NAME] said at [10] that in that case there was no dispute "that the relevant employer's representatives participated in the process at [NAME]. Nor is there any dispute that it has been clear throughout that the matter concerns the employment relationship between the applicant and employer which forms part of the corporate group described or named in the proceedings". He continued: 18. … The only purpose of the certificate under the Fair Work Act is to fulfil the statutory requirement which prohibits the commencement of legal proceedings in a court prior to obtaining a certificate in relation to the dispute. The practical purpose of the certificate is to confirm that the dispute has been the subject of conciliation at [NAME] prior to legal proceedings commencing.

19. The conciliation that occurred at [NAME] occurred between the applicant and her actual former employer … It is clear that the certificate was issued with respect to the dispute between the applicant and her employer, although there are errors on the face of the certificate.

20. The broad terms "in relation to" as used in s 371(1)(a) make clear that a technical or specific reading is not what was intended by the legislature, rather a purposive reading to ensure that proceedings are only commenced in the court if the employer and employee have been to conciliation at [NAME] beforehand.

21. The interpretation I have accepted in this case preserves the intent of the legislation, of ensuring that a conciliation conference take place before the court proceedings, whilst reflecting Parliament's intention by use of the words "in relation to" to ensure that the substantive purpose of the legislation was honoured without creating a regime providing potential technical defects or traps that would deny a person's access to justice.

22. In this case, the certificate, together with the additional evidence and circumstances, is such that as a matter of fact I am able to conclude that the certificate, under s 369, is the certificate that has been issued in relation to the dispute that is sought to be litigated before the court. Ordinarily, it would be appropriate to ensure that this certificate was in the correct names of the parties to the proceedings so that no additional evidence or interlocutory hearings would be required on this issue. However, such technical defect does not, in my view, invalidate the proceedings nor present a technical defect of such magnitude that it cannot be remedied by additional evidence to demonstrate that the certificate is in fact in relation to the dispute. However, for this reason the findings in this case must be seen as limited to the specific actual circumstances before the court. 38 I agree. Although the primary judge thought that Rutherford v Hausner [2011] FMCA 1033; 212 IR 343 "was restricted to its own facts" (presumably because of the last sentence of the passages quoted above), and therefore did not deal with it, in my view the reasoning of [NAME] is directly on point because it concerns a case, like this case, where it is clear that the party sought to be substituted in the general court protections application in fact participated in the Commission hearing. In enacting the FW Act, Parliament cannot be taken to have intended to create what [NAME] described as "a regime providing potential technical defects or traps that would deny a person's access to justice". And in my view, it did not do so. 39 The primary judge also dismissed the applicant's application. He erred in doing so, not only because the respondent did not ask him to, but because, even on his own reasoning, the appropriate order should have been limited to refusing the applicant's application for substitution of a party.

CONCLUSION 40 For those reasons, the appeal will be allowed and the matter remitted to the [NAME]. I will hear from the parties on the appropriate order, if any, to be made in respect of costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate: Dated: 13 December 2017