1
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Mr Scott McIntyre
v
Special Broadcasting Services Corporation T/A SBS Corporation
(C2015/3039)
COMMISSIONER CAMBRIDGE SYDNEY, 1 OCTOBER 2015
Unlawful termination dispute - application made out of time - objection raised as to
jurisdiction - operation of s. 723 - earlier general protections application made in time -
certificate issued - operation of s. 351 (2) extinguishing general protection - representative
error - extension of time granted - certificate issued.
[1] This matter involves an application made under s. 773 of the Fair Work Act 2009 (the
Act) for the Fair Work Commission (the Commission) to deal with an unlawful termination
dispute. The application was made by Scott McIntyre (the applicant) and the respondent
employer is Special Broadcasting Services Corporation T/A SBS Corporation (the employer
or SBS).
[2] This Decision is made in respect of what may be described as two interlocutory issues.
The first issue involves an objection taken by the respondent employer, SBS, who has sought
to have the application dismissed upon the assertion that the application is without
jurisdiction. The second issue concerns the fact that the application was made beyond the time
prescribed by s. 774 of the Act, and an extension of time would have to be granted so as to
permit the matter to proceed.
[3] The basis for the alleged absence of jurisdiction involved the operation of s. 723 of the
Act in circumstances where the applicant made an earlier general protections application
under s. 365 of the Act. The earlier s. 365 application was made within time and the
application in this matter was made 23 days beyond the time specified by subsection 774 (1)
of the Act. SBS has opposed any extension of time as provided for in subsection 774 (2) of
the Act on the basis that exceptional circumstances should not be established.
[4] The application was filed on 9 June 2015, and SBS filed a response on 18 June 2015.
The matter was the subject of unsuccessful conciliation held on 13 July 2015. The
Commission issued Directions for an anticipated Arbitration Hearing in respect to the
jurisdictional objection taken by SBS and the question of the extension of time. This Hearing
was scheduled for 11 September and subsequently altered to 22 September 2015.
[5] At the Hearing held on 22 September 2015, the Commission granted permission
pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Mr N
[2015] FWC 6768
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 6768
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Hutley, Senior Counsel, together with Mr D Pritchard, Senior Counsel, and Ms R Francois,
Counsel, instructed by Maurice Blackburn solicitors, appeared for the applicant. Mr A Moses,
Senior Counsel together with Mr Y Shariff, Counsel, instructed by Holding Redlich lawyers,
appeared for SBS. During the Hearing evidence was introduced by way of two statements of
Ms Alessandra Peldova-McClelland, solicitor, and another statement made by Mr Michael
Lee, Senior Counsel, both of whom were legal representatives of the applicant.
Factual Background
[6] There is a broadly uncontested but somewhat unusual factual matrix upon which the
Commission has been required to determine the jurisdictional objection made to the
application by SBS and the issue of any extension of time.
[7] On 26 April this year, the applicant was dismissed after approximately 6 ¾ years
employment as a reporter with SBS. The circumstances surrounding the dismissal of the
applicant were connected with some matters of public controversy involving social media
comments that the applicant made on Anzac Day regarding, inter alia, Australian Defence
Force personnel engaged in various theatres of war.
[8] On 15 May 2015, lawyers acting on behalf of the applicant made a general protections
application under s. 365 of the Act. The s. 365 application was advanced upon the proposition
that the dismissal of the applicant was contrary to a general protection established by s. 351 of
the Act, which relevantly proscribes adverse action against a person because of, inter alia, that
person’s political opinion. In short, the s. 365 application asserted that the dismissal of the
applicant breached the general protection established by s. 351 of the Act because the
applicant had been dismissed because of his political opinion.
[9] On 3 June 2015, the applicant’s s. 365 application was the subject of a conciliation
conference conducted by the Commission as currently constituted. The conciliation
conference was unsuccessful in resolving the matter and on the following day, 4 June 2015,
the Commission issued a certificate under s. 368 of the Act as a prerequisite to the applicant
making a general protections court application.
[10] In preparation for making a general protections court application, the applicant’s
solicitors more carefully examined the response document which had been filed by the
lawyers acting for SBS. In paragraph 10 of that response document, the lawyers for SBS had
indicated that they would rely upon subsection 351 (2) of the Act, in that the adverse action
which was complained of by the applicant, (allegedly because of political opinion), was not
unlawful under relevant New South Wales legislation. Specifically, the lawyers for SBS
identified that political opinion was not a matter that was specifically unlawful under the Anti-
Discrimination Act 1977 (NSW) and the Australian Human Rights Commission Act 1986
(Cth).
[11] The operation of subsection 351 (2) of the Act had not been contemplated by the
lawyers representing the applicant, and they first turned their attention to the implications of
the operation of subsection 351 (2) after the Commission had issued a certificate under s. 368
of the Act. It fairly quickly became apparent to the applicant’s lawyers that any general
protections court application which asserted a breach under subsection 351 (1) of the Act on
the grounds of political opinion, was doomed to fail by virtue of the operation of subsection
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351 (2) (a) because, in New South Wales, it is not unlawful under the anti-discrimination law
in force in that State, to discriminate on the basis of political opinion.
[12] Faced with the realisation that the s. 365 application was doomed to fail, the solicitors
for the applicant consulted, inter alia, the Fair Work Commission Benchbook, and decided
that an unlawful termination application under s. 773 of the Act represented an appropriate
alternative course of action. Consequently, the s. 773 application was made and the applicant
has unequivocally abandoned any general protections court application.
[13] Following the filing of the s. 773 application, the applicant’s solicitors wrote to the
solicitors for SBS seeking to have agreement reached to provide for the applicant to expedite
the Commission issuing a certificate under subsection 776 (3) and thereby enable the
applicant to be in a position to make an unlawful termination court application. The Parties
have been unable to agree on such an expedited process and SBS has raised the jurisdictional
objection reliant upon s. 723 of the Act, together with its opposition to the extension of time
for the late s. 773 application.
The s. 723 Jurisdictional Objection
[14] In abbreviated summary, SBS has asserted that the operation of s. 723 of the Act when
properly construed, establishes that the applicant cannot make and is statutorily barred from
making, the s. 773 application. Section 723 of the Act is in the following terms:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if
the person is entitled to make a general protections court application in relation to the
conduct.”
[15] SBS has submitted that the applicant has an entitlement to make a general protections
court application because he was a national system employee and that that entitlement is
confirmed by the certificate issued by the Commission on 4 June 2015, under s. 368 (3) of the
Act. Further, SBS has contended that the operation of subsection 351 (2) of the Act does not
remove the applicant’s entitlement to make a general protections court application.
[16] The submissions made by SBS stressed that the position of the applicant was to be
contrasted with a person who had no entitlement to make a general protections application. In
this regard SBS submitted that subsection 351 (2) of the Act operates as a defence or an
exemption to subsection 351 (1) of the Act. However, according to the submissions made on
behalf of SBS, subsection 351 (2) does not operate to deprive a person of standing to make an
application in respect of subsection 351 (1) of the Act and that, in fact, that is what the
applicant had done.
[17] Consequently, SBS submitted that the applicant should be properly considered to be a
person who was entitled to make a general protections court application and s. 723 of the Act
provides a statutory bar for the applicant to be able to make an unlawful termination
application. Therefore, SBS submitted that the Commission does not have jurisdiction to
further consider the s. 773 application made by the applicant and it should be dismissed
accordingly.
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[18] The submissions made on behalf of the applicant rejected the jurisdictional objection
that had been advanced on behalf of SBS. In summary, the applicant submitted that a proper
interpretation of s. 723 of the Act involved consideration for providing a purposive
construction in circumstances where the legislation was beneficial and remedial and should be
given a broad or liberal interpretation rather than an interpretation that was literal or technical.
[19] The applicant submitted that the Commission should give close attention to the term
“conduct” as it appeared in s. 723 of the Act. It was submitted that the conduct that the
applicant complained of had specifically been “carved out” by subsection 351 (2) (a) of the
Act and thus the applicant was deprived of capacity or entitlement to make a general
protections court application in respect of that particular conduct. Therefore, according to the
submissions made on behalf of the applicant, the applicant could make an unlawful
termination application in relation to the conduct of SBS that he alleged to be wrong, because
he was not entitled to make a general protections court application in relation to that conduct.
[20] The submissions made on behalf of the applicant further asserted that s. 723 of the Act
did not apply to the applicant because an entitlement to take a general protections court
application, as is referred to in subsection 368 (4) of the Act, is reliant upon s. 539 of the Act
and the applicant was not a person affected by a contravention as specified in item 11 of s.
539.
[21] Additionally, the applicant asserted that he was not a person entitled to make a general
protections court application because he did not satisfy the requirements of subsection 370 (a)
(ii) of the Act, as he had not made a general protections court application within 14 days after
the day that the certificate under s. 368 had been issued. In this regard, it was submitted that
the word “is” as it appeared in s. 723 of the Act was relevant in so much as the entitlement to
make a general protections court application, if it did exist for the applicant, was effectively
lost after the expiration of the 14 day time limit established by subsection 370 (a) (ii) of the
Act.
[22] In summary, the applicant submitted that the Commission had jurisdiction to deal with
the s. 773 application as it was made in respect to conduct for which the applicant did not
have had an entitlement to make a general protections court application.
The Extension of Time
[23] The issue of the requirement for the application to be granted an extension of time
arises as a practical consequence in the event that the Commission rejects the jurisdictional
objection raised by SBS regarding s. 723 of the Act. The submissions made by both Parties
addressed the requirements of s. 774 of the Act, and in particular, the various factors that are
set out in paragraphs (a) to (e) of subsection 774 (2) of the Act.
[24] In brief summary, the primary basis upon which SBS objected to any extension of
time involved the assertion that the reason for the delay involving representative error had not
been properly established, and further, that the alleged representative error did not provide an
acceptable explanation for the entire period of the delay.
[25] The submissions made by the applicant in respect of the extension of time focused
upon what was described as manifest representative error. The applicant submitted that the
Commission should be satisfied that the particular circumstances of this case provided proper
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basis for the exercise of the discretion to extend time as there was a clear reason for the delay
caused by representative error and as such, exceptional circumstances were properly
established.
[26] I have carefully examined and considered the evidence and respective submissions of
the Parties as the basis for this Decision.
Consideration
[27] The circumstances surrounding this matter are unusual. The public controversy
regarding the applicant’s social media comments on Anzac Day and his subsequent dismissal
have understandably introduced an elevated level of tension between the Parties in respect to
the litigation involving challenge to that dismissal. Unfortunately, that litigation has now
generated some unusual circumstances of its own making.
[28] It would seem to be unremarkable that the applicant might, particularly with the
benefit of legal advice, challenge his dismissal by making a general protections application
under s. 365 of the Act. Given the nature of the circumstances which surrounded the dismissal
of the applicant, it is equally unremarkable that the general protection that the applicant would
seek to rely upon would be that mentioned in s. 351 of the Act involving discrimination on the
basis of political opinion.
[29] Unfortunately, but not unsurprisingly, those who advised the applicant were unaware
that the anti-discrimination law in New South Wales does not make it unlawful to
discriminate against a person on the basis of their political opinion. In passing, I note that
discrimination on the basis of religion may also not be specifically established to be unlawful
under the Anti-Discrimination Act 1977 (NSW) and apparently a similar position applies in
South Australia.
[30] Consequently, the applicant, acting upon legal advice, sought to challenge his
dismissal with an application that could not possibly succeed. Regrettably, that mistake was
not comprehensively identified at the conciliation conference held on 4 June 2015. Following
the conciliation conference, the Commission issued a certificate under s. 368 of the Act which
was a necessary prerequisite to enable the applicant to make a general protections court
application.
[31] However, with the benefit of a detailed examination of the entire position of the
applicant, the operation of subsection 351 (2) of the Act now renders the s. 368 certificate as
futile because any general protections court application could not possibly succeed. The
applicant has logically made an unlawful termination application under s. 773 of the Act. The
s. 773 application would represent the logical alternative means to overcome the mistake
made with the general protections application taken under s. 365 the Act.
[32] In these circumstances, SBS seeks to invoke the operation of s. 723 of the Act which
prohibits a person from making an unlawful termination application (s. 773), if that person is
entitled to make a general protections court application, which is taken under ss. 370 and 539
of the Act.
[33] The operation of s. 723 of the Act should be considered in the context of a provision
contained in Part 6-1 - Multiple Actions, which is a part of the Act that provides for rules
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relating to applications for remedies under the Act and which prevents certain applications
being made where other remedies are available and also prevents multiple applications or
complaints being made in relation to the same conduct. In my view, the intention of s. 723 of
the Act is to avoid a person making both an unlawful termination application and a general
protections court application in respect to the same issue.
[34] The rationale which underpins s. 723 of the Act and Part 6-1 generally, is that a person
should be unable to take more than one proceeding in respect to a complaint. There may be
different remedies available under different sections of the Act which could legitimately be
pursued in respect of a particular complaint, but the rationale of Part 6-1 of the Act requires a
person to elect only one particular process for pursuit of a particular remedy.
[35] In the present circumstances, the applicant mistakenly commenced proceedings under
s. 365 of the Act and he has subsequently endeavoured to overcome that mistake with his
application under s. 773 of the Act. Consequently, there is no attempt by the applicant to seek
multiple actions or remedies in respect to the same conduct, his s. 365 application has failed,
and in my view, had his particular circumstances being properly examined at the time, it
would have been established that he was not a person who was entitled to make a general
protections court application in relation to conduct which, in New South Wales, was caught
by the provisions of subsection 351 (2) (a) of the Act.
[36] A consideration of the operation of subsection 351 (2) (a) of the Act is assisted by the
following extract from the explanatory memorandum to the Fair Work Bill 2008:
“1429. The exception in paragraph 351(2)(a) ensures that action authorised by or
under a State or Territory anti-discrimination law (defined in subclause 351(3)) is not
adverse action under the subclause 351 (1).”
[37] Consequently, I believe that the operation of subsection 351 (2) (a) of the Act, in the
circumstances of the applicant, had the effect of extinguishing the general protection
established under subsection 351 (1) of the Act. Therefore, for the purposes of s. 723 of the
Act, the applicant was not a person who was entitled to make a general protections court
application in relation to the particular conduct that was the subject of his s. 365 application.
Therefore, the s. 773 unlawful termination application made by the applicant is not
jurisdictionally barred by the prohibition established under s. 723 of the Act.
[38] Further, I believe that the construction that I have adopted for the operation of s. 723
of the Act, in circumstances where subsection 351 (2) (a) of the Act operates to remove a
general protection that would otherwise be established by subsection 351 (1) of the Act, is
supported by the following extract from the explanatory memorandum to the Fair Work Bill
2008:
“Clause 723 - Unlawful termination applications:
2702. This clause prevents a person from making an unlawful termination
application under Division 2 of Part 6-4 if they are able to make an application under
the general protection provisions in Part 3-1 in relation to the same termination of
employment. This is because the general protections and unlawful termination
provisions cover the same grounds of when a termination is for a prohibited reason.
The unlawful termination provisions are only intended to be an extension of these
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protections to persons who are not covered by the general protections in relation to
the termination. …” [Emphasis added].
[39] If however I am wrong in respect to my conclusions about the combined operation of
subsections 351 (2) (a) and 351 (1) of the Act, and the extinguishment of the protection under
subsection 351 (1) of the Act for the purposes of s. 723, then, in the alternative, I determine
that the certificate I issued under s. 368 on 4 June 2015 was issued in error and is revoked
accordingly. Consequently, without a valid s. 368 certificate the applicant is not a person
entitled to make a general protections court application.
[40] The application is competent and the question of the required extension of time must
be considered.
[41] I have considered the various factors contained in paragraphs (a) to (b) of subsection
774 (2) of the Act. In particular, I am satisfied that there is a valid reason for the delay in
filing the application which relates to representative error. Further, I am satisfied that there is
proper explanation for the entire period of the delay. In addition, the other factors contained in
subsection 774 (2) of the Act have been taken into account and either support the granting of
an extension of time or are neutral such that I am satisfied that there are exceptional
circumstances.
[42] Consequently, I determine that the time for making the application is extended for a
further period until 9 June 2015.
Conclusion
[43] In this instance the respondent employer, SBS, has made a challenge to an application
for unlawful termination of employment which was taken under s. 773 of the Act. The
applicant had made a previous general protections application under s. 365 of the Act. The
challenge to the application made by SBS relies upon the purported operation of s. 723 of the
Act.
[44] I have concluded that in the particular circumstances of this case, s. 723 of the Act
does not operate as a jurisdictional bar to the application, as the applicant is not a person who
is entitled to make a general protections court application in relation to the conduct that he
complains of. Further, I have decided that exceptional circumstances exist such that the time
for the making of the application should be extended and the application permitted to proceed
accordingly.
[45] My conclusions have been broadly drawn from a purposive interpretation of the Act
cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in
particular, should not be interpreted in a manner which would deprive an individual of access
to a fair hearing or, as may be euphemistically described, a person’s “day in court”. In the
circumstances of this case the applicant does not seek multiple proceedings or remedies but
simply seeks to have his day in court.
[46] It is perhaps sadly ironic that many members of the Australian Defence Force lost their
lives in the earnest pursuit of the protection of rights and freedoms such as the access to a fair
hearing which the applicant is entitled to obtain.
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[47] The jurisdictional objection raised by SBS is dismissed, the extension of time for the
application to have been made is granted and a certificate shall be issued pursuant to
subsection 776 (3) of the Act.
COMMISSIONER
Appearances:
Mr N Hutley, Senior Counsel together with Mr D Pritchard, Senior Counsel and Ms R
Francois, Counsel for the applicant.
Mr A Moses, Senior Counsel together with Mr Y Shariff, Counsel for the employer.
Hearing details:
2015.
Sydney:
September, 22.
Printed by authority of the Commonwealth Government Printer
Price code C, PR572481
