1
Fair Work Act 2009
s.739—Dispute resolution
Mrs Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2018/2426)
COMMISSIONER JOHNS SYDNEY, 29 MAY 2019
Application to deal with a dispute - jurisdictional objection - dispute settlement procedure.
[1] On 8 May 2018 Mrs Inna Grabovsky made an application under s.739 of the Fair
Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with an
alleged dispute under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017
(2014 Agreement). In making the application Mrs Grabovsky was assisted by her husband,
Mr Igor Grabovsky.
[2] The Respondent is United Protestant Association of NSW Ltd T/A UPA (UPA). The
UPA is a not for profit operator of residential aged care facilities.
[3] On 9 May 2018 I had my chambers write to Mr Grabovsky about a concern I had in
relation to the application, namely that it was not “clear to [me] how your wife complied with
all of the necessary preconditions contained in the [2014 Agreement].” I noted that “non-
compliance with steps contained in a dispute resolution clause is usually fatal to an
application being made to the Commission.” On 14 May 2018 Mr Grabovsky replied.
Consequently, it became necessary to program the matter for hearing. The matter was
initially listed for 5 March 2019. However, because of the programming of other matters
involving Mrs Grabovsky, the matter was delayed. New directions in the present matter were
then issued on 1 May 2019 for a hearing to be conducted on 29 May 2019.
[4] Earlier today I dismissed the application and an Order1 was issued to that effect. I
issued brief reasons for my decision in transcript and indicated that I would issue my further
reasons for decision in due course. These are those reasons.
[5] By way of background Mrs Grabovsky commenced employment with the UPA on 30
March 2004. Mrs Grabovsky was a part-time care service employee at a UPA facility in
NSW. Mrs Grabovsky was classified as Grade II with a Certificate III in Care Support
Services. However, for the last four years of her employment (since 27 August 2013) Mrs
Grabovsky was absent from work. On 20 December 2017 Mrs Grabovsky received a letter of
termination, dated 14 December 2017 advising that her employment had been terminated.
1 PR708822.
[2019] FWC 3718 [Note: An appeal pursuant to s.604 (C2019/3690) was
lodged against this decision.]
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 3718
2
[6] On 9 February 2018 Mrs Grabovsky made an application pursuant to s.365 of the FW
Act (C2018/685). That application was out of time.
[7] On 15 March 2018 Deputy President Gooley determined2 that the effective date of
dismissal was 20 December 2017. She did so in the context of deciding whether to allow Mrs
Grabovsky an extension of time to file an application alleging a breach of the general
protections provisions in the FW Act involving dismissal (C2018/685). Her Honour was
satisfied that exceptional circumstances existed pursuant to s.366 of the FW Act such that an
extension of time should be granted within which Mrs Grabovsky could make her application
that the termination of employment had been in breach of the general protections provisions
of the FW Act.
[8] Despite being successful in the extension of time application, Mrs Grabovsky appealed
the decision (C2018/1708).
[9] On 21 May 2018 a Full Bench refused permission to appeal.3 In the appeal Mrs
Grabovsky contended that the letter of dismissal had no legal effect. Mrs Grabovsky further
contended that the Deputy President was wrong in accepting the letter of dismissal and
determining the date of dismissal.
[10] The Full Bench held,
[10] We do not agree that the Deputy President was in error in determining the date of
dismissal. The Deputy President had before her an application by the Appellant to deal
with a general protections dispute involving dismissal. Whilst it was not subject to any
submissions by the Appellant we concur with the observations of the Deputy President
that the Commission, in receiving an application, must be satisfied as a first step that it
has jurisdiction to deal with the application made. In this case it was a general
protections application that was required to be filed within 21 days of the date of
dismissal. To determine if the application was made within the statutory time period
and, therefore, if there was a period of delay it was necessary of the Deputy President
to determine the date of dismissal. In this respect the Deputy President had regard to
the relevant authorities for guidance on this question. We see no error in her doing so.
[11] In her application to the Commission the Appellant, in response to the question
“On what date were you dismissed?” answered “The Notice of Termination of
Employment is dated 14 December 2017.”
[12] The Deputy President considered the date the letter of termination was received
by the Appellant and determined that the date of dismissal was 20 December 2017.
The application was made to the Commission on 9 February 2018 and therefore was
outside the statutory time limit prescribed in s.366 of the FW Act. She therefore
proceeded to consider if an extension of time within which to make the application
should be granted. We observe no error in a very orthodox approach to a matter that
confronts the Commission on a regular basis.
[11] On 24 September 2018 the Commission received an application from Mrs Inna
Grabovsky to “correct obvious errors” in the Full Bench decision [2018] FWCFB 2474. The
application was made under s.602 of the FW Act. One of the alleged errors was again the date
of dismissal. On 30 November 2018 the Full Bench dismissed the application.4
2 [2018] FWC 1549 [26].
3 [2018] FWCFB 2474.
4 [2018] FWCFB 6928.
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1549.htm
[2019] FWC 3718
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[12] I set out the above chronology in relation to C2018/685 because it is relevant to an
issue in dispute in the present matter. That is, whether Mrs Grabovsky’s employment was
terminated and, if so, when.
[13] In Re 4 Yearly Review of Modern Awards – Preliminary Jurisdictional Issues5 the Full
Bench observed (albeit in another context),
[25] Although the Commission is not bound by principles of stare decisis it has
generally followed previous Full Bench decisions. In another context three members
of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it
should do so cautiously and only when compelled to the conclusion that the
earlier decision is wrong. The occasion upon which the departure from
previous authority is warranted are infrequent and exceptional and pose no real
threat to the doctrine of precedent and the predictability of the law:
see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620
et seq.”6
[26] While the Commission is not a court, the public interest considerations
underlying these observations have been applied with similar, if not equal, force to
appeal proceedings in the Commission.7 As a Full Bench of the Australian Industrial
Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel)
(Cetin)8:
“Although the Commission is not, as a non-judicial body, bound by principles
of stare decisis, as a matter of policy and sound administration it has generally
followed previous Full Bench decisions relating to the issue to be determined,
in the absence of cogent reasons for not doing so.”9
[14] These policy considerations tell strongly against the proposition that a single member
of the Commission, especially a non-Presidential member like me, should proceed in isolation
unencumbered by previous Commission decisions.
[15] The issues of termination and the date of termination have been before the
Commission at least since the commencement of matter C2018/685 on 9 February 2018. The
fact of the termination of employment having occurred on 20 December 2017 was decided by
Deputy President Gooley on 15 March 2018. That decision remained undisturbed by the Full
Bench. Consequently, I follow those decisions. In any case, had I been required to determine
whether there was a termination of Mrs Grabovsky’s employment and the date of the
termination of her employment, I would have decided that it occurred on 20 December 2017
for the same reasons that Deputy President Gooley so decided.
[16] I also observe that Mrs Grabovsky’s application in C2018/685 is inconsistent with an
assertion that there has not been a termination of her employment. The application was made
under s.365 of the FW Act. Such an application can only be made if there has been an alleged
5 [2014] FWCFB 1788.
6 [1990] HCA 9; (1990) 169 CLR 245 at 269. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers’
Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).
7 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November
1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
8 (2003) 127 IR 205 at [48].
9 Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27
November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
[2019] FWC 3718
4
breach of the general protections provisions involving a dismissal. At paragraph 1.1 of the
application in answer to the question “On what date were you dismissed” Mrs Grabovsky
wrote “The Notice of Termination is dated 14 December 2017”.10
[17] On 30 April 2019 I issued a certificate under section s.368(3) of the FW Act in
relation to the general protections claim involving dismissal (C2018/685). Consequently, Mrs
Grabovsky is now at liberty to pursue her general protections claim in the Federal Circuit
Court or Federal Court of Australia. Mrs Grabovsky may be successful in that claim. Further,
she may be reinstated into her employment. I express no views about the likelihood of those
outcomes, but I do observe that nothing in the action being taken by Mrs Grabovsky to
challenge the termination of her employment alters the fact that her employment was
terminated.
[18] That termination occurred 1 year, 4 months and 18 days before the application was
made in the present matter.
[19] The dispute in the present matter is said to be made under the 2014 Agreement.
[20] In the Form F10 Notification of Dispute, the dispute in the present matter is said to be
about:
“1. The Applicant disputes the fact of Termination of Employment.
2. The Applicant disputes the Respondent’s compliance with the National
Employment Standards. and
3. The Applicant disputes the accuracy of calculation and scope of her
entitlements and the fact of payment of some of her entitlements.”
[21] By way of relief Mrs Grabovsky asks that the Commission to make an interim order to
preserve her employment. That prayer for relief is incompetent. There is no employment to
be preserved. If Mrs Grabovsky wants to be reinstated into her employment then she has a
certificate from me enabling her to pursue her s.365 application in a court of competent
jurisdiction.
[22] On 25 January 2019 the UPA objected to the Commission exercising jurisdiction in
relation to the matter. It contended that:
a) Disputes relating to termination of employment are excluded from the dispute
resolution clause under the 2014 Agreement,
b) In any case Mrs Grabovsky had not complied with the preconditions in the dispute
resolution clause mandated before an application can be made to the Commission,
c) The dismissal matter was the subject of the C2018/685 application,
d) The classification dispute had been heard and determined.
[23] On 16 May 2019 the UPA identified an additional ground of jurisdictional objection.
It noted that Mrs Grabovsky’s employment ended on 20 December 2017 and further
contended that,
“In order for the Applicant to make an application under s739, she must be a current
employee at the time of making the application or otherwise, in the case of a former
10 Ibid.
[2019] FWC 3718
5
employee, the dispute must have arisen during the employment and continued after the
termination.”11
[24] The matter was heard today.
[25] The Applicant was initially represented by Mr Grabovsky. However, at the
commencement of the proceeding Mr Grabovsky refused to yield to my requests that he not
speak when I was speaking and that he not speak over the top of me. A short adjournment
was called so that security could attend the hearing room.
[26] On resumption of the hearing I warned Mr Grabovsky about s.674 of the FW Act. It
provides that,
“674 Offences in relation to the FWC
(1) A person commits an offence if:
(a) The person engages in conduct; and
(b) The person’s conduct … disturbs an FWC Member in the performance of
function, or the exercise of powers, as an FWC Member.
Penalty: Imprisonment for 12 months”
[27] I again told Mr Grabovsky that he should cease speaking when I was speaking and that
he should not speak over the top of me. I told him that I would come to him after I had
addressed some administrative matters. I told him that I considered his conduct (i.e. speaking
when I was speaking and speaking over the top of me) was disturbing me in the performance
of my functions and the exercise of my powers as a Commission Member. I again asked him
to desist. He refused to do so. I noted the attendance of security in the hearing room. I asked
Mr Grabovsky to leave the bar table. He complied, leaving the hearing room uttering the
menacing phrase "I'll be back".12
[28] And so he was. After I had commenced delivering my decision in the matter Mr
Grabovsky returned to the hearing room and, without my permission, returned to the bar
table. I continued to deliver my decision and then adjourned the Commission.
[29] The Respondent was represented by Mr Puxty, a Partner at Cantle Carmichael Legal.
Against the objection of Mr Grabovsky, on 21 May 2019, I had granted the Respondent
permission to be represented because I was satisfied that the jurisdictional objections raised
by the UPA invested the matter with complexity and that, secondly, the Commission would
be assisted in the efficient conduct of the matter if the UPA was represented.
[30] Prior the hearing the parties filed and served materials as follows:
Pleadings
Exhibit 1 - Form F10 – Application for the Commission to deal with a dispute in
accordance with a dispute settlement procedure.
Applicant’s Submissions
Exhibit 2 - Applicant’s submissions regarding jurisdiction, filed 8 May 2019.
Exhibit 3 - Applicant’s submissions: documents to be relied upon, filed 24 May 2019.
11 See ING Administration -v- Jajoo [2006] 158 IR 239 at [38] to [41] - Full Bench decision dealing with the predecessor
provisions of s.170LW of the Workplace Relations Act 1996 (Cth) and applied to the application of s.739 in Fairall-v- St
George & Sutherland Community College Inc [2012] FWA 8847 and Shields & Spriggs v Alfred Health [2012] FWA
162.
12 i.e. the catchphrase associated with Arnold Schwarzenegger, which he first used in his role as the title character from the
1984 science fiction film The Terminator.
[2019] FWC 3718
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Respondent’s Submissions
Exhibit 4 -
(a). Respondent’s Submission regarding jurisdiction filed 25 January 2019.
(b). Respondent’s submissions regarding jurisdiction filed 16 May 2019.
Exhibit 5 - Applicant’s Letter of termination and payslip.
[31] In coming to my decision I had regard to all of the material that had been put before
me (regardless of whether I reference any particular exhibit in this decision).
The 2014 Agreement
[32] Clause 43 of the 2014 Agreement provides as follows:
43. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES
43.1 Unless otherwise stated the terms "party" or "parties" referred to in this clause
means the employer and/or the employees, as the context requires.
43.2 This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except matters relating
to the actual termination of employment of an employee;
(b) threatened termination, with the exception that the arbitration provisions in
sub clause 43.6 do not apply unless the parties agree. Further, the parties rights
are reserved during this process and the employer may exercise their right to
terminate the employee in accordance with the agreement;
(c) matters in relation to the NES;
(d) matters arising under the agreement; and
(e) whether an employer had reasonable business grounds under subsection
65(5) of the Act- (requests for flexible working arrangements) or 76(4) of the
Act- (requests for extending unpaid parental leave).
43.3 An employer or employee may appoint another person, organisation or
association (e.g. Union or Aged & Community Services NSW & ACT) to accompany
and/or represent them for the purposes of this clause.
43.4 In the event of a dispute the parties will initially attempt to resolve the matter at
the workplace level, including, but not limited to:
(a) the employee and his or her supervisor discussing the matter; and
(b) if the matter is still not resolved the parties arranging further discussions
involving more senior levels of management (as appropriate).
43.5 If a dispute is unable to be resolved at the workplace, in accordance with sub
clause 43.4, a party to the dispute may refer the matter to the FWC or other
appropriate statutory tribunal.
43.6 The parties agree that the FWC shall have the power to do all such things as are
necessary for the just resolution of the dispute including:
(a) mediation, conciliation and, with the exception of disputes arising under
clause 36- Workload Management, arbitration; and
[2019] FWC 3718
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(b) arbitration, for disputes arising under clause 36 - Workload Management,
only with the agreement of the parties.
43.7 While the dispute resolution procedure is being conducted, work must continue in
accordance with this agreement and the Act. Subject to applicable occupational health
and safety legislation, an employee must not unreasonably fail to comply with a
direction by the employer to perform work, whether at the same or another workplace
that is safe and appropriate for the employee to perform.
Mrs Grabovsky’s submissions
[33] In summary Mrs Grabovsky submitted (amongst other things) that,
i. The UPA made a misleading statement that Mrs Grabovsky “didn’t demonstrate
compliance with clause 43.4 of the Agreement”,
ii. “The exchange of correspondence between the parties prior to December 2017
contradicts the UPA’s statement”,
iii. the legality of the dispute resolution clause is challenged,
iv. the dispute resolution clause is unlawful,
v. Mrs Grabosky “is not a subject to the Agreement 2014 due to the UPA’s failure to
comply with statutory requirements went into agreement. The UPA intentionally
obstructed [Mrs Grabosky’s] participation into the process of making Agreement
2014.”
vi. “As a result of this the UPA’s non-compliance with statutory requirements in
relation to the Agreement 2014, the workplace instrument that is relevant and
applicable (specifically!) To Mrs Grabosky’s employment is the Aged Care Award
2010 and relevant provisions of the” FW Act,
vii. “The UPA’s jurisdictional objection is misconceived, misrepresenting and
contradicting the fundamental principles of jurisprudence, namely:
i. no offence but he recognised as a legitimate deed (no date made in breach of
statute law may be recognised as legitimate);
ii. superiority of statute;
iii. arbitrating (judicial) decisions must be consistent with statute and not with the
decisions made in previous matters; and
iv. prevalence of objectively recognisable evidence.”
UPA’s submissions
[34] On 25 January 2019 the UPA submitted that,
1. “The Applicant has filed a Form F10 application seeking that the Fair Work
Commission deal with a dispute in accordance with a dispute settlement
procedure set out in the Enterprise Agreement under which the Applicant had
been employed (the Application).
What is the dispute?
2. In part 2.1 of the Application, the Applicant identifies three matters of dispute:
(a) the fact of the termination of the Applicant’s employment;
(b) the Respondent’s non compliance with the National Employment
Standards; and
(c) the accuracy of the entitlements paid to the Applicant.
What is the dispute resolution procedure?
[2019] FWC 3718
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3. The Applicant was employed under the UPA, NSWMNA and HSU Enterprise
Agreement 2014 – 2017 (the EA).
4. The relevant dispute resolution procedure for the Application is found in
clause 43 of the EA:
“43. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES
43.1 Unless otherwise stated the terms "party" or "parties" referred to in this
clause means the employer and/or the employees, as the context
requires.
43.2 This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except
matters relating to the actual termination of employment of an
employee;
(b) threatened termination, with the exception that the arbitration
provisions in subclause 43.6 do not apply unless the parties
agree. Further, the parties rights are reserved during this process
and the employer may exercise their right to terminate the
employee in accordance with the agreement;
(c) matters in relation to the NES;
(d) matters arising under the agreement; and
(e) whether an employer had reasonable business grounds under
subsection 65(5) of the Act- (requests for flexible working
arrangements) or 76(4) of the Act- (requests for extending
unpaid parental leave).
43.3 An employer or employee may appoint another person, organisation or
association (e.g. Union or Aged & Community Services NSW & ACT)
to accompany and/or represent them for the purposes of this clause.
43.4 In the event of a dispute the parties will initially attempt to resolve the
matter at the workplace level, including, but not limited to:
(a) the employee and his or her supervisor discussing the matter;
and
(b) if the matter is still not resolved the parties arranging further
discussions involving more senior levels of management (as
appropriate).
43.5 If a dispute is unable to be resolved at the workplace, in accordance
with subclause 43.4, a party to the dispute may refer the matter to the
FWC or other appropriate statutory tribunal.
43.6 The parties agree that the FWC shall have the power to do all such
things as are necessary for the just resolution of the dispute including:
(a) mediation, conciliation and, with the exception of disputes
arising under clause 36- Workload Management, arbitration;
and
[2019] FWC 3718
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(b) arbitration, for disputes arising under clause 36 - Workload
Management, only with the agreement of the parties.
43.7 While the dispute resolution procedure is being conducted, work must
continue in accordance with this agreement and the Act. Subject to
applicable occupational health and safety legislation, an employee must
not unreasonably fail to comply with a direction by the employer to
perform work, whether at the same or another workplace that is safe
and appropriate for the employee to perform.”
Scope of disputes capable of resolution under the EA’s dispute resolution procedure
5. Clause 43.2 sets out the scope of disputes to which the EA’s dispute resolution
clause applies.
6. Clause 43.2(a) is relevant to the disputes articulated in part 2.1 of the
Application.
7. On a plain reading of clause 43.2(a) of the EA, “matters” relating to the “actual
termination of employment of an employee” are expressly excluded from the
disputes to which clause 43 applies.
8. It must follow that any matter raised in the Application relating to the “fact of
the termination” is not a dispute that fall within the scope of clause 43.
9. Further, the allegations of:
(a) non compliance with the National Employment Standards relating to
the termination13; and
(b) the accuracy of entitlements paid to the Applicant upon termination
are also “matters” that relate to the “actual termination” of the Applicant’s
employment and therefore also fall within the exclusion under clause 43.2(a)
of the EA.
10. Therefore, the Respondent submits that none of the dispute matters set out in
part 2.1 of the Application are capable of being referred to the Fair Work
Commission for conciliation or arbitration under the EA’s dispute resolution
procedure.
11. As a result, the Fair Work Commission has no jurisdiction to conciliate or
arbitrate the matters in dispute as set out in part 2.1 of the Application.
Validity of dispute resolution clause (Clause 43) of the EA
12. The Applicant has previously, unsuccessfully, challenged the validity of
Clause 43 of the EA. Clause 43 has been determined by the Fair Work
Commission not to be an unlawful term14.
Non compliance with pre-conditions required under clause 43.4
13 As particularised in Attachment 1 to the Form F10 Application filed on 8 May 2018
14 Grabovsky v United Protestant Association of NSW Limited [2014] FWCFB 7533 and Grabovsky v United Protestant
Association of NSW Limited [2018] FWC 7227
[2019] FWC 3718
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13. In the alternative, the Applicant has not demonstrated compliance with clause
43.4 of the EA to enable the dispute to the referred to the Fair Work
Commission in accordance with clause 43.5.
Subject matter of dispute pleaded in concurrent Fair Work Commission proceedings
14. In addition, in relation to the matters identified as in dispute in the Application:
(a) the Applicant has lodged a General Protection dismissal dispute in the
Fair Work Commission - matter no: C2018/685 relating to the
termination of her employment; and
(b) the component of the claim for outstanding monies that relates to the
allegation of wrong classification has been heard and determined15 and
otherwise dismissed pursuant to the principles of res judicata16.
Appropriate Orders
15. The Application should be dismissed.”
[35] On 16 May 2019 the UPA further submitted that,
1. These submissions supplement the previous submissions filed by the
Respondent on 25 January 2019.
The Applicant’s standing to make application under s739
2. The Applicant makes application to have the Commission deal with certain
disputes under the relevant Enterprise Agreement.
3. In order for the Applicant to make an application under s739, she must be a
current employee at the time of making the application or otherwise, in the
case of a former employee, the dispute must have arisen during the
employment and continued after the termination17.
4. If the dispute does not satisfy this criteria, then it is not a dispute between an
employer and employee to which s739 applies.
The Applicant’s employment was terminated on 20 December 2017
5. The Full Bench18 has already affirmed the decision of DP Gooley19 that the
Applicant’s employment with the Respondent was terminated with effect from
20 December 2017.
15 Grabovsky v United Protestant Association of NSW Limited [2015] FWC 2504 and affirmed on appeal to Full Bench in
Grabovsky v United Protestant Association of NSW Limited [2015] FWCFB 3926
16 Grabovsky v United Protestant Association of NSW Limited [2018] FWC 7227
17 See ING Administration –v- Jajoo 7 [2006] 158 IR 239 at [38] to [41] – Full Bench decision dealing with the predecessor
provisions of s170LW of the Workplace Relations Act 1996 (Cth) and applied to the application of s739 in Fairall –v- St
George & Sutherland Community College Inc [2012] FWA 8847 and Shields & Spriggs –v- Alfred Health [2012] FWA
162
18 Grabovsky –v- United Protestant Association of NSW Limited [2018] FWCFB 2474 – 21 May 2018
19 Grabovsky –v- United Protestant Association of NSW Limited [2018] FWC 1549 – 15 March 2018
[2019] FWC 3718
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6. Despite this finding, the Applicant continues to erroneously contend that the
Respondent had no right to terminate her employment until after she had
exhausted all of her leave entitlements.
General Protections Dismissal Proceedings
7. The Applicant has lodged General Protections Dismissal proceedings in
relation to the termination of her employment20 for which Commissioner Johns
issued a certificate under s386(3) on 30 April 2019.
8. Irrespective of the Applicant’s contentions, for the Applicant to have standing
to commence an application under s739, the dispute must have arisen during
her employment up to 20 December 2017 or have arisen during that
employment and continued after the termination21.
The Matters in Dispute
9. The Application in this matter was filed on 8 May 2018, after the termination
of the Applicant’s employment on 20 December 2017.
10. In Part 2.1 of the Application, the Applicant identifies three matters of dispute:
(d) the fact of the termination of the Applicant’s employment;
(e) the Respondent’s non-compliance with the National Employment
Standards; and
(f) the accuracy of the entitlements paid to the Applicant.
The Fact of the Termination
11. The Respondent submits that the Commission has no jurisdiction to hear any
dispute relating to the “fact of the termination” under s739 as:
(a) the fact of the termination of employment is a matter already
determined by DP Gooley22 and affirmed by the Full Bench;
(b) it is not a matter that arose during the employment relationship between
the Applicant and the Respondent23; and
(c) in any event such a matter is expressly excluded from clause 43.2 of the
Respondent’s Enterprise Agreement24:
“This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except
matters relating to the actual termination of employment of an
employee;”
20 FWC matter no: C2018/685 filed by the Applicant on 8 May 2018
21 As per the line of authorities referenced in paragraph 3 above.
22 Which unambiguously found that the Applicant’s employment with the Respondent was terminated on 20 December 2017
at [26].
23 Which is necessary to enliven the jurisdiction under s739
24 The UPA, NSWMNA and HSU Enterprise Agreement 2014 – 2017
[2019] FWC 3718
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Non-compliance with the National Employment Standards
12. The Applicant was paid all of her accrued annual leave and long service leave
entitlements upon termination – see Annexure 1 to these submissions.
13. The Applicant has provided no, or at the very least very limited, particulars of
the amounts that are alleged to be unpaid or outstanding as a result of the
alleged non-compliance.
14. The respondent submits that the Commission has no jurisdiction to hear any
dispute alleged by the Applicant relating to non-compliance with the National
Employment Standards under s739 as:
(a) if there is any non-compliance (which is not admitted), such non-
compliance arose after, or as a result of, the termination of the
employment relationship and is not a dispute during the employment
relationship necessary to enliven s739;
(b) insofar as the subject matter of any non-compliance with the NES
relates to the fact of the termination of employment, this is a matter
already determined by DP Gooley and affirmed by the Full Bench;
(c) any alleged non-compliance with the NES arose as a result of the
termination of the employment and such a matter is expressly excluded
from clause 43.2 of the Respondent’s Enterprise Agreement:
“This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except
matters relating to the actual termination of employment of an
employee;”
(d) the Applicant already relies on the same or similar allegations in the
General Protections Dismissal proceedings25 which were commenced
prior to these proceedings and remain on foot. To make the same
allegations and seek the same damages in the present proceedings,
running concurrently, constitutes unfair “double dipping”.
Accuracy of Entitlements paid to the Applicant
15. To the extent that this allegation relates to the Applicant during her
employment, the Respondent submits that:
(a) the Applicant continues to allege she was misclassified and underpaid
before her injury on 27 August 2013. Such matters have already been
heard and determined by VP Lawler26, affirmed by the Full Bench27 and
again alleged and dismissed by Commissioner Johns28 (and again
affirmed by the Full Bench29). There is simply no entitlement;
25 Refer Attachment 3 to Form F8 filed by the Applicant on 9 February 2018 in matter no C2018/685
26 Grabovsky v United Protestant Association of NSW Limited [2015] FWC 2504
27 Grabovsky v United Protestant Association of NSW Limited [2015] FWCFB 3926
28 Grabovsky v United Protestant Association of NSW Limited [2018] FWC 7227
29 Grabovsky v United Protestant Association of NSW Limited [2019] FWCFB 1964
[2019] FWC 3718
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(b) the Applicant alleges that from the time of her injury until 15 May 2014
(when her workers compensation claim was denied), she has unpaid
entitlements due to her workplace injury. If there are such entitlements,
they can only be determined by application of the Workers
Compensation Act 1987 (NSW) for which the Fair Work Commission
has no jurisdiction30; and
(c) for any entitlements after 15 May 2014, the Applicant did not perform
any actual work for the Respondent and had no entitlement to payments
under the relevant Enterprise Agreement. So there can be no dispute
about such entitlements.
16. For any dispute about the payments made upon or resulting from the
termination of the Applicant’s employment, the Respondent submits:
(a) such disputes did not arise or exist during the employment relationship,
which is necessary to enliven s739;
(b) the Applicant already relies on these allegations in the General
Protections Dismissal proceedings31 which were commenced prior to
these proceedings and remain on foot. To make the same allegations
and seek the same damages in the present proceedings, running
concurrently, constitutes unfair “double dipping”; and
(c) in any event such a matter is expressly excluded from clause 43.2 of the
Respondent’s Enterprise Agreement:
“This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except
matters relating to the actual termination of employment of an
employee;”
Conclusion
17. The Respondent submits that none of the matters in dispute arose during the
Applicant’s employment with the Respondent, other than disputes that have
already been heard and determined adversely to the Applicant’s interests. For
those latter matters, the Commission would be well satisfied they have no
merit being once again prosecuted in yet another set of proceedings.
18. Accordingly, the Respondent submits that the Commission has no jurisdiction
under s739 to hear any of the matters set out in the Application.
19. The Application should be dismissed.
30 Noting the Applicant has already brought proceedings in the NSW Workers Compensation Commission which were
dismissed by Arbitrator Douglas on 3 November 2015; that decision affirmed on appeal in Grabovsky v United Protestant
Association of NSW Limited [2016] NSWWCCPD 15
31 Refer Schedule 3 to Form F8 filed by the Applicant on 9 February 2018 in matter no C2018/685
[2019] FWC 3718
14
Consideration
[36] An aspect of the application brought by Mrs Grabovsky was to the effect that the
dispute resolution clause in the 2014 Agreement was invalid. That contention has been heard
and determined against Mrs Grabovsky on at least two occasions. I follow those decisions and
agree with them.
[37] The language used in clause 43 of the 2014 Agreement enables the matter to be
disposed of promptly. It refers to:
a) the terms “party” or “parties” and then go goes on to define them as meaning “the
employer and/or the employees”.
b) “matters arising in the employment relationship, except matters relating to the
actual termination of employment of an employee”,
c) further references to “an employer or employee”, and
d) attempts being made to resolve “the matter at the workplace level, including, but
not limited to the employee and his or her supervisor discussing the matter”.
[38] That is to say the whole scheme of dispute resolution under the 2014 Agreement
contemplates that there is an employment relationship in existence at the time that the dispute
arises. That is not the case in the present matter.
[39] The employment of Mrs Grabovsky ended on 20 December 2017. At that point in time
she ceased to be an employee. It makes no sense to suggest that she did or could have raised
with her employer the termination of her employment and the payments made to her on
termination during the employment relationship. Her disputes about those matters only arose
once the termination had been effected. By then her employment had already ended.
[40] This means she did not and could not have complied with the requirements of clause
43.4 in discussing those matters with her supervisor. That is a precondition to making an
application to the Commission.
[41] By the time that application was made to the Commission Mrs Grabovsky had ceased
to be an employee 1 year, 4 months and 18 days earlier.
[42] Of course, it is well established that former employees can enliven the jurisdiction of
the Commission in circumstances where they had commenced the dispute resolution process
in advance of the cessation of their employment. In ING Administration Pty Ltd v Jajoo32 the
Full Bench majority traversed the various single member decisions concerning former
employees and noted that it was effectively the first Full Bench to consider the particular
question in the context of the then legislative scheme under the Workplace Relations Act 1996
(Cth). The majority concluded,
[38] We accept that a single person dispute which arises for the first time after the
termination of employment is not a dispute between an employer and an employee.
Whether, many disputes will arise my employment exists and continue after the
termination of employment. In such a case, when the dispute arises it is a dispute
between an employee and an employer. If the dispute has progressed to the point of
seeking the assistance of the Commission, the ING interpretation would require the
employee to remain in employment. If it was intended to incorporate a limitation in
s.170LW of the nature contended for by ING, we would expect there to be a clear
express reference to that effect.”
32 PR974301
[2019] FWC 3718
15
[43] The Full Bench majority rejected that contention. Mr Jajoo was permitted to continue
before the Commission because he had enlivened the dispute resolution process prior to the
termination of employment.
[44] However that is not the case in the present circumstances. Mrs Grabovsky’s dispute
clearly falls within the category “a single person dispute which arises for the first time after
the termination of employment”. Consequently it follows that it is not a dispute between an
employer and an employee.
[45] In Shields & Sprigg v Alfred Hospital33 Senior Deputy President Kaufman, in deciding
a matter under the FW Act, held that the decision in ING was apposite. In that matter the
dispute between the applicants and the respondent did not arise, or at least was not agitated,
until after their employment with Alfred Health had come to an end. It necessarily followed
that Fair Work Australia (as the tribunal was then called) lacked jurisdiction to deal with the
matter. For this same reason, the Commission lacks jurisdiction to deal with Mrs Grabovsky’s
application. The dispute about her termination of employment and entitlements paid on
termination arose only after the fact of termination (i.e. after she ceased to be an employee).
[46] In any case, the dispute resolution clause carved out matters “relating to the actual
termination of employment of an employee”. An employee’s remedy in respect of the same
lies in commencing either an unfair dismissal case (which Mrs Grabovsky has not done) or a
case alleging a breach of the general protections provisions involving dismissal (an
application which was made by Mrs Grabovsky, and in respect of which I have given her a
certificate to continue with in a court of competent jurisdiction).
Conclusion
[47] For the reasons set out above I was satisfied that the Commission was not invested
with jurisdiction to deal with the application. The jurisdictional objections of the UPA were
upheld.
[48] In deciding to dismiss Mrs Grabovsky’s application I note that it does not affect any of
her substantive rights in relation to the matters she sought to pursue in this application. To the
extent that she disputes the fact of the termination of employment, compliance with the NES
standards and the accuracy of entitlements paid to her on termination she is at liberty pursue
those matters in a court of competent jurisdiction. My decision expresses no view about the
merits of those claims. My decision is simply that those matters are not within the jurisdiction
of the Commission to address or remedy.
[49] The application by Mrs Grabovsky was dismissed.
[50] An Order34 to this effect was issued earlier today.
33 [2012] FWA 162.
34 PR708822.
[2019] FWC 3718
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COMMISSIONER
Appearances:
Mr I Grabovsky, for the Applicant
Mr Puxty, Partner, Cantle Carmichael Legal, for the Respondent
Hearing details:
29 May 2019
Sydney
Printed by authority of the Commonwealth Government Printer
PR708820
HE WORK COMMISSION THE SEAL OF
