Bahonko v Southern Health Care Network [1999] FCA 479

FEDERAL COURT OF AUSTRALIA

Bahonko v Southern Health Care Network [1999] FCA 479

STANISLAWA BAHONKO v SOUTHERN HEALTH CARE NETWORK

VG 68 OF 1999

NORTH J

16 MARCH 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 68 OF 1999

BETWEEN: STANISLAWA BAHONKO

Applicant

AND: SOUTHERN HEALTH CARE NETWORK

Respondent

JUDGE: NORTH J

DATE OF ORDER: 16 MARCH 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 68 OF 1999

BETWEEN: STANISLAWA BAHONKO

Applicant

AND: SOUTHERN HEALTH CARE NETWORK

Respondent

JUDGE: NORTH J

DATE: 16 MARCH 1999

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT 1 Before the court is a motion, notice of which was filed by the respondent in court today, 16 March 1999. In that motion the respondent, Southern Health Care Network, seeks orders dismissing the application of the applicant, Stanislawa Bahonko. It is necessary in order to understand the decision which I have reached for me to trace the background briefly. 2 Ms Bahonko was previously employed as a registered nurse with the Southern Health Care Network. This litigation arises out of her dismissal. As a result of her dismissal, she applied to the Australian Industrial Relations Commission ("the Commission") under section 170CE of the Workplace Relations Act 1996 (Cth) ("the Act"). In particular I have been told, although the application is not before me, that she relied upon the grounds set out in subsections 170CE(1)(a) and (b). Subsection 170CE(1)(a) provides that an employee whose employment has been terminated by an employer may apply to the Commission for relief in respect of the termination of that employment on the ground that the termination was harsh, unjust or unreasonable. Subsection (b) provides for an application on the ground, inter alia, of an alleged contravention of section 170CK. I have been told that the basis of the application under section 170CK were some of the grounds contained in section 170CK(2)(f), namely physical disability or national extraction or social origin. In relation to these grounds, as I understand it, Ms Bahonko's case is that she was discriminated against on the grounds of her non‑English‑speaking background and on the grounds of a back injury which was caused by the Southern Health Care Network harassing and abusing her in the course of her employment by causing her to do work which led to her injury. 3 On 2 February 1998, a conciliation conference was held in the Commission in an attempt to resolve the claims. On 18 March 1998, Senior Deputy President Watson issued a certificate under section 170CF(2). That subsection provides: If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are or are likely to be unsuccessful so far as concerns at least one ground of the application, the Commission: (a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground. 4 The senior deputy president's certificate provided as follows: In accordance with subsection 170CF(2) of the Workplace Relations Act 1996, the Commission hereby certifies that all reasonable attempts to settle the matter by conciliation have been or are likely to be unsuccessful so far as it concerns the grounds set out in section 170CE(1)(a) [emphasis added]. 5 As a consequence of the issue of the certificate, section 170CFA became applicable. In particular section 170CFA(1) provided: If the certificate given by the Commission under section 170CF(2) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is or is likely to be unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable, or not to proceed. 6 In the present case, the certificate fell within the description of section 170CFA(1). As a consequence, Ms Bahonko had a right to elect under that subsection. In a notice of election filed on 24 March 1998, Ms Bahonko elected in relation to section 170CFA(1): "to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable." 7 Following her election, the Commission heard and determined the application under section 170CE(1)(a) both at the primary level and on appeal by a full bench of the Commission. On 22 December 1998 the full bench dismissed Ms Bahonko's appeal against the initial adverse decision of the Commission. 8 On 18 February 1999, Ms Bahonko issued proceedings in this court. Her application was made under section 170CP. It was grounded on the provisions of subsection 170CP(1) which, so far as is relevant, provided: Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK by his or her employer. 9 Subsection 170CP(5) provided: An application under subsection (1) in respect of an alleged contravention of section 170CK may not be made to a court unless the applicant: (a) has received a certificate under section 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and (b) has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention. 10 The first barrier to Ms Bahonko's present application is that the scheme of section 170CFA gives applicants various options dependant upon the form of the Commission's certificate. The form of certificate in the present case brought section 170CFA(1) into effect. That subsection gave Ms Bahonko the right to elect to proceed to arbitration or not. It did not give her the option to proceed in Court. She could therefore not fall within section 170CP(5)(b). This barrier is fatal to the present application. 11 Further, section 170CP(5)(a) requires as a prerequisite to the commencement of an application to this court under section 170CP(1) that the applicant has received a certificate from the Commission which was made wholly or partly on the ground of the contravention alleged in the application to the Court. That is to say the relevant certificate in this case had to be one which attested to the inability of the section 170CK application to be resolved by conciliation. It is clear from the face of the certificate that it did not address the contravention of section 170CK. Rather it addressed solely the contravention of section 170CE(1)(a). The absence of a relevantly worded certificate under section 170CP(5)(a) is a further barrier to the applicant bringing the application which she presently seeks to bring in this Court. 12 It is not clear why the certificate did not address the 170CK ground. That deficiency may or may not now be remediable by the Commission. Mr Rinaldi, who appeared on behalf of the Southern Health Care Network, contended that the application was incompetent for an additional reason that the provisions of section 170CP(5)(b) had not been satisfied. He contended that Ms Bahonko had not made an election to begin proceedings in the Court. 13 This argument was put on the assumption that the certificate did relate to the section 170CK ground. If that were so section 170CFA(4)(a) would have operated. It provides: If the certificate given by the Commission under subsection 170CF(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL, 170CM and 170CN as the ground or grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following: (a) so far as concerns an alleged contravention of a section or sections other than section 170CM – to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions; 14 The nature of election referred to earlier in these reasons is a printed form which has provision for indicating an election by the applicant placing a cross in the relevant box in five different circumstances, namely, the circumstances existing under sections 170CFA(1), (2), (3), (4) or (5). As recounted previously, Ms Bahonko completed the relevant part of the form relating to section 170CFA(1). She also completed an election in respect of section 170CFA(5) as follows: …elect:… (b) to do either or both of the things permitted in subsection 170CFA(4) x being proceeding under s 170CFA(4)(a) x AND/OR s 170CFA(4)(b) x 15 In handwriting beside the printed part of the form Ms Bahonko wrote: "All of them Ground (a) as per application form" 16 The form stated that: (*an election can only be made in respect of the particular options relating to the ground or grounds identified in the certificate as not Settled, or not likely to be Settled, by conciliation) 17 Accompanying this form was a letter directed to the Commission as follows: I request that due to my specific circumstances, I will be allowed to make election to proceed to arbitration and to begin court proceedings in case if arbitration result is not acceptable to me. In my application I have elected the following grounds for application: (a) harsh, unjust and unreasonable, and (b) section 170CK and section 170CN. I do not agree to that arbitration to be final. I want to assert my rights to proceed all three grounds as stated in my application. 18 In view of my conclusion that Ms Bahonko was not entitled to elect to take proceedings in the Court, it is not necessary for me to determine whether the election form and accompanying letter constitute an election for the purposes of section 170CP(5)(b). There is, I should observe, some force in the submission of Mr Rinaldi that Ms Bahonko was indicating that she reserved the right to take court proceedings only if the result of the arbitration was not acceptable, and therefore did not make an election. 19 It is perhaps not surprising that the documents exhibit a certain degree of confusion as to Ms Bahonko's legal rights. It is not surprising because although these provisions should be easily accessible to people alleging discrimination and other unfair practices, they are encased in a web of complexity which makes it difficult even for an experienced legal practitioner to follow. Nonetheless it may be for another day to determine whether the correspondence exhibits the relevant election. 20 It is inevitable in these circumstances that the application brought by Ms Bahonko cannot succeed and should be dismissed. COSTS 21 An application has been made by the Southern Health Care Network that Ms Bahonko pay the costs of the proceeding on the basis that the application was brought without reasonable cause. Whilst the legal result as I have expressed it is clear, in my view there is an overriding discretion to order or not order the unsuccessful applicant to pay the costs under section 170CS. In the exercise of that discretion, I determine that the application for costs should be refused. The reasons have been adequately expressed in the course of discussion with Mr Rinaldi in the last few minutes. ORDERS 22 The order of the court will be that the application is dismissed with no order as to costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.