[2009] ALMD 5042 Reported Decision : 229 FLR 380 182 IR 75 New South Wales Supreme Court CITATION : Deva v University of Western Sydney [2009] NSWSC 280 HEARING DATE(S) : 30 October 2008 JUDGMENT DATE : 17 April 2009 JUDGMENT OF : Smart AJ DECISION : Summons dismissed. CATCHWORDS : ADMINISTRATIVE LAW - employment - s 170HB of the Workplace Relations Act 1996 (Cth) precludes proceedings under a law of a State (Anti-Discrimination Act 1977 (NSW)) - alleging termination of employment was harsh, unjust or unreasonable (however described) or unlawful when application was made under s 170CE(1)(a) of the Commonwealth Act - Commonwealth Constitution s 109 Anti-Discrimination Act 1977 (NSW) LEGISLATION CITED : Judiciary Act 1903 (Cth) Workplace Relations Act 1996 (Cth) CATEGORY : Principal judgment CASES CITED : Deva v University of Western Sydney [2008] NSWCA 137 PARTIES : Pradeep Deva (Plaintiff) University of Western Sydney (Defendant) FILE NUMBER(S) : SC 30003/07 COUNSEL : Self represented (Plaintiff) S Prince (Defendant) SOLICITORS : Self represented (Plaintiff) Lander & Rogers (Defendant) LOWER COURT JURISDICTION : Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S) : 061096 LOWER COURT DATE OF DECISION : 12 December 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Smart AJ Friday 17 April 2009 30003/07 Pradeep Deva v University of Western Sydney JUDGMENT 1 HIS HONOUR: By his Summons dated 7 January 2007 and filed 8 January 2007, Mr Deva sought Judicial Review of the decision of a Deputy President of the Administrative Decisions Tribunal on 12 December 2006 in Matter No 061096. On 17 June 2008 the Court of Appeal, [2008] NSWCA 137, quashed that decision and remitted the hearing of Mr Deva's Summons to a judge of the Administrative Law List of this Court for determination, subject to the University complying with s 78B of the Judiciary Act 1903 (Cth), of the effect of s 170HB of the Workplace Relations Act 1996 (Cth) upon Mr Deva's complaint to the Anti-Discrimination Board ("the ADB") made on 1 September 2005. 2 The University gave the requisite notices to the Commonwealth, State and Territory Authorities and complied with s 78B of the Judiciary Act 1903 (Cth). The background, circumstances and legislation are summarised in the judgment of Tobias JA, with whom Campbell and Bell JJA agreed. The Court of Appeal held that the Deputy President had erred in law in the construction of the expression " the subject matter of the complaint" in s 92(1)(a)(v) of the Anti-Discrimination Act 1977 (NSW) ("AD Act"), by holding that the subject matter of Mr Deva's complaint to the ADB was the same as the subject of his application to the Australian Industrial Relations Commission ("the AIRC"). The former was based on unlawful termination and the latter on unfair termination. They should not be equated. The Court of Appeal held that to the extent to which the Deputy President and the primary judge held that the subject matter of Mr Deva's complaint to the ADB was the termination of his employment by the University, they were in error as they approached the construction s of s 92(1)(a)(v) of the AD Act at too high a level of generality. The Deputy President refused leave to Mr Deva to proceed with his complaint that the University had unlawfully discriminated against him by dismissing him by reason of his race: "… essentially on the ground that the subject matter of the complaint had been dealt with by the AIRC and that public policy considerations militated against Mr Deva being given another opportunity to seek relief for the termination of his employment." (per Tobias JA at [5]) 3 Both parties tendered boxes containing bundles of documents but, as I understand the remitter from the Court of Appeal, I am required to address the legal issue remitted now that the Notices under the Judiciary Act have been given. Mr Deva felt deeply about his dismissal and wanted a hearing on the merits and restoration of his employment. I have no jurisdiction to conduct such a hearing. 4 The provisions of the Workplace Relations Act 1996 (Cth) ("WR Act") are somewhat complex. Section 170CE of the WR Act relevantly provides: "(1) … an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or (b) on the ground of an alleged contravention of s 170CK …; or (c) … on a ground or grounds in paragraph (b) and the ground in paragraph (a)." 5 Section 170CK(2) relevantly provides that: "… an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: … (f) race, …" 6 Section 170HB of the WR Act relevantly provides as follows: "(1) An application must not be made under s 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that includes that ground, if proceedings (the prior proceedings ) or a remedy in respect of that termination have been commenced by or on behalf of an employee: (a) under another provision of this Act; or (b) …; or (c) under a law of a State …; alleging that the termination was: (d) harsh, unjust or unreasonable (however described); or (e) unlawful for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination. (2) … (3) … (4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application: (a) is discontinued by the applicant; or (b) fails for want of jurisdiction." 7 Tobias JA at [14] explained the subsequent history of these provisions thus: "14 On 27 March 2006 the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the 2005 Act) relevantly commenced operation. Apart from renumbering Part VIA of the WR Act as it stood prior to the 2005 Act (and which included the provisions of Subdivisions B, C and F of Division 3, that Part with which the Court is concerned in this appeal), no substantive changes were made to the text of s 170CE (which became s 643) or to s 170CK(2) (which became s 659(2)). However, s 170HB became s 672 and was recast as follows: '(1) An application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or grounds that include that ground, must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings: (a) have been discontinued by the employee who commenced the proceedings; or (b) have failed for want of jurisdiction. (2) An employee must not commence other termination proceedings in respect of a termination of employment if an application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or on grounds that include that ground, has already been made, unless the application: (a) has been discontinued by the employee; or (b) has failed for want of jurisdiction. (3) In this section: other termination proceedings means proceedings, in respect of a termination of the employment of an employee: (a) for a remedy in respect of the termination: (i) under a provision of this Act other than section 643; or (ii) under another law of the Commonwealth; or (iii) under a provision of a law of a State or Territory that is not excluded by section 16; and (b) that allege that the termination was unlawful for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination).'" 8 The AIRC had jurisdiction to deal with a complaint that the termination of the employee's employment was harsh, unjust or unreasonable and on the ground that it was unlawful because it was terminated because of race (s 170CK(2)(f)). Before the AIRC Mr Deva did not raise that ground in his application although that may well have appeared in the materials adduced before the Commissioner. 9 The issue remitted firstly turns on the construction of ss 170HB(1) and (4). Section 170HB(1) prohibits an application being made under s 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground if prior proceedings for a remedy in respect of that termination have been commenced by that employee under a law of a State alleging that the termination was harsh, unjust or unreasonable, (however described), or unlawful for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination. 10 Section 170HB(4), being the provision mainly relied upon, deals with an alternate situation and states that where an application has been made under the law of a State alleging that the termination was harsh, unjust or unreasonable (however described) or unlawful in respect of a termination "a person is not entitled to take proceedings for any other remedy, that if it had been applied for before the application would because of the operation of subsection (1), have prevented the application …" 11 Section 170HB(1) prohibits applications under s 170CE on the ground that the termination was harsh, unjust or unreasonable or on grounds that include that ground if prior proceedings for a remedy in respect of that termination have been commenced by the employee under a law of a State alleging that the termination was harsh, unjust or unreasonable (however described) or unlawful. 12 Section 170HB(4) provides in effect that after an unsuccessful application to the AIRC on the ground that the termination was harsh, unjust or unreasonable or on grounds that include that ground a person (including an employee or a former employee) is not entitled to take proceedings under a State law for any other remedy if it is alleged that the termination was harsh unjust or unreasonable (however described) or unlawful. 13 Sections 170HB(1) and (4) are designed to avoid a multiplicity of proceedings. 14 At [17] Tobias JA raised the issue whether the making of a complaint by lodging it with the President of the AD Tribunal pursuant to s 89A of the AD Act and/or making a request under s 93B(1) of that Act that the President refer the complaint to the Tribunal can be correctly categorised as the taking of "proceedings for any other remedy" within s 170AB(4) or as the commencement of "other termination proceedings" within s 672(3) of the WR Act. At [17] Tobias JA thought that "the better view is that they do not, at least unless and until the Tribunal grants leave pursuant to s 96(1) of the AD Act". Tobias JA added, "Without the grant of such leave a complaint referred to the Tribunal on the request of a complainant under s 93A(1) cannot become the subject of proceedings before the Tribunal". 15 As to s 170HB, Tobias JA [80] said: "Whether or not that provision or its successor mandates the refusal of leave under s 96(1) was not agitated either before the Deputy President or the primary judge. But there is no reason to deny the respondent the opportunity to rely upon those provisions subject to compliance with s 78B of the Judiciary Act. If it be the case that the appellant is precluded from proceeding in the Tribunal on his complaint, then it would indeed be futile for the matter to be remitted for reconsideration: cf SZBYR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190 at 1207 [87] per Kirby J and [91] per Hayne J." 16 If, on leave being granted under s 96, the proceedings in the ADT would be caught by the statutory bar in s 170HB (or s 672) it would be futile for the matter to be remitted to the ADT for reconsideration. 17 Section 170HB of the WR Act precludes an application under s 170CE in relation to the termination of employment on the ground that the termination was harsh, unjust or unreasonable or on grounds that include that ground but it does not preclude an application on the ground of an alleged contravention of sections 170CK, 170 CL, 170CM or 170CN. Section 170CK(2) specifies a series of grounds on which employment may not be terminated except as provided in subsections (3) and (4) which are presently irrelevant. If an employer contravened sections 170CL, 170CM or 170CN and did not comply with those sections, which are of a different nature, the dismissal of the employees affected would be unlawful. 18 Thus if an application was made solely on one or more of the grounds mentioned in sections 170CK(2), 170CL, 170CM and 170CN, s170HB does not prohibit the bringing of an action under s 170CE(1)(b) even though proceeding for a remedy in respect of the employee's termination, have been commenced by an employee under a law of a State alleging that the termination of employment was harsh, unjust or unreasonable (however described) or unlawful. 19 These considerations while useful in considering the general operation of s 170HB and s 170 CE, do not deal directly with the issues that arise in the present case. The test of "harsh, unjust or unreasonable" differs from the test of unlawful and raises different considerations. The former is a more elastic and general test, introducing considerations of justice and reasonableness (fairness). The circumstances existing at the time of termination could well be important. 20 Section 170HBA restricts the number of applications that can be made under s 170CE. The former provides: "An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination unless the second application corrects an error in the previous application or the Commissioner considers that it would be fair to accept the second application." 21 This covers applications under both s 170CE(1)(a) – terminations harsh, unjust or unreasonable – and s 170CE(1)(b) – contravention of sections 170CK, 170CL, 170CM or 170CN. This section reinforces the approach that there is to be one application which should be comprehensive. It is in the best interests of both employees and employers that there be one application and one hearing. Much of the evidence is likely to be common. 22 This was a case where an application was made under s 170CE(1)(a) on the ground that the termination was harsh, unjust or unreasonable and the AIRC dealt with it on that basis. 23 In those circumstances s 170HB(4) read in conjunction with s 170HB(1) precludes taking proceedings under a law of a State alleging that the termination of employment was harsh, unjust or unreasonable (however described) or unlawful. 24 The application made under the AD Act in effect alleges that the termination was unlawful. In my opinion section 170HB creates a statutory bar and precludes proceedings being taken under a law of a State, the AD Act (NSW), alleging the termination of Mr Deva's employment was unlawful. 25 By virtue of s 109 of the Constitution, the Commonwealth law, namely the WR Act prevails. Accordingly, I would dismiss Mr Deva's Summons. It would be futile to remit the matter to the ADT. As to costs, my provisional view is that there should be no order as to the costs of the proceedings before me. The hearing before me was necessary because the University had not served notices under s 178B of the Judiciary act 1903 when it wanted to raise and rely on matters involving constitutional issues. Its application to strike out the Summons failed. The Court of Appeal found that there had been error of law in the ADT's decision which the University endeavoured to uphold. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.