Adachi v Qantas Airways Limited
[2019] FCCA 1107
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADACHI v QANTAS AIRWAYS LTD | [2019] FCCA 1107 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 361 Federal Circuit Court of Australia Act 1999 (Cth), s.43 Federal Circuit Court Rules 2001 (Cth), r.1.05 Federal Court Rules 2011 (Cth), r.16.21 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 |
| Applicant: | KEIKO ADACHI |
| Respondent: | QANTAS AIRWAYS LTD |
| File Number: | SYG 3078 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 25 October 2017 and 2 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Davis |
| Solicitors for the Applicant: | Byles Anjos Lawyers |
| Counsel for the Respondent: | Mr Rauf |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
Paragraphs 7 to 17, 24 to 26 and 49 of the Applicant’s points of claim be struck out.
The Applicant have leave to replead paragraphs 24 to 26 and 49 of the points of claims provided that any amended points of claim be filed and served on or before 24 May 2019.
If the Applicant files and serves amended points of claim in accordance with order 2 hereof, the Respondent file and serve amended points of defence on or before 14 June 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3078 of 2016
| KEIKO ADACHI |
Applicant
And
| QANTAS AIRWAYS LTD |
Respondent
REASONS FOR JUDGMENT
The Applicant, Ms Adachi, commenced proceedings in this court against Qantas Airways Ltd (Qantas) under the Fair Work Act 2009 (Cth) (the FW Act) alleging contraventions of the general protections provisions in Part 3-1 of Chapter 3 of the FW Act. After the proceedings were commenced, and in circumstances where both parties were represented, the court made consent orders that Ms Adachi file points of claim and Qantas file points of defence, rather than proceeding by way of a statement of claim.
Qantas now seeks orders that the court strike out certain paragraphs in Ms Adachi’s points of claim pursuant to r.16.21 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). Reliance was placed on the Federal Court Rules on the basis that under s.43 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act), insofar as the provisions of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) are insufficient, the rules of court made under the Federal Court of Australia Act 1976 (Cth) (now see the Federal Court Rules 2011) apply to the practice and procedure of this court in relation to proceedings of this nature.
Rule 1.05 of the FCC Rules contains a provision that reflects the language of s.43 of the FCC Act. In addition, r.1.05(3) provides that the provisions of the Federal Court Rules specified in Part 2 of Schedule 3 to the FCC Rules apply, with necessary changes, to general federal law proceedings in this court. Part 2 of Schedule 3 to the FCC Rules includes a reference to r.16.21 of the Federal Court Rules.
It is not in dispute in the present proceedings that it is appropriate to apply r.16.21 of the Federal Court Rules to the Respondent’s strike-out application, notwithstanding that the matter proceeded by way of points of claim rather than a statement of claim (cf the definition of “pleading” in the Dictionary in Schedule 1 to the Federal Court Rules).
In any event, I consider it appropriate to apply the provisions of r.16.21 in circumstances where, notwithstanding the fact that the matter proceeded by way of points of claim, the orders sought by the Applicant include penalties under the FW Act which, of necessity, must be pleaded with sufficient clarity to enable the Respondent to be informed as to the real substance of the claim.
Initially Qantas sought, in the alternative, that the proceedings be dismissed pursuant to r.13.10 of the FCC Rules on the basis that Ms Adachi had no reasonable prospect of successfully prosecuting the proceeding or under r.13.03B(1)(a) of the FCC Rules on the basis that Ms Adachi was in default because, contrary to orders of the court, at the time the application in a case was filed she had failed to provide particulars to the Respondent.
Ms Adachi has now provided further and better particulars. Qantas no longer pursues the application for summary dismissal or an order under r.13.03B of the FCC Rules. It maintains, however, the application to strike out paragraphs 6 to 18, 24 to 26, 47 and 49 of Ms Adachi’s points of claim pursuant to r.16.21(1)(d), (e) and/or (f) of the Federal Court Rules. In support of this application Qantas relies on an affidavit of Louise Kate Ritchard affirmed on 5 October 2017.
Ms Adachi opposed the strike out application, but also contended that if any of the impugned paragraphs lack clarity she should be given leave to replead. She relied on an affidavit of Peter Anjos sworn on 25 October 2017.
Rule 16.21(1) of the Federal Court Rules is, relevantly, as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
...
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
Ms Adachi commenced employment with Qantas in 1988. It appears that her employment was initially as a flight attendant and then as either a cabin services supervisor (as she pleaded) or a customer service supervisor (as Qantas pleaded). Ms Adachi’s employment was terminated by Qantas in March 2013. She subsequently commenced unfair dismissal proceedings against Qantas in the Fair Work Commission (the FWC) in which she was successful. Her employment was reinstated in March 2014.
Ms Adachi was on leave from 8 October 2014 to 1 July 2015, although the parties differ as to the form of leave taken. In July 2015 (the parties disagree as to precisely when), Ms Adachi lodged a claim under the Workers Compensation Act 1987 (NSW).
On a date in September 2015 (about which the parties also disagree) Ms Adachi filed an application in the FWC for an order to stop bullying by named persons, said to be Qantas employees. In May 2016 Ms Adachi filed a second application in the FWC for an order to stop bullying.
Ms Ritchard’s evidence is that the first stop bullying application was heard in the FWC over six days in May and June 2016, but that on 7 December 2016, prior to the Commissioner handing down a decision, Ms Adachi filed a notice of discontinuance. She also filed a notice of discontinuance of the second stop bullying application on the same date.
It is not disputed that in early 2016 Qantas had referred Ms Adachi to a forensic psychiatrist for assessment and the psychiatrist provided Qantas with a report in April 2016 certifying that Ms Adachi was permanently unfit for work by reason of a personality disorder or delusional disorder. Ms Adachi provided Qantas (or its lawyers) with reports from three psychiatrists and a general practitioner, which are said in the points of claim to have certified her as fit for her pre-injury duties.
On 24 August 2016 Ms Adachi’s employment with Qantas was terminated.
After obtaining a certificate from the FWC under s.368 of the FW Act, Ms Adachi commenced these proceedings.
The points of claim make various allegations of contraventions by Qantas of the general protections provisions in Part 3-1 of Chapter 3 of the FW Act. The number of asserted contraventions is unclear, but Qantas is alleged to have contravened ss.340, 351 and 352 of the FW Act. Ms Adachi seeks that Qantas pay to her a pecuniary penalty in respect of each contravention, reinstatement of her employment, compensation for economic loss, interest and costs.
The application to strike out certain paragraphs in the points of claim is to be seen in light of the nature of the Applicant’s pleaded case. Qantas suggested that, in essence, it was a claim that Qantas subjected Ms Adachi to adverse action consisting of her dismissal for reasons that included the exercise of a workplace right. This may be the essence of Ms Adachi’s claim, but it is not limited to a claim that the only adverse action in issue is the dismissal.
First, it is pleaded that Qantas dismissed Ms Adachi for reasons that included the exercise of what is pleaded as “a workplace right”, but is then described as “namely” the ‘Taylor and Clough Complaint’ (made in July 2012); the ‘Taylor and Clough Inquiries’ (made between August and October 2012); the ‘Unfair Dismissal Application’ (made to the FWC after Ms Adachi’s employment was first terminated in March 2013); the ‘Workers Compensation Claim’ (made in July 2015); the ‘First Stop Bullying Proceedings’ (commenced in September 2015); the ‘Second Stop Bullying Proceedings’ (commenced in May 2016); “and” each of them.
Further, and in the alternative, it is also pleaded that Qantas took the dismissal adverse action for reasons that included the prevention of the exercise of a workplace right, namely, the ‘First Stop Bullying Proceedings’ and the ‘Second Stop Bullying Proceedings’; and/or that Qantas took the dismissal adverse action for reasons that included the disability of the Applicant within the meaning of s.351 of the FW Act.
Insofar as it was also contended in the points of claim that Qantas took the dismissal adverse action for reasons that included what was described as the ‘Temporary Absence’, being Ms Adachi’s absence from work from 8 October 2014 to 1 December 2015, in oral submissions counsel for Ms Adachi indicated that this claim (under s.352 of the FW Act) and the first paragraph numbered 37 and paragraph 48 of the points of claim were not pressed.
While these claims all relate to the dismissal, it is also contended in paragraph 49 of the points of claim that Qantas took what is described as ‘Other Adverse Action’ during Ms Adachi’s employment (as pleaded in paragraphs 24 to 26 and 37 of the points of claim) that injured her in her employment and altered her position to her prejudice for reasons that included the exercise of a workplace right, being each of the matters referred to at [19] above.
There is no dispute as to the applicable principles in relation to striking out pleadings. As indicated, Qantas relied on r.16.21(d), (e) and/or (f) of the Federal Court Rules. A pleading can be struck out for being likely to cause prejudice, embarrassment or delay in the proceeding where, for example, it is susceptible to various meanings, contains inconsistent allegations, alternatives which are confusingly intermixed, or irrelevant allegations tending to increase expense (see Shelton v National Roads and Motorists Association Ltd(NRMA Ltd) [2004] FCA 1393 at [18]), or where the pleading contains defects which result in it being unintelligible, ambiguous, vague or too general so as to embarrass the opposing party which does not know what is alleged against it (see Fair Work Ombudsman v EasternColour Pty Ltd [2011] FCA 803 at [18]).
While a pleading may be embarrassing if it is internally inconsistent (Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [23]), this does not prevent a party from pleading alternative and inconsistent allegations of material facts (as discussed in JC Decaux Pty Ltd v Adshel Street Furniture Pty Ltd [2000] FCA 1118; (2000) 178 ALR 339 at [19]).
A pleading which simply asserts a conclusion to be drawn from facts not stated or which simply repeats the language of a provision of legislation and broadly asserts a contravention without more, can be struck out as embarrassing (see Fair Work Ombudsman v Eastern and cases cited therein).
Further, a pleading can be struck out as failing to disclose a reasonable cause of action where it has not set out all the material facts necessary to formulate a complete cause of action and has failed to define the issues with sufficient clarity that the other party understands and has the opportunity to meet the case made against it (H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242; Christou v Stantons International Pty Ltd [2010] FCA 1150).
Abuse of process is a broad concept. For example, a pleading may be struck out as being an abuse of process where it does not disclose a cause of action, such defect has been brought to the attention of the relevant party and, notwithstanding this, the party has maintained the pleading (see Sims v RM Capital Pty Ltd [2014] FCCA 2977 at [69]).
Qantas contended that the impugned paragraphs in the points of claim for the most part did not go to any of the matters which would have to be considered by the court in addressing the alleged contraventions of general protections provisions of the FW Act.
In this case, if the reverse onus in s.361 arises it will be for the Respondent to satisfy the court that the reason for termination of the Applicant’s employment or the other alleged adverse action was not one of the proscribed reasons (see Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [21], [127] and [146]; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 at [7] and [89] - [90]).
Qantas submitted that the points of claim asserted that it was the act of the complaint, inquiry, claim or application to the FWC that was the exercise of a workplace right within ss.340 and 341 of the FW Act that was the substantial and operative reason for which the dismissal and other adverse action was taken and that insofar as Ms Adachi sought to maintain the impugned paragraphs as providing some common substratum of antecedent facts (as she claimed) these paragraphs had no relevance to the exercise of the impugned workplace rights. Rather, these paragraphs were said to allege matters of contested fact that occurred many years ago, had been the subject of earlier proceedings and were not relevant to the fact of whether the Applicant made a complaint or filed a pleaded application.
In written submissions the Applicant contended generally that:
There is no impropriety or “back door” estoppel, prejudice, delay or abuse of process in setting out the fill and common substratum of facts and common transaction to the Applicant’s present Points of Claim. Rather, they are essential to it: Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457.
This submission was not explained further. The Philip Morris case, in relation to the jurisdiction of the Federal Court to consider, in addition to a federal matter, a claim based on state law which arose out of a common substratum of facts, does not assist the Applicant, notwithstanding the remarks of Barwick CJ in relation to modern pleading (see Philip Morris at 472 - 474). Barwick CJ did point out (at 472) that it is sufficient for an applicant to allege the facts he seeks to prove and the relief he claims, but also observed that “no pleading will be supportable if those facts cannot support a right to relief and, in that sense ... support a cause of action”. Nonetheless it is necessary to consider the various parts of the points of claim in issue.
Paragraphs 6 to 14
The first group of paragraphs the subject of the strike-out application are paragraphs 6 to 14 in the points of claim. They are as follows:
6. In about August 2012, the Respondent notified the Applicant that the Taylor and Clough Complaint had not been made out.
7. On about 18 September 2012, the Respondent, by its manager Sian Jarrett, directed the Applicant to attend a meeting which:
7.1 took 2 hours;
7.2 was scheduled immediately before the Applicant was required to undertake a 17 hour direct flight to Dallas, USA;
7.3 caused the Applicant to arrive late for her flight duty;
7.4 was for the purpose of alleging that the Applicant had not met her target for in-flight sales of duty free goods (“the Sales Target”);
7.5 involved a denial of the allegation pleaded at paragraph 8(d) above by the Applicant.
8. After the meeting, and in front of the Applicant’s colleagues and flight crew, Sian Jarrett said words to the effect of “Sorry she’s late, Keiko was in a KPI meeting that took longer than usual”.
9. The comments made, particularly in front of the Applicant’s colleagues and flight crew, caused the Applicant to feel humiliated and embarrassed.
10. Between September 2012 and October 2012, the Respondent, by its managers Sian Jarrett and Rachel Redden made further allegations that the Applicant did not meet the Sales Target.
11. Between September 2012 and December 2012, the Applicant denied that she did not meet the Sale Target.
12. Between September 2012 and December 2012, the Applicant offered to provide proof to the Respondent that she met the Sales Target, and the Respondent refused to consider that proof.
13. On 23 December 2012, the Applicant was directed by the Respondent to attend a summer training school conducted by the Respondent (“the Summer School”).
14. The Summer School consists of a program directed to ground training of crew that did not meet the Respondent’s Key Performance Indicator targets.
Qantas submitted that the allegations raised by Ms Adachi in these paragraphs were entirely irrelevant and had no connection to the alleged contraventions of general protections provisions in the FW Act.
These paragraphs were said to relate to Ms Adachi’s key performance indicator review in 2012. Qantas pointed out that Ms Adachi does not rely on the allegations in these paragraphs to support her pleaded case (in paragraphs 44 to 50 of the points of claim). Rather, it was submitted that it was apparent from an examination of paragraphs 44 to 46 and 50 of the points of claim that the central element of Ms Adachi’s adverse action claims was an allegation that Qantas dismissed her from employment or took other action against her because of the fact she had exercised a particular workplace right or rights. Ms Adachi’s case as pleaded does not allege that any relevant adverse action was taken because of any of the matters pleaded in paragraphs 6 to 14 of the points of claim. Qantas submitted that these paragraphs had no relevance to the exercise of the impugned workplace rights but, rather, alleged matters of contested fact that preceded the earlier unfair dismissal proceedings and occurred many years ago.
Qantas also submitted that the presence of these paragraphs in the points of claim meant that it would be put to the task of contesting the asserted facts by calling witnesses to deal with events from many years ago (2012) in respect of matters that had been the subject of earlier proceedings by Ms Adachi against Qantas in the FWC and in circumstances where those facts were not relevant to the fact of whether Ms Adachi made a complaint or inquiry or subsequently commenced any proceedings or made a workers compensation claim. It was submitted that the content of these paragraphs was quintessentially of the type that would cause prejudice and occasion delay and that they should be struck out.
Ms Adachi contended that these paragraphs addressed a common substratum and history of facts which related to the allegations which were addressed in the FWC unfair dismissal proceedings (which resulted in her reinstatement in March 2014). These facts were said to “underpin the Applicant’s claim”. In written submissions reliance was placed, without explanation, on s.361 of the FW Act.
In oral submissions, counsel for Ms Adachi suggested that in the absence of the pleading of what was described as a common substratum of facts, including the facts that preceded the unfair dismissal application, the Applicant would not be able to establish sufficient temporal connection between the original complaint (apparently a reference to the ‘Taylor and Clough Complaint’) and the termination of her employment to succeed in her claim. It was also submitted that without the evidence of such matters the court would not be able to make a determination as to the intention or reasons for the dismissal or put the course of conduct in context and that this would not allow for the whole of the Applicant’s case to be presented to the court. It was submitted that the Respondent should be put on notice as to the Applicant’s case and that the court should be fully informed of the long and complex history relevant to this matter.
As Qantas submitted, it is important to bear in mind the nature of these proceedings. What is in issue is whether Qantas contravened any of the general protections provisions in the FW Act, not whether Ms Adachi was unfairly dismissed in March 2013.
Provided Ms Adachi has alleged (with sufficient clarity) that Qantas took action (in particular, the dismissal) for a particular reason or with a particular intention and that taking that action for that reason or with that intention would constitute a contravention of Part 3-1 of the FW Act, under s.361(1) of the FW Act it would be presumed that the action was taken for that reason or with that intent, unless Qantas proved otherwise.
Paragraph 6 of the points of claim does not on its face appear to have anything to do with whether the Applicant met her key performance indicators. Rather, it pleads notification to Ms Adachi that the ‘Taylor and Clough Complaint’ (explained in paragraph 4 of the points of claim to be a complaint Ms Adachi made to her managers on 5 July 2012 to the effect that a particular flight attendant had committed a safety breach which a second employee had condoned and that the second employee had also assaulted her) had not been made out. The making of the ‘Taylor and Clough Complaint’ is one of the matters that the Applicant asserts was the exercise of a workplace right and a reason why she was dismissed or other adverse action was taken against her. While Ms Adachi does not allege that adverse action was taken by reason of or because of the matters pleaded in paragraph 6 of the points of claim, it relates to the resolution of the earlier pleaded ‘Taylor and Cough Complaint’. In these circumstances I do not accept that paragraph 6 should be struck out on the basis contended for by Qantas.
I do note that paragraphs 5 and 6 appear to be inconsistent or at least confusing, in that while in paragraph 5 it is pleaded that between August 2012 and October 2012 Ms Adachi made a number of inquiries of Qantas as to the progress and result of the ‘Taylor and Clough Complaint’, in paragraph 6 it is pleaded that it was in about August 2012 that Qantas had notified her that the ‘Taylor and Clough Complaint’ had not been made out. Qantas admits that Ms Adachi was advised of the outcome of the investigation of her complaint in August 2012. However the strike out application did not rely on this aspect of the pleading.
Paragraphs 7 to 14 in the points of claim relate to whether Ms Adachi met her 2012 target for inflight sales of duty free goods and the results of her annual key performance indicator review, an alleged dispute with Qantas as to her achievements in that respect and the fact that she was directed to attend a refresher training course for crew who did not meet their annual key performance indicator targets.
In this case it is not alleged that the matters pleaded in paragraphs 7 to 14 of the points of claims constituted the exercise of a workplace right or a reason for any alleged adverse action. Nor are the matters pleaded in these paragraphs said to constitute adverse action.
As Qantas submitted, none of these matters are relevant to any elements of any of the pleaded cause of action. In paragraph 22 of the points of claim Ms Adachi relies on the fact of “[t]he making of” the ‘Unfair Dismissal Application’ as constituting the exercise of a workplace right within s.340(1)(a)(ii) of the FW Act. Paragraph 20 of the points of claim, which refers to the result of those proceedings, is admitted by Qantas. Insofar as the Applicant suggested that the matters in paragraphs 7 to 14 were in the points of claim for “background”, there is no suggestion that these matters merely provide a helpful chronology. Rather, they are pleaded as matters which the Applicant would seek to prove and the Respondent (which denies aspects of these paragraphs) would have to defend.
In these circumstances, litigating matters referred to in paragraphs 7 to 14 in these proceedings would be likely to cause delay and prejudice. They should be struck out.
Paragraphs 15 to 18
The second group of paragraphs in issue consists of paragraphs 15 to 18 of the points of claim. These appear under the heading “2013 Unfair Dismissal Proceedings”. They are as follows:
15. On 17 February 2013, a dispute took place between the Applicant and John El Khoury, a Customer Service Manager in the employ of the Respondent.
16. On about 18 February 2013, John El Khoury alleged that the Applicant had breached the Respondent’s Code of Conduct.
17. On 18 February 2013 the Applicant was immediately stood down from her usual duties by John Byrne, a Cabin Crew Manager in employ of the Respondent, pending an investigation.
18. On 15 March 2013, the Applicant’s employment was terminated by the Respondent for serious misconduct.
Qantas submitted that the matters pleaded in paragraphs 15 to 18 raised matters of fact and allegations which were the subject of the unfair dismissal proceedings and went to the merits of what was advanced in those proceedings. Such matters were said to have no relevance to whether the Applicant exercised a workplace right by commencing the unfair dismissal proceedings. Further, it was contended that to allege such irrelevant matters of contested fact that occurred many years ago so that the Respondent would be put to the task of re-contesting facts in relation to events of 2013 which were the subject of earlier proceedings in the FWC would cause delay and prejudice.
Ms Adachi submitted that the matters pleaded in these paragraphs were part of the history of her alleged mistreatment by Qantas which led to a continuing and related series of events culminating in her dismissal on 24 August 2016 and that they were essential to procedural fairness being afforded to her in a proper assessment of her claims. She contended that these paragraphs were necessary for the court to be able to make a determination as to the intention or reason of Qantas for her dismissal on 24 August 2016.
These paragraphs must be considered in context. They describe matters which preceded the unfair dismissal proceedings. They are followed by paragraph 19 which pleads that following her termination, Ms Adachi commenced proceedings against Qantas in the FWC alleging unfair dismissal. Paragraph 20 pleads her success in those proceedings and the orders made by the FWC. Paragraph 21 pleads that the unfair dismissal application was a process or proceeding under a workplace law within the meaning of ss.341(1)(b) and 341(2) of the FW Act, and, as indicated, paragraph 22 asserts that the “making” of the unfair dismissal application constituted the exercise of a workplace right within the meaning of s.340(1)(a)(ii) of the FW Act.
Qantas admits the matters pleaded in paragraphs 19 to 22, including that the making of the unfair dismissal application constituted the exercise of a workplace right. It is this action which Ms Adachi alleges was a reason for the pleaded adverse action. In other words, as her case is pleaded, Ms Adachi relies on the “fact” that the right to make the unfair dismissal application was exercised as giving rise to the alleged unlawful conduct on the part of the Respondent, not on the events that led her to take such action and which were subject of the proceedings in the FWC.
Again it is important to have regard to the limited nature of the present proceeding. Under s.361 of the FW Act, provided the Applicant alleges (with sufficient clarity and specificity) that the Respondent dismissed her or took other adverse action for a particular reason and that taking the action for that reason would constitute a contravention of Part 3-1 of the FW Act, it would be presumed that the action was taken for that reason, unless the Respondent proved that the adverse action was not taken for the pleaded reason (see Barclay).
There is no suggestion in the points of claim that Ms Adachi was dismissed or that other alleged adverse action was taken against her for reason of any of the matters pleaded in paragraphs 15 to 17 of the points of claim. These matters are not said to constitute adverse action. While the asserted circumstances resulted in and were the subject of the unfair dismissal application, these matters are not relied on by Ms Adachi as the reason or any part of the reason for her dismissal or the other adverse action.
Paragraphs 15 to 17 detail a 2013 dispute between Ms Adachi and a customer service manager, an allegation that she breached the Qantas’ Code of Conduct and the fact that she was stood down in 2013 pending an investigation. Re-determination of such factual matters would occasion considerable delay, expense and prejudice to Qantas in circumstances where these matters are not relevant to any of Ms Adachi’s pleaded causes of action and striking them out would not prevent or limit her in pursuing the pleaded adverse action claims.
As Qantas submits, paragraphs 15 to 17 are of the same nature as the allegations in paragraphs 7 to 14 and are likely to cause prejudice, embarrassment or delay on the basis that they contain irrelevant allegations tending to increase expense in circumstances where the case as pleaded does not allege that the relevant adverse action was taken because of any of the matters pleaded in paragraphs 15 to 17. Paragraphs 15 to 17 should be struck out.
However, it ought to be open to Ms Adachi to plead the fact that her employment was terminated by Qantas, following which she commenced the proceedings alleging unfair dismissal. Otherwise paragraph 19 is unclear. I would not strike out paragraph 18, but this should not be taken as indicating that the question of whether Ms Adachi in fact engaged in serious misconduct prior to 15 March 2013 is in issue in these proceedings. It is not.
Paragraphs 24 to 26 and 49
Qantas also seeks that paragraphs 24, 25 and 26 of the points of claim be struck out. These paragraphs appear under the heading “Reinstatement of the Applicant” after paragraph 23, which pleads the reinstatement of Ms Adachi’s employment with Qantas on 14 March 2014. They are as follows (errors in original):
24. On and from the date of the Applicant’s return to work, the Respondent:
24.1 subjected the Applicant to longer than usual ground training;
24.2 ignored the Applicant’s complaints about rumours and harassment concerning her dismissal and reinstatement;
24.3 treated the Applicant differently to employees who had extended periods of absence by:
24.3.1 not affording the Applicant an opportunity to participate in an emergency procedure refresher course, known as an EP Requalification Program, prior to directing the Applicant to undertake an emergency procedure assessment;
24.3.2 not providing the Applicant with an up to date emergency procedure manual or at all, prior to directing the Applicant to undertake an emergency procedure assessment;
24.3.3 not providing the Applicant with a refresher day with an emergency procedures trainer, prior to directing the Applicant to underline an emergency procedure assessment;
24.4 from 25 April 2014, directing the Applicant to undertake duties in coach-class where, prior to her dismissal, she undertook her flying duties in first-class;
24.5 allocating the Applicant to the position of Flight Attendant when, prior to her dismissal, her position was Cabin Services Supervisor;
24.6 rostering junior and less experiences Cabin Services Supervisors to oversee the Applicant’s work in the position of Flight Attendant;
24.7 subjecting the Applicant to training that was menial and humiliating in the circumstances, including:
24.7.1 instruction on how to clean airplane toilets;
24.7.2 instruction on how to make a gin and tonic;
24.7.3 a three day training course entitled “How To Communicate”;
24.8 directed the Applicant to meet with her manager, Natalie Valickovich, after returning from each flight;
24.9 subjected the Applicant to workplace monitoring and assessment, that was:
16.9.1 greater than unusual;
16.9.2 ongoing; and,
16.9.3 unnecessary;
24.10 singled the Applicant out for unjustified criticism of her performance.
25. On 15 September 2014, the Respondent, by its manager Natalie Valickovich, served a letter on the Applicant alleging that the Applicant’s work performance was poor.
26. On 1 October 2014, the Respondent, by its manager Natalie Valickovich:
18.1 alleged that the Applicant had committed a safety breach on a flight from Japan to Australia in late September 2014;
18.2 denied the Applicant an opportunity to refute the allegation; and,
18.3 directed the Applicant to attend one-on-one security training.
Associated with the application to strike out these paragraphs, Qantas also sought that paragraph 49 of the points of claim be struck out. It provides:
49. Further, and in the alternative, the conduct pleaded at paragraphs 24 to 26 and 37 above constituted adverse action within the meaning of section 342 of the Act (“the Other Adverse Action”), in that it:
49.1 injured the Applicant in her employment; and,
49.2 altered the position of the Applicant to the Applicant’s prejudice.
Qantas recognised that the matters pleaded in paragraphs 24 to 26 of the points of claim were themselves said to constitute adverse action. Qantas submitted however that these paragraphs did not disclose the case to be met by it. It was contended that the paragraphs did not articulate the number of asserted contraventions or the basis on which it was said that the pleaded conduct amounted to an injury or prejudicial alteration to Ms Adachi’s employment, which was simply asserted in a conclusory manner in paragraph 49 of the points of claim.
In addition, issue was taken with the fact that paragraphs 24 to 26 contain what were said to be allegations that Ms Adachi had agitated (and that were the subject of fully contested evidence, including by way of cross-examination) in the ‘First Stop Bullying Proceedings’ as attested to in Ms Ritchard’s affidavit.
Qantas raised the fact that these matters had been the subject of proceedings before the FWC in terms of prejudice, costs and protraction of the present proceedings in circumstances where the primary claim in these proceedings was said to be based upon the termination of Ms Adachi’s employment in August 2016. It was, in effect, asserted that even if these matters were properly pleaded, this would require what amounted to a re-litigation of matters that had already been the subject of litigation and that this would involve much of the same evidence being led. This was said to cause prejudice to the Respondent, having regard to when the events occurred, the number of witnesses and the difficulties associated with re-agitating and re-hearing such matters.
Although Qantas did not assert that any issue estoppel or Anshun estoppel arose by reason of either of the stop bullying proceedings and acknowledged that making the stop bullying applications constituted the exercise of workplace rights, it was submitted that re-agitation of the matters the subject of those proceedings in fresh proceedings would cause prejudice and delay and/or amount to an abuse of process in that Qantas would have to resist, for a second time, the same factual matters that were disputed and contested in the earlier proceedings, in circumstances where those earlier proceedings were discontinued by Ms Adachi after the FWC had reserved its decision, but prior to a decision and where there was no order as to costs.
Insofar as the matters pleaded generally and in broad terms in paragraphs 24 to 26 were relied on as constituting “other” adverse action, counsel for Qantas pointed to the fact that there had been an exchange of correspondence between the parties to try to obtain particulars in relation to these matters but that the solicitors for Ms Adachi had not further particularised the manner in which it was said that she was prejudiced and/or injured in her employment in respect of these matters. Qantas submitted that it was not apparent how it was said that each of these actions injured or prejudiced Ms Adachi in her employment. It was submitted that the manner in which this aspect of the claims was pleaded could not sensibly provide a basis for adverse action as defined in s.342 of the FW Act.
Qantas also submitted that the relief sought by Ms Adachi in relation to such matters was not in addition to or different from any other relief sought and that there was no temporal connection in terms of the wages which were said to have been lost and the dates on which this conduct was said to have occurred. It was suggested that no specific loss or damage could be related to the matters in paragraphs 24 to 26.
Qantas acknowledged that penalties were sought, but submitted that this heightened the concern that there was no specification of precisely how and when matters occurred and how they were said to constitute adverse action as defined. This was said to raise real difficulty in terms of the Respondent properly meeting the statutory onus under s.361 of the FW Act.
Counsel for Ms Adachi submitted that these paragraphs sufficiently pleaded a period of time in which Ms Adachi was treated in various different ways that caused injury in her employment or altered her position to her prejudice, but that if there needed to be some further clarity in the pleading of the matters asserted in paragraphs 24 and 26, then leave was sought to re-plead in that respect and, if needs be, in relation to the relief sought in respect of this alleged action.
First, the issue Qantas raised in relation the absence of any temporal connection between the asserted adverse action in paragraphs 24 to 26 and the damages sought is not a basis for strike out, given that Ms Adachi also seeks orders that Qantas pay pecuniary penalties in respect of each of Qantas’ contraventions of the FW Act, including as pleaded in paragraphs 49. She also seeks reinstatement of her employment.
The fact that matters raised in these paragraphs were the subject of the ‘First Stop Bullying Proceedings’ in the FWC was not disputed by Ms Adachi. As indicated, that application was heard over six days in May and June 2016, but on 7 December 2016, prior to the Commissioner handing down a decision, Ms Adachi discontinued those proceedings and also the ‘Second Stop Bullying Proceedings’ which had not been heard. However there is no suggestion that any effective relief would have been available to Ms Adachi in the proceedings in the FWC in circumstances where her employment had been terminated.
It is not disputed that if these allegations are maintained in the present proceedings, it will require what is in some respects akin to re-litigation, albeit that it would be in the different context of an assertion of adverse action. Ms Adachi discontinued the FWC proceedings. I have borne in mind the issues of additional cost, associated prejudice and delay. They are matters of concern. However, in the particular circumstances of this case in the absence of any estoppel it ought to be open to Ms Adachi to allege that certain actions during her employment constituted adverse action for a proscribed reason. On balance, I am of the view that any prejudice to Qantas occasioned by what (in a sense) would be re-litigation of facts that were before the FWC, is not such as to warrant preventing Ms Adachi from now raising an allegation (as she does in paragraph 49 of the points of claim) that the conduct pleaded at paragraphs 24 to 26 constituted adverse action that was taken for a proscribed reason and seeking the imposition of penalties.
However, importantly, the pleading in paragraph 24 and 26 lacks clarity in relation to when actions are alleged to have been taken and/or how all such action can be said to have altered Ms Adachi’s position to her prejudice and (as is pleaded) injured her in her employment. Importantly, it is also not clear how many contraventions are intended to be asserted based on the pleaded conduct in paragraphs 24 and 26. Paragraph 25 pleads only one action, but it is not clear whether it is the service of the letter or the making of the allegation in the letter that is said to constitute adverse action. Further, the conduct pleaded in paragraphs 24 to 26 is said to have occurred in 2014. Qantas cannot have taken such adverse action for reasons that included subsequent events (such as the workers compensation claim and the first and/or second bullying proceedings) as is pleaded in paragraph 50 of the points of claim.
In these respects these paragraphs are so vague and general as to be embarrassing. Paragraphs 24 to 26 and 49 should be struck out, but the Applicant should have leave to re-plead these paragraphs and the pleading of the asserted contravention or contraventions in this respect. In particular, if it is intended to assert more than one instance of adverse action, that should be clarified.
Moreover, the reference to paragraph 37 of the points of claim in paragraph 49 is unclear and confusing. There are two paragraphs 37 in the points of claim, as follows:
37. The absence of the Applicant from 8 October 2014 to 1 December 2015 constituted a “temporary absence” within the meaning of section 352 of the Act (“the Temporary Absence”).
37. In early 2016, the Respondent referred the applicant to Dr Kipling Walker, forensic psychiatrist, for assessment.
In the course of oral submissions, counsel for Ms Adachi indicated that the first paragraph 37 (which refers to temporary absence) was not pressed. That leaves the second paragraph 37, which pleads that in early 2016 Ms Adachi was referred for a psychiatric assessment. It is not clear whether it is intended to assert that this referral constituted adverse action. This needs to be clarified. It occurred before the ‘Second Stop Bullying Proceedings’ were commenced and hence cannot have been action taken for reason of the making of that application. If it is the case that it is the second paragraph 37 that was intended to be referred to in paragraph 49 of the points of claim, this should be clarified.
Paragraph 47
The other paragraph Qantas submits should be struck out is paragraph 47 of the points of claim, in which it is asserted that the Respondent took the dismissal adverse action for reasons that included:
… the prevention of the exercise of a workplace right, namely:
(a) the First Stop Bullying Proceedings;
(b) the Second Stop Bullying Proceedings.
Qantas submitted that this claim was misconceived. It was asserted that the allegation was temporally disconnected from the objective facts in circumstances where Ms Adachi employment was terminated on 24 August 2016, which was more than three months before both stop bullying proceedings were voluntarily discontinued by Ms Adachi on 7 December 2016. It was submitted that it was not clear how Ms Adachi contended that the decision to terminate her employment was to prevent her from exercising a right which she voluntarily elected to abandon. In any event, it was contended that the relevant workplace right pleaded was the act of filing these applications and that the dismissal could not be said to be for the reason of preventing Ms Adachi from “making” the bullying applications.
Ms Adachi contended that she discontinued the bullying proceedings because as her employment had been terminated, the FWC had no power to make the no bullying orders she had sought and that she was forced into a position of not being able to obtain the stop bullying relief by the termination of her employment.
Importantly, in contrast to the other workplace rights relied upon in the points of claim, the exercise of a workplace right in relation to each of the stop bullying proceedings is said (at paragraphs 35 and 42 of the points of claim) to be the “commencement and carrying on” of those proceedings, not simply the fact of “making” an application to the FWC.
There may be an issue as to whether the dismissal on 24 August 2016 prevented Ms Adachi from “carrying on” the ‘First Stop Bullying Proceedings’ thereafter, but as this particular issue was not addressed in submissions I do not consider it appropriate to express any view in that respect. Insofar as the Respondent’s submissions were premised on the assumption that the adverse action was only the fact of the “making” of each of the stop bullying applications, that is not the case. I am not satisfied that the claim in paragraph 47(a) of the points of claim is misconceived in the manner contended for by Qantas.
At the time Ms Adachi’s employment was terminated the ‘Second Stop Bullying Proceedings’ were in progress and the hearing had not occurred. The allegation that Qantas took the dismissal adverse action for reasons that included the prevention of the “commencement and carrying on” of the ‘Second Stop Bullying Proceedings’ in paragraph 47(b) of the points of claim should not be struck out as misconceived on the basis contended for by Qantas.
While some of the points of claim should be struck out, Ms Adachi should have leave to replead in the limited respects discussed above.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 30 April 2019
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