FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ameer v Toost Pty Ltd [2023] FedCFamC2G 247
File number(s): ADG 58 of 2022 Judgment of: JUDGE BROWN Date of judgment: 31 March 2023 Catchwords: PRACTICE & PROCEDURE – INDUSTRIAL LAW – application for summary dismissal – basis for dismissal non-appearance by respondents & failure to defend with due diligence – general protections proceedings – explanation for non-appearance – matters to be considered Legislation: Fair Work Act 2009 (Cth) ss 340, 341(1), 342, 361, 550
Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 4.03, 10.01, 13.04, 13.05, 13.06, 30.06
Cases cited: CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159
Shea v TRUenergy Service Pty Ltd (No 6) (2014) 314 ALR 346
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 27 March 2023 Place: Adelaide Counsel for the Applicant: Mr Dean Solicitor for the Applicant: Johnston Withers Lawyers Counsel for the Respondents: Mr Paterson Solicitor for the Respondents: Edmond Khoury Solicitors ORDERS
ADG 58 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAHAD AMEER
Applicant
AND: TOOST PTY LTD
First Respondent
SYED ZAHEER AHMED SHAH
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 2 March 2023 is dismissed.
2.The final hearing in this matter listed 8, 9 & 10 August 2023 at 10:00am before Judge Lucev is confirmed.
3.The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 28 April 2023.
4.The respondent file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 26 May 2023.
5.The applicant have leave to file and serve an affidavit in reply on or before close of Registry filing on 9 June 2023.
6.The parties are to file and serve any written submissions and a list of authorities they wish to rely on at the hearing on or before close of Registry filing on 25 July 2023.
7.On or before 25 July 2023 the applicant do pay the setting down fee and such daily hearing fee or file an exemption certificate in respect thereof.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g)
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Details
- AGLC
- Ameer v Toost Pty Ltd [2023] FedCFamC2G 247
- Case
- [2023] FedCFamC2G 247
- Decision Date
CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, Fahad Ameer brought proceedings against Toost Pty Ltd and its director, Syed Zaheer Ahmed Shah, alleging that he was subjected to adverse action in contravention of the Fair Work Act 2009 (Cth). The applicant claims that the respondents breached provisions of the General Retail Industry Award, resulting in underpayment of wages, personal leave, and other entitlements. The respondents opposed the application for summary dismissal, arguing that while there were procedural missteps, they had provided a reasonable explanation for these omissions and it would be unjust to dismiss the defence. The court had to determine whether the respondents' breaches warranted a summary dismissal and if the applicants had suffered any unreasonable prejudice.
The court considered the principles set out in Lindon v Commonwealth of Australia (No 2), emphasizing that depriving a party of access to the courts should be done sparingly. Given the limited evidence, the court found that there was a significant controversy over the reasons for the adverse action taken against the applicant, which would be resolved during the trial. The court also noted that the respondents' representative had provided an explanation for missing two court dates, which was not improbable, and that the applicant had not suffered any unreasonable prejudice from these absences. The court concluded that it would be unjust to deprive the respondents of the opportunity to defend the matter, particularly as they had demonstrated a genuine intent to proceed to trial.
In light of the above, the court dismissed the application for summary dismissal and directed the parties to prepare for the trial scheduled for August. The court did not make any order as to costs. The matter will proceed to trial to resolve the substantive issues regarding the adverse action taken against the applicant.
The court considered the principles set out in Lindon v Commonwealth of Australia (No 2), emphasizing that depriving a party of access to the courts should be done sparingly. Given the limited evidence, the court found that there was a significant controversy over the reasons for the adverse action taken against the applicant, which would be resolved during the trial. The court also noted that the respondents' representative had provided an explanation for missing two court dates, which was not improbable, and that the applicant had not suffered any unreasonable prejudice from these absences. The court concluded that it would be unjust to deprive the respondents of the opportunity to defend the matter, particularly as they had demonstrated a genuine intent to proceed to trial.
In light of the above, the court dismissed the application for summary dismissal and directed the parties to prepare for the trial scheduled for August. The court did not make any order as to costs. The matter will proceed to trial to resolve the substantive issues regarding the adverse action taken against the applicant.
Orders
Orders of the court
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Background
Background to the litigation
Such an application is opposed by Mr Paterson, counsel for the respondents, who asserts that the proceedings remain vigorously contested in respect of both liability and penalty. He concedes that there have been missteps in respect of the defence of the proceedings but asserts that a reasonable explanation has been given for the various omissions and, as such, it would be unjust for the defence to be summarily dismissed.BACKGROUND The applicant in the Fair Work proceedings is Fahad Ameer.[2] The respondent is Toost Pty Ltd of which the second respondent, Syed Zaheer Ahmed Shah is a director.[3] Mr Ameer claims to have been the subject of adverse action by the respondents, which is prohibited by the FWA, and renders them liable to pecuniary penalties and to pay him compensation.[2] Hereinafter referred to as “the applicant”.[3] Hereinafter referred to as “the respondents”. Mr Ameer was employed by the respondent company, as a store manager and baker, at a business styled the Cheesecake Shop at premises at the Salisbury Shopping Centre, in suburban Adelaide, which is owned by Toost Pty Ltd. It is the applicant’s position that he was employed pursuant to the provisions of a Modern Award, namely the General Retail Industry Award.[4] Mr Ameer is a citizen of Pakistan, who was granted an indefinite bridging visa, pursuant to the provisions of the Migration Act 1958 (Cth). [4] Hereinafter referred to as “the Award”. At some stage, Mr Ameer and other employees of the Salisbury Cheesecake approached the relevant Industrial Association, which represents the employees of retail bakers which is the Shop, Distributive & Allied Employees’ Association. It was their position that they had been underpaid. As a consequence on 11 November 2021, Mr Satchell, the Association’s lawyer, wrote to Mr Shah, at an address in New South Wales alleging that Toost Pty Ltd had breached various provisions of both the Award and provision of the FWA. These breaches can be summarised as follows:·Toost had failed to pay the amount of wages due under the Award for the hours worked by paying a flat rate of pay, which did not take into account overtime;·Toost had failed to pay personal leave or had not accounted it properly in payslips issued;·Mr Ameer had been misclassified in respect of his employment qualifications and so had been underpaid;·Mr Ameer had been provided with false or misleading payslips; and·These various irregularities had led to Mr Ameer being underpaid for overtime performed by him, annual leave, and personal leave entitlements, public holiday penalties and as consequence of his misclassification. Under the FWA, these matters are classified as falling within the rubric of civil remedy provisions, which can result in the employer concerned being liable for the imposition of a fine. In addition, pursuant to the provisions of section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Mr Satchell contended that Mr Shah bore accessorial liability for the breaches of the Act and the Award alleged to have been committed by Toost Pty Ltd.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the context, of a summary dismissal application, Kirby J in Lindon v Commonwealth of Australia (No 2)[18] indicated that it is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used. In my view, such comments are apposite to the current matter.[18] See Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).CONCLUSIONS The evidence available to me in the current matter is extremely limited, as no affidavit material has been filed. However, on the face of the pleadings there is a significant evidentiary controversy as to the substantive and operative reason why Mr Ameer was subject to the adverse action in question. It will be resolved in the context of the reverse onus provisions created by section 361 of the Act. Given there has, as yet, been no affidavit material filed, it is not possible for the Court to make any assessment of the strength or otherwise of the respective cases of either of the parties concerned. In my view, it would be a significant matter, indeed, to deprive the respondents of the opportunity to formally provide their explanation for the adverse action taken against Mr Ameer. In this context, a hearing date has been allocated, in the relatively proximate future, at which this controversy can be ventilated and resolved. The two breaches on which the current application is based are linked together in a closely connected temporal setting. Firstly, the respondents missed the directions hearing of 31 January 2023 and secondly, they again failed to appear on the date to which the case was adjourned being 15 February 2023. Thereafter, a representative for the respondents has appeared on the two subsequent mentions of the matter. At these two subsequent hearing, it has been vigorously asserted that the proceedings remain contested and the basis on which they are so has been delineated. Mr El Khoury has filed an affidavit explaining the reasons for the breach of order and his failure to appear. His explanation cannot be characterised as improbable. In my view, it cannot be said that the two breaches concerned have occasioned any unreasonable prejudice to the applicant. He is essentially in the same position as he would have been in if Mr El Khoury had appeared, namely awaiting hearing and the making of directions for the orderly filing of trial material. There has been no disruption to those trial dates. I have no reason to doubt that Toost Pty Ltd and Mr Shah are not genuine in their desire to go to trial and put in issue the substantive and operative reason as to why adverse action was taken against Mr Ameer. In my view, in these circumstances, it is likely to represent a significant injustice to them, if they are deprived of the opportunity of defending the matter on the basis of the omissions of their solicitor, who has explained why he failed to appear on two discrete and consecutive occasions. For these reasons, I have reached the conclusion that the application in a proceeding must be dismissed. I will make the necessary directions to prepare the matter for the trial scheduled in August of this year. Given the circumstances, I do not propose to make any order as to costs.
Ratio Decidendi
Legal Principle Established
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