Anota v Contact Centres Australia Pty Ltd
[2009] FMCA 467
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANOTA v CONTACT CENTRES AUSTRALIA PTY LTD | [2009] FMCA 467 |
| INDUSTRIAL LAW – Payment in lieu of notice of termination of employment. PRACTICE & PROCEDURE – No reasonable prospects of success – summary dismissal application – appropriate test. |
| Workplace Relations Act 1996, ss.651, 661, 665, 721 Federal Magistrates Act 1999, s.17A Federal Court of Australia Act 1976, s.31A Federal Magistrates Court Rules 2001, r.13.10 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Hocking v Bell (1947) 75 CLR 125 Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Rana v University of South Australia [2004] FCA 559 |
| Applicant: | EDUARDO ANOTA |
| Respondent: | CONTACT CENTRES AUSTRALIA PTY LTD |
| File Number: | SYG 915 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 May 2009 |
| Date of Last Submission: | 8 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr P. Newall |
| Solicitors for the Respondents: | Chadwick Workplace Law |
ORDERS
Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 the application be dismissed generally.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 915 of 2009
| EDUARDO ANOTA |
Applicant
And
| CONTACT CENTRES AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, Mr Anota, was employed by the respondent, Contact Centres Australia Pty Ltd from August 2008 until the termination of his employment in November 2008. Following the termination of his employment, Mr Anota brought a dispute to the Australian Industrial Relations Commission (“AIRC”) but the attempted conciliation of the dispute was unsuccessful. Senior Deputy President Drake certified this fact on 6 March 2009 and on 11 March 2009 Mr Anota elected, pursuant to s.651 of the Workplace Relations Act 1996 (“Act”), to begin court proceedings.
Mr Anota’s application commencing these proceedings is expressed in the following terms:
Application for relief under s.643 under the Workplace Relations Act 1996 for reason of unlawful termination under s.661 of the Act, failure to give notice of termination or payment in lieu.
In the details of the claim forming part of the application, Mr Anota claims not only one week’s pay in lieu of notice, which in the circumstances is the remedy available for breach of s.661 of the Act, but also reinstatement and damages for various payments related to his employment to which he says he is entitled.
The respondent made an interlocutory application instanter today that Mr Anota’s application be dismissed because it had no reasonable prospects of success. Evidence was tendered by the respondent to demonstrate that although the respondent said that it had no obligation to do so, one weeks’ termination pay had been paid to Mr Anota. Although the respondent submitted that Mr Anota was a casual worker, it was willing to concede for the purposes of this application in a case that he had been employed on a permanent part-time basis, thus entitling him to the protection of s.661.
Relevant law
The respondent’s application is brought pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Rules of Court. Relevantly, s.17A provides:
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the Rules provide:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Previously an application for summary dismissal would be brought on the basis that no reasonable cause of action was disclosed. In respect of such an allegation, in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ examined the authorities and said at 129 that they uniformly adhered to the view that a plaintiff ought not to be denied access to the appropriate court unless his or her lack of a cause of action is clearly demonstrated. The Chief Justice referred to what Dixon J had said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. (at 91)
It is apparent from the authorities considered by Barwick CJ in the General Steel case that the focus of consideration for summary dismissal prior to the introduction of s.17A was whether there was a real question to be determined, not whether the claim in question had reasonable prospects of success.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Rares J considered s.31A of the Federal Court of Australia Act 1976 which is equivalent to s.17A of the Federal Magistrates Act 1999. After considering the authorities his Honour concluded that where there is a real issue of fact to be decided, it was appropriate that the matter went to trial. His Honour described the situation of there being a real issue of fact as being where the evidence is not all one way so that only one conclusion can be said to be reasonable, as considered in Hocking v Bell (1947) 75 CLR 125 at 130-131. His Honour also suggested that the matter ought to go to trial where there is a real issue of law of a similar kind. In his Honour’s view:
… in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. … (at 731 [45])
Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms:
• In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
• There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
• Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
• Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant.
The proper application of the test has also been considered by the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 and by Edmonds J in Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905.
In light of the authorities as I understand them, I consider that in determining whether the application has reasonable prospects of success, I should apply the test articulated by Rares J in the Boston Commercial Services case.
Consideration
Turning now to Mr Anota’s s.661 claim, the powers of the Court are limited to those found in s.665 and, relevantly, sub-s.7 which provides:
(7)Subject to subsection (8), if a court to which an application is made under subsection 663(2) or (3) is satisfied that an employer has contravened section 661 in relation to the termination of the employment of an employee, that court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.
Section 661 states that for an employee whose period of continuous service with an employer does not exceed one year, that employee is entitled to one weeks’ notice of termination of employment. Section 661(4) provides that compensation in lieu of notice must equal or exceed the amounts that the employee would have earned had his or her employment continued until the end of the required period of notice.
That is to say, in this case, Mr Anota was entitled to one weeks’ pay in lieu of notice. Based on the evidence proffered by the respondent, and Mr Anota’s concession during argument that after the AIRC conciliation on 6 March 2009 he received the amount the respondent said it had paid him in lieu of notice, it must be accepted that such rights as he had under s.661 were thereby extinguished.
This has the consequence that, so far as they relate to Mr Anota’s rights under s.661, the proceedings have no prospects of success as there is nothing remaining for him to claim against the respondent.
As foreshadowed during submissions, I had concerns that Mr Anota’s additional claims for damages might have some prospects of success independent of the s.661 claim. However, I accept the respondent’s submissions that the Act is a statutory code which covers the field in relation to, relevantly, employees of constitutional corporations, such the respondent undoubtedly is. In his submissions, Mr Anota stated that he had signed his contract with the respondent on 8 August 2008 which can only be taken to mean that he entered into an Individual Transitional Employment Agreement (“ITEA”) with the respondent. A copy of that agreement is not before the Court and it may be that the damages which Mr Anota claims are available to be claimed under that ITEA. If so, damages for breach of that ITEA are available to be claimed pursuant to s.721 of the Act and Mr Anota has six years from the date on which any such cause of action may have arisen within which to bring such a claim.
In circumstances where an applicant is unrepresented and articulates his or her case with less precision and correctness than a legal practitioner would, it is appropriate for the Court to allow some latitude in the way that his or her documents are presented. I was concerned that, were the proceedings to be dismissed in their entirety, some disadvantage might have flowed to Mr Anota which he would not have suffered had he been represented. Moreover, I have regard to the caution which, in Rana v University of South Australia [2004] FCA 559, Lander J said this Court should exercise in applications for summary dismissal, although I do note that his Honour’s judgment was pronounced prior to the insertion of s.17A into this Court’s statute.
However, noting that such claims as Mr Anota might have under his ITEA will continue to subsist for more than five years, those concerns have been allayed. Further in this regard, I note that Mr Anota’s application, originally filed in the Federal Court and subsequently transferred to this Court, did not attract filing fees and that the respondent has disclaimed any application for costs, should the matter be disposed of today. In circumstances where Mr Anota’s ITEA claim will subsist and he has paid no filing fee and will pay no costs, and where the s.661 claim clearly has no prospects of success at all, it would be inappropriate to refuse the respondent’s application to dismiss these proceedings which are, after all, expressed to be a claim pursuant to s.661 of the Act and no more.
Conclusion
I consequently find that these proceedings have no reasonable prospects of success.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 May 2009
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