Association of Professional Engineers, Scientists and Managers, Australia v David Graphics Pty Ltd
[1994] IRCA 100
•11 Nov 1994
C A T C H W O R D S
PRACTICE AND PROCEDURE - application for summary dismissal of application - Order 20 rule 2 - application under s170E alleged to relate to termination prior to 30 March 1994
Industrial Relations Act 1988, s170EA
APESMA v Skilled Engineering Pty Ltd (1994) 54 IR 236
Siagian v Sanel Pty Ltd (1994) 54 IR 185
General Steel Industries Inc v Commissioner for Railways (NSW)
(1964) 112 CLR 125
Faircourt v Mercantile Credit Ltd (1983) 154 CLR 87
No. NI 174 of 1994
ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA and another v DAVID GRAPHICS PTY LTD
MOORE J
SYDNEY
11 NOVEMBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 174 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: ASSOCIATION OF PROFESSIONAL
ENGINEERS, SCIENTISTS AND MANAGERS,
AUSTRALIA
First Applicant
CARL RAYMOND SPARRE
Second Applicant
AND: DAVID GRAPHICS PTY LTD
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 11 November 1994
ORDER OF THE COURT
THE COURT ORDERS THAT:
The notice of motion be dismissed.
Costs of the application are reserved.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 174 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: ASSOCIATION OF PROFESSIONAL
ENGINEERS, SCIENTISTS AND MANAGERS,
AUSTRALIA
First Applicant
CARL RAYMOND SPARRE
Second Applicant
AND: DAVID GRAPHICS PTY LTD
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 11 November 1994
REASONS FOR JUDGMENT
On 22 April 1994 an application was filed under s170EA of the Industrial Relations Act 1988 ("the Act") ("the principal application") by the Association of Professional Engineers, Scientists and Managers, Australia ("APESMA") on behalf of Mr Carl Sparre. Mr Sparre was later joined as a second applicant. Mr Sparre had been employed by David Graphics Pty Ltd ("David Graphics"). The application sought orders declaring that the termination of Mr Sparre contravened Div3 of PtVIA of the Act and an order that David Graphics pay Mr Sparre compensation in the sum of $19,246.24.
I will not detail the entire history of the matter before the Court though it is to be regretted that it has taken as long as it has for the application to reach the stage it has.
On 11 October 1994 the principal application was dealt with by a Judicial Registrar at which time David Graphics applied to have a separate hearing of what appears to have been characterised as a jurisdictional issue. However that application was refused and the hearing dates earlier fixed for 27 and 28 October were confirmed. The hearing of the principal application commenced before a Judicial Registrar on 27 October 1994 when, from what counsel has told me, David Graphics appears to have put a submission that was treated as an application for summary dismissal of the principal application under O20 of the Rules of the Industrial Relations Court of Australia. I was informed that the Judicial Registrar heard submissions on the interlocutory application and then determined that it was appropriate that the interlocutory application should be remitted to a Judge under s378(1) of the Act on the basis that it was not appropriate for him to determine it. As a result, on 3 November 1994 I heard the application.
David Graphics submits that the principal application under s170EA discloses no reasonable cause of action: see O20r2(1)(a), and seeks an order that the principal application be dismissed. No evidence was separately led for the purposes of determining the interlocutory application though both APESMA and David Graphics referred to affidavit material filed generally in the proceedings and in respect of which certain admissions or concessions were made by David Graphics for the purposes of the interlocutory application. It is necessary to recount some of what appears in the affidavits though I make it perfectly plain that the evidence has yet to be tested by cross-examination and it is by no means clear that there will not be issues of fact that will have to be determined in the principal application under s170EA if a stage is reached where this is to occur.
Mr Sparre was employed by David Graphics in February of 1993 in employment that required him to commence work in the middle of the afternoon and work late into the evening. There is an issue about whether it was then agreed that he could be required to work overtime. Whether he was required to work overtime and could work overtime appears to have become a source of tension between Mr Sparre and the management of David Graphics. This tension gave rise to a meeting between Mr Sparre and a Mr John Moroney who is the General Manager of David Graphics. What occurred is dealt with in an affidavit filed by Mr Sparre with his application in which he says:
"17.On the afternoon of Tuesday, 22nd March, I was called to John Moroney's office and presented with a letter a copy of which is attached and marked 'A'. As I could see no way to meet the demands placed in the letter I said 'I cannot work the overtime, may I have ten working days to find another position'. John said 'I will arrange the necessary paperwork'.
On Friday 8th April, the last day of the ten day period, I rang John Moroney before attending work and asked if I could be given a letter of dismissal. John said that I had not been dismissed, that I had agreed to leave. I said 'If that is the case, then there is a misunderstanding, I am not resigning, I understood that I had been fired, if you are not firing me, then I will be back at work on Monday.' John Moroney replied that 'There is no job for you here'. A similar conversation was held again that afternoon in John's office, and again on the following Monday in a telephone conversation which I initiated, to be certain that he had not reconsidered."
The letter which is referred to in par17 of his affidavit was in the following terms:
"23rd March, 1994
TO:CARL SPARRE
RE:OVERTIME
_______________________________________________________________
It is a requirement of employment of any employee to work reasonable overtime at overtime rates. Your supervisor has repeatedly asked you to work overtime and repeatedly is told no.
I have spoken to you on two occasions of the need for overtime to meet our customers requirements. If you cannot avail yourself for reasonable overtime as your working companions, I have no option but to ask you to find another position so we can replace you with somebody who can accommodate the above.
John Moroney
General Manager"
Mr Sparre deals further with this meeting in a later affidavit of 7 October 1994 in which he says:
"27.On 22 or 23 March 1994 I entered Mr Moroney's office. Mr Moroney was talking on the telephone. While he was talking on the telephone he pushed a letter to me. That is the letter attached and marked 'A' to my affidavit of 22 April 1994. I read the letter. When he finished his phone call I said to him words to the effect of: 'I cannot work the overtime, may I have 10 working days to find another position'. Mr Moroney then said words to the effect of: 'I will arrange the necessary paperwork'. I then said to him words to the effect of 'I think you are making a mistake. This is the 1990's. Your attitude is outdated'. I do not recall that any further words were spoken in that conversation. I then left his office."
I was also referred to the affidavit of Mr Moroney of 27 September 1994 which deals with the events of 8 April 1994 in the following way:
On 8 April 1994 I received a telephone call from the Applicant during which the following conversation occurred.
Carl Sparre: 'I want you to give me a letter stating that I am fired.'
John Moroney: 'I wont give you a letter of termination, you resigned on 23 March 1994.'
Carl Sparre: 'I need that letter.'
John Moroney: 'There won't be any letter, Carl.'
About an hour later Carl Sparre came to my office. Mr. Ian Walsh and Mrs. Terri Marney were also present. The following conversation occurred:
Carl Sparre: 'I want that letter stating that I'm fired. If you don't give me that letter, I'll be turning up to work on Monday.'
I then produced a copy of the letter, the original of which I had handed to Carl Sparre on 23 March, 1994 and I said to him:
John Moroney: 'I ask you to confirm that you mutually agreed to seek another job, and that we agreed that 10 working days would be sufficient. When you were here on the 23rd I wrote on this copy, "Carl finishes in 10 working days 9/4/94." When I gave that letter to the pay mistress she brought to my attention that the 9th was a Saturday and that it should be the 8th.'
Annexed hereto and marked ".." is a copy of the letter dated 23rd March 1994 containing my handwritten notes. The numeral "8" was written in by the pay mistress (Mrs. Adele Bratlie).
Carl Sparre: 'I assumed that David Graphics would give me a letter stating that I was fired. I want that letter. If you don't give it to me, I'll be back on Monday.'
John Moroney: 'Are you available to work overtime?'
Carl Sparre: 'No.'
John Moroney: 'The situation hasn't changed.'
Carl Sparre: 'I'll be back on Monday with my Solicitor.'
Carl Sparre then stormed out of my office."
Mr Sparre deals with this account of the events of 8 April 1994 in his affidavit of 7 October 1994 in the following way:
"45.With respect to paragraph 8 of John Moroney's affidavit of 27 September 1994, I do recall conversations with him on 8 April 1994 to the general effect of the words set out by him in that paragraph. I do not recall, however, saying words to the effect of 'give me a letter stating that I am fired.' I recall saying instead words to the effect of 'give me a letter of dismissal'. I used words to that effect on a number of occasions. I said that because I did not believe that the Respondent had the right to dismiss me and I wanted them to set out reasons for the dismissal in writing so they could be challenged."
In this interlocutory application, David Graphics submits that the letter of 23 March 1994 constituted written notice and that this notice was, for the purposes of s170EA of the Act, termination of employment. It is plain that considerable support for the submission that written notice given by an employer is "termination" can be found in passages of the judgment of Gray J in APESMA v Skilled Engineering Pty Ltd (1994) 54 IR 236 at 244. However, of significance, David Graphics indicated at the hearing of the interlocutory application that if the principal application under s170EA was heard in its entirety it would be submitting, in the alternative, that if the letter did not constitute written notice then the events of 23 March 1994 constituted a resignation by Mr Sparre. David Graphics goes on to submit that if its characterisation of the letter is correct then the termination at the initiative of the employer occurred on 23 March 1994 and thus occurred before the relevant provisions of the Act came into force. Again support for this submission is found in the judgment of Gray J in APESMA, supra.
APESMA submits that the events of 8 April 1994 constitute termination at the initiative of the employer and, in the alternative, that termination in s170EA refers to the point in time where employment ceases and refers to a decision of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 54 IR 185.
There is clearly a divergence of approach between Wilcox CJ and Gray J on what constitutes "termination" and it may be that both APESMA and David Graphics took the view that this interlocutory application might provide a means of resolving those divergent views for the purposes of dealing with the principal application under s170EA. However, with respect to all of those involved, such a belief is based on a misunderstanding of the principles to be applied when dealing with an application to have proceedings dismissed on the basis that no reasonable cause of action is disclosed. Those principles are well established. What has come to be the accepted exposition of them is found in the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. The Chief Justice said:
"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same."
In my opinion, the principal application made under s170EA cannot be characterised in any of the ways referred to by Barwick CJ. The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real issue to be tried: see Faircourt v Mercantile Credit Ltd (1983) 154 CLR 87 at 99. There is, in my opinion, an arguable case concerning the legal significance of the events of 23 March 1994 and the status of the letter of that date. This would be so were it not for the statement by David Graphics that it would be putting an alternative submission, if it became necessary, that the events should be treated as a resignation by Mr Sparre. However that statement simply reinforces what I consider to be the case, namely that there is an issue of substance to be resolved as to the effect of the events on 23 March 1994 assuming, for present purposes, there is no factual issue to be resolved as well. Not only is there plainly an issue about the appropriate legal characterisation of the events of 23 March 1994 but there is also clearly an issue about whether they constitute termination for the purposes of the Act. So much is obvious from the submissions that have been made in hearing this interlocutory application. None of what was put could be said to be unarguable.
Not only are there issues of substance to be resolved about the effect of the events of 23 March 1994 but other, and related, issues of substance arise about the legal character of events on 8 April 1994. The resolution of those issues may well depend upon what findings of fact are made as to what was said that day and inferences that might be drawn from those facts.
David Graphics has failed to establish that no reasonable cause of action is disclosed in the principal application brought under s170EA. Indeed the interlocutory application is, in my opinion, misconceived. It simply illustrates the undesirability of issues which are said to be jurisdictional or threshold issues being separated from the hearing of the matter in its entirety. Such interlocutory applications are generally undesirable and should be made, if at all, only in the plainest of cases. They will only add to the cost of hearing applications under s170EA and delay their finalisation. This is not likely to be in the interests of the parties and it is certainly not in the public interest. I dismiss the interlocutory application and I reserve the costs of the interlocutory application.
The principal application is before the Judicial Registrar and will be determined by him unless the entire application is remitted to the Court under s378.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:11 November 1994
Representative of the Applicants: Mr I. Taylor,
Industrial Officer,
APESMA
Counsel for the Respondent: Mr G.J. Hatcher
Solicitor for the Respondent: Bray, Jackson & Co.
Date of hearing: 3 November 1994
Date of judgment: 11 November 1994
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