Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/as Western Diagnostic Pathology
[2014] FCCA 187
•3 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANGEMI v SPECIALIST DIAGNOSTIC PATHOLOGY SERVICES PTY LTD T/AS WESTERN DIAGNOSTIC PATHOLOGY | [2014] FCCA 187 |
| Catchwords: PRACTICE AND PROCEDURE – Fair Work Act claim – small claims list – whether lawyer to be granted leave to appear – factors for consideration in determining whether leave granted. |
| Legislation: Fair Work Act 2009 (Cth), s.548(5) |
| Hughes v Mainrange Corporation Pty Ltd (2009) 190 IR 191; [2009] FMCA 1025 Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd (2012) 224 IR 436; [2012] FMCA 637 |
| Applicant: | YVONNE CANGEMI |
| Respondent: | SPECIALIST DIAGNOSTIC PATHOLOGY SERVICES PTY LTD T/AS WESTERN DIAGNOSTIC PATHOLOGY |
| File Number: | PEG 312 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 February 2014 |
| Date of Last Submission: | 3 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 3 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Millman & Mr D Stojanoski |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the Respondent: | Ms O Klimczak |
| Solicitors for the Respondent: | Herbert Smith Freehills |
ORDERS
That leave be granted for counsel to appear for both parties.
The matter be referred for mediation before a Registrar of this Court on a date to be fixed after 24 February 2014 by that Registrar.
If the matter is not resolved at mediation then there be a further directions hearing on a date to be fixed.
There be liberty to apply on 48 hours’ notice.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 312 of 2013
| YVONNE CANGEMI |
Applicant
And
| SPECIALIST DIAGNOSTIC PATHOLOGY SERVICES PTY LTD T/AS WESTERN DIAGNOSTIC PATHOLOGY |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This is a substantive application in the small claims list in the Fair Work Division of the Court’s jurisdiction, in which the applicant seeks:
a)a redundancy payment; and
b)payment in lieu of notice.
The sum concerned is fairly modest, being $11,119.68, and relates to the alleged termination of employment of the applicant on 28 July 2011.
The basis of the claim appears to be cl.10 of the Western Diagnostic Pathology Collective Agreement 2006 (“Collective Agreement”), which provides for both payment in lieu of notice upon termination, and for a severance payment. The claim arises in circumstances where one of the respondent’s clinics in Dongara has closed down. The response is that because of the circumstances, in particular the terms of the contract of employment, but also the provisions of cl.8.4 of the Collective Agreement, the respondent had an unfettered right to transfer the employee to its clinic in Geraldton and did not intend at any stage to terminate her employment, and that that transfer would have constituted suitable alternative employment in the circumstances.
The respondent also asserts that the subsequent acceptance of employment, or the subsequent employment of the applicant by another employer, which appears to have been, on the facts asserted by the respondent, the subject of an offer prior to the alleged termination of employment by the respondent, also constitutes the abandonment of employment in circumstances where there was a right to transfer the employment of the applicant, and therefore, there is no entitlement to relief.
Both parties seek leave of the Court to be represented by lawyers in these proceedings: Fair Work Act 2009 (Cth) (“FW Act”), s.548(5). The applicant’s Counsel, Mr Millman, has helpfully referred to the decision of Hughes v MainrangeCorporation Pty Ltd (2009) 190 IR 191; [2009] FMCA 1025 where, at paras.2 and 3, this Court determined to grant leave to the parties in that case to be represented by lawyers where there was a jurisdictional issue, a pure legal issue, involved, and the Court took the view that it was appropriate that it have the assistance of lawyers in that type of matter.
In Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd (2012) 224 IR 436; [2012] FMCA 637 (“Transit Systems WA”), this Court also granted leave to parties to be represented by lawyers in circumstances where there were in issue questions as to the interpretation of State working with children legislation, the interpretation of the relevant collective agreement, being a federally registered agreement, which concerned employees being required to comply with all manner of transport legislation and regulations, but also being required to observe and comply with lawful directions given by the employer, and also the interpretation of the stand-down provisions of the FW Act. This Court took the view in Transit Systems WA at para.3 that it was satisfied that there were complex, or relatively complex, legal issues arising in that matter which would ordinarily support the grant of leave even though it was a small claims matter.
In this matter, there is sufficient complexity involving the interpretation of the Collective Agreement concerned, the interpretation of, and interaction between, that Collective Agreement and the contract of employment, and it would seem, some serious issues as to whether the employee repudiated the contract or whether the employee was terminated by the employer, and whether the employee resigned and whether the employee was made redundant.
In those circumstances, the Court is satisfied that it is appropriate to grant leave to lawyers to appear. The Court notes, as it noted in the course of submissions, that it does appear to be the sort of case which properly ought to resolve at mediation given the sums that are involved, and therefore the first order of business will be to refer the matter to mediation. The Court also notes that the parties have had discussions concerning the issue of discovery, and although they are not of one mind on that issue, they will hopefully sort that matter out, but if they cannot, they can utilise the liberty-to-apply provisions in the proposed draft order to bring the matter back to Court.
I certify that the preceding four (7) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 10 February 2014
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