Cate v International Flavours & Fragrances (Aust) Pty Ltd - [2007] FMCA 36

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CATE v INTERNATIONAL FLAVOURS & FRAGRANCES (AUST) PTY LTD

[2007] FMCA 36

HUMAN RIGHTS – Summary dismissal – whether claims allegation of a sexual nature pursuant to provisions of Sex Discrimination Act.

PRACTICE AND PROCEDURE – Summary dismissal – s.17A of the Federal Magistrates Act 1999 – whether relevant to determine to be ‘unmeritorious’ – relevance of human rights cases – public interest – associated/accrued jurisdiction – breach of contract – wrongful termination whether common substratum of facts – no reasonable prospect of success if allegation does not meet statutory definition of discrimination alleged – words capable of different interpretation – sufficient if one interpretation has potential to constitute sexual harassment – whether associated/accrued jurisdiction permissible in human rights claims.

Sex Discrimination Act 1984, ss.28A, 28B, 106
Federal Magistrates Court Rules 2001, r.13.10
Human Rights and Equal Opportunity Commission Act 1986, ss.46PH(2), 46PO

Johanson v Michael BlackledgeMeats [2001] FMCA 6
Briginshaw v Briginshaw (1938) 60 CLR 336
AB v Adult Multicultural Education Services [2006] VCAT 1862
Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 122
Fricke v Whyburn [2003] NSWADT 10
Hosemans v Crea's Glenara Motel Pty Ltd [2000] EOC ¶92-062
Ogawa v Phipps (2006) 151 FCR 311
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 560
Abebe v Commonwealth (1999) 197 CLR 510
Re Wakim; Ex parte McNally (1999) 198 CLR 511
MG Distribution Pty & Ors v Khan (2006) 230 ALR 365

Applicant:

GLEN BARRY CATE

Respondent:

INTERNATIONAL FLAVOURS AND FRAGRANCES (AUSTRALIA) PTY LTD

File number:

MLG 816 of 2006

Judgment of:

McInnis FM

Hearing date:

16 October 2006

Delivered at:

Melbourne

Delivered on:

24 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr. R.A. Millar

Solicitors for the Applicant:

McDonald Murholme

Counsel for the Respondent:

Mr J Forbes

Solicitors for the Respondent:

Freehills

ORDERS

The Summary Dismissal application be dismissed.
Costs reserved.
The proceedings shall be the subject of mediation to be held by 28 February 2007 with the mediation to be conducted by a Registrar of the court as mediator appointed by the Registrar of the Court.
The hearing date of 12 February 2007 be vacated and the application in lieu thereof be fixed for hearing on 4 June 2007 at 10.15am.
The Applicant shall file and serve any affidavits to be relied upon on or before 30 March 2007 and not otherwise, except with the leave of the Court.
The Respondent shall file and serve any affidavits to be relied upon on or before 27 April 2007 and not otherwise, except with the leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 816 of 2006

GLEN BARRY CATE

Applicant

And

INTERNATIONAL FLAVOURS AND FRAGRANCES (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

In the Applicant's application the Applicant relies upon a claim arising out of the Sex Discrimination Act 1984 ("the SDA"); and further, or in the alternative, seeks to rely upon breach of an employment contract.
It is useful to set out briefly the background, including the nature of the claim by the Applicant and then consider the application for summary dismissal by the Respondent.
Essentially, the Respondent relies upon Rule 13.10 of the Federal Magistrates Court Rules 2001 (the FMC Rules) which provides:
“13.10 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 it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; 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.”
When considering summary dismissal the court is now bound by s.17A of the Federal Magistrates Act 1999, (the FM Act) which provides as follows:
“17A Summary judgment
(1)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 prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(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.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.”

Background - the substantive claim

The claim is set out in some detail in the affidavit of the Applicant sworn 28 June 2006 (the Applicant’s Affidavit) together with a Statement of Claim filed on 11 August 2006.
The original complaint by the Applicant against the Respondent was lodged pursuant to the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act") whereby the Applicant alleged sexual harassment in employment pursuant to provisions of the SDA.
That complaint was terminated pursuant to s.46PH(2) of the HREOC Act by the Human Rights and Equal Opportunity Commission ("the Commission") by Notice of Termination dated 1 June 2006.
It is useful to set out the summary of the complaint by the Commission in its letter advising termination dated 1 June 2006 as follows:
“Mr Cate states that in or about April 2002 he commenced employment with IFF as a compounder. Mr Cate alleges that in or about July 2005 he was given a first and final warning about ‘failed jobs’ and that he was called to a meeting with his supervisor, Mr James Hay. Mr Cate states that Mr Michael Morris was at this meeting. He alleges that he was sexually harassed by Mr Morris, whom he claims picked up a bottle of liquid paper, threw it at his back and commented ‘this is Glen fucking you’. Mr Cate states that he was embarrassed and shocked and felt helpless. Mr Cate states the following day he was moved to packing and noticed that the filing cabinet in the area has written on it ‘ta ta ass wipe Glenny boy’ and that the whiteboard had written on it ‘beware of Glen Cate, he is out to get you’. He states that he spoke to Kelly Butterworth about the incident and alleges that she suggested he should take time off. Mr Cate states that his employment was terminated on 17 August 2005 because he had been late to work, and was accused of lying and causing trouble in the workplace.”
That summary was the subject of further elaboration in the Applicant’s Affidavit. In that affidavit the Applicant refers to the alleged sexual harassment in employment being in contravention of s.28B of the SDA. Section 28B of the SDA relevantly provides as follows:

“(1)It is unlawful for a person to sexually harass:
(a)an employee of the person; or
(b)a person who is seeking to become an employee of the person.

(2)It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:
(a)a Commission agent or contract worker of the person; or
(b)a person who is seeking to become a Commission agent or contract worker of the person.

(4)It is unlawful for a Commission agent or contract worker to sexually harass a fellow Commission agent or fellow contract worker.
(5)It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.
(6)It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
(7)In this section:
"place" includes a ship, aircraft or vehicle.
"workplace" means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
"workplace participant" means any of the following:
(a) an employer or employee;
(b) a Commission agent or contract worker;
(c) a partner in a partnership.”

The Applicant claims that the Respondent is vicariously liable pursuant to s.106 of the SDA in relation to the alleged sexual harassment. Specifically, in the Applicant's affidavit he deposes to three separate allegations constituting breach of the SDA, namely,
“(a)in or about July 2005, an employee of the Respondent threw a bottle of ‘liquid paper’ at my back, saying ‘this is Morris fucking you’; (“allegation 1”)
(b)on or about the following day, an employee of the Respondent wrote on a filing cabinet ‘ta ta ass wipe Glenny boy’; and (“allegation 2”)
(c)on or about the same day as (b), an employee of the Respondent wrote on a whiteboard ‘beware Glen Cate, he is out to get you’.” (“allegation 3”)
In the Applicant's affidavit, apart from pursuing a claim for unlawful sexual harassment, the Applicant also purports to make a claim arising out of the court's accrued jurisdiction, described in the Applicant's affidavit in the following terms:
“9.In addition to the claim for unlawful sexual harassment, I wish to also pursue a claim in the accrued jurisdiction of this Honourable Court for the following:
(a)the breach of the implied term of mutual trust and confidence in the employment contract, by reason of:
(i)     the Respondent allowing the conduct referred to in paragraph 5 above to occur;
(ii)     the failure of the Respondent to adequately investigate the incidents concerned; and
(iii)    the failure of the Respondent to provide both procedural and substantive fairness before deciding to terminate my employment on 17 August 2005;
(b)a claim for wrongful termination of my employment on 17 August 2005; and
(c)a claim for reasonable notice of termination of employment.”
It is also relevant, for reasons which will become apparent, to set out the following extract of the statement of complaint dated 18 January 2006 by the Applicant to the Commission where the Applicant relevantly states:
“In or about July 2005, I was given a first and final warning about failed jobs by Morris Mahaley. Failed jobs were caused by gravity problems so that there was too much in the mixture and the product was not made properly. This was not something I could control. The problem was to do with the inadequate machinery. I felt I was been specifically target and picked on as this was a common occurrence.
I had raised this in the past during work meetings and nothing was ever done.
Once I received this warning, I was called in a meeting with James Hay, the supervisor. Michael Morris was present, he was the union representative. We were talking about the warning and we were all reminded to be careful with this part of the process. It was at this stage that Michael picked up a bottle of liquid paper and threw it on my back and said something to the likes of ‘this is Glen fucking you’. I was totally embarrassed and could not believe that this happened. James Hay, the supervisor just laughed. I was shocked by this. I felt helpless as a supervisor was meant to protect and discipline the workers.
The following day I was moved into packing. I responsible for filling containers. I was also subject to bullying there. On one occasion I noticed that the filing cabinet in the area had been written on. The words engraved on the cabinet were ‘ta ta ass wipe Glenny boy’. The whiteboard also had written in it ‘beware of Glen Cate, he is out to get you’.
I had had enough at this stage and went to human resources.

I spoke to Kelly Butterworth. I was upset and crying at this stage. I was informed by her that I should take time off until Monday

8 August 2005. I returned to work on that day and there were more problems, I was been picked on from the moment I walked in.” (sic)
To further understand the claim, it is relevant to note that in the Statement of Claim filed on 11 August 2006 under the heading ‘Sexual harassment’ the Applicant relevantly claims:
“5. In the course of his employment with the Respondent, the Applicant was subjected to the following conduct:
(a)in or about July 2005, an employee of the Respondent threw a bottle of ‘liquid paper’ at the Applicant’s back, saying ‘this is Glen fucking you’;
(b)on or about the following day, an employee of the Respondent wrote on a filing cabinet ‘ta ta ass wipe Glenny boy’; and
(c)on or about the same day as (b), an employee of the Respondent wrote on a whiteboard, ‘beware of Glen Cate, he is out to get you’.
6.The conduct described in each of the sub-paragraphs in the preceding paragraph:
(a)constituted unwelcome conduct of a sexual nature in relation to the Applicant;
(b)occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the Applicant would be offended, humiliated or intimidated; and
(c)constituted ‘sexual harassment’ under section 28A of the Sex Discrimination Act 1984 (Cth).”
It is noted in passing that there is an apparent difference between the original complaint before the Commission where an allegation is made that a person said something like, "This is Glen ..." and in the affidavit where the same incident is referred to as "This is Morris ...". The Statement of Claim then refers to "This is Glen ...". The Applicant argues that the affidavit version is the correct version and that there is no other "Glen" in the workplace, apart from the Applicant, and hence the reference is correctly made to "Morris."
The Commission under the heading “Summary Response” refers to the Respondent addressing the claim by suggesting that there was no union representative named "Michael Morris" and presuming that the Applicant referred to another employee of the Respondent, namely "Michael Fitzgerald", a representative of the union. Further, the Commission refers to the response where the Respondent claims that it interviewed 10 "other employees" concerning "the alleged incident involving the Liquid Paper and states they did not see Mr Fitzgerald throw Liquid Paper at Mr Cate during the meeting or make any comment to Mr Cate using words to the effect of "This is [someone] fucking you."
The inconsistencies in the material relied upon, namely the claim which is said to be accurate in the affidavit compared with the original complaint and the Statement of Claim, do not assist in understanding a significant part of the Applicant's complaint and, perhaps more importantly, determining whether the claim before this court pursuant to s.46PO of the HREOC Act is "the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint" or that it arose "out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”
For present purposes, despite the confusion in the names, I am not prepared to find that the court lacks jurisdiction by reason of the application of s.46PO of the HREOC Act. As I understand the claim made by the Applicant, the reference to "Morris" was intended to refer to the given name of one of his bosses employed by the Respondent, whose full name is Morris Mahaley.
In the Statement of Claim further details are relied upon in support of the alleged breach of employment contract. The following pleadings are relevant:
“9.On or about 17 August 2005 the Respondent terminated the employment of the Applicant without notice.
10.In accordance with the Reasonable Notice term, in all the circumstances a period of reasonable notice of termination would be not less than six months in duration.
PARTICULARS
The circumstances relied upon include:
(a)     the level of the Applicant’s remuneration;
(b)the Applicant’s reasonable expectation of continuing employment with the Respondent;
(c)the Applicant’s reasonable expectation of career progression with the Respondent;
(d)the Applicant’s reasonable expectation of further increases in his remuneration package;
(e)the opportunities to accrue superannuation benefits and long service leave benefits foregone by reason of the termination; and
(f)the likely difficulty of the Applicant obtaining alternative employment.
11.By reason of the Respondent’s failure to provide the Applicant with reasonable notice of termination or payment in lieu therefore the Applicant has suffered loss and damage of not less than $39,681.98.
PARTICULARS
Six months remuneration @ $1,526.23 (from (para 4) = $39,681.98.
Breach of the Trust and Confidence Term
12.Further, the termination of employment was in breach of the trust and confidence term, by reason of each of the following:
(a)the Respondent allowing the conduct referred to in paragraph 5 above to occur;
(b)the failure of the Respondent to adequately investigate the incidents concerned;
(c)the failure of the Respondent to provide both procedural and substantive fairness before deciding to terminate the Applicant’s employment on 17 August 2005; and
(d)     the decision to terminate the Applicant’s employment:
(i)          was destructive of the relationship of trust and confidence between the parties;
(ii)     was implemented without sufficient warning to the Applicant; and
(iii)   was taken without any or sufficient regard to the Applicant’s reputation and employment prospects.”
Arising out of both claims the Applicant seeks compensation. The compensation arising out of the alleged breach of the SDA is claimed to be made pursuant to s.46PO(4)(d) of the HREOC Act, which is the power to award damages. Specific damages of $39,681.98, or such other sum to be assessed by the court, are claimed in relation to the failure to provide reasonable notice of termination or payment in lieu thereof and/or breach of the trust and confidence term.

Respondent's submissions in support of Summary Dismissal

The Respondent referred to the claims set out above and submitted that neither the application nor the affidavit filed alleges conduct which could be described as conduct of a "sexual nature". It was submitted that the material facts pleaded in the Statement of Claim could not give rise to any finding of "sexual harassment" as defined in the SDA.
It is noted that "sexual harassment" in the SDA is defined in s.28A as follows:
“(1)For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
It was argued that the claim for relief in this court is misconceived as the application fails to disclose a reasonable cause of action or claim for relief. In the event that the claim does not constitute sexual harassment as defined in the SDA it was submitted that it follows that those facts cannot enliven the ancillary or accrued jurisdiction of the court.

The elements necessary to establish a viable cause of action based on sexual harassment was submitted by the Respondent to include the following:
a)conduct must be of a sexual nature;
b)the conduct must be unwelcome;
c)the person harassed is or would be offended, humiliated or intimidated by the conduct; and
d)having regard to all of the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.
It was submitted that the test is an objective one and that the intention of the perpetrator is irrelevant (see Johanson v Michael BlackledgeMeats [2001] FMCA 6 at [15]).
The Respondent acknowledged that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or a single incident. The SDA introduces an issue of reasonableness by reference to the harasser's conduct, according to the Respondent's submissions. The legislation, it was submitted, provides that a person sexually harasses another person where the circumstances are such that a reasonable person would have anticipated that the victim would have been offended, humiliated or intimidated.
In the present case it was submitted that the Applicant needs to establish that the alleged conduct actually occurred, and, if so, that the conduct amounted to sexual harassment as defined in the SDA. It was argued that the requisite standard of proof should be the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361-2.
In considering whether there is any reasonable prospect of the Applicant prosecuting the proceeding, it was submitted the court should take into account the standard of proof, though it is noted that for the purpose of a summary dismissal application the Applicant's case should be taken at its highest, as pleaded.
It was argued that the type of conduct pleaded in the present application lacked the requisite "sexual" character to be properly regarded as amounting to sexual harassment as defined in the SDA. Whilst it was acknowledged that there were a number of cases which demonstrate that conduct of a sexual nature may cover a wide range of circumstances, it was submitted that the claimed conduct in the present case does not fall within the broad categories of what has been found in the past to be conduct of a sexual nature.
It was submitted that whilst "conduct of a sexual nature" is defined inclusively and not exhaustively, it is clear from the terms of s.28A of the SDA that it is confined to acts or statements of a sexual nature related to sexual matters or which can be characterised as sexual or as sexually‑related. It was submitted the term relates to matters which have to do with sexual activity or attraction or relationships. Reference was made to a decision of the Victorian Civil and Administrative Tribunal in the matter of AB v Adult Multicultural Education Services [2006] VCAT 1862 where Judge Davis relevantly stated:
“18 It is clear from section 85 of the Act that “conduct of a sexual nature” is confined to words or conduct of a sexual nature which can be characterised as sexual or sexually-related. The term has a broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships. It may refer to physical activities such as touching, pinching or patting in a sexual manner, or may refer to other words or conduct, such as commenting on parts of a person’s body regarded as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is “sexual” may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time
19 Sexual harassment in the workplace is likely to be covert, and generally speaking, occurs when a person is subjected to unsolicited and unwelcome sexual conduct by another where that person knows or ought to have known that the conduct was unwelcome. The test to be applied to determine whether conduct is of a sexual nature is an objective one and does not take into account the motivation of the perpetrator or the individual. Rather, regard must be had to all the circumstances.”
It is noted that in the case of AB v Adult Multicultural Education Services Judge Davis referred to an earlier decision of Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 122 (Te Papa), where it is relevant to refer to the following paragraph:
“7. While section 85(2) defines conduct of a sexual nature inclusively and not exhaustively, it is clear from the terms of the section that it is confined to acts or statements of a sexual nature related to sexual matters or which can be characterised as sexual or as sexually-related. The term relates to matters which have to do with sexual activity or attraction or relationships. Within this broad category, the term may refer to many things, including: requests for sexual intercourse, love letters, invitations to date, comments about parts of the body which are generally regarded as having a sexual function or about a person’s sex life, physical contact such as patting, pinching or touching in a sexual way, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is “sexual” may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time.”
It was submitted that relying upon the relevant authorities to determine whether an act or statement is "sexual" depends on the circumstances of a case and the context. The test, it was argued, of whether conduct is conduct of a sexual nature is an objective test.
It was submitted that the dominant or common social, cultural or historical considerations in Australia will be the presumptive determinants as to what constitutes conduct of a sexual nature. Reference was made to a decision of the New South Wales Administrative Decisions Tribunal (Equal Opportunities Division) in Fricke v Whyburn [2003] NSWADT 10 (Fricke) where the Tribunal relevantly states the following:
“39 There is an issue therefore as to how the terms 'conduct of a sexual nature', and 'sexual advance' are to be construed: when is conduct 'sexual conduct', or an advance a 'sexual advance', and is this assessed objectively, or subjectively, or with regard to both perspectives? Reference to 'conduct of a sexual nature' in this discussion is reference to bot that phrase and 'sexual advance' - the same reasoning applied to each.
40 In assessing whether the conduct complained of in this matter is 'conduct of a sexual nature' we are inclined to take account of how Mr Fricke perceived the conduct, that is we give some weight to subjective considerations.. We do so for these reasons.
41 The Act protects against 'conduct of a sexual nature'. It should not be read down so as to protect only against conduct which is generally understood to be of a sexual nature. What is "generally understood" in Australian society is defined by social, cultural and historical considerations which, if they were the sole determinants of what constitutes 'conduct of a sexual nature', would limit the scope of the general prohibition in the Act against such conduct.”
In the same case the Tribunal indicated the protection of the Act might extend to a person whose perception of conduct of a sexual nature is unusual, though only if the person who engaged in the conduct knew the other person's unusual perception and could reasonably have anticipated the possibility of offence, humiliation or intimidation (see Fricke at [4]).
In the present case, it was submitted that the complaints relied upon by the Applicant suggest that he believes he was poorly treated due to past "run‑ins with management and co‑workers". Each of the allegations raised, it was submitted, might more accurately be regarded as "teasing or unfair treatment or even bullying by persons unknown". Personal abuse, however, it was submitted, is not sexual harassment (see Hosemans v Crea's Glenara Motel Pty Ltd [2000] EOC ¶92-062).
It was submitted that, even taking the Applicant's case at its highest, the facts, even if admitted, do not constitute sexual harassment as defined in the SDA and accordingly the application should be summarily dismissed pursuant to rule 13.10 of the FMC Rules, having regard to the operation of s.17A of the FM Act.
It was submitted that if a sexual harassment complaint is summarily dismissed then that effectively takes away the substratum of facts which might otherwise support claims relying upon accrued jurisdiction.
Detailed submissions were made in relation to accrued and associated jurisdiction of the Federal Magistrates Court. The submissions do not appear to raise any controversial issues and I am satisfied that a decision of the Federal Court in the matter of Ogawa v Phipps (2006) 151 FCR 311 can be distinguished from the present application, as in that case the court was concerned about jurisdiction conferred exclusively on the Federal Court; in the present case this court has concurrent jurisdiction with the Federal Court in relation to human rights applications arising out of relevant Commonwealth legislation.
It is not necessary to refer in detail to the Respondent's submissions concerning associated or accrued jurisdiction, save to note that it was conceded that there would appear to be no statutory limitation on the power of this court to exercise both accrued and associated jurisdiction in a matter of this kind, albeit that a significant part of the claim arose in the context of a discrimination claim under the SDA, terminated by the Commission under the HREOC Act.
However, it was submitted that the Applicant's common law claims in this case are not sufficiently associated with the sexual harassment allegations. The statutory cause of action and the common law claims, it was submitted, are separate and distinct, the allegations of sexual harassment stand alone and are separate from the termination of employment, both as to time and to the facts, the claims are not a part of the one dispute.
It was further submitted by the Respondent that the Applicant's complaints of sexual harassment are based on a number of incidents which occurred in or about July 2005. The employment of the Applicant was terminated on 17 August 2005, some several weeks after the alleged acts of harassment. It was submitted that the Applicant's claim that the Respondent failed to provide the Applicant reasonable notice of the termination could properly be regarded as a "pure claim in contract".
The facts which relate to the alleged harassment, it was submitted, are irrelevant to and not associated with the contract claim; the only common thread appears to be an employment relationship between the parties. The "reasonable notice" claim, it was submitted, is not associated with the human rights claim. Likewise, it was submitted, the "breach of trust and confidence" claim as pleaded is not associated with the human rights claim. Conduct which is alleged to constitute breach of the alleged term of trust and confidence as pleaded is the "act of terminating the Applicant's employment".
The facts relating to termination of employment, it was submitted, are "separate and distinct from the facts which provide the foundation of sexual harassment allegations". Accordingly, it was submitted, there is no common substratum of facts. The common law claims, it was submitted, as a separate issue should be dismissed as beyond the accrued or associated jurisdiction of the court. This submission was made in addition to the claim that if the court were to summarily dismiss the sexual harassment claims then the common law claims would automatically fail.
Further, it was submitted that in any event, even if some of the allegations have a prospect of success, they could properly be regarded as trivial and on that basis, for the purpose of rule 13.10 of the FMC Rules, could properly be regarded as not disclosing a reasonable cause of action or the court could be satisfied the proceeding is frivolous or an abuse of process. It was argued that the claim could properly be regarded as a "de minimis" claim. On that basis, it was submitted, the application should be summarily dismissed.

Applicant's submissions

It was submitted on behalf of the Applicant that in the event the court finds the allegations of the Applicant are capable of constituting sexual harassment then it would follow that the attack brought upon the claims depending upon associated jurisdiction should fail. If the federal claim fails at trial then, it was submitted, this does not mean that there is no jurisdiction for the claim brought in the associated jurisdiction (see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 560).
The Applicant submitted that the decision of the Federal Court in Ogawa can be distinguished from the present case for reasons set out earlier, which I accept, namely that in Ogawa the court was dealing with jurisdiction exclusively conferred on the Federal Court.
When dealing with the question of whether a non‑federal claim is "associated" with a federal claim, it was noted that reference is usually made to whether the claims arise from a "common substratum of facts" (see Abebe v Commonwealth (1999) 197 CLR 510 at 530 per Gleeson CJ and McHugh J). The Applicant relied upon an extract from the High Court decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Re Wakim) where Gummow and Hayne JJ said at 586:
“… What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.”
It was argued that in the present case there are three components of the claim, namely sexual harassment, wrongful dismissal and breach of an implied term of trust and confidence. It was submitted each are linked in a way which allows the associated jurisdiction of the court to be properly invoked, that three components arose out of the employment relationship between the Applicant and the Respondent and that that relationship is one of the limited categories of relationship in which a sexual harassment claim under the SDA may arise. In addition to the employment nexus for each of the three components, it was further argued that there is a common substratum between the sexual harassment and the wrongful dismissal.
The first was that the Applicant's employment was terminated within a few weeks of the alleged sexual harassment. It was submitted that there is at least an apparent linkage between the events, in the sense that the employee allegedly suffered sexual harassment at work and was then finally dismissed.
Further, it was argued that one of the acts of sexual harassment (allegation 2) which is alleged, namely the words, "Ta ta ass wipe Glenny boy" were written allegedly on a cabinet, and the employment was terminated several weeks later. In their ordinary meaning, it was submitted, those words convey a threat of termination of employment, which occurred shortly thereafter.
Reference was made to the statement of the Applicant to the Commission dated 18 January 2006, adopted by the Applicant in the affidavit in support before this court, and it was submitted that there was a further linkage between the sexual harassment and the termination of employment, where the Applicant describes distress over the harassment and that he took time off at the suggestion of the human resources officer of the Respondent.
Upon returning to work, it was argued, the Applicant remained in fear of further harassment and left employment again on 10 August in a state of acute anxiety. It was on return to work on 17 August that the Applicant's employment was terminated, allegedly being on the basis of "being late to work and lying and causing trouble in the workplace". It was submitted that from that account the harassment of the Applicant was closely linked with the termination of employment, given the Applicant only worked some two or three days between the harassment complained of and the termination of employment.
Further, it was submitted that the claimed reference to the reason for dismissal being in part "causing trouble in the workplace" as a basis for the termination emphasised the common substratum of facts. It was argued that it appears likely that the termination of employment was linked to the harassment and the complaints made about it by the Applicant.
It was further submitted that the Respondent's own case emphasises the common ground between harassment allegations and termination of employment. Reference was made to the defence, which, it was submitted, shows that the termination of employment and sexual harassment claims arise from the same substratum of facts.
The Applicant referred to the defence where the Respondent claimed no notice was required to be given of termination "because the Applicant engaged in conduct for which the Respondent was entitled to exercise its right of summary dismissal" (paragraph 10(b) defence). It was submitted no particulars were provided as to what material was relied upon in support of the pleading and it was submitted it may well be linked to the Applicant's complaints of sexual harassment.
It was noted that correspondence from the solicitors for the Respondent to the Commission provide some guidance to the alleged misconduct where reference was made to unspecified damage to company property, lying to managers about how long the Applicant had spent in his car because he was frightened to come to work and union representatives having advised that the Applicant's colleagues were refusing to work with him as he was "deliberately lying about events in the workplace". It is argued by the Applicant that central to the allegations were allegations similar to those before this court of sexual discrimination.
If the Applicant was required to commence an action for wrongful dismissal in the State Magistrates' Court then it was submitted that similar issues would need to be agitated in those proceedings to meet the suggestion that the Respondent had an entitlement to summarily dismiss the Applicant. The claims, it was submitted, are interlinked and interdependent. It was argued that, applying the principles set out in Re Wakim, the harassment and wrongful dismissal claims in the present case arise from common facts and are linked as part of the same continuum of facts.
It is further noted that the basis of the claim for breach of implied term of trust and confidence relate to the same facts of sexual harassment. This applies to the failure to investigate sexual harassment and the decision to terminate the employment and lack of fairness involved.
It was submitted that in dealing with the breach of implied term of trust and confidence, consideration must be given to the same conduct which is alleged to constitute sexual harassment together with the Respondent's investigation of those allegations and the decision to terminate the Applicant's employment. It was submitted a different court considering the contractual claim would be required to consider much of the same ground and make findings of fact on issues that are currently before this court. That process would involve duplication and expense and be contrary to the interests of the parties.

In dealing with the specific allegations and in response to the suggestion by the Respondent that the allegations could not constitute sexual harassment or a claim which might properly be described as one of a sexual nature, it was submitted that the allegations could properly be regarded as conduct of a sexual nature. It was noted that in Te Papa the court also referred to, "Conduct of a sexual nature may include 'exposure to sexually explicit or offensive material and sexually suggestive jokes'".
It was submitted that throwing something like Liquid Paper at the Applicant's back and using the expression "This is Morris fucking you" (allegation 3) is a description of a sexual act. It was submitted this was explicit and it was submitted further that if the circumstances were different, to the extent that the claimed victim was a young girl in the workplace, where the same event occurred with the same words, then it would clearly have the capacity of constituting sexual harassment.
In the present case, it was submitted, the Applicant should not be disentitled from the protection of the legislation where, it was submitted, the central words complained of in allegation 1 are clearly capable of referring to conduct of a sexual nature.
As I understood the submissions from the Applicant, the other allegations set out earlier could properly be regarded as allegations. Whilst allegation 1 stands alone the other two allegations form part of what is described as a "pattern of conduct which is so closely related to the first allegation as to render them as part of the harassment of the Applicant".
It was further submitted that allegation 2 involving the alleged use of the words, "Ta ta asswipe Glenny boy" may also be regarded as sexual in nature and that it goes beyond abusive conduct. It was noted that admissions were made in relation to that comment, though the Respondent argues that it does not constitute sexual harassment. Nevertheless, it was submitted that persons engaging in the use of that language do so "at a risk of allegations being made of sexual harassment".
It was conceded that the alleged writing on the whiteboard of the words, "Beware of Glen Cate. He is out to get you" (allegation 3) do not of themselves demonstrate comments of a sexual nature. It was argued, however, that those words and the use of them on the whiteboard are part of a "course of conduct". Accordingly, it was submitted, that should properly remain as part of the allegations to be considered by the court at trial.
Cases relied upon by the Respondent, it was submitted, can be distinguished from the specific words allegedly used in this case and particularly the first and second allegations referred to earlier in this judgment. It is further submitted that a reasonable person, having regard to all of the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated by use of the words in allegations 1 and 2.
Reference was made to decisions concerning summary dismissal and it was submitted that it is only in clear cases that a strike‑out option should be taken by the court and that the power should be used with great caution. Section 17A of the FM Act should not preclude an Applicant from the right to trial of what could be described as a clearly arguable claim with a reasonable prospect of success.
It was further submitted that the Briginshaw test should not apply and that the allegations in the present case should require the Applicant to do nothing more than show, on the balance of probabilities, that the conduct occurred. It was submitted that the question of the appropriate test is a matter for trial and not a matter which should be imposed when considering an application for summary dismissal.
It was submitted that although the human rights claim arises specifically under the relevant statute it is still possible for the Applicant to join common law claims to a jurisdiction with that statutory foundation.
It was submitted that the allegations in this matter could not be regarded as trivial and the "de minimis" submission made on behalf of the Respondent should not succeed and that the claim is one which the Applicant is entitled to have determined, even if it is not a claim which might be regarded as being in the upper end of the scale of sexual harassment.

Reasoning

This Court, when considering the principles to be applied in an application for summary dismissal, relevantly stated in MG Distribution Pty & Ors v Khan (2006) 230 ALR 365 (MG Distribution) the following:
“[36] When considering the issue of summary dismissal, which is relevant in considering the application to strike out the claim by the first applicant, it is relevant to note that recently a new s 17A has been inserted in the Federal Magistrates Act 1999 (the FM Act) which provides as follows:
17A Summary judgment
(1) 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 prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(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.(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
[37] It will be noted that the new provision appears to lower the threshold whereby the court may be satisfied that it is appropriate to summarily dismiss a claim. Section 17A(3) specifically removes from the court’s consideration the concept of a proceeding otherwise needing to be “hopeless” or “bound to fail” for it to have “no reasonable prospect of success”. To that extent, it seeks to modify the principles set out in well-known authorities including Dey v Victorian Railways Cmrs (1949) 78 CLR 62 ; 23 ALJR 48 ; [1949] ALR 333 (Dey).
[38] The new provision clearly provides in s 17A(2) that this court may give judgment for the respondents against the first applicant for the whole or any part of the proceeding if the court were to be satisfied that the respondents are defending the proceeding or part of the proceeding and the court is further satisfied that the first applicant in this case has “no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”.[39] However, the new statutory provision in my view does not necessarily detract entirely from the principles in relation to summary dismissal which were described by Dixon J in Dey as being “well settled”. It is relevant in my view to have regard to the following passage from the decision of Dixon J in Dey as follows:
[39] The principles upon which that jurisdiction is exercisable are well settled. 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.
[40] The present application seeking to summarily dismiss the proceedings by the first applicant, while subject to the new s 17A of the FM Act, otherwise still relies upon the factors identified in r 13.10 of the Federal Magistrates Court Rules 2001 which provides as follows:
13.10 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.
[41] It will be noted that the factors set out in that rule are similar, though not identical to the factors relied upon by the respondents in the notice of motion. A factor in common is the concept of “an abuse of the process of the court” and there being “no reasonable cause of action disclosed”. The rules provides for summary dismissal if the proceeding or claim for relief is “frivolous or vexatious”, which in the present case I take to be relied upon by the respondents, albeit the respondents in their notice of motion refers to the proceedings having a “tendency to cause prejudice, embarrassment or delay in the proceedings”.
[42] In any event, the concept of an abuse of process or there being no reasonable cause of action disclosed on the pleadings, when considered in the light of s 17A, still requires the court to be satisfied that the first applicant in this case has “no reasonable prospect of successfully prosecuting the proceeding”. Hence the principles set out by Dixon J may still have application to the extent that when considering whether the court is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding, the court is entitled to consider whether there is a real question to be determined, whether of fact and law, and that the rights of the parties depend upon it.
[43] If the court were to find that there is a real question to be determined, whether it be of fact and law, and that the rights of the parties depend upon that real question, then it seems to me that it would not be competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, nor would it be competent for the court to make a finding that it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding.
[44] If there is a real question to be determined, whether it be of fact and law, and if the rights of the parties depend upon that, then it is difficult to see how the court on a summary dismissal application could be satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding. To make that finding, in a sense, “begs the question” to be determined at trial.”
Whilst I note that the explanatory memorandum as submitted by the Respondent suggests that s.17A of the FM Act will therefore "be a useful addition to the FMC's powers in dealing with unmeritorious proceedings," the section itself does not use the word "unmeritorious”. Instead, the section merely requires the court to be satisfied that in this case the Applicant has "no reasonable prospect of successfully prosecuting the proceeding" or "that part of the proceeding". It further provides that in reaching the appropriate level of satisfaction the court does not need to find that the proceeding is ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success.
If Parliament intended to introduce into the legislation, rather than simply refer in the explanatory memorandum, to claims being "unmeritorious" then it could have done so. The use of the word "unmeritorious" may be a term adopted by others when making an assessment of a claim but unless it forms part of the legislation the concept cannot, in my view, be relevant to the court in exercising its powers upon an application for summary dismissal. In my view, the use of the word "unmeritorious" is a means by which the government of the day may wish to describe certain proceedings and it is noted that the legislation seems to have evolved particularly in migration proceedings.
In any event, this court is bound by s.17A of the FM Act in the manner that I previously described in the MG Distribution decision set out above. I do not see any inconsistency with my approach compared to the approach adopted by the Federal Court in cases referred to by the Respondent.
It is also relevant at the outset to note that human rights proceedings necessarily involve what might be described as significant claims where it is in the public interest for those claims to be the subject of a hearing so that the allegations can be properly tested. It is in the interests of both parties for serious allegations of unlawful discrimination to be fully tested in an open court.
However, balanced against the desire to provide an opportunity for an Applicant to pursue proceedings based upon unlawful discrimination must be the need to ensure a Respondent is not put to the trouble and expense of meeting allegations which have no reasonable prospect of success. An allegation will have no reasonable prospect of success pursuant to human rights if it does not meet the statutory definition of the discrimination alleged.
Hence it is crucial in the present case to determine whether each and every one of the allegations as pleaded which were the subject of the complaint before the Commission could properly be regarded as being complaints of sexual harassment, to the extent that they have features of what could be described as a complaint of sexual nature.
I accept and apply the principles set out earlier in this judgment from the decision of Judge Davis in the Te Papa case, which I note were re‑stated by the court in AB v Adult Multicultural Education Services.
Whilst allegation 1 may well be construed in the manner suggested by the Respondent, it remains, in my view, a claim which, if proved, is capable of constituting conduct of a sexual nature. The words allegedly uttered combined with the act of throwing the white substance on the back of the Applicant are sufficient to at least potentially lead a court to conclude that that conduct is conduct of a sexual nature.
Whilst it is not necessary to consider the finding of the court, as suggested by the Applicant, if the complainant had been a young girl, it does provide some guidance, as, in my view, the conduct of the words uttered are capable of being interpreted as conduct of a sexual nature regardless of the sex or age of the alleged victim.
Whilst it may be true that the words uttered could be interpreted in another way, that does not mean that the court should, on the authorities to which I have referred, automatically presume that the preferred interpretation of the Respondent is the only interpretation.

I am satisfied that it is at least arguable that the interpretation advanced for and on behalf of the Applicant if the allegations are proved are capable of amounting to sexual harassment and are words and conduct which could properly be regarded as constituting a claim of a sexual nature.
Likewise, I accept that at least potentially, though to a less extent, allegation 2 is capable of a similar interpretation.
I accept that allegation 3 is part of the contemporaneous context of the claim or alleged pattern of behaviour. It cannot stand alone as a claim of sexual harassment as it contains nothing to suggest, applying the appropriate authorities, conduct of a sexual nature. Having regard to the definition in the legislation, I also can see that it may have relevance to the other claims arising from the termination of employment forming as it does part of the common substratum of facts.
The three allegations of sexual harassment cannot be said to have no reasonable prospect of success and, in my view, cannot be properly regarded as an abuse of process, frivolous or vexatious. I accept, as submitted by both parties, that the allegations should therefore stand as they appropriately form part of the court's associated or accrued jurisdiction.
I had some hesitation in accepting that the allegations may be part of the court's associated or accrued jurisdiction, having regard to the specific basis upon which this court is vested with jurisdiction, namely upon the production by the Commission of a termination notice. Nevertheless, the statutory jurisdiction of this court triggered by the termination notice ultimately in my view is no different from any other statutory jurisdiction to which associated or accrued jurisdiction may be attached.
Accordingly, in my view, I am not satisfied it is appropriate to summarily dismiss the allegations as pleaded.
In reaching the decision concerning the application for summary dismissal, I am satisfied that it is not relevant for the court to currently decide the appropriate standard. For present purposes it is sufficient, in my view, to consider the material on the "balance of probabilities test and not apply the Briginshaw test". Ultimately the standard of proof will be determined by the court prior to the trial of the action.
However, even if I am wrong in disregarding the Briginshaw test for the purpose of a summary dismissal application, then in my view, applying that test, I am not satisfied that it could properly be claimed that in this case the allegations by the Applicant have no reasonable prospect of success. The allegations will need to be tested by appropriate evidence and of course the Applicant will have the onus of proving the allegations at the hearing.
It will be evident, from my consideration of the alleged words uttered and the context in which they were uttered combined with the conduct, particularly allegation 1 combined with the claims under the SDA, whilst not perhaps being at the higher end of sexual harassment cases, are nevertheless of sufficient seriousness not to permit the court to reach a conclusion that the claim is "de minimis". Hence, I reject the Respondent's submission that the claims put at their highest should be regarded as trivial or "de minimis" and summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Summary Dismissal application is dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 25 January 2007