Cavar v Greengate Management Services Pty Ltd (No.2)
[2016] FCCA 3358
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVAR v GREENGATE MANAGEMENT SERVICES PTY LTD (No.2) | [2016] FCCA 3358 |
| Catchwords: DISCRIMINATION LAW – Unlawful discrimination on grounds of age, ethnicity and nationality. PRACTICE AND PROCEDURE – Application for summary dismissal – no reasonable prospects of success. PRACTICE AND PROCEDURE – Industrial law – prohibition on bringing claims under the Fair Work Act 2009 and also under other statutes. |
| Legislation: Fair Work Act 2009, ss.12, 65, 340, 341, 342, 344, 349, 351, 355, 361, 362, 725, 728, 732, 734 Federal Circuit Court of Australia Act 1999, s.17A |
| Cases cited: Cavar v St Brigid’s T/A Green Gate Pty Ltd [2015] FCCA 1993 |
| Applicant | CELIA CAVAR |
| Respondent: | GREENGATE MANAGEMENT SERVICES PTY LTD |
| File Numbers: | SYG 106 of 2015 and SYG 3351 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 26 February and 21 March 2016 |
| Date of Last Submission: | 21 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Glover |
| Solicitors for the Respondent: | FCB Workplace Law |
ORDERS
SYG 106 of 2015
The proceeding be dismissed.
SYG 3351 of 2015
The proceeding be dismissed.
The applicant pay the respondent’s costs fixed in the amount of $6,424.14.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 106 of 2015 and SYG 3351 of 2015
| CELIA CAVAR |
Applicant
And
| GREENGATE MANAGEMENT SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Fair Work Act proceeding (SYG106/2015)
On 16 January 2015 the applicant, Ms Cavar, lodged an application and related Form 2 claim form alleging, amongst other things, that she had been dismissed from her employment with Greengate Management Services Pty Ltd (“Greengate Management”) in contravention of ss.340, 342, 344, 349, 351, 355 and 362 of the Fair Work Act 2009 (“FW Act”) and that Greengate Management had breached the Age Discrimination Act 2004 (“AD Act”), the Racial Discrimination Act 1975 (“RD Act”) and the Australian Human Rights Commission Act 1986 (“AHRC Act”). She later filed a statement of claim relevantly alleging that Greengate Management had taken adverse action against her, namely by changing her position to her prejudice, by giving her too little casual work and by dismissing her from her employment. On Greengate Management’s application, I dismissed that action summarily on 24 July 2015: Cavar v St Brigid’s T/A Green Gate Pty Ltd [2015] FCCA 1993 (“first judgment”). At the same time, the name of the respondent in the Court record was amended to the name by which it is now identified in this proceeding.
Ms Cavar appealed to the Federal Court and on 3 November 2015 Flick J upheld the appeal in respect of Ms Cavar’s FW Act claims: Cavar v Green Gate Pty Ltd [2015] FCA 1179. The matter was remitted to this Court for re-consideration of Greengate Management’s application for summary dismissal of Ms Cavar’s claims for relief under the FW Act.
Human rights proceeding (SYG3351/2015)
On 21 August 2015 Ms Cavar filed in the Federal Court an application seeking relief under the AHRC Act (“human rights proceeding”). In that application she alleged that “Green Gate Pty Ltd” had breached the RD Act and the AD Act in that it had discriminated against her because of her national origin and her age. Ms Cavar alleged that the discrimination was manifested in “Green Gate Pty Ltd” giving her full-time job to someone else, giving her too little casual work and terminating her employment. On 30 November 2015 Katzmann J transferred that matter to this Court for hearing with or immediately after Ms Cavar’s FW Act proceeding.
On 18 December 2015 the respondent filed an application seeking summary dismissal of Ms Cavar’s human rights proceeding. It also sought an order to amend its name on the Court record to Greengate Management Services Pty Ltd. That order was made on 21 March 2016 and so the respondent to the human rights proceeding will henceforth be referred to in these reasons as “Greengate Management”.
Procedural matters
On 10 December 2015 I ordered that the FW Act proceeding and the human rights proceeding be heard together.
On 22 February 2016 Ms Cavar filed in each matter an application in a case inviting me to disqualify myself from further involvement in the proceedings. Those interlocutory applications were heard and dismissed on 26 February 2016: Cavar v Greengate Management Pty Ltd and Cavar v Green Gate Pty Ltd [2016] FCCA 449. In the Federal Court on 18 August 2016 Bromwich J dismissed an application for leave to appeal from that decision: Cavar v Greengate Management Services Pty Ltd [2016] FCA 961.
Greengate Management’s applications for summary dismissal were heard on 26 February and 21 March 2016 and my decision on them reserved. For the reasons which follow, Ms Cavar’s applications will be dismissed.
Applications for summary dismissal
Relevant legislation
Relevant portions of s.17A of the Federal Circuit Court of Australia Act 1999 and r.13.10 of the Federal Circuit Court Rules 2001 (“Court’s Rules”) were quoted in the first judgement and need not be set out again here. However, it is necessary to note again in relation to those provisions that in Spencer v Commonwealth (2010) 241 CLR 118 the plurality held that no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation let alone as a definition of its content, saying:
… full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is “no reasonable prospect” of success. (per Hayne, Crennan, Kiefel and Bell JJ at 141 [60])
Their Honours were of the view that the elucidation of the term would best proceed by decided cases giving it content over time, noting that it was already apparent that authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 could not be relied on to define the scope of the term.
Considerations
I have had regard to the caution which is to be exercised in considering whether a matter might be dismissed on a summary basis and to Flick J’s comments in Cavar v Green Gate Pty Ltd at [28] and [29]:
There can be no doubt that these statutory discretionary powers to summarily dismiss a proceeding were conferred with a view to “strengthening” the power of Courts to enter summary judgment and to “soften the test for a successful application for summary judgment”: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ.
But “caution” should be exercised in the exercise of those powers: Spencer v Commonwealth [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J. It is necessary to ensure that a party suffers no “injustice” in the summary dismissal of a case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [45], (2006) 236 ALR 720 at 731 per Rares J. Subsequently, Jacobson J observed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 has observed:
[30] … The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]–[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:
* 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.
FW Act proceeding
Argument
Greengate Management sought dismissal of the FW Act proceeding on the basis that it has no reasonable prospects of success and was frivolous, vexatious or an abuse of the process of the Court.
Relevant legislation
Part 3-1 of the FW Act provides for general workplace protections. Division 3 of pt.3-1 of the FW Act, which contains ss.340, 341 and 342, provides for the protection of workplace rights. Section 351 is in div.5 of pt.3-1 of the FW Act and provides for protection against certain identified sorts of discrimination. Together, ss.340, 341, 342 and 351 provide that a person must not take adverse action against another for a prohibited reason. Put another way, adverse action is not contrary to those provisions of the FW Act unless it is taken for a prohibited reason.
Dismissing an employee, altering an employee’s position to his or her prejudice and discriminating between one employee and other employees all meet the definition of adverse action found in s.342 of the FW Act. Sections 340, 341 and 351 relevantly provide:
340Protection
Meaning of workplace right
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
341Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
If it is alleged that adverse action has been taken for a prohibited reason, s.361 of the FW Act states:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Allegations
Justice Flick found that I had erred in my decision to dismiss summarily the following aspects of Ms Cavar’s statement of claim:
11.The respondent took adverse action towards the applicant and by way of avoiding to respond on applicant’s request for roster by email.
12.The respondent took adverse action towards the applicant avoiding to have a meeting in relation to applicant’s roster and continuing employment.
…
16.As a result of the respondent’s contravention of not comply with the applicant’s requests for work, breaches of work place law, and breach of trust in regards applicant’s employment and earning, the applicant has suffered damage and unlawful discrimination and claims the amount of $298,454.24
…
Particulars of Adverse Action
(a)that respondent took adverse action towards the applicant not offering work for whole week from 15 to 22 of Oct 2014,
(b)that respondent has changed the applicant’s job to his disadvantage,
(c)that respondent took adverse action towards the applicant on 26 of Aug 2014, straithforward applicant’s full time position to another staff Pretty,
(d)that respondent has treated the applicant differently that other staff,
(e)that respondent has offered different and unfair terms and conditions, as casual employee with only one shift per week from 01 of Nov 2014,
(f)that respondent has cancelled few shifts in period from 01 of Nov until 12 of Nov,
(g)that respondents performance was very poor and his accusations at the beginning of any shift since 01 of Nov 2014 was not appropriate,
(h)that respondent’s comments to the applicant at the beginning of shift on 11 of Nov 2014, in terms of employment position as casual, and rostering were not appropriate and no reasonable,
(i)that respondent’s spoken words in the effects are material facts and the applicant must citate it’s: “You are casual employee, go home, you are not on roster”,
(j)that respondent deliberately has breached his duty blocking access to work and deactivating access card into premise on 12 of Nov 2014,
(k)that respondent applied enormous pressure on the applicant for all above mentioned certain actions.
It is to those allegations and particulars to which the Court must now have regard, noting that Ms Cavar has not sought to amend her statement of claim.
Relevant facts
Drawing in large part on the factual summary set out in Greengate Management’s written submissions at that time, in the first judgment I summarised the relevant facts as follows:
15.…
(a)on 12 August 2014 Ms Cavar commenced full-time employment in the position of Care Services Employee at St Brigid’s Green, an aged care facility owned and operated by the respondent;
(b)on 26 August 2014 Ms Cavar sent an email to Bronwyn Jenner, the respondent’s general manager, stating:
As I spoke with you this morning i want SWAAP MY PERMANENT CONTRACT INTO CASUAL POSITION FROM 10 SEPTEMBER 2014.
PLEASE ACCEPT IT;
(c)Ms Cavar’s request for casual employment was accepted and she worked and was paid as a casual employee from 1 September 2014;
(d)from 1 September to 7 September 2014 Ms Cavar worked six casual shifts;
(e)on 6 September 2014 Ms Cavar sent an email to two employees of the respondent, Michelle Davies and Katie Davies, stating:
I am forwarding this email to all of you with my request to SWAAP MY PERMANENT CONTRACT INTO CASUAL OR ACCEPT MY RESIGNATION ON 10 SEPTEMBER 2014.
The reason for that is FAMILY REASONS AND I WILL BE OFF 5 WEEKS.
SO IF YOU WANT ME BACK IN 5 WEEKS I WILL HERE.
I SPOKE WITH BRONWYN AND I EXPLAINED THAT IS MOST SIMPLE WAY TO KEEP ME IN ALL MY DETAILS ARE IN. AND THAT IS NO EXTRA EXPENSES FOR YOU.
SO, ACCEPT IT AND KEEP IT CONFIDENTIAL;
(f)on 9 September 2014 Ms Cavar commenced a period of absence;
(g)on 1 October 2014, during Ms Cavar’s period of absence, she asked to be rostered on casual shifts from 15 October 2014. [According to an annexure to the affidavit of Greengate Management’s solicitor, Mr Brett, affirmed 1 April 2014, Ms Jenner responded the same day saying “Will do”. Further annexures included emails Ms Cavar sent to Greengate Management on 15 and 19 October 2014 to which Ms Jenner responded in an email dated 20 October 2014, advising Ms Cavar that there was not much casual work available but she would be rostered when the shifts she elected became available.] However, due to the casual roster already being issued for that period, Ms Cavar was rostered to work when shifts became available;
(h)on 20 October 2014 Ms Cavar sent an email to Ms Jenner stating:
I PUT REQUEST FOR RESIGNATION OR CHANGING CONTRACT.
So, option would be PT what I preferering.
In case of RESIGNATION YOU SAID THAT YOU HAVE TO DO ALL PROCEDURE AGAIN.
So in the best interest mine and company i left option for you to decide and I put request to be off 5 weeks.
(i)on 21 October 2014 Ms Cavar sent another email to Ms Jenner stating:
As we discussed today, my request is:
BACK PERMANENT CONTRACT AS SOON AS POSSIBLE.
In a meantime I will take any available shift;
(j)on the same day, Karen Hillen, the respondent’s human resources manager, emailed Ms Cavar stating:
… you made the request to transfer from full time to casual in September 2014 as your request for leave without pay could not be accommodated.
… You have been offered a casual shift tomorrow on afternoon shift and we will endeavor to offer you some other shifts as they become available in the roster. We cannot guarantee how many shifts will become available at any time.
… casual shifts can only be offered when and if they become available. The roster needs to be filled out with our full time employees first and any gaps that may occur will then be offered to casual staff. We cannot guarantee any number of shifts to casual employees.
The email also attached a written offer of casual employment;
(k)on 23 October 2014 Ms Cavar replied by email to Ms Hillen stating:
I put request for PERMANENT CONTRACT BACK ASAP AND I SENT THAT REQUEST WITH EMAIL TO BRONWYN.
So, any miscommunication and option to accept casual position with these conditions ia not acceptable …
So my request is: MY PERMANENT CONTRACT BACK ASAP.
I will make appointment with GENERAL MANAGER IF I HAVE TO;
(l)on 1 November 2014 Ms Cavar wrote to the respondent saying:
I want remind you that is my final request for permanent contract from 12 Aug 2014 back, or Part time/Casual employment with 3 shifts per week. …;
(m)on 4 November 2014 Ms Jenner wrote to Ms Cavar inviting her to attend a meeting on 10 November 2014 to discuss her ongoing employment with the respondent;
(n)on 10 November 2014 Ms Cavar attended a meeting with Ms Jenner about her behaviour and performance. Ms Jenner advised Ms Cavar that her employment would be terminated. A letter to this effect was sent to Ms Cavar on 12 November 2014;
(o)on 10 November 2014 Ms Cavar made a complaint to the Australian Human Rights Commission (“AHRC”) alleging, amongst other things:
I OFFERED TO THEM ANY OPTION BRING BACK MY PERMANENT CONTRACT, P/T OR CASUAL WITH 3 SHIFTS PER WEEK, BUT NOTHING WORKED. …;
(p)on 2 January 2015 Ms Cavar wrote to the AHRC saying:
I put request for change my contract or resignation on same day I spoke with Bronwyn and according to her explanations/suggestions most easy and most secure way was to “change contract into casual for that period of time”, otherwise if I put request for resignation, she must do whole procedure again.
16.The applicant subsequently lodged an application with the Fair Work Commission and a certificate pursuant to s.368 of the FW Act was issued.
Since that time Ms Cavar has, relevantly, filed three affidavits: one affirmed on 17 December 2015, another on 22 January 2016 and a third on 28 January 2016.
In her affidavit affirmed 17 December 2015 Ms Cavar deposed that outside this Court on 24 [recte:25] June 2015 she and a Greengate Management director, Mr Fisher, had the following exchange:
Mr Fisher:Celia, why you did not resign? Bronwyn did not give you a job because you have been looking for another job.
Ms Cavar:It was arranged with Bronwyn to swap the permanent contract for 5 weeks off of work, unpaid. I can prove that I was overseas …
Ms Cavar’s affidavit of 22 January 2016 contained nothing of relevance to the FW Act claim but in her affidavit affirmed 28 January 2016 she deposed to having asked when seeking time to travel to see her family:
So, resignation or swapping contract?
She deposed that Ms Jenner replied in words to the effect of:
You have to send me email to confirm resignation or swap the contract for only 5 weeks, but for me it’s easy to keep you in, all your details are in, and I do not have to repeat whole procedure with your employment again.
Ms Cavar deposed that she replied to the effect that she would respond that day by email
… and on your recommendation to put me back on roster from 15 Oct 2014, I will swap contract into casual for 5 weeks
Ms Cavar deposed that, notwithstanding this conversation, her permanent full-time position was given more or less straight away to another person.
Ms Jenner also affirmed an affidavit in which she gave evidence of events underlying Ms Cavar’s allegations. Relevantly, Ms Jenner contradicted Ms Cavar’s account of their conversation on 24 August 2014 and recounted a conversation they had had on 21 October 2014 during which the nature and frequency of Ms Cavar’s employment was said to have been discussed. Ms Jenner deposed that Ms Cavar moved from permanent full-time employment to casual employment at her own request, that she was not returned to permanent full-time employment because there were no vacancies and that Ms Cavar’s employment was ultimately terminated because of her unsatisfactory performance and conduct.
Consideration
Consequent upon the decision of Flick J, it remains to be determined whether, as Greengate Management’s summary dismissal application asserts, Ms Cavar has no reasonable prospect of proving that she had a workplace right in relation to which Greengate Management took adverse action, as defined in s.342 of the FW Act, for a prohibited reason.
The first step in that process is to identify which workplace rights Ms Cavar alleges were the subject of adverse action. The only matters of that sort which Ms Cavar has pleaded are to be found in paras.11 and 12 of her statement of claim where she alleges that Greengate Management “avoided” responding to her emails and to her requests for a meeting to discuss her roster and her “continuing employment”. A right to inquire into the availability, nature and terms of one’s employment would seem to be a right implied into every employment contract and it has not been suggested that Ms Cavar did not have such a right. A right of that sort is referred to in s.341(1)(c)(ii) of the FW Act. None of the other matters raised in the statement of claim in relation to the adverse action allegation identify a workplace right covered by s.341 of the FW Act and consequently protected by div.3 of pt.3-1 of that Act.
Ms Cavar exercised her right to inquire into the availability, nature and terms of her employment. Relevantly, she sent various emails to Greengate Management during the course of October 2014 to which she generally received prompt responses, if not the responses she was seeking. In a further email dated Friday 31 October 2014, annexed to Mr Brett’s affidavit of 1 April 2015, Ms Cavar also wrote to Ms Jenner requesting an appointment with her the following week “regarding contract, rostering and my employment agency request”. As recorded earlier at [16], Ms Jenner wrote to Ms Cavar on Tuesday 4 November 2014 asking her to attend a meeting on 10 November 2014 to discuss her “on-going employment”. The letter also invited Ms Cavar to propose an alternative time if she wished.
The second step in the process is to identify what adverse action is alleged to have been taken in relation to the identified workplace right. In the particulars of her general protections allegation, Ms Cavar asserts that she was discriminated against, in the sense of being treated differently from other staff, and that her job was changed to her detriment, in the sense that she was given few hours of work, and ultimately dismissed (vide particular (j)).
Whether or not Ms Cavar has advanced, at this stage, sufficient evidence to indicate an arguable case that her position was altered to her detriment and that she was treated differently from other staff, there is no dispute that she was dismissed from her employment. That was adverse action.
However, the third step in the process is of central significance for present purposes because it is necessary to the making out of Ms Cavar’s case. That step is proof that the adverse action alleged to have been taken in relation to the exercise of an asserted workplace right was taken for a reason prohibited by s.340 or s.351 of the FW Act.
The effect of s.361 is that in proceedings under s.340 or s.351, if an allegation of adverse action for a prohibited reason is made, it is presumed that the action was taken for that reason, or with that intent, unless the employer proves to the contrary: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501 [109] per Wilcox and Cooper JJ. But it is necessary for an applicant to identify the particular intent in question: s.361(1)(a); cf. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 559-561 [31]-[37], 566 [54], 574-575 [74]-[75]. In other words, to enliven the reverse onus of proof Ms Cavar had to allege that the adverse action she alleged had been taken for a prohibited reason and she had to particularise what that reason was. However, no assertion of that sort is included in Ms Cavar’s FW Act allegations or particulars.
That being so, s.361 is not engaged and so it is not to be presumed for present purposes that if Greengate Management altered Ms Cavar’s position to her prejudice, treated her differently from other staff or dismissed her from her employment it did so for a reason prohibited by the FW Act.
Moreover, because an allegation that Greengate Management acted for a prohibited reason is an essential element of the cause of action Ms Cavar seeks to make out, the absence of such an allegation from the statement of claim means that Ms Cavar’s FW Act claim is doomed to fail. An allegation that a respondent’s conduct was for a prohibited reason enables that allegation to stand as sufficient proof of the fact unless the respondent proves otherwise but it does not relieve an applicant from ensuring that each of the ingredients of the contravention is made out including, relevantly for present purposes, that Greengate Management took adverse action against Ms Cavar for a prohibited reason: Davids Distribution at 501 [109]; Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at 167 [161]-[162]; Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306 at 321-322 [49].
On the material before the Court, Ms Cavar cannot make out all the necessary elements of a contravention by Greengate Management of the FW Act.
Conclusion
As I conclude that Ms Cavar’s allegation in her statement of claim has no reasonable prospects of success, it will be dismissed.
Final matter
It should not be overlooked that in documents she has filed Ms Cavar has advanced arguments which might, on some view, be attempts to expand the claims made in her statement of claim. For instance, her written submissions filed on 18 May 2015 and the annexure to her affidavit affirmed on 22 January 2016 refer to discrimination in the context of the FW Act claim and the human rights claim. In her affidavit affirmed 28 January 2016 Ms Cavar appears to suggest not only that her employment had been wrongfully terminated but also that other unspecified and possibly adverse action had been taken against her for discriminatory reasons. In her affidavit affirmed 17 December 2015 Ms Cavar appears to state that a prohibited motivation could be inferred in some unspecified way from certain annexed emails which, on that subject least, are completely obscure. Further in connection with that affidavit, even if Mr Fisher had said what Ms Cavar reports, the motivation suggested is not one which is proscribed for the purposes of divs.3 or 5 of pt.3-1 of the FW Act.
The statements in question are too vague and imprecise to conclude that Ms Cavar has reasonable prospects of proving that Greengate Management had contravened the FW Act in connection with those matters – not least because in their present form she would not be permitted to rely on them at a trial of the matter because of the unfairness to Greengate Management which that would involve. To require Greengate Management to discharge the reverse onus of proof without Ms Cavar having first properly specified the matters which Greengate Management would have to address in that connection would amount to an impermissible denial of procedural fairness. It could not be concluded that Ms Cavar had reasonable prospects of making out claims which, at least in their current form, she would not be permitted to pursue at a trial.
Human rights proceeding
Argument
Greengate Management’s principal argument was that the claims which Ms Cavar made in the human rights proceeding duplicated the claims she had made in the FW Act proceeding and that that was prohibited by the FW Act.
It also argued that the claims Ms Cavar made in the human rights proceeding had no reasonable prospects of success and should be dismissed on that basis too.
Relevant legislation
Fair Work Act
Subdivision B of div.3 of pt.6-1 of the FW Act prevents individuals from bringing the same claim of unlawful dismissal under both the FW Act and other legislation. It is concerned to prevent duplicitous proceedings. As the Explanatory Memorandum to the Fair Work Bill 2008 put it:
2707This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
The FW Act relevantly provides in relation to complaints and applications relating to dismissals from employment:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
…
728 General protections court applications
This section applies if:
(a)a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and
(b)the application has not:
(i)been withdrawn by the person who made the application; or
(ii)failed for want of jurisdiction.
…
732 Applications and complaints under other laws
(1) This section applies if:
(a)an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b)the application or complaint has not:
(i)been withdrawn by the person who made the application; or
(ii)failed for want of jurisdiction.
(2)An application or complaint under another law is an application or complaint made under:
(a)a law of the Commonwealth (other than this Act); or
(b)a law of a State or Territory.
…
The FW Act makes similar provision in relation to complaints and applications relating to general protections applications which do not relate to dismissals:
734 General rule
(1)…
(2)A person must not make an application or complaint under an anti‑discrimination law in relation to conduct that does not involve the dismissal of the person if:
(a)a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and
(b)the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
Sections 12 and 351(3) of the FW Act define “anti-discrimination law” for the purposes of that Act as including the RD Act and the AD Act.
Ms Cavar also alleged a breach of s.65 of the FW Act which relevantly provides:
65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a)any of the circumstances referred to in subsection (1A) apply to an employee; and
(b)the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
(1A) The following are the circumstances:
…
(d) the employee is 55 or older;
…
(2) The employee is not entitled to make the request unless:
(a)for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b) for a casual employee—the employee:
(i)is a long term casual employee of the employer immediately before making the request; and
(ii)has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Racial Discrimination Act
The RD Act relevantly provides:
9Racial discrimination to be unlawful
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. …
…
15Employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c)to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
…
Age Discrimination Act
The AD Act relevantly provides:
14 Discrimination on the ground of age—direct discrimination
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a)the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.
…
18 Discrimination in employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s age:
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Australian Human Rights Commission Act
The AHRC Act relevantly provides:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2)…
(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)…
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)…
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
…
Allegations
Ms Cavar’s application originally filed in the Federal Court and transferred to this Court by order of Katzmann J is far from clear. Although ostensibly an application under the AHRC Act, it alleges breaches of the FW Act as well as breaches of the RD Act, the AD Act and two international conventions. In substance, Ms Cavar’s allegations are that Greengate Management:
a)terminated her employment “from 12 August 2014”;
b)failed to grant her request for flexible working arrangements under s.65 of the FW Act;
c)failed to provide her with a permanent position from 15 October 2014; and
d)failed on occasion to provide her with any work although providing shifts to other employees
and, where a motivation for such conduct was identified, it was alleged to have been by reason of her:
e)age; or
f)ethnicity or nationality.
She alleged that Greengate Management had thereby contravened the FW Act, the RD Act and the AHRC Act, as well as certain international conventions which, however, are of no relevance to this proceeding for the reasons given in the first judgment at [31].
Relevant facts
On 10 November 2014 Ms Cavar lodged a complaint with the Human Rights Commission alleging that “St Bridit’s Greengate” had discriminated against her because of her family responsibilities, her ethnic/national origin and her age as a result of which her employment was changed from permanent to casual, she was refused further full-time or regular part-time employment and later her employment was terminated. The Human Rights Commission took the complaint to be one made against Greengate Management and terminated it on 24 June 2015 on the basis that it raised the same claims as had been made to the Fair Work Commission and in the FW Act proceeding in this Court.
In the notice of termination, the Human Rights Commission summarised in the following terms the events said to underlie Ms Cavar’s claim to it:
·Your request for 5 weeks unpaid leave from 10 September 2014 to 15 October 2014;
·The change in your contract to a casual position;
·Greengate denying your request for your permanent contract back or a part-time or casual position with 3 shifts per week, after you returned from leave;
·Greengate cancelling your shifts and deactivating your access card; and
·The termination of your employment on 12 November 2014.
Application for summary dismissal
On 18 December 2015 Greengate Management applied to have the human rights application dismissed summarily. It filed a detailed affidavit affirmed on 18 December 2015 by Mr Brett to which was annexed various documents relevant to the FW Act proceeding and the human rights proceeding.
Noting that Ms Cavar’s application in the human rights proceeding raised the same complaints as she had already made in the FW Act proceeding, Greengate Management argued that subdiv.B of div.3 of pt.6-1 of the FW Act prevented the human rights proceeding from being pursued and so it ought to be dismissed.
Consideration
I accept Greengate Management’s submission that Ms Cavar has repeated in the human rights proceeding claims which she made in the FW Act proceeding, namely that she was treated differently from other staff, that her position was changed to her prejudice and that, ultimately, she was dismissed. I find that ss.725, 728 and 734 of the FW Act therefore apply to the human rights proceeding.
The fact that the FW Act proceeding is to be dismissed summarily does not mean that ss.725 and 728 do not apply. Summary dismissal does not satisfy either of the exceptions to the operation of s.728, namely withdrawal of the FW Act proceeding or its dismissal because the Court did not have jurisdiction. Sections 725 and 728 apply according to their terms and so prevent the bringing of the human rights proceeding to the extent that it is concerned with Ms Cavar’s dismissal from employment.
Section 734 applies to Ms Cavar’s other allegations, that she was treated differently from other staff and that her job was changed to her detriment. It prevents the bringing of the human rights proceeding to the extent that it is concerned with those matters.
For those reasons, the human rights proceeding must be dismissed. It is therefore not necessary to consider Greengate Management’s alternative argument that, intrinsically, the human rights proceeding has no reasonable prospects of success.
It might possibly be thought that Ms Cavar’s allegation that Greengate Management contravened s.65 of the FW Act by not responding positively to what she has characterised as a request for flexible working arrangements was not a claim made in the FW Act proceeding and therefore not objectionable in the human rights proceeding as duplicitous. Whether or not that is so, s.65 has no application to Ms Cavar’s position as her request to change her employment status so that she could travel to Europe on family business was granted by Greengate Management. Upon her return, she had no fixed or settled working arrangements in respect of which a change, in the sense that word is used in s.65(1) of the FW Act, could apply. Moreover, she did not meet the length of service criteria which s.65(2) of the FW Act set for that section’s application to individual employees. Consequently, s.65 of the FW Act did not apply to Ms Cavar’s situation with the result that this aspect of her claim also has no reasonable prospects of success.
Costs
Greengate Management sought its costs of the human rights proceeding.
In Mr Brett’s affidavit affirmed 21 March 2016 Greengate Management set out its claim for costs based on the Court’s scale of fixed event-based costs found in pt.1 of sch.1 to the Court’s Rules. An earlier affidavit of Mr Brett affirmed on 18 December 2015 recorded that on 23 September 2015 Greengate Management’s solicitors wrote an open letter to Ms Cavar pointing out the effect ss.725 and 734 of the FW Act had on her human rights proceeding and inviting her to discontinue that proceeding. The letter foreshadowed an application for costs if Ms Cavar did not discontinue the human rights proceeding although it did not say that Greengate Management would not seek costs in the event that the proceeding was discontinued. Similar advice was given in two further letters, dated 29 October 2015 and 19 November 2015 respectively.
Greengate Management pressed its claim for costs at the hearing of the application for summary dismissal of the human rights proceeding and made submissions in connection with it.
The issue of the costs of the human rights proceeding having been squarely raised and addressed, I conclude that it is appropriate to rule on it. I perceive no reason why costs should not follow the event and so find that Ms Cavar should pay Greengate Management’s costs of the human rights proceeding.
The Court’s event-based scale, on which Greengate Management relies to quantify its claim, should be applied in accordance with r.21.10 of the Court’s Rules as no case has been made that the Court should take a different approach to the quantification of costs Nonetheless, the scale’s appearance-related amounts should be halved. This is to reflect the fact that the FW Act and the human rights proceedings have, in most respects, run together since Katzmann J transferred the latter proceeding to this Court but that costs are not sought in relation to the FW Act proceeding.
The costs items claimed by Greengate Management and the amounts sought in relation to them were set out in Mr Brett’s 21 March 2016 affidavit. I am in general agreement with Greengate Management’s claim with the exception of its claims in respect of the interlocutory hearings on 26 February 2016 and 21 March 2016. Greengate Management claims these as item 6: “Preparation for final hearing” and item 13(c): “Daily hearing fee” for a full day hearing. However, they are more correctly claimed as two item 3 claims “Interim or summary hearing—as a discrete event”. Further I make no allowance for a mention on 29 February 2016 which although Mr Brett itemised in the costs table set out in his affidavit, in para.9 he said that no claim would be made in relation to it.
I allow and quantify Greengate Management’s claim for its costs of the human rights proceeding as follows:
Item number in Court’s scale Description Amount 1(a) Initiating or opposing an application up to the completion of the first court date $2,735
1(b) and 13(a) Daily hearing fee – 10 December 2015 (mention – $278) $139 3(a) Interim or summary hearing – as a discrete event – 26 February 2016 ($1706) $853 3(b) and 13(b) Daily hearing fee – 26 February 2016 (half day – $1,024) $512 12 Advocacy loading – 26 February 2016 $256 3(a) Interim or summary hearing – as a discrete event – 21 March 2016 ($1706) $853 3(b) and 13(b) Daily hearing fee – 21 March 2016 (half day – $1,024) $512 12 Advocacy loading – 21 March 2016 $256 15 Disbursements – photocopying $308.14 TOTAL $6,424.14
Conclusion
Neither of the actions brought by Ms Cavar has reasonable prospects of success.
Consequently, they will be dismissed.
Ms Cavar is to pay Greengate Management’s costs of the human rights proceeding.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 22 December 2016
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