Cavar v Secom Australia Pty Ltd

Case [2021] FedCFamC2G 163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163

File number(s): SYG 1610 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment:  22 October 2021
Catchwords:  INDUSTRIAL LAW – Fair Work – Fair Work proceedings – application for summary dismissal – no reasonable prospects of success – application granted.
Legislation:

 Age Discrimination Act 2004 (Cth)

Anti-Discrimination Act 1977 (NSW)

Fair Work Act 2009 (Cth), ss 340, 341, 342, 343, 344, 348, 351 and 358

 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 13.10, 13.13

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 46

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Cases cited:

Fair Work Ombudsman v South Jin Pty Ltd and Ors [2013] FCA 1057

Fancourt v Mercantile Credits Ltd (1083) 154 CLR 87

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] 167 FCR 372

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188

Spencer v The Commonwealth [2010] HCA 28

Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82

Division: Division 2 General Federal Law
Number of paragraphs: 43
Date of last submission/s: 6 October 2021
Date of hearing: 6 October 2021
Place: Sydney
Solicitor for the Applicant: The Applicant appeared in person.
Solicitor for the Respondent: Mr Tass appeared on behalf of the Respondent.
Table of Corrections
Order 1 Changed the word Act to Rules
Order 3 Changed section 339 to 239  of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Act  2021 (Cth) (“FCFCOA Act”)

ORDERS

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) SYG 1610 of 2021
BETWEEN:

CELIA CAVAR

Applicant
AND:

SECOM AUSTRALIA PTY LTD ABN 91 050 293 420

Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

 22 OCTOBER 2021

THE COURT ORDERS THAT:

1.The matter is summarily dismissed pursuant to r 13.10(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the FCFCOA Rules”).

2.Any issue as to Costs reserved with liberty to apply, should costs be sought.

3.The Court directs that Ms Cavar is to appear personally before the Court at 10.00 am on 18 November 2021 to provide submissions and argument as to why the Court should not of its own motion make orders pursuant to s 239 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Act  2021 (Cth) (“the FCFCOA Act”) that:

a.   Any current proceedings before this Court be stayed; and

b.   Ms Cavar be prohibited from further instituting proceedings in this Court in relation to claims under the Fair Work Act 2009 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act1975 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

4.Ms Cavar is to file any evidence in Affidavit form she wishes the Court to…

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AGLC
Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163
Case
[2021] FedCFamC2G 163
Decision Date

CaseChat Overview and Summary

The matter of Cavar v Secom Australia Pty Ltd involved an application for summary dismissal of proceedings brought by the applicant, who alleged wrongful termination of her employment. The court was tasked with determining whether the applicant's case had any reasonable prospects of success. The respondent argued that the applicant's claims lacked merit and were unlikely to succeed, thereby justifying a summary dismissal. The applicant, a former employee, alleged wrongful termination and various forms of misconduct and discrimination by the respondent.

The court had to decide whether the applicant's claims, which included allegations of criminal conduct and conspiracies, had any reasonable prospects of success. The respondent argued that the applicant had failed to provide any independent or corroborative evidence to support her allegations. The court had to weigh the strength of the applicant's pleadings and evidence against the respondent's argument that the claims were frivolous and vexatious.

Upon reviewing the applicant's pleadings and evidence, the court concluded that the applicant's case, at its highest, lacked reasonable prospects of success. The applicant's allegations were highly inflammatory and unsubstantiated, lacking any independent or corroborative evidence. Consequently, the court found that the applicant had no reasonable prospects of success should the matter proceed to trial. The court thus granted the respondent's application for summary dismissal under rule 13.10(a) of the relevant rules. The court also noted that the applicant's claims bordered on being frivolous and vexatious but did not make a formal finding in this regard.

The court dismissed the applicant's proceedings and ordered that the matter be summarily dismissed. The court noted the respondent's concession that the termination of the applicant's employment constituted adverse action, but held that the applicant had failed to demonstrate any reasonable prospects of success in her claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent concedes that, they carry the onus of establishing that the applicant has no reasonable prospects of success. However, if they establish a prima facia case that the applicant has no reasonable prospects of success, it was submitted that the applicant is obliged to point to specific factual or evidentiary disputes that render a trial necessary. General denials are insufficient: (see; Fair Work Ombudsman v South Jin Pty Ltd and Ors [2013] FCA 1057 at [28]). A genuine factual dispute will require the matter to be determined at trial, where witnesses can be called and evidence tested.THE EVIDENCE. The applicant relies upon an Affidavit affirmed on 1 July 2020. The applicant deposes that she commenced employment as a permanent part-time Security Officer level 2 with the respondent on 11 September 2019. The applicant was contracted to work 14 hours per week. The applicant role as a security officer was at taxi ranks run by Taxi Ranks NSW. The letter of offer, which was attached to the Affidavit, included the following:“You are required to observe and comply with all our company policies and procedures as amended from time to time. The policies of the company do not form part of the contract”. The letter of offer also specified a probation period of six months from 11 September 2019. In an email sent by the applicant to a Keith Turkington an employee of the respondent, the applicant advised that she had sought further part-time work with DE Security Solutions but she was unavailable on a Friday and Saturday. In a document also attached to the applicant’s Affidavit, she alleged that DE Security indicated that no work was available to her on a Sunday and Monday. The applicant asserted that this was proof that “systemic plan, collaboration with my employer SECOM Australia, influence and pressure by DE Security Solution, occurred on managers to terminate my employment with no legal ground”. On 25 November 2019 the applicant sent a letter to the New South Wales Police Force alleging that DE Security Solutions had collected all her personal details for illegal purposes and placement of another person under her name. This apparently relates to the fact that the applicant had provided her details to the firm, undertaken a course, but had not been offered any work by DE Security Solutions. On 25 November 2019 the applicant sent a letter to the respondent requesting that her work be increased from 14 hours per week and requested she be placed at a Centrelink and/or Medicare offices two shifts per week to reach a total of 30 hours work per week. In January 2020, the applicant sent correspondence again to Mr Turkington complaining that she had been unable to log into Kronos, which the Court understands to be, a time recording/payroll system used by the respondent for its employees. The applicant alleged that another person had logged into Kronos under her name and entered details that she had worked on 25, 26 December 2019 and 1 January 2020 for a total of 23 hours. The applicant stated “to avoid any potential criminal activities under my name you must remove that person from Secom and place me in that position”

Decision

Reasons for decision

A careful review of the entirety of the applicant’s pleadings and evidence provided in support of them, leads the Court to the conclusion that even at its highest, the applicant’s case does not have any reasonable prospects of success. The applicant’s case consists of a series of inflammatory allegations of criminal conduct and/or conspiracies, including at the hands of organised crime by the respondent. Those allegations were repeated in oral submissions by the applicant, however she was unable to point to independent or corroborative evidence to support those allegations.CONCLUSION Accordingly, in these circumstances, the Court is satisfied that the applicant has no reasonable prospects of success should the matter go to trial. It is thus appropriate that this matter be summarily dismissed pursuant to r 13.10(a) of the Rules. The Court notes that the allegations made by the applicant, border on frivolous and vexatious, however, makes no finding in this regard. Having come to this conclusion, the Court will now consider any application as to costs by the respondent.

Ratio Decidendi

Legal Principle Established

Notwithstanding that no meeting had occurred, in a letter of the same day, the applicant was terminated from her employment noting that she had refused to attend a meeting to discuss the matter. The reasons for the termination included failing to meet the expectations of the role, failing to respond to reasonable management instruction and using inappropriate and aggressive language. CONSIDERATION It is common ground that the applicant was employed in a part time role with 14 hours per week as a Security Guard at a taxi rank in Coogee, by the respondent. There is material that points to the fact that the applicant was spoken to by her Supervisors’, when they attended the taxi rank and found her sitting in her car some 200 m from the rank, which was not in keeping with her job description. In November 2019, the applicant requested that her hours of employment be increased. This request was not agreed to. Further, there was an apparent dispute over the recording of the hours that the applicant worked. The applicant alleges that someone accessed her time recording profile and record of her working four hours that she did not work. Following that, there was a series of acrimonious communications between the applicant and the respondent which resulted in her being called to a meeting to discuss her performance. That meeting did not eventuate, as the applicant refused to attend and she was terminated by letter on 16 January 2020, which was within her probationary period with the company. No material is before the Court as to the rights of the parties in relation to a termination within a probationary period. The applicant has made a number of significant claims of criminality, inappropriate conduct, discrimination based on age and sex. The applicant asserts that all of the allegations against her made by the respondent are either fake or false. The communications, with the company, and the submissions made to the Court, contain a recital of these allegations including various sentences that are either in bold, capitals, underlined, or a combination of all three at various points in time within the documents. In the Court’s view the communications point to the use of inappropriate and aggressive language. The Secom Australia Pty Ltd code of conduct (attached to Ms Marshman’s affidavit) specifies that, employees must not use “abusive, profane or threatening language”. Employees are also required to comply with “all lawful and reasonable directions given by managers” The evidence points to a use of such language by the applicant and a refusal to attend a meeting with her employer. In order to succeed, the respondent needs to show that the applicant has no reasonable prospects of success. It is conceded by the respondent that they took adverse action within the meaning of s 342(1) of the Act by terminating the applicant’s employment. However, it was submitted that the adverse action was a result of any prohibited reason under ss 341, 342, 344, 348 or 351 of the Act.