Cavar v Secom Australia Pty Ltd
[2021] FedCFamC2G 163
•22 October 2021
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 consider in relation to order 3 on or before 11 November 2021.
THE COURT NOTES THAT:
1. Should Ms Cavar fail to appear before the Court on 18 November 2021, the Court may make the above orders in her absence.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
On 3 July 2020, the applicant, Celia (Celija) Cavar filed an Initiating Application with the Court in its Fair Work Division, seeking reinstatement with the respondent, Secom Australia Pty Ltd ABN 91 050 293 420, as a Security Officer.
The applicant sought further orders for compensation for her alleged unlawful dismissal in the sum of $35,314.65 with interest, being the amount she calculates as loss of income for 1 year. The applicant also sought compensation for mental stress, harassment and bullying in the sum of $20,000.00.
The grounds of the application allege breaches of sections 340, 342, 344, 348 and 351 of the Fair Work Act2009 (Cth) (“the Act”). The applicant also alleged breaches of the Anti-Discrimination Act 1977 (NSW), Sex Discrimination Act 2002 (Cth), Age Discrimination Act 2004 (Cth) and Racial Discrimination Act 1975 (Cth) on the grounds of race, religion and ‘ethnic extract’. In relation to the reference to the Sex Discrimination Act 2002 (Cth), the Court presumes that the applicant seeks to rely upon the Sex Discrimination Act 1984 (Cth). No particulars were provided as to the basis for the alleged breaches of the various Acts relied upon in the Initiating Application.
On 1 October 2020, the respondent filed an Application in a Case seeking summary dismissal of the matter. It was submitted that the applicant’s employment with the respondent was lawfully terminated, within her probationary period, on grounds of poor performance. This included failing to comply with the respondent’s policies and procedures, the applicant’s failure to perform the requirements of her role to the standard required by the respondent, her failure to follow and respond to reasonable instructions and directions by the respondent, and using abusive and threatening language.
At all times the applicant has been self-represented. The applicant has described herself in Court documents as an “Admitted Foreign Lawyer/Security Officer/Juror”.
THE LAW
The relevant legislation in relation to the Courts power to order summary dismissal, may now be found in s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
(“the FCFCOA Act”) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). These Rules generally reproduce the former Federal Circuit Court Rules 2001 (Cth), as they relate to General Federal Law matters.
Rule 13.13 provides as follows:
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.
Summary dismissal of a matter is a procedure that should be used sparingly. Perry J in Riva Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 summarised the relevant principles dealing with s 31A of the Federal Court of Australia Act 1999 (Cth) which is in all respects, identical to s 46 of the FCFCOA Act. They are as follows:
a) The moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: (see; Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [45]).
b) The exercise of powers to summarily terminate proceedings must always be attended with caution: (see; Spencer v The Commonwealth [2010] HCA 28 at [23]).
c) The power to summarily dismiss should never be exercised, unless it is clear that there is no real question to be tried: (see; Fancourt v Mercantile Credits Ltd (1083) 154 CLR 87 at [99]).
d) The exercise of the power to summarily dismiss, requires a practical judgement by the Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgement of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed a view that the applicant is unlikely to succeed on the factual issue: (see; Spencer v The Commonwealth [2010] HCA 28 at [46]).
e) However, the inquiry required is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail: (see; Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [49]).
Where there is factual material, the Court is required to consider the evidence produced by the applicant at its highest and if, as a matter of law, establishes that the applicant has no reasonable prospect of success. It does not involve an adjudication on the merits.
The procedure to be followed in a summary dismissal application was set out by Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] 167 FCR 372 at [126]. It is as follows:
1. Identification of the cause of action pleaded;
2. Identification of the pleaded facts said to give rise to that cause of action;
3. A review of the evidence (if any) tendered in support of the claim for judgement;
4. Identification of the defence pleaded;
5. Identification of any facts pleaded which are said to give rise to the defence; and
6. A review of the evidence (if any) tendered in defence of the claim.
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”
In the applicant’s Affidavit, she alleges that her employment was terminated on 16 January 2020 with ‘fake/false allegations not established on any valid factor not based on any evidence’. The applicant went on to state ‘that whole management did malpractice, reckless, they had breached company policy’. She alleged that (reproduced below as it appears in her affidavit at paragraph 18):
“Respondents management deliberately misconduct, unlawful discrimination, unlawful dismissal and committed criminal offences/recklessly made false/fake allegations and done misleading representation about the applicant have caused the applicant financial loss and emotional suffering. Breaching the law and committing criminal offences against the applicant caused the applicant Depression and Anxiety for six weeks.”
The applicant alleges that her employment was terminated together with that of her Scottish background supervisor but not that of a 70 year old Indian background man “who has been protected during the Corona pandemic”. This apparently is evidence of discrimination against her, based on her ethnicity, gender and religion.
Also attached to the applicant’s Affidavit is a termination letter from the respondent, dated 16 January 2020, signed by Ms Justine Marshman, Human Resources Manager for the respondent, advising that her employment had been terminated for the following reasons (again, as it appears in the document):
During your probationary period, you have failed to meet the expectations of the role including; failure to responded to reasonable management instruction, failure to meet the requires of the role and to hear to Secom code of conduct and use aggressive and inappropriate language.
The Court notes that this letter did not provide any particulars of the alleged breaches of company policy, failure to meet the requirements of the role and respond to reasonable management instructions.
Further assertions were provided by the applicant in a document entitled Further and Better Particulars filed on 14 August 2020 pursuant to Court Orders. The applicant alleges that she was discriminated against on the basis she was a ‘female mature lady (62 years of age) of white colour-racial discrimination and religious background’. The applicant alleges that she was replaced by a man from a Pakistani or Indian background.
In relation to s 340 of the Act the applicant asserts that she was underemployed on only 14 hours per week. In relation to s 342 of the Act the applicant alleges adverse action in not increasing her hours from 14 hours per week and as a result she was treated differently from other staff. In relation to s 344 of the Act the applicant makes a nebulous and unclear assertion of ‘pressure and influence by the respondent to terminate the applicant’s employment on all basis mentioned in previous paragraphs’. The applicant alleges that she was told by other employee “They want to see you on camera, keep all messages, they will sack you, they will peace you off. How it is painful and hurting and harassing”. (this is reproduced as it appears in the document).
In relation to s 351, unlawful discrimination, the applicant alleges she was discriminated on the basis she is white, non-Muslim, female and mature. The applicant makes various allegations of harassment, humiliation, false accusation, degradation, aggravation and bullying intentionally. The applicant alleges that Justine Marshman signed off on fake and false allegations against her, knowing that they were false. The applicant alleges that “organised crime has occurred by collecting and abusing all her personal information without my consent” and that there was “fraud of intellectual property”.
The applicant has provided a further document filed on 20 August 2020, not in sworn form that, provides what she describes as, further information that supports her allegations.
The respondent relies on an Affidavit of Ms Justine Marshman, Human Resources Manager with the respondent, sworn on 1 October 2020.
Ms Marshman deposes that in relation to the claim that someone else used the applicant’s profile on the ADP online self-service portal that, each employee has a unique access code and password. The respondent uses an external provider for payroll purposes. Those complaints did not form part of the decision process to terminate the applicant’s employment. Rather that, the applicant was terminated on the basis of failing to fulfil the requirements of her role to an acceptable standard, failing to comply with the respondent’s policies and procedures and used aggressive language and made threats to Secom Australia Pty Ltd employees.
In November 2020, Ms Marshman deposes that Secom supervisors attended the Coogee Taxi rank where the applicant was working. They found the applicant in her car, approximately 200 metres from the taxi rank, rather than standing at the taxi rank providing security services at the taxi rank. Ms Marshman deposes that the applicant was given a verbal warning by the supervisors. It was reported to Ms Marshman that the applicant responded in an aggressive manner toward the supervisors. The Court notes that no direct evidence of this incident was provided to the Court by the supervisors. The applicant denies the incident as described.
On 13 January 2020 Ms Marshman caused a communication to be sent to the applicant inviting her to a meeting scheduled for 16 January 2020. The applicant refused to attend and provided a medical certificate. The meeting was rescheduled for 17 January 2020. The applicant’s subsequent responses are reproduced as they appear in the communications. At 6.46 pm the applicant responded indicating “I do not know what I did wrong”. Any allegation against her is “FAKE/FALSE”. At 7.10 pm the applicant again responded stating in part she was a ‘great employee with great performance and great work”.
The applicant further stated that “Now I will mention just this fact: MY COLEGUE IS 70 YEARS OLD AND HE IS EMPLOYED, IS IT LEGAL? IF IT’S I ASSUME THAT YOU DO DISCRIMINATION AGAINST ME WHAT IS UNLAWFULL”.
At 7.27 pm the applicant sent a further communication in which she stated: “SO, CANSELLATION OF MEETING IS REQUIRED BECAUSE IT’S UNREASONABLE AND IT IS BASED ON FAKE/FALSE ALLEGATIONS WHAT IS A CRIME”.
On 15 January 2020 the applicant sent a communication to her supervisors, Mr Kazllbash and Mr George. The applicant asserted her performance was great and stated that she was going to report them to the Police for forcing her to unreasonably attend a meeting making fake allegations against her to terminate her employment. The applicant stated that she would bring the Police to the meeting if it was not cancelled. Similar allegations were made by the applicant in a letter sent to Ms Marshman dated 16 January 2020.
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.
Section 341 of the Act states that a person has a workplace right, which includes the capacity to make a complaint or enquiry in relation to his or her employment: (see; s 341(c) of the Act).
The Court is satisfied that the applicant broadly alleges that she made a complaint or enquiry about someone else using her name on the Kronos system and also sought additional hours of work. The applicant alleges that she was dismissed for exercising this right. A review of the available evidence however, fails to draw any connection between the complaints about the applicant’s wages or employment contract resulted in her termination. Rather, all of the available evidence points to the fact that the respondent terminated the applicant’s employment for the reasons set out in its letter of 16 January 2020, being her poor performance, failure to comply with relevant policies and procedures and the use of inappropriate and aggressive language in her communications. As pointed out in Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82 at [18], where adverse action is taken for a reason where underlying facts coincide with the existence or exercise of a workplace right, so long as the adverse action is not taken because of the existence or exercise of the workplace right, there will be no breach of s 340 of the Act. The Court is satisfied on the material before it, that even taking the applicant’s allegations at their highest, that the evidence points to the fact that the applicant was terminated due to her poor performance and other reasons as outlined above, rather than the exercise of any workplace right she may have exercised. The applicant’s assertion of anything to the contrary, consists merely of bare assertions without any evidence to support them.
In relation to the applicant’s assertions pursuant to ss 344 and 348 of the Act, the Court is satisfied that the applicant has failed to provide any evidence that the respondent has engaged in any conduct in breach of s 344 of the Act by way of undue influence or undue pressure on her, in order to accept one of the matters set out within the section. In relation to
s 348 of the Act, this prohibits action taken against a person with the intent of coercing the other person to engage in industrial activity. None of the material provided by the applicant points to any such coercion in order to coerce her to engage in industrial activity or other activity specified by the section.
Section 351 of the Act prohibits adverse action because of the attributes identified within the section. The applicant alleges that her employment was terminated on the basis of her race, sex and age. Again, in the Courts view, the assertion that this occurred lacks any evidentiary basis other than the bare assertions made by the applicant. The Court agrees with the respondent’s submission that the applicant’s claim fails, because she has failed to establish any causal nexus between the alleged acts of discrimination and her age, sex or race. The applicant simply alleges that she must have been dismissed due to these matters. The Court is satisfied that the evidence points to the fact that the applicant was dismissed from her employment for the reasons set out in the letter of 16 January 2020, rather than any other matter, notwithstanding the assertions made by the applicant in the materials provided to the Court.
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.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 22 October 2021
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