Cavar v St Brigid's trading as Green Gate Pty Ltd
[2015] FCCA 1993
•24 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVAR v ST BRIGID’S trading as GREEN GATE PTY LTD | [2015] FCCA 1993 |
| Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal – no reasonable prospects of success. |
| Legislation: Fair Work Act 2009, ss.65, 340, 342, 344, 349, 351, 355, 362, 368 Federal Circuit of Australia Act 1999, s.17A |
| Spencer v Commonwealth (2010) 241 CLR 118 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Rana v University of South Australia (2004) 136 FCR 344 SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 Wigan v Edwards (1973) 1 ALR 497 |
| Applicant: | CELIA CAVAR |
| Respondent: | ST BRIGID’S T/A GREEN GATE PTY LTD |
| File Number: | SYG 106 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 25 June 2015 |
| Date of Last Submission: | 25 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Glover |
| Solicitors for the Respondents: | FCB Workplace Law |
ORDERS
The name of the respondent be amended in the Court record to Greengate Management Services Pty Ltd.
The applicant’s interlocutory application presented on 24 June 2015 be dismissed.
Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 the proceeding be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 106 of 2015
| CELIA CAVAR |
Applicant
And
| ST BRIGID’S T/A GREEN GATE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 January 2015 the applicant, Ms Cavar, lodged an application and related Form 2 claim form alleging that she had been dismissed in contravention of ss.340, 342, 344, 349, 351, 355 and 362 of the Fair Work Act 2009 (“FW Act”). References were also made to the Age Discrimination Act 2004, the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986 (“AHRC Act”). Ms Cavar also referred to her right as a person over 55 years of age to request flexible working arrangements pursuant to s.65 of the FW Act. On 5 March 2015 Ms Cavar filed a statement of claim.
On 1 April 2015 the respondent filed an application in a case seeking summary dismissal of Ms Cavar’s application and these reasons principally concern that interlocutory issue. For the reasons which follow, Ms Cavar’s application will be dismissed.
It should be noted at this point that half-way through the hearing of the respondent’s interlocutory application Ms Cavar walked out of the courtroom, expressing exasperation at the address being made to the Court by counsel for the respondent. Ms Cavar therefore did not exercise her right to address the Court herself and instead expressly relied on written submissions which she had filed and to which I have had regard.
On 24 June 2015 Ms Cavar also lodged an interlocutory application seeking summary judgment in the present matter as well as relief in relation to complaints under the Racial Discrimination Act, the Age Discrimination Act and the AHRC Act. She also sought relief in relation to complaints under “CEDAW”, presumably the Convention on the Elimination of all Forms of Discrimination Against Women 1979 and “ICCPA”, presumably the International Covenant on Civil and Political Rights 1966. Presumably because of its form, Ms Cavar’s interlocutory application was treated by the registry as “presented” rather than “filed”. It is exhibit 2 in the present interlocutory dispute. For the reasons which follow concerning the respondent’s application in a case, Ms Cavar’s application for summary judgment will be dismissed. The remaining matters raised by Ms Cavar’s interlocutory application will be considered below at [31] and [32].
Statement of claim
Ms Cavar commenced full-time permanent employment with the respondent on 12 August 2014. In her statement of claim she alleged that on 26 August 2014 she entered into a verbal agreement with the respondent that for a period of five weeks, from 10 September 2014 until 15 October 2014, her full-time employment would change to casual employment so that she could have five weeks away from work. Ms Cavar alleged that the agreement contained, amongst others, the following express terms:
a)that she sought the absence because she had a “duty of care for family members”; and
b)that the request for temporary absence would be approved and she would remain an employee.
Ms Cavar alleged that she did not receive from the respondent any confirmation of the terms of their verbal agreement and that at the end of the five week period she was not given very much work. She alleged that the respondent’s allocation to her of such a small number of rosters amounted to a breach of the terms of the verbal agreement. She also alleged that it amounted to a breach of trust, professional negligence, misrepresentation, adverse action and unlawful discrimination.
When she commenced this proceeding on 16 January 2015, Ms Cavar filed an affidavit in support of her application. That affidavit contained no evidence supportive of her allegation that her period of employment as a casual with the respondent was limited to five weeks.
Respondent’s application for summary dismissal
Ms Cavar commenced this proceeding against “St Brigid’s T/A Green Gate Pty Ltd”. The first order sought by the respondent in its application in a case was a correction to the name by which it was joined in this proceeding. Ms Cavar did not seem to oppose that proposed order. The evidence supports an order changing the respondent’s name in the Court record to Greengate Management Pty Ltd. There will be an order accordingly.
However, the respondent’s principal application was for dismissal of the matter on the basis that it had no reasonable prospects of success and was frivolous, vexatious or an abuse of the process of the Court.
Relevant provisions
Section 17A of the Federal Circuit of Australia Act 1999 relevantly provides:
17A Summary judgment
…
(2) The Federal Circuit Court of Australia 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.
…
Rule 13.10 of the Federal Circuit Court Rules 2001 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 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.
For reasons which will become apparent, it is not necessary to consider whether the present proceeding is frivolous, vexatious or an abuse of the process of the Court.
Section 17A was inserted into the Court’s statute by the Migration Litigation Reform Act 2005 which commenced on 1 December 2005. It was designed to have general application and to strengthen the power of the Court to deal with unmeritorious proceedings by broadening the grounds on which the Court can dispose of them summarily. The operation of that provision and the analogous provision in the Federal Court of Australia Act 1976 has been discussed in several cases, most significantly in Spencer v Commonwealth (2010) 241 CLR 118. In that case, 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.
In the context of this Court, what their Honours said in Spencer v Commonwealth should also be considered in light of Lander J’s comments in Rana v University of South Australia (2004) 136 FCR 344, notwithstanding that his Honour was speaking prior to the introduction of s.17A, and thus of a different test, and the renaming of this Court:
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim. (at 355 [75])
Relevant facts
Drawing in large part on the factual summary set out in the respondent’s written submissions in this interlocutory application, I record the chronology of relevant events in this matter as follows:
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. 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.
The applicant subsequently lodged an application with the Fair Work Commission and a certificate pursuant to s.368 of the FW Act was issued.
Consideration of Ms Cavar’s claims
Verbal agreement
None of the material Ms Cavar has placed before the Court provides any basis to conclude that there existed between her and the respondent a verbal agreement of the sort she alleged in her statement of claim, namely that she would be a casual employee only for the period of her absence and would re-commence her full-time employment on her return. None of the emails sent by Ms Cavar to the respondent and which were placed before the Court suggest that she propounded the existence of such an agreement at any point prior to her letter to the AHRC of 2 January 2015, if indeed that is what that letter says. The allegation was not clearly made until Ms Cavar filed her statement of claim on 5 March 2015.
The emails which are before the Court indicate the contrary of the present allegation in the sense that they show that Ms Cavar sought only a change from permanent to casual employment and nothing else. Ms Cavar may have assumed that, upon her return from absence, she would receive as much work as she had previously but there is nothing before the Court to suggest she had tested such an assumption with the respondent, even though it is apparent that she had discussed remaining an employee.
Ms Cavar seemed to suggest in her written submissions that the respondent’s apparent failure to send her a replacement contract was of some materiality to her allegations. However, such a document would only have put into a more formal form the change to her employment already effected by the discussions and emails of August and September 2014.
Other claims
In para.16 of her statement of claim, Ms Cavar alleged:
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.
That allegation was variously particularised as follows.
Professional negligence
Under the heading “Particulars of professional negligence” Ms Cavar said:
(a)that respondent failed to follow verbal agreement, and his own promise,
(b)that respondent approved the applicant’s request from 01 of Sep what was not requested,
(c)that respondent failed to make and send new contract to the applicant within appropriate time,
(d)that respondent sent to the applicant above agreement on 21 of Oct 2014 with email, not signed by both parties,
(e)that responded has breached his own promise to put the applicant back on roster from 15 of Oct 2014,
(f)that respondent with Human Resources Manager arranged meeting on 10 of Nov 2014 with intention to terminate the applicant’s employment for no reason and has made negligence and breach of duty pursuant not valid casual contract and breach of trust.
(g)that respondent has dismissed the applicant on 12 of Nov 2014, on the grounds of breaches of general protection of rights at work place and unlawful discrimination act.
The claim of professional negligence cannot be made out by reference to any of its particulars. Specifically, Ms Cavar has not identified any reason to suppose that the respondent owed her the duty of care implicit in an allegation of professional negligence. Nor does the evidence provided to the Court support the implied allegation that the respondent had been bound to provide Ms Cavar with more work following her return from absence than it allotted her. As a casual, Ms Cavar could not expect any particular level of work and the evidence does not suggest that she had an entitlement to be anything other than a casual.
Misrepresentation
Under the heading “Particulars of misrepresentation” Ms Cavar said:
(a)that respondent has made misrepresentation advising wrongly & recklessly the applicant, to put request for casual contract and file not existing form for that request,
(b)that respondent has made breach of trust & promise towards the applicant; the respondent’s spoken words in effect were breached by the respondent,
(c)that respondent under influence forced the applicant to swap the contract into casual on 26 of Aug 2014, breaching his own promise immediately putting on the applicant’s full time position another staff (Pretty),
The inference to be drawn from these particulars is that prior to her leave of absence, Ms Cavar was advised by the respondent that employment as a casual would be appropriate to her circumstances when, in fact, it was not. Relevantly, the evidence only supports a conclusion that when Ms Cavar sought leave without pay after only two weeks of work she was told she could resign and reapply upon her return or remain on the books as a casual, which was identified as the more convenient option. The evidence does not suggest that it would have been incorrect to have said that remaining on the books as a casual would have been more convenient for her return to work at the end of her absence than a resignation would have been.
Adverse action
Under the heading “Particulars of Adverse Action” Ms Cavar said:
(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 respondent’s 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 its 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.
The complaint that the respondent changed Ms Cavar’s job to her disadvantage is contradicted by her own emails which show that it was done at her request. Further, the amount of work which Ms Cavar was given was a consequence of her change to casual employment and the vagaries to which such work was subject in the respondent’s business and the related allegation of discrimination lacks meaningful substance because it is unparticularised. Additionally, the fact that another employee was appointed to fill the permanent position which Ms Cavar had vacated voluntarily could not amount to adverse action because that action did not concern her. Finally, none of the remaining particulars of the allegation, to the extent to which they might amount to adverse action, appear to have had anything to do with Ms Cavar’s age or ethnicity. The evidence only supports a conclusion that the respondent’s treatment of Ms Cavar from October 2014 onwards reflected the nature of her employment and her conduct.
Unlawful discrimination
Under the heading “Particulars of unlawful discrimination” Ms Cavar said:
(a)that respondent failed to comply with general protections of the applicant’s rights at work place and his requests,
(b)that respondent breached particularly rule of Modern Award-(“Award”) National Employment Standard for individual flexible arrangement based on the applicant’s ages, over 55 years old,
(c)that respondent has been treated unfairly the applicant and did not protect against discrimination based on applicant’s particular race and ethnicity inferior to others,
(d)that respondent failed to comply with Anti-Discrimination law and did harassed the applicants in terms of humiliation, degradation and bullying intentionally in period from 15 of Oct until 12 of Nov 2014,
(e)that respondent failed to comply with contravention of general protections provision not considering applicant ages and limited access to any work place, and how much a person earns, offering unfair terms and conditions and dismissing the applicant,
(f)that respondent has made coercion towards the applicant allocating applicant’s full time position to specific person(Pretty) on 26/8/2014, on same date when the applicant put request for swapping the contract for specific period of time,
(g)that respondent has made unlawful discrimination recklessly and intentionally humiliated, degraded, harassed and bullied the applicant for few weeks since 15 of Oct 2014 until 12 of Nov 2014,
(h)that respondent with all above reckless, intentional and unwanted actions/behaviour has aggravated the applicant, and that applicant as a result of the respondent’s actions cannot perform any more job related to nursing,
(i)that respondent has violated the applicant’s essential human right, right to work and unfairly treated and breached the rules of equal employment opportunity,
(j)that respondent deliberately has breached 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.
None of the material placed by Ms Cavar before the Court provides any basis for the “particulars of unlawful discrimination” which are, in substance, separate allegations. They lack both particularisation which would give them substance and evidentiary support which might provide them with a reasonable prospect of success. Further, several are worded in such a way that the legal right they purport to assert is not identifiable.
Conclusion on respondent’s application for summary dismissal
Although having regard to the caution articulated by Lander J in Rana’s case, I also have regard to the fact that Ms Cavar chose not to stay at the hearing of this application and expressed herself content that the Court rely on the material she had already submitted. I conclude that Ms Cavar’s application does not have reasonable prospects of success. Consequently, it will be dismissed.
Applicant’s application for additional relief
Returning to Ms Cavar’s interlocutory application lodged on 24 June 2015, no claims based on the two identified international instruments were made by Ms Cavar in her application, her Form 2 claim form or in her statement of claim and, in any event, Ms Cavar did not identify whether or how they were part of Australian law. As Bennett J in SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 at [13]:
Grounds 4 and 5 refer to international treaties to which Australia is a party. The treaties are not part of Australian law except to the extent that they are incorporated by legislation. The relevant legislation is s 36(2)(a) of the Act which directs attention to the Refugees Convention as amended by the Refugees Protocol, not the treaties. The Minister submits that the Tribunal’s findings as to credibility, which were recognised as open to it by the Federal Magistrate, leave the claimed relevance of the treaties without substance. The only matter raised by the appellant at the hearing in relation to these grounds was a reference to “human rights”. I see no basis for grounds 4 and 5. I also note that there was no apparent reference to them before the Federal Magistrate.
As to the claims under the Age Discrimination Act and the Racial Discrimination Act, the Court has no jurisdiction over alleged breaches of those Acts unless a party has first made a complaint to the AHRC which has been terminated: s.46PO AHRC Act. There is no evidence that, before the commencement of this proceeding, the AHRC had terminated a complaint such that this Court would have jurisdiction over the claim made by Ms Cavar in her interlocutory application of 24 June 2015. It appears that the complaint of November 2014 was terminated on 24 June 2015, as recorded in exhibit 1, but Ms Cavar did not seek to amend her application to include the matters the subject of the termination: see Wigan v Edwards (1973) 1 ALR 497 at 508-509; r.7.01(2) of the Federal Circuit Court Rules 2001.
Conclusion on applicant’s application for additional relief
The additional matters which Ms Cavar had raised in her interlocutory application lodged on 24 June 2015 do not appear to be justiciable by this Court in this proceeding absent an application to amend. Consequently, Ms Cavar’s interlocutory application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 July 2015
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