Crawford v Steadmark Pty Ltd
[2014] FCCA 2916
•4 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRAWFORD v STEADMARK PTY LTD | [2014] FCCA 2916 |
| Catchwords: INDUSTRIAL LAW – Dismissal alleged to be in contravention of a general protection – application for summary dismissal – whether adverse action – whether subject matter of complaint in relation to employment – whether reasonable prospect of success. |
| Legislation: Fair Work Act 2009 (Cth) ss.340, 341 |
| ASIC v Cassimatis (2013) 94 ACSR 623 Attorney-General v Wentworth (1988) 14 NSWLR 481 Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission(2005) 224 ALR 344; [2005] FCAFC 221 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3)[2012] FCA 697 Evans v Trilab [2014] FCCA 2464 Dandaven Harbeth Holdings Pty Ltd [2008] FCA 955 Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 Hodkinson v Commonwealth(2011) 207 IR 129; [2011] FMCA 171 HP Mercantile Pty Ltd v Commissioner of Taxation[2005] FCAFC 126 Jeffery & Katauskas Pty Limited v SST Consulting (2009) 239 CLR 75 Jones v Queensland Tertiary Admissions Centre Ltd (No.2)[2010] FCA 399 McDonald v Civic Disabilities Services Ltd [2014] FCCA 14 McKellar v Container Terminal Management Services Limited [1999] FCA 1101; (1999) 165 ALR 409 Murrihy v Betezy.com.au Pty Ltd(2013) 238 IR 307; [2013] FCA 908 Nulty v Blue Star Group Pty Ltd(2011) 203 IR 1 O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 Paramasivam v Grant & Anor [2001] FCA 758 Pickering v Centrelink[2008] FCA 561 Ramos v Good Samaritan Industries (No.2)[2011] FMCA 341 Ramos v Good Samaritan Industries [2013] FCA 30 Ratnayake v Greenwood Manor Pty Ltd[2012] FMCA 350 Re Vernazza [1960] 1 QB 197 Rogers v R (1994) 181 CLR 251 Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Stevenson v Airservices Australia(2012) 218 IR 210; [2012] FMCA 55 Tipping & Stanton [2014] FCCA 507 Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia(2010) 241 CLR 510; [2010] HCA 33 Walsh v Greater Metropolitan Cemeteries Trust (No.2)[2014] FCA 456 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Zhang v The Royal Australian Chemical Institute Inc[2005] FCAFC 99 |
| Applicant: | MONIQUE CRAWFORD |
| Respondent: | STEADMARK PTY LTD |
| File Number: | MLG 1534 of 2014 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 4 December 2014 |
| Date of Last Submission: | 4 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Sweet |
| Solicitors for the Applicant: | JobWatch Inc |
| Counsel for the Respondent: | Ms S. Keating |
| Solicitors for the Respondent: | Alan Sheppet & Associates |
ORDERS
The Respondent’s application in a case filed on 8 October 2014 be dismissed.
The Applicant shall file and serve points of claim on or before
16 January 2015.
The Respondent shall file and serve points of claim on or before
30 January 2015.
The proceedings shall be subject to mediation to be held by 31 March 2015 though not before 2 February 2015 with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.
The trial shall proceed on affidavit evidence with the affidavits of each witness if adopted to stand as the evidence in chief of the witness.
The Applicant file and serve any affidavit material and any documents upon which she intends to rely at final hearing on or before
20 February 2015.
The Respondent file and serve any affidavit material and any documents on which it intends to rely at final hearing on or before
9 March 2015.
The Applicant shall file any further affidavit material by 23 March 2015.
The applicant shall file and serve an outline of submissions addressing the relevant statutory considerations by 30 March 2015.
The respondent shall file and serve an outline of submissions addressing the relevant statutory considerations by 20 April 2015.
The parties shall exchange lists of objections to affidavits and grounds of objections by 4 May 2015 with copies to be sent to the Associate to Judge O’Sullivan at associate.judgeo’[email protected]
The proceeding be listed for trial in the Federal Circuit Court of Australia at Melbourne at 10:00am on 11 May 2015 with an estimated hearing time of 2 days.
There be general liberty to apply for both parties.
The question of the Applicant’s costs of the Respondent’s interlocutory application be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1534 of 2014
| MONIQUE CRAWFORD |
Applicant
And
| STEADMARK PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today, 4 December 2014, are proceedings between Monique Crawford (“the applicant”) and Steadmark Pty Ltd (“the respondent”). The applicant is 44 years of age and worked for the respondent from November 2013 to May 2014 as the Store Manager at its Docklands retail outlet.
By application filed on 29 July 2014, the applicant alleged the respondent had contravened the Fair Work Act 2009 (“the FW Act”). The applicant sought various remedies particularised in the form 2 accompanying her application. The application was given a first Court date of 15 September 2014. On 5 September 2014 the respondent filed a response.
The proceedings came before the Court on 15 September 2014.On that occasion the applicant, who had filed her own application, appeared in person and the respondent was represented by Counsel. The following orders were made:
“1.The Respondent file and serve any application to summarily dismiss the proceedings on or before 10 October 2014.
2.The Applicant file and serve any affidavit(s) in response to the Respondent’s application to dismiss the proceedings made in accordance with paragraph 1 above on or before 10 November 2014.
3.The Respondent to file and serve anything in reply by
20 November 2014.
4.The proceedings be listed for a hearing on the Respondent’s application to summarily dismiss the proceedings made in accordance with paragraph 1 on 4 December 2014 at 10.00am at the Federal Circuit Court of Australia at Melbourne.”
The respondent filed the application in a case on 8 October 2014.
The respondent sought the following orders:
“1.The Applicant’s Application filed 29 July 2014 (the Application) be summarily dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 on the grounds that:
(a)The Applicant has no reasonable prospect of successfully prosecuting the claim set out in the Application;
(b)The claim set out in the Application is frivolous or vexatious;
(c)The claim set out in the Application is an abuse of process of the Court.
2.The Applicant pay the Respondent’s costs of this application.
3.Such further or other orders as the Court considers appropriate.”
The application in a case was supported by an affidavit of Ms Galina, the respondent’s National Retail Manager, filed 8 October 2014.
On 3 November 2014 a notice of address for service was filed on behalf of the applicant by JobWatch. On 11 November 2014 the applicant filed an affidavit sworn 10 November 2014. There has been no further material filed by or on behalf of either party.
Today Ms Sweet has appeared on behalf of the applicant and Ms Keating on behalf of the respondent. Before the Court is the respondent’s summary dismissal application.
Ms Keating told the Court that her client relies on the application in a case filed 8 October 2014, the affidavit of Ms Galina, the application, form 2 and the outline of submissions marked as exhibit R1.
Ms Sweet has told the Court that her client relies on the application, her affidavit filed 11 November 2014, the form 2 and outline of submissions marked exhibit A1.
Counsel for both parties had an opportunity to make submissions before the Court supplementing the material upon which they relied.
Submissions
The respondent’s outline of submissions provided as follows:
“1.The respondent seeks that the proceeding be summarily dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (the Rules).
2.The respondent relies on the affidavit of Vanessa Galina dated 7 October 2014 and its three annexures (the Galina Affidavit). The applicant relies on the affidavit of Monique Crawford dated 10 November 2014 and its five annexures (the Crawford Affidavit).
Applicable legal principles: summary dismissal
3.The Court’s power to summarily dismiss an application is governed by s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the Act) and Rule 13.10.
4.Rule 13.10 of the Federal Circuit Court Rules 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.
5.Rule 13.10 is made for the purposes of section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act) provides:
17A Summary judgment
1.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 prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal 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:
hopeless; or
bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
6.The power summarily dispose of proceedings is discretionary. It must be exercised sparingly.[1] A party will not be denied a contested merits hearing unless the absence of a cause of action is clearly demonstrated.[2] A proceeding ought not to be summarily dismissed if there is a real question in dispute.[3]
[1] McKellar v Container Terminal Management Services Limited [1999] FCA 1101; (1999) 165 ALR 409, 415-17.
[2] General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125, 129 per Barwick CJ.
[3] Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62.
7.Section 17A(3) of the FCC Act must be steadily borne in mind: it provides that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success. The test is whether or not the application has reasonable prospects of success, not whether it is “doomed to fail”.[4]
[4] Tipping & Stanton [2014] FCCA 507 [55], per O’Sullivan J.
8.A proceeding may be dismissed where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of process of the court.[5] If the evidence establishes that if the matter were to go to trial in the ordinary way the application must fail then a case for summary dismissal of the proceedings is made out: Paramasivam v Grant & Anor.[6] The onus rests with the respondent.
[5] McKellar v Container Terminal Management Services Limited [1999] FCA 1101; (1999) 165 ALR 409, 416.
[6] [2001] FCA 758, [14] applying Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598.
Procedural background
9.The relevant procedural background is as follows:
(a)The applicant commenced employment with the respondent on 22 November 2013 pursuant to a six-month outer limit contract (the Contract);[7]
[7] Annexure MC02 to the Crawford Affidavit.
(b)On 26 May 2014, the respondent advised the applicant that the Contract would not be renewed;
(c)On 10 June 2014 the applicant lodged a Form F8 – General Protections application with the Fair Work Commission (the Fair Work Application);
(d)The Fair Work Application alleged that the respondent took adverse action against the applicant in contravention of section 340 of the Fair Work Act 2009 (Cth) (the FW Act) and/or in contravention of section 351 of the FW Act;
(e)On 16 July 2014, the Fair Work Commission issued a certificate under section 368 of the FW Act, certifying that it was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful; and
(f)On 29 July 2014, the applicant filed an application in this Court supported by a Form 2 (the Application).
10.On 7 October 2014 the respondent made an application in a case seeking the summary dismissal of the applicant’s claim. It is that application that is the subject of today’s proceeding.
The applicant’s case
11.The applicant’s claim is set out in the Application. The relevant passages appear at Part G of Form 2, which is headed ‘Contraventions Alleged’. It can be seen that Part G commences with an identification of what the applicant says are the relevant sections of the FW Act. The sections identified are sections 340, 341 and 342 and section 117.
12.The Application proceeds to set out the conduct said to give rise to the contravention of the FW Act. Specifically the applicant alleges that:
(a)on 29 April 2014 she made a complaint of sexual harassment against the owner and managing director of the respondent; and
(b)on 26 May 2014 the respondent breached section 340 of the FW Act by taking adverse action against her in that the respondent (a) dismissed her from her employment and (b) refused to employ her because she ‘made a complaint of sexual harassment against the owner and manager director’.
13.The operative section is 340 of the FW Act. That section provides:
(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.
14.The applicant alleges a contravention of section 340 by reason that she had the workplace right to make a complaint, exercised a workplace right by making a complaint and/or proposed to exercise her workplace right by making a complaint. The Application makes plain that it is section 342(1)(c)(i) on which the applicant relies.
15.Thus, to succeed in an application alleged a contravention of section 340, the applicant must first establish that she had a workplace right, exercised a workplace right, or proposed to exercise a workplace right to make a complaint in relation to her employment. For that purpose, the applicant alleges that she exercised a workplace right by making a complaint of sexual harassment. If the applicant cannot make good that proposition the claim cannot succeed.
16.The complaint relied on by the applicant is identified as a ‘complaint of sexual harassment’. The alleged sexual harassment about which the complaint was said to be made is identified in the Crawford Affidavit as having occurred on Monday 28 April 2014 in the circumstances set out in paragraphs [12]-[18] of the Crawford Affidavit.
17.What is clear from the affidavit evidence filed by both parties is that the conduct said to constitute the complaint is the sending of an email by Ms Crawford to Ms Galina: see VG-1 to the Galina Affidavit; Crawford Affidavit at [40]. Thus, the conduct said to constitute the complaint comprises a clearly identified document that can readily be examined.
18.That examination identifies that the purported complaint makes no reference to sexual harassment. Indeed, it makes no mention of the events alleged to have occurred on 28 April 2014 at all. Rather, the email refers to a telephone conversation alleged to have occurred on 29 April 2014 in the circumstances set out in paragraph [20] of the Crawford Affidavit.
19.By no measure is the purported complaint a complaint about sexual harassment. If it is a complaint at all – which is not admitted – it is a general complaint about a dispute that arose during the course of a telephone conversation. But that is not the case put by the applicant.
20.The applicant has chosen to put her case in a specific way: she alleges that she was dismissed or not employed because she made a complaint about sexual harassment. That allegation is repeated on three occasions in the Application.
21.The applicant does not allege that she made any other complaint. That is supported by the evidence of Ms Galina, who deposes that neither she nor anyone else at Steadmark received a complaint of sexual harassment from Ms Crawford in relation to the events of Monday 28 April 2014: Galina Affidavit at [10].
22.The applicant proposes to make good her claim by reference, and only by reference, to the email of 29 April 2014. She cannot succeed. On no reading could that email be said to be a complaint about sexual harassment. If that is so, the applicant has no reasonable prospects of successfully prosecuting the claim.
23.The applicant ought to be summarily dismissed pursuant to rule 13.10 by reason that the applicant has no reasonable prospects of success. If that is so, the respondent should have its costs pursuant to section 570(2)(a) of the FW Act.”
The applicant’s outline of submissions provided as follows:
“INTRODUCTION
1.The Respondent (Steadmark) has made an application in a case to the Court seeking summary dismissal of this proceeding.
2.By application and accompanying claim filed 29 July 2014, the Applicant (Ms Crawford) has brought this proceeding alleging that Steadmark:
(a) contravened:
(i) s.340 of the Fair Work Act 2009 (Cth) (FW Act) (the General Protections claim); and
(ii) s.117 of the Fair Work (the NES entitlement claim); and
(b)breached the terms of her contract by failing to pay her commission on sales for the month of May 2014 (the Commission claim) (Application).
3.Ms Crawford seeks, inter alia:
(a)payment of her entitlement under s.117 of the FW Act;
(b)payment of her contractual entitlement to commission;
(c)compensation; and
(d)the imposition of pecuniary penalties upon Steadmark for contravention of s.340 of the FW Act.
Power of summary dismissal and relevant principles
4.Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Act), the Court is empowered to give judgment in favour of a respondent if it is satisfied, inter alia, that the applicant “has no reasonable prospects of successfully prosecuting the proceedings.”
5.The determination of a summary dismissal application requires:
“a critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial.”[8]
[8] ASIC v Cassimatis (2013) 94 ACSR 623 at [46] (Reeve J)
6.A proceeding need not be hopeless or bound to fail in order to have no reasonable prospects of success.[9]
[9] Dandaven Harbeth Holdings Pty Ltd [2008] FCA 955 (Dandaven) at [5] (Gilmour J).
7.A useful summary of the principles relevant to an application for summary judgment appears in Dandaven Harbeth Holdings Pty Ltd:[10]
[10] Ibid. The relevant section under scrutiny in this decision was s.31A of the Federal Court of Australia Act 1976 (Cth), which is in similar terms to s.17A of the FCC Act.
(a)the court must be very cautious not to do a party an injustice by dismissing proceedings summarily;
(b)the court ought not dismiss a claim based on a predictive assessment of prospects, when it is possible that, if the claim goes to trial, it may succeed;
(c)in cases in which the evidence may give colour and content to allegations, and in which questions of fact and degree are important, the court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d)it is not Parliament’s intention to require the court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospect of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent a summary application becoming a trial;
(e)if there is a real issue of fact or law to be decided, and the rights of the parties depend on it, it is obviously appropriate that the matter go to trial. It cannot be said, when there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
(f)s.31A (or, as here, s.17A of the FCC Act) should not be used to shut out proceedings if, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine the argument is hopeless but in order to decide if it is sufficiently strong to warrant a trial;
(g)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; and
(h)in determining whether there are real issues of fact which preclude summary judgment, the court should draw all reasonable inferences in favour of the non-moving party.
8.The question of when a proceeding is frivolous, vexatious or an abuse of process, which are further grounds for summary dismissal under s.13.10 of the FCC Act, has been considered on numerous occasions by Australian courts. The principles from these cases can be summarized as follows:
Frivolous
(a)a proceeding is frivolous when, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable;[11]
[11] Pickering v Centrelink[2008] FCA 561 at [27] (McKerracher J)
(b)a proceeding is frivolous when it is without substance or groundless or fanciful;[12]
[12] ibid.
Vexatious
(c) Proceedings have been held to be vexatious if:
(i) they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
(ii) they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise;
(iii) irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or
(iv) they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court.[13]
[13] See generally Attorney-General v Wentworth(1988) 14 NSWLR 481, cited in McDonald v Civic Disabilities Services Ltd [2014] FCCA 14 at [13].
(d)“vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”.[14]
[14] Re Vernazza [1960] 1 QB 197 at 208, cited in McDonald v Civic Disabilities Services Ltd [2014] FCCA 1464 at [13].
Abuse of process
(e)the categories of abuse of process are not closed;
(f)the High Court has held that:
“abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging“ or “productive of serious and unjustified trouble and harassment“.[15]
[15] Jeffery & Katauskas Pty Limited v SST Consulting (2009) 239 CLR 75 at 93–94 [28] per French CJ, Gummow, Hayne and Crennan JJ)
(g) In Rogers v R[16], Chief Justice Mason held:
[16] (1994) 181 CLR 251
“… there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.”[17]
[17] Ibid at 256 (Mason CJ)
Onus
9.The moving party bears the onus of persuading the court that one of the criterion in s.17A of the FCC Act has been met.[18]
[18] ASIC v Cassimatis (2013) 94 ACSR 623 at [46]
FACTS
10.In November 2013, Ms Crawford commenced employment with Steadmark Pty Ltd as a Store Manager.[19] The parties subsequently entered into a written contract of employment.[20]
[19] See affidavit of Monique Crawford sworn 10 November 2014 (Crawford affidavit) at [3] to [5].
[20] See Crawford affidavit at ‘MC02’.
11.It is common ground that, on 29 April 2014, Ms Crawford wrote to her manager, Vanessa Galina, in the following terms:
“Dear Vanessa
After today’s meeting even though you had given us free time I returned to the store.
On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate.
As a result, I will not be attending tonight’s event.”[21] (Emphasis added)
[21] Exhibit VG-1 to the affidavit of Vanessa Galina sworn 7 October 2014 (the Galina affidavit).
12.The reference to Michael appears to be a reference to Michael Rosenfield, Managing Director of Steadmark.[22]
[22] See paragraph [16] of the Galina affidavit and Exhibit VG-3 to the Galina affidavit.
13.It is also common ground that Ms Galina wrote back to Ms Crawford on 29 April 2014, the terms of her email stating in part:
“I am very sorry to hear that.
I am not entirely sure what has transpired – we shall discuss tomorrow.”[23]
[23] Exhibit VG-2 to the Galina affidavit.
14.Ms Crawford alleges that, over the following three weeks, she left several voicemail messages for Ms Galina to follow up this matter, but Ms Galina never responded.[24]
[24] See Crawford affidavit at [23].
Questions raised in the substantive proceeding
15.The General Protections claim raises a number of questions, in particular:
(a)whether Ms Crawford had a workplace right within the meaning of s.341(1)(c)(ii), and, specifically, whether she was “able to make a complaint in relation to his or her employment”;
(b)whether Ms Crawford exercised or proposed to exercise a workplace right; and/or
(c)whether Ms Crawford was subjected to adverse action by the Respondent (in the form of dismissal, or alternatively, non-renewal of her contract) for the reason, or reasons that included that she has, or has exercised or proposes to exercise a workplace right, or in order to prevent her from exercising a workplace right, as prohibited by s.340 of the FW Act.
Judicial statements on s.340 and s.341(1)(c)(ii)
16.In the recent case of Shea v TRUenergy Services Pty Ltd (No.6) (Shea)[25], Dodds-Streeton J noted that:
[25] [2014] FCA 271. Note that this case is currently on appeal.
“the apparent object of s.340 is to protect persons from, by prohibiting, adverse action (which, by s.342(1), includes dismissal) because the person has, or has exercised, failed to exercise or proposes either to exercise or not exercise, a workplace right, or in order to prevent a person from exercising a workplace right.”
17. Pursuant to s.341(1)(c)(ii) of the FW Act:
“A person has a workplace right if the person…is able to make a complaint or inquiry…if the person is an employee – in relation to his or her employment.”
18. In Shea, Dodds-Streeton J also noted that;
“Section 341(1)(c)(ii) has not yet been the subject of extensive judicial consideration. The relatively few decided cases…leave unaddressed many significant aspects of the meaning of a complaint that an employee is able to make in relation to his or her employment.”[26]
[26] At [599]
19.The Act does not define “complaint”. However, previous cases have held that the complaint must express a particular grievance or finding of fault.[27] Her Honour Justice Dodds-Streeton noted, in Shea, that:
[27] See Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347.
“[i]t is in my view unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that the relevant communication or grievance, whatever its precise form, would be reasonably understood in context as an expression of grievance of finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.”[28]
[28] Shea at [626].
Her Honour also stated:
“whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used. An employee’s communication of a grievance or accusation could amount to making a complaint within the meaning of s.341(1)(c)(ii)…if a reasonable observer would conclude from the employees words and conduct in the circumstances…that she or she intended to bring the grievance to the employer’s attention for consideration or other appropriate action.”[29] (Emphasis added)
[29] Shea at [627].
The summary dismissal application
Grounds for the application
20.Steadmark has applied for the summary dismissal of Ms Crawford’s application on the grounds that:
(a)Ms Crawford has no reasonable prospects of successfully prosecuting the claim set out in the application;
(b)the claim set out in the Application is frivolous or vexatious; or
(c)the claim set out in the Application is an abuse of process of the Court.
21.Steadmark’s application is supported by the affidavit of Ms Vanessa Galina sworn 7 October 2014. Ms Galina makes no reference in her affidavit to the terms of Ms Crawford’s employment, beyond stating that Ms Crawford was a Store Manager. Nor does her affidavit deal with the circumstances of Ms Crawford’s employment with Steadmark coming to an end.
22.The entire dismissal application appears to hinge on the following evidence of Ms Galina:
“I did not regard, nor did I treat, Crawford’s email of
29 April 2014 as a complaint about any sexual harassment allegedly suffered by her.”
23.Steadmark appears to be seeking dismissal of Ms Crawford’s application on the grounds that it did not treat Ms Crawford’s email of 29 April 2014 as a complaint, and, as a result:
(a)She did not make a complaint within the meaning of s.341(1)(c)(ii);
(b)it could not have subjected her to adverse action for a prohibited reason under s.340 of the FW Act; and
(c)there is no reasonable prospect of Ms Crawford successfully prosecuting this application.
24.For the reasons that follow, Steadmark’s dismissal application must fail.
25.First, Ms Galina’s evidence that she did not treat Ms Crawford’s email of 29 April 2014 as a “complaint” is undermined by the terms of her own email dated 29 April 2014 (Exhibit VG-2), where she express sorrow or regret at the terms of Ms Crawford’s email and states, twice, that they should discuss the matter the next day.
26.Second, Ms Galina does not refute that follow up voicemail messages were left for her by Ms Crawford about this issue, nor does she give evidence with respect to how she treated those voicemail messages;
27.For the above two reasons alone, there is clearly a genuine dispute about whether Ms Crawford made a complaint pursuant to the FW Act and whether it had any bearing on the ultimate ending of Ms Crawford’s employment.
28.Third, even if Ms Galina did not treat the matter as a “complaint”, there is no evidence from Steadmark as to whether or not Ms Galina was, in fact, the relevant decision maker who determined that Ms Crawford’s employment should be terminated (or, alternatively, that Ms Crawford’s contract should not be renewed) and thus whether it is Ms Galina’s evidence that will ultimately be necessary for Steadmark to adduce in order to satisfy the reverse onus under s.361 of the FW Act. Again, there is a genuine dispute about this issue which ought to be determined at trial.
29.Fourth, Steadmark’s application fails to grapple with terms of the protection provided by s.340 of the FW Act. It protects an employee from adverse action, including where a reason for the adverse action was that the employee had a workplace right (i.e. was “able to make a complaint in relation to their employment), or proposed to exercise a workplace right, or to prevent the exercise of a workplace right. It does not only protect employee who have, in fact, made complaints. Thus, even if Ms Crawford did not make a complaint, and even if Steadmark did not treat the email of 29 April 2014 as a complaint, this does not rule out the possibility that Ms Crawford suffered adverse action because she had a workplace right to make a complaint, or proposed to exercise her workplace right to make a complaint.
30.For the reasons above, there are, patently, real questions of fact and/or law that ought properly to be determined by the trial judge.
31.There is simply no basis for the Court to conclude that there are no reasonable prospects of Ms Crawford successfully prosecuting her General Protections claim.
32.Any argument that the proceeding is frivolous, vexatious in fact (or at all) or an abuse of process cannot succeed. Steadmark’s own evidence establishes that Ms Crawford raised issues of her treatment by Mr Rosenfield with Ms Galina. Ms Crawford’s evidence establishes that, within a month, she was either terminated or Steadmark failed to renew her contract. Her claim that she was subject to adverse action due to her workplace right to make a complaint (and the various permutations of this right) is clearly arguable.
33.Further, despite making an application for dismissal of Ms Crawford’s application in to, Steadmark has not put any evidence before the Court to satisfy the Court there are proper grounds under r.13.10 of the FCC Act to summarily dismiss:
(a) the NES Entitlement claim: and/or
(b) the Commission claim.
34.For the above reasons, Steadmark’s application ought be dismissed.”
Approach to summary dismissal
The Federal Circuit Court’s power of summarily dismissal is governed by section 17A of the Federal Circuit Court of Australia Act 1999 (“the FCCA Act”) and rule 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”).
Section 17A(2) of the FCCA Act states:
“Summary judgment
(1)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 prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal 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.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
The test to be applied to the respondent’s summary dismissal application is whether or not an application has a reasonable prospect of success, not whether the application is “doomed to fail”. That is made clear by section 17A(3) as set out above.
Rule 13.10 of the Rules provides:
“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.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.”
The relevant provision of the Rules of this Court follow those sections of the FCCA Act which are in the same terms as section 31A of the Federal Court of Australia Act 1976 (“the Federal Court Act”).
The approach taken in cases dealing with section 31A of the Federal Court Act are generally seen as apposite in dealing with cases under section 17A of the FCCA Act.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118, what was required by section 31A of the Federal Court Act was set out by their Honours Hayne, Crennan, Keifel and Bell JJ, as follows:
“60.… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is " no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”
The enquiry, according to section 17A of the FCCA Act and Rule 13.10 of the Rules is whether the applicant has no reasonable prospect of successfully prosecuting the claim/s against the respondent.
In addition to the authorities referred to in submissions this issue in the context of an adverse action claim (such as is presently before the Court) has been considered by Judge Lucev in Evans v Trilab [2014] FCCA 2464 as follows:
“Legislation and divergent approaches
15.Section 342(1), Item 1 of the FW Act provides that adverse action is taken against an employee by an employer if the employer dismisses the employee. There is no dispute in this case that there was a dismissal. Adverse action, such as a dismissal, taken because a person has a workplace right is prohibited under s.340(1)(a)(i) of the FW Act. Section 341(1) of the FW Act provides that a person has a workplace right if the person:
(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.
16.Divergent approaches have emerged as to when an employee “is able to make a complaint or inquiry”. The divergent approaches to that phrase are best exemplified by the contrasting judgments in the Federal Magistrates Court’s judgments in In Control and Magellan Powertronics and a number of judgments of the Federal Court discussed below.
In Control
17.In In Control, decided in March 2013, the Federal Magistrates Court:
(a)had before it competing contentions whereby the applicant contended for a wide meaning of the phrase to include complaints about inter-office issues or workplace conflict,[43] following earlier judgments of the Federal Magistrates Court in relation to such matters,[44] those judgments being Ramos v Good Samaritan Industries (No.2)[45] and Stevenson v Airservices Australia;[46]
(b)noted that the respondent employer submitted that the phrase was limited to:
(i) an employee who has a capability or capacity or authority or right conferred by provision in a statute or an instrument, such as an enterprise agreement or contract of employment, to make the complaint or inquiry; and
(ii) did not include a complaint or inquiry that can be made simply because the complainant is an employee of the employer;[47]
(c)noted the obiter comments of the Full Bench of Fair Work Australia[48] in Nulty v Blue Star Group Pty Ltd[49] in which FWA said it was “inclined to think” that the employee was able to make the complaint by virtue of some provision in a statute or instrument such as an enterprise agreement or contract of employment;[50]
(d)noted the submission that it was contended that as a matter of judicial comity the Court ought to follow Stevenson and Ramos (No.2), but observed that in those judgments the Court simply proceeded upon the basis that a complaint by an employee to a relevant person in authority of the employer was sufficient to make out a workplace right, and had not determined that issue;[51]
(e)examined the relevant provisions of the FW Bill – Explanatory Memorandum, and concluded that they amplified the fact that a complaint must be sourced in an underlying contractual or statutory obligation governing the employment relationship;[52]
(f)distinguished the Federal Court judgment in Jones v Queensland Tertiary Admissions Centre Ltd (No.2).[53] In Queensland Tertiary Admissions Centre Ltd (No.2) the Federal Court had found that the words “able to initiate” in s.341(1)(b) of the FW Act did not need to be founded in a “right” arising from the FW Act, but might arise from an authorisation given by an employer to an employee. Whilst accepting the interpretation of the term “able” as construed by the Federal Court in Queensland Tertiary Admissions Centre (No.2) for the purpose of s.341(1)(b) of the FW Act, the Federal Magistrates Court did not accept it for the purposes of s.341(1)(c) of the FW Act, and in particular s.341(1)(c)(ii), because the provisions were said to be entirely different and distinct;[54]
(g)noted the use of the disjunctive “or” between placitas (i) and (ii) of s.341(1)(c) of the FW Act, and the approaches to the interpretation of “or”, and considered that it was to be read cumulatively, rather than disjunctively, so as to restrict the meaning of s.341(1)(c)(ii) of the FW Act to complaints and inquiries, made to a person or body with the capacity to deal with the complaint or inquiry, for example by way of enforcing compliance, within either the terms of the contractual relationship or as otherwise governed by the statutory framework;[55]
(h)had regard to the objects of the relevant part of the FW Act, being to protect workplace rights and provide relief in the event of contravention;[56]
(i)section 341(1)(c) was therefore to be read restrictively as one to be made by the employee who has the capability or capacity, or authority or right, conferred by a provision in an Act, legislative instrument, enterprise agreement or contract of employment, to make the complaint or inquiry;[57] and
(j)considered the issue to be determined was therefore whether the relevant matters concerned complaints and inquiries:
(i) concerning and confined to the applicant’s employment; or
(ii) concerning either the terms of the contractual relationship or otherwise governed by the statutory framework.[58]
18.The ultimate effect of In Control is therefore to restrict the ability to make a complaint or inquiry to an ability to do so sourced in a provision of an Act, statutory instrument or the employee’s contract of employment. Thus, under the rationale adopted in In Control, the ability to make a complaint or inquiry does not extend to a complaint or inquiry about employment made by an employee which is not sourced in the contract of employment, a statutory instrument or Act.
Magellan Powertronics
19.In Magellan Powertronics this Court analysed s.341(1)(c)(ii) of the FW Act as follows:
Analysis – s.341(1)(c)(ii) of the FW Act
52.The respondents asserted that Ms Devonshire was not “able to make a complaint or inquiry” for the purposes of s.341(1)(c) of the FW Act because that provision was limited to formal or specified mechanisms of complaint or inquiry which fell outside the terms of s.341(1)(a) or (b), and, otherwise, argued that if s.341(1)(c)(ii) allowed an employee simply to make a complaint or inquiry of their employer in relation to their employment and have that treated as a workplace right, it would render otiose paragraphs (a) and (b) of s.341(1) of the FW Act.
Dictionary meaning
53.The Shorter Oxford Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973) at page 5 relevantly defines “able” as:
Having the qualifications for, and means of, doing anything; having sufficient power, ...
54.The definition, particularly as it relates to the issue of qualification or power, however, simply begs the question which arises out of s.341(1)(c) of the FW Act, namely, whether Ms Devonshire has the means or sufficient power, under the law, to be able to make the present application. That requires consideration of the terms of the legislation, set out above, and the relevant case law.
Case law
55.In Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2009) 186 FCR 22 at 40 per Collier J; [2010] FCA 399 at para.57 per Collier J (“Jones”) the Federal Court considered the meaning of “is able to” in s.341(1)(b) and (c) of the FW Act and made clear that the ability is not confined to rights or mechanisms arising exclusively from the FW Act or other workplace laws, but rather an ability “which can arise from arrangements beyond those conferred by the [FW] Act.” Jones is not inconsistent with either argument in this matter. It merely indicates that rights can arise beyond those conferred by the FW Act. It is not explicit as to whether there has to be any formal extra-legislative machinery or provisions in relation to the making of the complaint or inquiry.
56.In Hodkinson v Commonwealth (2011) 207 IR 129; [2011] FMCA 171 (“Hodkinson”) the applicant alleged adverse action by her employer, and that she had made a complaint under s.341(1)(c) of the FW Act. The applicant alleged that the section meant that:
... if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the ... [FW Act] did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para 1370 of the explanatory memorandum to the Fair Work Bill 2008, submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.
Hodkinson IR at 159 per Cameron FM; FMCA at para.112 per Cameron FM.
This Court supported the applicant’s interpretation of of s.341(1)(c) of the FW Act: Hodkinson IR at 163 per Cameron FM; FMCA at para.131 per Cameron FM, where the Court states as follows:
That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes an a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.
57.The applicant in Hodkinson failed because this Court determined that she had not in fact made a complaint or inquiry: Hodkinson IR at 163 per Cameron FM; FMCA at para.133 per Cameron FM, but the interpretation of s.341(1)(c) of the FW Act set out above provides for a broad meaning of “is able to”.
58.In Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 at paras.115-117 per Riley FM (“Ratnayake”) this Court considered that an employer’s refusal to accept a letter from an employee in relation to change of hours in which the employee used the words “I accept under strong protest” constituted a complaint or inquiry by the employee. Further, an implicit complaint, but one that was sufficient for the purposes of s.341(1)(c) of the FW Act, arose from the applicant’s use of words and conduct at a meeting discuss the change of hours.
59.In Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at 14 per Lawler VP, Sams DP and Williams C; [2011] FWAFB 975 at para.49 per Lawler VP, Sams DP and Williams C (“Nulty”) a Full Bench of FWA said as follows:
The issue is whether the criterion in s 341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it not and that s 341(1)(c)(ii) contemplates that the employee is "able" to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. However, the appellant made no submissions on s 341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.
60.Nulty is not authority for the proposition that s.341(1)(c)(ii) of the FW Act requires some formal mechanism or provision for a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act. The Full Bench of FWA did not determine that issue, and expressly noted that they did not express a concluded view upon the issue. Moreover, the matter was not argued before the Full Bench of FWA in Nulty, and the Full Bench of FWA did not (because they did not ultimately consider or rule upon the matter) rule out the possibility that s.341(1)(c)(ii) of the FW Act might give rise to a workplace right on the basis of a simple complaint or inquiry to an employer from an employee in relation to their employment. Decisions of the Full Bench of the FWA exercising arbitral powers under the FW Act are not binding on this Court exercising the judicial power of the Commonwealth. Further, this Court, exercising the Commonwealth’s judicial power has, in Hodkinson and Ratnayake, on the basis of considered examination of the provisions of s.341(1)(c)(ii) reached a contrary concluded view. Comity alone would necessitate this Court following earlier decisions of this Court: see cases cited at para.26(c) above, unless it considered them to be plainly wrong, which it does not. There is nothing in the ordinary meaning of the provisions of the FW Act, and particularly the terms of s.341 of the FW Act (especially when contrasted to earlier provisions such as s.659(2)(e) of the Workplace Relations Act 1996 (Cth) and current provisions such as s.772(1)(e) of the FW Act), and the consideration in Hodkinson and Ratnayake, which indicates that anything other than the ordinary meaning of s.341(1)(c)(ii) of the FW Act ought to be adopted by this Court. That meaning, as set out above, indicates that a complaint or inquiry to their employer by an employee can give rise to a workplace right for the purposes of s.341(1) of the FW Act.
Explanatory Memorandum
61.In addition to the paragraph cited by this Court in Hodkinson and set out above: see para.56 above, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“Explanatory Memorandum”) contains a number of “[i]llustrative examples” including the following:
Freddy works part-time at a petrol station. He believes he is not being paid the correct award rate for a console operator. He writes a letter of complaint to the Australian Competition and Consumer Commission (ACCC) as he mistakenly believes that it is able to investigate wage underpayments. Freddy tells his manager about the letter. Following this, his hours for the next fortnight are cut in half. While the complaint would not be covered by paragraph 341(1)(c)(i) as the ACCC does not have capacity under a workplace law to seek compliance with the applicable award, Freddy would still have exercised a workplace right because he has made a complaint regarding his employment (subparagraph 341(1)(c)(ii)).
62.The above example demonstrates that the Parliament’s intention was that a complaint can be made to a body without capacity to seek compliance, and that that complaint can be mentioned to the employer, which then constitutes the exercise of a workplace right because of the making of a complaint regarding employment under s.341(1)(c)(ii) of the FW Act. That confirms that the ordinary meaning of “is able to” for the purposes of s.341(1)(c) of the FW Act includes the making of a complaint directly by an employee to an employer in relation to their employment. In that regard, the provisions of the Explanatory Memorandum are extrinsic materials which confirm the ordinary meaning conveyed by the text of s.341(1)(c) of the FW Act: Acts Interpretation Act 1901 (Cth), s.15AB.
Conclusion – “is able to”
63.The consideration of s.341(1)(c) of the FW Act, both judicial and parliamentary, points to the ordinary meaning of the phrase “is able to” being the correct construction of that phrase in s.341(1)(c) of the FW Act, that being that an employee can make a complaint or inquiry direct to their employer and such a complaint or inquiry can constitute a workplace right for the purposes of s.341(1)(c)(ii) of the FW Act.
Conclusion – workplace right
64.For the reasons set out above, Ms Devonshire has a workplace right with respect to alleged adverse action in relation to her entitlement to, and her complaints or inquiries about, her salary package and payments. The answer to question (a) is therefore “yes”.[59]
20.Magellan Powertronics was handed down in April 2013 but did not refer to In Control, as Magellan Powertronics had been argued prior to In Control being handed down.
Murrihy
21.A similar divergence of opinion as to whether a complaint must be underpinned by a statutory or contractual right or entitlement appears to have emerged on the Federal Court. In Murrihy v Betezy.com.au Pty Ltd[60] a single Judge of the Federal Court observed as follows:
140... The applicant relies on para (c)(ii) of this provision. She alleges that she was able to make a complaint or inquiry in relation to her employment, namely, to obtain legal advice about her rights in relation to remuneration and commission. The respondents say that s 341(1)(c)(ii) is not invoked when the employee’s “ability” to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires, they say, is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.
141 Section 341(1)(c)(ii) has two presently relevant predecessors, namely, ss 659(2)(e) and 793(1)(j) of the Workplace Relations Act 1996 (Cth). They were activated upon “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities”, and upon the making of a complaint or inquiry “to a person or body having the capacity under an industrial law to seek ... compliance with that law; or ... the observance of a person’s rights under an industrial instrument”, respectively. In relation to s 659(2)(e) when it was numbered s 170CK(2)(e), Lander J (with the assent of Spender and Kenny JJ) held that a complaint by an employee to his or her employer would not be caught by the provision: Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347, 351 [25]. Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says. By s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), in the construction of a provision of an Act, recourse may be had to the relevant Explanatory Memorandum for the purpose of confirming that the meaning of the provision is the “ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. In the case of s 341(1)(c)(ii), the ordinary meaning is the wide one to which I have referred. The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s 659(2)(e), and observed that the new provision would “include situations where an employee makes an inquiry or complaint to his or her employer”. One of the illustrative examples, that of “Rachel”, seems apt to cover the meaning for which the applicant contends.
142In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period. It was the inefficacy of those complaints, and the applicant’s frustrations with the respondents’ failure to address them, that led to her advising Mr Kay on 20 September 2011 that she proposed to seek legal advice. The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii). A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act. Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is – and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.
143Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant’s proposal, conveyed to Mr Kay on
20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act.[61]
22.In Murrihy the workplace right was therefore a right to make an inquiry with a private advisor (in that case a solicitor) with respect to the employee’s right to be paid.
23.Murrihy, which was handed down in September 2013, was not cited to the Court in argument.
Shea (No. 6)
24.By way of contrast in Shea v TRUenergy Services Pty Ltd (No.6),[62] handed down by the Federal Court after this matter had been argued, another single Judge of the Federal Court held that a complaint must be underpinned by a statutory or contractual entitlement or right, observing as follows:
625In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.[63]
25.In Shea (No.6) the Federal Court made the following observation in respect of Murrihy:
594In my view, it does not follow from Jessup J’s reasoning that s 340(1)(c)(ii) would cover a complaint or inquiry made to any person at all in relation to employment. Nor, contrary to the applicant’s submission, did his Honour hold that the ability to make a complaint required no instrumental source of entitlement. To the contrary, his Honour’s reasoning appeared to assume the existence of an entitlement or right under an instrument, such as the contract of employment or relevant legislation.[64]
26.Whilst it is fair to accept that in Murrihy the Federal Court was dealing with an entitlement sourced in s.323(1) of the FW Act, it remains the case that notwithstanding the above observation on Murrihy in Shea (No.6) there is a tension between the Federal Court’s observation as to the width of the meaning of s.341(1)(c)(ii) of the FW Act in Murrihy and the more limited scope of application given to that provision in Shea (No.6).
“in relation to”
27.The emphasis of Trilab’s approach shifted at hearing, and was less upon the question of whether there was an entitlement on Mr Evans’ part to make a complaint or inquiry, but rather whether the subject matter of the complaint was “in relation to” his employment.
28.It is appropriate to commence by making some general observations as to the phrase “in relation to”.
29.In Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia[65] the majority in the High Court of Australia found that a purchaser of foreign currency obtained rights that attached to, or were constituted by, the ability to use the currency, without which, property in the currency was worthless. Therefore, the supply of foreign currency (on the departure side of the customs barrier at Sydney Airport) was a supply “in relation to” the rights that attended upon ownership of that currency, and where it was evident that the currency was to be used overseas, the supply was therefore free from the imposition of the goods and services tax.[66] The principal majority judgment in Travelex observed that:
It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.[67]
and further that:
What the Act requires is that there be a supply “in relation to” rights; the operation of the Act does not call for attention to be given to the particular content of the rights.[68]
30.In O’Grady v Northern Queensland Co Ltd[69] it was said that:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the ... Act .... What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship – is necessary ....[70]
31.In O’Grady the phrase “in relation to” was said to be one which “subject to any contrary indication derived from its context or drafting history, ... requires no more than a relationship, whether direct or indirect, between two subject matters”.[71] It has also been said to be a phrase of wide and general import, not to be read down in the absence of some compelling reason to do so.[72]
32.In HP Mercantile Pty Ltd v Commissioner of Taxation[73] the Full Court of the Federal Court of Australia observed that:
It was common ground that the words “relates to” are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.[74]
33.In Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission[75] the Full Court of the Federal Court held that in determining whether a matter was “in relation to” another matter, “the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship.”[76] In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O’Grady emphasised “the need for attention to the legislative context and purpose” and was “an example of the primacy of context”.[77]
34.That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression.[78] The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court.[79] Context is also important to a consideration of whether the relationship need be:
(a) direct or substantial;
(b) indirect or less than substantial;
(c) affecting one term of the relationship; or
(d) affecting all of the terms of the relationship.[80]
35.The phrase “in relation to” does not extend to tenuous or remote relationships.[81] Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”.[82]
36.The Federal Court has held that a complaint with an indirect nexus with the applicant’s terms and conditions of employment may still come within the scope of s.341(1)(c)(ii) of the FW Act.[83] In Pilbara Iron Company (No.3) the Federal Court said of s.341(1)(c)(ii) of the FW Act that:
... the requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. ... the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights.[84]
37.Both the scope of the words “in relation to” and the arguably divergent approach of different Judges of the Federal Court has been succinctly captured in the Federal Court’s judgment in Walsh v Greater Metropolitan Cemeteries Trust (No.2),[85] which although handed down after the argument in this matter deals with the cases (including cases referred to by the parties) determined before the argument in this case (save for Shea (No.6)). In Greater Metropolitan Cemeteries Trust (No.2) the Federal Court said that:
41The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)[2012] FCA 697 at [61]- [64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.
42Where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara at [69].
43In this case, Ms Walsh raised a probity issue in relation to a contract with a supplier who supplied services including to an operation which Ms Walsh managed in the course of her employment. Whether or not Ms Walsh was under a contractual duty to report the possible misdeed of others (see the discussion in Irving, The Contract of Employment (LexisNexis Butterworths, 2012) at [7.21]), her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, the Alsco contract complaint made by Ms Walsh raised an issue with potential implications for Ms Walsh’s employment and was “in relation to...her employment” within the meaning of s 341(c)(ii) of the FW Act.
44In determining the construction issue raised here, I have considered but have not been persuaded by GMCT’s reliance upon Rowland v Alfred Health[2014] FCA 2. In that case, Marshall ACJ determined that a complaint made by a doctor about the competency of another doctor with whom he worked was not a complaint in relation to the complainant’s employment. Whether the clinical competence of the doctor complained about had potential implications for the employment of the complainant is not a matter that appears to have been raised before or addressed by Marshall ACJ. His Honour does not appear to have been referred to Pilbara and did not have the benefit of Shea. A contention that an indirect nexus would be sufficient does not appear to have been relied upon by the applicant in that case. Further, his Honour’s conclusion seems to turn on a factual dispute as to whether the relevant complaint related to the complainant’s employment because it also included a complaint that the doctor concerned had taken a patient from the complainant: see Rowland at [29]-[38].[86]
38.In Greater Metropolitan Cemeteries Trust (No.2) the Federal Court determined that the contract probity complaint raised by Ms Walsh was a complaint in relation to her employment, but was not a reason for her dismissal.[87]
Further observations
39.In light of the divergent approaches to s.341(1)(c)(ii) of the FW Act set out above the Court feels it necessary to make some further observations with respect to some of the cases, particularly those decided in the Federal Magistrates Court, but also with reference to cases decided in the Federal Court.
40.In In Control it was said that the judgments of this Court in Stevenson and Ramos (No.2) proceeded upon the basis that this Court had not determined the issue as to whether it was sufficient to make out a workplace right for a complaint by an employee to simply be made to a relevant person in authority with the employer, and, seemingly, on that basis that considerations of judicial comity within the Court did not arise.
41.The context in which the complaint arose in Ramos (No.2) is set out in that judgment as follows:
10.On 30 March 2010, Mr Ramos attended a manager’s meeting at GSI head office. At this meeting:
a) Ms Cameron answered in the negative a question from Mr Ramos whether the retail stores could close for Easter Saturday 2010.
b) Ms Cameron made Mr Ramos aware of his entitlement to claim motor vehicle usage for work purposes. GSI had apparently not previously informed him of this entitlement.
c) There was an exchange between Mr Ramos and Ms Cameron during a training scenario which became an issue of concern.
11.On 31 March 2010, Mr Michael Gordon met with Mr Ramos at the Dianella store. At that meeting:
a) Mr Gordon criticised Mr Ramos in relation to his behaviour at the manager’s meeting 30 March 2010;
b) Mr Gordon criticised Mr Ramos for his use of the word “darl”;
c) Mr Gordon criticised Mr Ramos for the 2009/2010 Dianella store sales figures being below budget;
d) Mr Ramos believed Mr Gordon should accept some responsibility or accountability for the 2009/2010 Dianella store sales.
e) Mr Gordon discussed with Mr Ramos his claims for overtime. Mr Ramos told Mr Gordon that he would not agree to work unpaid overtime. Mr Gordon invited Mr Ramos to rethink his position as the Dianella store manager.
12.On 6 April 2010, Mr Ramos submitted a complaint addressed to the human resources manager of GSI. The complaint was against GSI’s divisional operations manager Ms Cameron and the retail operations manager Mr Gordon.[88]
42.There is no doubt that in Ramos (No.2) the employer initially disputed the exercise of a workplace right, “but ultimately conceded” the exercise of a workplace right by Mr Ramos “making a complaint”.[89] That the Federal Magistrates Court considered the question of whether Mr Ramos had a workplace right independently of the concession made by the employer is evident from the following:
Did Mr Ramos have a workplace right?
45.Mr Ramos, being an employee at the time, will have had a workplace right if he can show that he was “able to make a complaint or enquiry... in relation to his ... employment”[90]. Mr Ramos was concerned about statements made to him by Ms Cameron and Mr Gordon in the course of his employment. I am satisfied that Mr Ramos was able to make a complaint or enquiry about those statements.[91]
43.It is therefore apparent that the question of whether Mr Ramos had a workplace right was considered, albeit prosaically and without in depth analysis, in Ramos (No.2), and that the assertion to the contrary in In Control is wrong. In that respect, the judgment in In Control proceeded upon a false premise.
44.The judgment in Ramos (No.2) was appealed to the Federal Court. The Federal Court handed down judgment in Ramos v Good Samaritan Industries[92] in January 2013 prior to the handing down of the judgment in In Control in March 2013. Ramos Appeal was not referred to in the judgment in In Control, but that is understandable given that Ramos Appeal was heard after the hearing in In Control, and would not therefore have been cited to the Court.
45.In Ramos Appeal the Federal Court characterised the Federal Magistrates Court’s assessment of the workplace right finding as follows:
... In essence, the Federal Magistrate found the appellant had a “workplace right” as defined by s 341(1)(c)(ii) of the FW Act, as he was a person “able to make a complaint or inquiry” in relation to his employment. His Honour held that the appellant was “concerned about statements made to him by Ms Cameron and Mr Gordon in the course of his employment” and was satisfied he was able to make a complaint or inquiry about those statements.[93]
46.The Federal Court went on to note that the Federal Magistrates Court had accepted the employer respondent’s evidence that the relevant action was not because of the complaint, and that therefore the employee, Mr Ramos, had failed to demonstrate any unlawful adverse action against him because of the complaint.[94] The Federal Court went on to find that the Federal Magistrates Court had not erred in making a finding that Mr Ramos had failed to demonstrate any unlawful adverse action against him because the relevant action taken was not because of the complaint.[95] In doing so, however, the Federal Court did not demur from the finding of the Federal Magistrates Court that Mr Ramos had a right to make a complaint,[96] and whilst finding that Mr Ramos was not dismissed because of his complaint made the following pertinent observations:
131While there may be some cases where on the facts a different conclusion might be drawn and a different inference available, on the evidence presented in this case there is no basis upon which the Court below or this Court on rehearing could or should draw the inference that at material times the respondent had decided to squeeze the appellant out of his employment because he had made the complaint on 6 April 2010. Rather, the events culminating in the complaint of 6 April 2010 and the remedial steps taken thereafter, as noted, were designed, as Mr Knowles explained and his Honour in the Court below accepted, to achieve good management outcomes. No error is identified in this reasoning.
132No doubt, there will be circumstances where, by reason of management issues raised upon a complaint, an employer may consider an employee to be difficult employee. Steps ultimately taken to respond to such management issues identified through a subsequent complaint or inquiry process are not thereby automatically to be identified as steps taken because the complaint was made, that is to say, to be identified as adverse actions taken because of the workplace right.[97]
47.In Ramos Appeal the Federal Court therefore recognised the possibility that a complaint made by an employee about comments made by management concerning work issues might, dependent upon the circumstances, admit of a conclusion that adverse action could be taken against an employee because of such a complaint.[98]
48.It is unfortunate that Ramos Appeal was not seemingly brought to the attention of the Federal Magistrates Court prior to the judgment in In Control being handed down. Had that occurred, the Federal Magistrates Court would have been faced with a situation where the Federal Court did not demur from the Federal Magistrates Court finding that a complaint about statements made about work-related issues could give rise to a complaint under s.341(1)(c)(ii) of the FW Act, and would have had to consider whether that required a different approach on the issue of judicial comity, and whether or not the Federal Court’s observations were binding upon it and ought to be followed.[99]
49.In Stevenson it is manifest that the Federal Magistrates Court considered that Mr Stevenson had exercised a workplace right by complaining about bullying and harassment by managers and employees in the workplace,[100] principally on the basis of behaviour in meetings or comments in emails by those other managers and employees.[101] As in Ramos (No.2) the Federal Magistrates Court did not embark upon a detailed analysis of whether Mr Stevenson could exercise a workplace right by a complaint about conduct in the workplace not founded or exercised on the basis of a right or entitlement in a statute, regulation or under a contract of employment. It is noteworthy however that the Federal Magistrates Court accepted that Mr Stevenson had the ability to make such a complaint, observing that:
... the proceeding was concerned with whether Mr Stevenson’s dismissal was motivated by a prohibited reason, namely the fact that he had exercised his workplace right to make a complaint or complaints ...[102]
and
In particular, the question Mr Stevenson raises is whether as Airservices subjected him to adverse action, specifically dismissal, for a reason or reasons that included the fact that he had made a complaint or complaints in relation to his employment.[103]
50.Once again, however, the employee failed because the Federal Magistrates Court found that the employee was not terminated “because of” the complaints made.[104]
51.In Hodkinson v Commonwealth[105] the Federal Magistrates Court was faced with an adverse action claim which, amongst other things, asserted that the applicant had been dismissed because of the exercise or proposed exercise of a workplace right, namely the ability to make a complaint or inquiry, and the Federal Magistrates Court set out the gist of the applicant’s submission as follows:
112It was submitted that the dismissal amounted to adverse action contrary to the FWA on the basis that it was done for reasons which included the fact that the applicant exercised, and proposed to exercise, a workplace right. In this regard, the applicant referred to the definition of ‘workplace right’ in s 341(1)(c) of the FWA which states that a person has such a right if the person:
(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 ...
She said that if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the FWA did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para.1370 of the explanatory memorandum to the Fair Work Bill 2008 (Cth), submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.[106]
52.In Hodkinson, the Federal Magistrates Court then went on to specifically consider whether or not s.341(1)(c)(ii) of the FW Act gave rise to a workplace right of the type asserted by the applicant, and said as follows:
131In her claim to have been dismissed because she had exercised or proposed to exercise a workplace right, the applicant relies on the workplace right provided by s 341(1)(c), which relates to a person’s ability to make a complaint or inquiry. In particular, she relies on s 341(1)(c)(ii) quoted above at [8]. That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.[107]
53.In Hodkinson, the Federal Magistrates Court did not however characterise what was asserted to be a complaint or inquiry by the applicant as such, but, in any event, found that even if it were a complaint or inquiry it did not form any part of the basis for the relevant decision-maker’s decision to dismiss the applicant.[108]
54.In In Control it would appear that the applicant did not submit that the Court ought to follow Hodkinson on the basis of judicial comity, as it had done in relation to Ramos (No. 2) and Stevenson. The Federal Magistrates Court in In Control was however aware that Hodkinson[109] formed part of the applicant’s case, setting out the applicant’s contention as follows:
48.The applicant particularly contended that the relevant workplace right being pursued by him was a right under s 341(1)(c)(ii) to make a complaint or inquiry as an employee in relation to his employment. It was submitted that the subsection does not limit the class of persons to whom a complaint or inquiry may be made and by its drafting does not exclude a person who makes a complaint or inquiry to his or her employer: Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; 248 FLR 409 at [131]. Accordingly it was submitted that consistent with the construction of the subsection in the broadest possible terms, complaints about interoffice issues or workplace conflict have been held to constitute the exercise of a workplace right for the purposes of the subsection: Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341; Stevenson v Airservices Australia (2012) 218 IR 210.[110]
55.Having cited Hodkinson in setting out the applicant’s contentions the Federal Magistrates Court did not refer to it again, or analyse its findings, in determining the issues in In Control. Had it done so, and had it set out paragraph 131 of Hodkinson cited in the applicant’s contentions, which is set out above,[111] it would have observed that the Federal Magistrates Court had determined that s.341(1)(c)(ii) of the FW Act does not limit the class of persons to whom a complaint or inquiry may be made, and that that interpretation was borne out by paragraph 1370 of the FW Bill – Explanatory Memorandum. Had the Federal Magistrates Court in In Control had regard to the findings in Hodkinson it would then have been necessary for it to consider whether judicial comity required that Hodkinson be followed, unless it determined that Hodkinson was plainly wrong.[112]
56.The Court also observes that the construction placed on s.341(1)(c)(ii) of the FW Act in In Control by reference to the connector “or” between placitas (i) and (ii), namely, that it is to be read cumulatively, and not disjunctively, and therefore to have a restrictive effect in the manner set out above[113] is arguably at odds with:
(a)the ordinary meaning and use of “or”;[114]
(b)the usual approach to a remedial statute where there is ambiguity or where the words used admit of more than one outcome, namely to construe the words beneficially to give the fullest relief the fair meaning of the language allows,[115] or to give the words a fair, large and liberal interpretation rather than one which is literal or technical;[116]
(c)the ordinary meaning of s.341(1)(c) of the FW Act as set out in the passages cited above from Murrihy,[117] and in that regard noting especially the Federal Court’s:
(i) examination of the history of the predecessor to s.341(1)(c) of the FW Act; and
(ii) referencing of the relevant provisions of the FW Bill – Explanatory Memorandum,
to support a wide meaning and a disjunctive interpretation, culminating in the ultimate result that Ms Murrihy was able to invoke s.341(1)(c)(ii) of the FW Act to support a workplace right based upon an inquiry made to her solicitor as to her entitlement to be paid under s.323(1) of the FW Act.
57.Schneider Electric arguably supports the view that a workplace right might be founded on conduct unrelated to any entitlement arising from a contract of employment, legislative instrument or Act. In Schneider Electric the applicant asserted he had exercised a workplace right to make a formal complaint against fellow employees about their behaviour towards him.[118] In relation to that alleged workplace right this Court found that:
115.There is no dispute between the parties that Mr Daw was entitled to make a complaint to Schneider about Mr Moyano and Mr Pine. In making that complaint he was exercising a workplace right.[119]
The Court went on to find, however, that the applicant’s dismissal was not “because of” the exercise of a workplace right in making the complaint about other employees,[120] but that “[t]he real reason for Mr Daw’s dismissal from Schneider’s employment was that he would not accept instructions ....”[121]
58.The other workplace right asserted in Schneider Electric was a right not to comply with a direction from an employer that was unlawful or unreasonable or would require the performance of work that was illegal or unlawful under the PE Act,[122] but the Court found in that regard that whilst the applicant was entitled to refuse to perform the work in so doing it had not been established that he was exercising a workplace right for the purposes of the FW Act.[123] It is pertinent to observe that the Court did not consider whether the refusal to perform illegal or unlawful acts was a complaint or inquiry in relation to the applicant’s employment for the purposes of s.341(1)(c)(ii) of the FW Act, but only considered that part of the definition of “workplace right” relating to s.341(1)(a), (b) and (c)(i) of the FW Act. The Court did not consider the question of whether a refusal to perform duties might be a complaint or inquiry. In that regard, it did not give consideration to Ratnayake v Greenwood Manor Pty Ltd[124] where an employee’s refusal to accept a letter from an employer in relation to a change of working hours, but which change was accepted “under strong protest”, constituted a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act, even if it was only implicit.[125] Even if it be accepted that a refusal to carry out unlawful duties does not give rise to the exercise of a workplace right, Schneider Electric can be distinguished on the basis that such a refusal is not a complaint or inquiry, and therefore s.341(1)(c)(ii) of the FW Act does not arise for consideration. Given, however, that there may not be bright lights illuminating the distinction between a complaint, a protest and a refusal, a distinction of that kind must remain open to a contrary argument which was clearly not put or considered in Schneider Electric.
59.The outcome in Schneider Electric, that no workplace right arises from the refusal to perform duties which were illegal or unlawful, also does not sit easily with the Federal Court’s judgment in Greater Metropolitan Cemeteries Trust (No.2) where the raising of a contract probity issue in relation to a supply contract, which if not raised might have reflected badly on the employee and caused her prejudice in her employment, was held to give rise to a workplace right under s.341(1)(c)(ii) of the FW Act.[126]
60.In Schneider Electric this Court was referred to Ramos (No.2), but referred to it only in the context of whether or not there was a constructive dismissal.[127] The Court notes that Stevenson, Hodkinson and Ratnayake were not considered by this Court in Schneider Electric. Because Schneider Electric was argued in November 2012 and judgment handed down in September 2013 there was also no consideration given in Schneider Electric to Ramos Appeal, Murrihy, In Control and Magellan Powertronics, which were all judgments delivered whilst Schneider Electric was reserved for consideration. Had the above cases been considered by the Court in Schneider Electric then issues of binding precedent, in the case of the Federal Court cases, and judicial comity, in the case of decisions of the former Federal Magistrates Court, would have arisen for consideration.
Conclusion – divergent approaches and “in relation to”
61.For the purposes of determining whether or not Mr Evans has an arguable case it is not necessary for this Court to determine which of the divergent approaches might be right or wrong as a matter of law, but as the rights of the parties depend upon it, it is obviously appropriate that the matter goes to hearing.[128] It is evident from the cases set out above that it is arguable that a complaint or inquiry need:
(a)not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person’s employment for the purposes of s.341(1)(c)(ii) of the FW Act;[129] and
(b)only have an indirect nexus with a person’s terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment.[130]”
Consideration
In the substantive proceedings the applicant alleges inter alia that the respondent took certain action against her that included the termination of her employment. The applicant alleges that this action was “adverse action” taken on the basis that she had exercised his workplace right by making a complaint about her employment and the conduct of other employees of the respondent.
The applicant alleges inter alia that the respondent breached section 340 of the FW Act. The applicant seeks compensation and various other remedies, set out in the form 2 accompanying her application. Section 340 of the FW Act sets out that:
“Protection
(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.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
Section 341 of the FW Act provides:
“Meaning 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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a)a conference conducted or hearing held by the FWC;
(b)court proceedings under a workplace law or workplace instrument;
(c)protected industrial action;
(d)a protected action ballot;
(e)making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h)agreeing to cash out paid annual leave or paid personal/carer's leave;
(i)making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3)A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4)Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5)Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).”
There has been no dispute that the dismissal of the applicant was capable of constituting adverse action. However, the issue is whether the applicant’s claim makes clear that the complaint was a complaint in relation to the applicant’s employment within the meaning of section 341(1)(c)(ii) of the FW Act.
The respondent has moved for the substantive application to be summarily dismissed. However, today Counsel for the respondent narrowed the focus of her client’s position and ultimately sought only that that part of the application in relation to adverse action be summarily dismissed. I will return to that issue later in these reasons.
There were no submissions made either that the application was vexatious or an abuse of process and that part of the application in a case was abandoned. The parties’ submissions traversed in helpful detail, the relevant authorities of judges of the Federal Court. One of those referred to in those submissions was a decision of Bromberg J in Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456. It bears repeating in the context of the narrowed focus of the respondent’s summary dismissal application.
Bromberg J’s decision in Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 inter alia states:
“41.The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)[2012] FCA 697 at [61]- [64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No.6)[2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.
42.Where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara at [69].”
Ultimately the respondent’s complaint in relation to the adverse action part of the application is that the allegation in the application made a litigant in person is at odds or is different to the evidence upon which the applicant relies. The respondent refers to the differences between emails between the applicant and Ms Galina which are at annexures ‘MCO4’ and ‘MCO5’ of the applicant’s affidavit filed 11 November 2014 and the allegations in the application.
In the form 2 accompanying her application the applicant alleged
inter alia:“1.On Tuesday 29th of April 2014, I Monique Crawford, exercised my workplace right under sect: 341(1)(c)(ii) by undertaking the following action:
(a)On the evening of Tuesday the 29th of April 2014 @ 6.42pm I mailed my manager, Vanessa Galina, and made a complaint of sexual harassment against the owner & managing director of my employer Steadmark Pty Ltd, Michael Rosenfield. Miss Galina answered my email by stating she was would discuss it with me the next day. I never heard from her again.
(c)(sic) My manager made no contact with me against until the 21st of May when she requested a meeting for a review on the 24th of May at 5pm of which I was unable to attend.
2.On Monday 26th of May 2014 Steadmark Pty Ltd breached section 340(1)(a)(ii), section 342(1) Item (1)(a), section 342(1) Item (2)(a) & section 117 (2)(a) of the Fair Work Act 2009 by taking adverse action against me without notice, immediately dismissing me from my employment and by refusing to employ me only because I exercised my workplace right to make a complaint of sexual harassment against the owner and managing director Michael Rosenfield.
…”
The email dated 29 April 2014 from the applicant to Ms Galina was:
“Dear Vanessa,
After today’s meeting even though you had given us free time I returned to the store.
On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate.
As a result I will not be attending tonight’s event.
With regards
Monique”
The applicant’s evidence, which taken at its highest, in relation to this issue was as follows:
“12.On Monday, 28 April 2014, I attended a meeting with all the managers from the direct outlets. Other people in attendance at this meeting included: Mr Rosenfield, his son Timothy, Ms Galina, Mr Phillipe Grogner, Globel Chief Executive Officer of Simon Perele, and his son, Mr Mathieu Grogner. During this meeting, I gave a presentation which highlighted that my store was trading at 13% above the company average. Mr Phillipe Grogner personally congratulated me on my results. Mr Rosenfeld informed Mr Grogner that since I had come into the store the sales had increased. He said words to the effect of “I am very happy with Monique’s performance and the extra things she is doing to raise sales.”
13.That evening, I had been asked by Mr Rosenfield to attend a work dinner with Mr Phillipe Grogner and a number of the Respondent’s managers. The dinner was in a private function room at the Flower Drum in Melbourne.
14.Towards the end of the dinner, Mr Rosenfield came to sit next to me. He asked me how long it had been since he had last seen me. I said the last time had been at the Christmas dinner. He replied words to the effect of: “Far too long. We’ll have to change that.” He went on to ask me where I saw myself in the future and I told him I would like to run a bigger store or we could make the Spencer Street store even bigger. Mr Rosenfield said words to the effect of: “I like everything I’m hearing…What I’m thinking is that you and I should meet to discuss this in more detail. How does that sound to you?” He brushed his leg against mine as he said this.”
15.We were sitting side by side at this stage. I moved my leg away, thinking that perhaps we were jump too cramped in at the dinner table. I began talking to someone else. A few minutes later, Mr Rosenfield was still sitting next to me and he was still looking at me. He said he wanted us to “get back to our little chat”.
16.Mr Rosenfield said words to the effect of: “I think it’s best if you and I meet to talk about this.” I suggested that we could talk at Head Office. He said: “No, we don’t need any of that.” He said I should give him a call to organise a meeting time when we would not be disturbed. I felt him rubbing his leg against mine again. At this point, Mr Rosenfield’s behaviour made me feel extremely uncomfortable. I understood what was going on to be sexual harassment.
17.I spoke very softly but firmly to Mr Rosenfield, stating that I would be very happy to meet with him at Head Office in the presence of Ms Galina. He said: “Just call me and we can discuss it.”
18.At this point, my tone changed and I became very firm. I said to Mr Rosenfield words along the times of: “Michael, I will never meet with you, except with Vanessa and at the office to discuss my future.” I then turned my back on him.
19.The next day, on Tuesday, 29 April 2014, I attended a meeting in the morning with Ms Galina and other managers. At this meeting, Ms Galina asked me in front of all the other store managers to explain in detail the ideas and methods I implemented to achieve outstanding results in my store. I discussed them in detail.
20.That afternoon, I called Mr Rosenfield to give him the sales figures as usual. I told him that it had been a quiet day at the Spencer Street store. I was trying to be professional but I was feeling apprehensive because of his behaviour towards me the night before. He was silent for a while then said words along the lines of: “Thanks very much for that, now that you have ruined my night you little slut.” He hung up on me. I was shocked. When I got off the phone I started crying. Mr Rosenfield’s behaviour over the phone indicated to me that there had been a fundamental shift in the employment relationship.
21.After this event, I decided not to attend a work function that night at Crown Casino. The event was a burlesque show. I decided that I needed to complain to Ms Galina about Mr Rosenfield’s unwarranted and inappropriate behaviour towards me. I emailed Ms Galina about 40 minutes after my phone call with Mr Rosenfeld, explaining that I would not be attending the work function that evening because of Mr Rosenfield’s behaviour. Attached and marked “MC04” is a true copy of my email to Ms Galina.
22.Approximately two hours later, Ms Galina emailed me her response. She said she would discuss the matter “tomorrow.” Attached and marked “MC05” is a copy of Ms Galina’s email to me.
23.Over the next three weeks, I followed up this matter by leaving several voicemail messages for Ms Galina. She never responded to any of these messages.
24.On Wednesday, 21 May 2014, Ms Galina emailed me on my personal (not work) email address to schedule a meeting for Saturday, 24 May 2014 at 5.00 pm. I did not see that email until she emailed me a second time on Friday, 23 May 2014. On Saturday, 24 May 2014, I emailed and telephoned the Respondent to notify Ms Galina that I was sick and unable to attend work.
25.On Monday, 26 May 2014, I received a letter by courier from the Respondent. This letter informed me that my employment contract would not be renewed because of my ‘unsuitability’ for the position. As at 26 May 2014, I had been employed for more than 6 months.
26.I feel certain that the only reason – or at least one of the reasons – why my employment was terminated (or, put in the alternative, why my employment contract was not renewed), is because under the Fair Work Act 2009 I:
(a) had a workplace right; or
(b) had exercised a workplace right; or
(c) proposed to exercise a workplace right.
Alternatively, I believe that one of the reasons why I was dismissed (and thereby suffered adverse action) was to prevent me from exercising a workplace right.
27.I was not paid in lieu of notice as per Item 8 of Schedule 1 of the Agreement or per section 117 of the Fair Work Act 2009. Nor was I paid my commission payment for the month of May 2014.”
In considering the summary dismissal application and expressing a view of the evidence in somewhat aggregated terms at the moment, given the stage of the proceedings it is important to note the Court is not fact finding. Instead the Court is evaluating the evidence of the applicant from the prospective of the reasonable prospects of success.
It suffices to observe that based on the test for summary dismissal in Rule 13.10 of the Rules, that is whether the applicant has no reasonable prospect of success, in light of the authorities and the approach applied by Bromberg J in Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 at [41]-[42] and Judge Lucev in Evans v Trilab [2014] FCCA 2464 at [61]. I am not satisfied that, having regard to the applicant’s evidence taken at its highest, that the applicant has no reasonable prospect of success as there are, in my view, legal and/or factual issues to be determined.
The application in a case filed 8 October 2014 will be dismissed and there will be directions for the future conduct of the substantive proceedings.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 11 December 2014
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