Crispe v Bank of Queensland Limited
[2021] FCCA 115
•28 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Crispe v Bank of Queensland Limited [2021] FCCA 115
File number(s): BRG 196 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 28 January 2021 Catchwords: PRACTICE AND PROCEDURE – Whether statement of claim pleads facts sufficient to disclose a cause of action – where exercise of workplace right to make inquiry alleged – whether need to identify the source of ability to make inquiry.
INDUSTRIAL LAW – Commonwealth – terms and conditions of employment – termination of employment – particular cases.
TRADE AND COMMERCE – Competition, fair trading and consumer protection legislation – consumer protection – misleading or deceptive conduct or false representations – particular cases – employment matters.
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 ss. 18, 31
Fair Work Act 2009 (Cth) ss. 340(1), 341(1)(c)(ii)
Federal Circuit Court Rules 2001 (Cth) r. 1.05, Schedule 3, Part 2, Item 11
Federal Court Rules 2011 (Cth) r. 16.21(1)
Cases cited: Adachi v Qantas Airways Limited [2019] FCCA 1107
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Henry v Leighton Admin Services Pty Ltd & Anor (2015) 299 FLR 342
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Shea v TRUenergy Services (No 6) [2014] FCA 271
Storey v Monitoring Centre Pty Ltd [2015] FCCA 3310
Number of paragraphs: 20 Date of last submission/s: 17 August 2020 Date of hearing: 24 July 2020 Place: Brisbane Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Mr McKechnie Solicitor for the Respondent: King & Wood Mallesons ORDERS
BRG 196 of 2020 BETWEEN: MALCOM CRISPE
Applicant
AND: BANK OF QUEENSLAND LIMITED
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
28 JANUARY 2021
THE COURT ORDERS THAT:
1.The application in a case filed on 23 July, 2020 be dismissed.
2.A date be fixed for mediation between the parties in accordance with the orders made on 24 July, 2020.
REASONS FOR JUDGMENT
JUDGE JARRETT:
This is an application for the striking out of certain parts of a Form 2 filed by the applicant on 1 April, 2020. In his proceeding, the applicant seeks compensation and the imposition of a pecuniary penalty upon the respondent for alleged contraventions of the Fair Work Act 2009 (Cth) and the Competition and Consumer Act 2010 (Cth) Sch 2 ss 18 and 31 (the Australian Consumer Law). In general terms, he alleges that the respondent:
(a)contravened s.340(1) of the Fair Work Act by taking adverse action against the applicant for a proscribed reason. He alleges that he was dismissed because he exercised his workplace right to make inquiries in relation to his employment. The two alleged inquiries relied upon are:
(i)an inquiry raised via email on 31 January, 2019 regarding fuel and parking allowance entitlements and a request for a pay review; and
(ii)an inquiry raised verbally in or around early February, 2019 regarding the same matters; and
(b)that the respondent breached ss.18 and 31 of the Australian Consumer Law by making misleading and deceptive representations to the applicant which he relied on in giving up his substantive position to accept a secondment.
The respondent applies to strike out of certain paragraphs of the applicant’s Form 2 – Claim under the Fair Work Act pursuant to rule 16.21(1) of the Federal Court Rules 2011 (Cth) (which applies by force of rule 1.05 and Schedule 3, Part 2, Item 11 of the Federal Circuit Court Rules 2001 (Cth)).
The principles to be applied are not in dispute. Both parties referred me to passages from Adachi v Qantas Airways Limited [2019] FCCA 1107 which was said to be an accurate summary of the state of the law. In that case, Judge Barnes provided the following summary at [23-26] as follows (emphasis added):
[23] … A pleading can be struck out for being likely to cause prejudice, embarrassment or delay in the proceeding where, for example, it is susceptible to various meanings, contains inconsistent allegations, alternatives which are confusingly intermixed, or irrelevant allegations tending to increase expense (see Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) [2004] FCA 1393 at [18]), or where the pleading contains defects which result in it being unintelligible, ambiguous, vague or too general so as to embarrass the opposing party which does not know what is alleged against it (see Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]).
[24] While a pleading may be embarrassing if it is internally inconsistent (Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [23]), this does not prevent a party from pleading alternative and inconsistent allegations of material facts (as discussed in JC Decaux Pty Ltd v Adshel Street Furniture Pty Ltd [2000] FCA 1118; (2000) 178 ALR 339 at [19]).
[25] A pleading which simply asserts a conclusion to be drawn from facts not stated or which simply repeats the language of a provision of legislation and broadly asserts a contravention without more, can be struck out as embarrassing (see Fair Work Ombudsman v Eastern and cases cited therein).
[26] Further, a pleading can be struck out as failing to disclose a reasonable cause of action where it has not set out all the material facts necessary to formulate a complete cause of action and has failed to define the issues with sufficient clarity that the other party understands and has the opportunity to meet the case made against it (H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242; Christou v Stantons International Pty Ltd [2010] FCA 1150).
CONSIDERATION
The Fair Work Act claims
The respondent seeks orders striking out paragraphs 13 to 14 and 21 to 26 of the Form 2, being the General Protections Claim. Those paragraphs and the following form:
13. On 31 January 2019 the Applicant sent an email to Patricia Gunter (Ms Gunter) inquiring about:
a. the Respondent's unilateral removal of fuel and parking allowance entitlements; and
b. whether his pay grade could be reviewed as it was not commensurate with his role
(collectively, the First Employment Inquiry).
14. In or around early February 2019, the Applicant attended a meeting with Ms Gunter wherein he inquired again about his pay classification and allowances (the Second Employment Inquiry).
…
21. The Respondent has taken adverse action against the Applicant as defined in paragraph (a) of column 2 of item 1 of the table in section 342(1) of the Fair Work Act 2009 (Cth) by effecting the Dismissal.
22. At all relevant times during his employment, the Applicant possessed the workplace right to make a complaint or inquiry in relation to his employment under section 341(l)(c)(ii) of the Fair Work Act 2009 (Cth).
23. During his employment the Applicant exercised or proposed to exercise the workplace right pleaded in paragraph 22 by making the First Employment Inquiry and the Second Employment Inquiry.
24. In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent effected the Dismissal for the reason, or for reasons including the First Employment Inquiry and/or the Second Employment Inquiry.
25. In accordance with section 361 of the Fair Work Act 2009 (Cth), it is presumed that the Respondent effected the Dismissal for the unlawful reason, or for unlawful reasons alleged in breach of section 340(1) of the Fair Work Act 2009 (Cth) unless the Respondent proves otherwise.
26. The above contraventions of the Fair Work Act 2009 (Cth) have caused the Applicant to suffer loss and damage including:
a) loss of income;
b) humiliation, pain and suffering; and
c) stress and anxiety.
The First Employment Inquiry pleaded at paragraph 13 of the Form 2 is an email which appears at exhibit JW-1 to the affidavit of Jamie Wells filed 24 July, 2020. As pleaded, the Second Employment Inquiry appears to be a follow up meeting covering the same content as the email at exhibit JW-1.
The respondent argues that even assuming that everything in his Form 2 is correct, his “inquiries” amount to no more than the correction of an apparent error regarding conditions and allowances and a request to review his pay grade. The respondent submits that the applicant’s pleading does not establish that the “inquiries” are anything more than general questions. The respondent submits that an employee must show that the complaint or inquiry relied upon to found a cause of action occurred in circumstances where the employee was “able to make” the complaint or inquiry. This involves having some identifiable right or entitlement to make the complaint. The respondent directed my attention to the following passage from Shea v TRUenergy Services (No 6) [2014] FCA 271, at [29]:
[29] …(f) [A] complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement whether instrumental or otherwise.
The applicant took me to PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [12-13] where Rangiah and Charlesworth JJ approved the above statement and said:
[12] We respectfully agree with Dodds–Streeton J that s 341(1)(c)(ii) of the FW Act contemplates that not every complaint that an employee makes in relation to his or her employment is one the employee is “able to make” (for present purposes, it is unnecessary to address the ability to make an inquiry). The question then arises as to how the provision distinguishes complaints that come within its reach from those that do not.
[13] Justice Dodds–Streeton considered that the word “able” refers to an entitlement or a right. We respectfully agree. However, her Honour’s statement that a complaint “must be underpinned by an entitlement or right” is ambiguous. On one view, it may indicate that the complaint “must be underpinned by an entitlement or right to make a complaint”. On another, it may indicate that the provision captures any complaint by an employee concerning an entitlement or right related to his or her employment. In our opinion, the former view is consistent with the succeeding sentence in the passage and with s 341(1) of the FW Act as a whole. The phrase “is able to” appears in both s 341(1)(b) and (c). In s 341(1)(b), the phrase indicates an entitlement or right to initiate, or participate in, a relevant process or proceeding. In s 341(1)(c)(i), the phrase indicates an entitlement or right to make a complaint or inquiry to a person or body. Consonantly, in s 341(1)(c)(ii), the phrase describes a right or entitlement to make a complaint or inquiry in relation to the employee’s employment. It may be observed, however, that whichever view is taken makes no difference to the outcome of this case.
However, strong dissent has been expressed about the correctness of the above propositions: Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [67] per Bromberg J with whom Mortimer J agreed, Anastassiou J dissenting). I am bound by what was said by the Full Court in PIA Mortgage Services.
Nonetheless, those statements have no particular application in the present case. The discussion in Shea, PIA Mortgage Services and Cummins concerned complaints made by an employee to his or her employer. There was no focus in those cases at all upon the term inquiry where it appears in s.341(1)(c)(ii) of the Act. The present case does not concern a complaint but rather an inquiry. An inquiry is not necessarily a complaint. If the legislature had intended them to be the same thing, the use of the words or inquiry, would have been entirely unnecessary. That they have been used tends to suggest that the legislature saw a difference between a complaint and an inquiry. In Henry v Leighton Admin Services Pty Ltd & Anor (2015) 299 FLR 342 Judge Manousaridis said this of the two terms (footnotes included, my emphasis):
[40] … The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault, regardless of whether the grievance or finding of fault is factually correct or substantiated: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]. The ordinary meaning of “inquiry” is the act of seeking information about or concerning something: Oxford English Dictionary.
…
[44] One key to the association or connection denoted by “in relation to” is what is an essential feature of a complaint and inquiry, and that is their quality of “aboutness”. A complaint is about something; there must be a subject about which a person states a grievance or makes a finding of fault. Similarly with an inquiry. An inquiry is the act of seeking information about something; there must be a subject about which a person seeks information.
Judge Manousaridis took a consistent approach in Storey v Monitoring Centre Pty Ltd [2015] FCCA 3310.
In my view, the reliance by the respondent here upon the passages referred to above in Shea and PIA Mortgage Services is misplaced. The applicant’s case does not seem to be that he made a complaint for the purposes of s.341(1)(c)(ii) of the Act but rather an inquiry. That is to say he sought information about something – information about the benefits and entitlements and information about a pay rise. This case affords a good example of the difference between the two terms. Seeking information about the possibility of a pay rise is making an inquiry about the terms and conditions of the inquirer’s employment. So too is making an inquiry about the removal of fuel and parking allowance entitlements. It is difficult to see how such inquiries are not within the terms of s.341(1)(c)(ii) of the Act. Even if analysed in accordance with the reasoning in Shea, it can be seen that the source of the ability to make the inquiry is the term or terms of the applicant’s employment contract with the respondent that deal with remuneration.
The respondent submits that the difficulty for the applicant is that his pleading does not establish that the “inquiries” are anything more than general questions. But it is entirely conceivable and in my view most likely, that an inquiry for the purposes of s.341(1)(c)(ii) of the Act will take the form of a question seeking information from the employer. The relevant inquiry does not have to be a complaint. That is because aside from being an inquiry or complaint about the employee’s employment, the inquiry or complaint need have no other character. By that I mean the complaint does not have to have substance or the subject of it be true. Nor the subject matter of any inquiry. Once the employee establishes that he or she has made a complaint or inquiry about their employment, the issue becomes whether the adverse action taken by the employer (assuming adverse action is established) was taken for a proscribed reason.
In my view, the applicant has pleaded a cause of action for a breach of s.340(1) of the Act in his Form 2
Section 31 of Australian Consumer Law
The remaining part of the applicant’s case concerns what he alleges to be misleading representations made by the respondent in breach of the Australian Consumer Law. That respect, he pleads:
6. In or around 14 December 2017, Brett Robinson (Mr Robinson) - CEO of BOQ Specialist, made the following representations to the Applicant:
a. that the Applicant would be required to relinquish his Substantive Role before accepting the Second Secondment; but
b. that the Respondent would guarantee that the Applicant would be able to return to the Substantive Role upon any cessation of the Second Secondment.
(collectively, the First Representation).
7. On 15 December 2017, the Applicant received an email from Matthew Doyle (Mr Doyle) - Human Resources, requesting that the Applicant review and sign a letter relinquishing the Substantive Role, consistent with the First Representation (the Relinquishment Letter).
8. On or around 19 January 2018, Mr Doyle represented to the Applicant that signing the Relinquishment Letter would provide the Applicant with 'protection' and he could expect to return to Substantive Role following upon cessation of the Second Secondment as the business responsible for the Substantive Role would ensure that it maintained the necessary headcount and budget to accommodate the Applicant's return (the Second Representation).
Section 31 of the Australian Consumer Law is in the following terms:
31 Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
Note: A pecuniary penalty may be imposed for a contravention of this section.
The respondent submits that on the applicant’s pleaded case, s.31 of the Australian Consumer Law cannot apply because the representations were made during the course of the applicant’s employment. The respondent submits that s.31 of the Australian Consumer Law is directed to prospective employment rather than existing employment. The text of the section generally and the use of the phrase “is to be, or may be, offered” point unequivocally to that interpretation.
The applicant submits that s.31 of the Australian Consumer Law, properly construed, is capable of capturing representations or conduct engaged in which relates offering of any new employment, including that which may consequently be formed as a result of variations to an employee’s role, as in the present case. The applicant argues that the representations constitute representations for the purpose of s.31 of the Australian Consumer Law. They were made in relation to new employment that was being offered to the applicant, constituted in the offering of a new role of Executive Manager – Office of the CEO.
I accept the applicant’s arguments. Whilst the representations were made whilst the applicant was employed by the respondent they were made in the context of him being offered a different role and arguably different employment. On the applicant’s case the representations were made in relation to employment that was being offered by the respondent to the applicant. The cause of action advanced by the applicant pursuant to s.31 of the Australian Consumer Law is clearly arguable. The applicant also relies upon s.18 of the Australian Consumer law. The claim to, is arguable.
CONCLUSION
The respondent has not established that it is appropriate to strike out any of the applicant’s Form 2. The interlocutory application filed by the respondent on 23 July, 2020 must be dismissed. There is presently an order for the parties to attend mediation and a date should be fixed now for that mediation.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 28 January, 2021. Associate:
Dated: 28 January 2021
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