Cutter v Torrens Road Community Child Care Assoc Inc
[2012] QMC 7
•23 February 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Cutter v Torrens Road Community Child Care Assoc Inc [2012] QMC 7
PARTIES:
FRANCES CUTTER
(plaintiff)
v
TORRENS ROAD COMMUNITY CHILD CARE ASSOCIATION INC
(defendant)
FILE NO/S:
M8648/11
DIVISION:
Magistrates Court
PROCEEDING:
Claim – Application to strike out claim
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
23 February 2012
DELIVERED AT:
Brisbane
HEARING DATE:
24 November 2011
MAGISTRATE:
Callaghan CJ
ORDER:
The defendant’s application to strike out the claim is dismissed.
CATCHWORDS:
INDUSTRIAL LAW – unfair dismissal application and simultaneous claim for unlawful repudiation of employment contract – unfair dismissal application settled – withdrawn or dismissed - application to strike out employment claim – timing of withdrawal – query whether claim for repudiation of employment contract was in relation to the dismissal
Fair Work Act 2009, s 725-732
COUNSEL:
JC Dwyer for the plaintiff
A Herbert for the defendant on direct access brief
SOLICITORS:
McPherson Kelly Lawyers for the plaintiff
The plaintiff was employed by the defendant from 9 January 1995 until the defendant terminated her position on 1 April 2011.
On 13 April 2011 the plaintiff applied for unfair dismissal remedy in Fair Work Australia stating in her application that the dismissal was unfair because the employer did not have a valid reason to dismiss her from her employment and further, or in the alternative, the dismissal in all the circumstances was harsh.
On 16 August 2011 the plaintiff filed the claim in these proceedings labelled “Employment Claim”. In it she claims that the defendant unlawfully repudiated the employment agreement between herself and the defendant by the defendant failing to follow and act in accordance with the disciplinary and grievance processes of the Procedures Manual and/or failing to act in accordance with the disciplinary and grievance processes of the Employee Guidelines and by reason of such repudiation the plaintiff suffered loss and damage.
On 30 September 2011 the plaintiff and the defendant executed a deed of agreement effectively settling the Fair Work Australia proceedings. As a result of that agreement the Commissioner of Fair Work Australia ordered on 30 September 2011 in relation to the unfair dismissal claim that the plaintiff’s “application be dismissed, with consent of the parties.”
In the deed, the parties released, discharged and indemnified each other from all claims against each other but excluding, inter alia, the claim brought by the plaintiff for breach of contract in Brisbane Magistrates Court proceeding number M8648/11 (this proceeding).
This is an application to strike out this claim pursuant to Rule 144(3) and Rule 16 of the Uniform Civil Procedure Rules (“UCPR”) on the grounds that the court has no power or jurisdiction to hear and determine the claim as the commencement is expressly prohibited by s 725 of Fair Work Act 2009 (“the Act”) and alternatively the application does not disclose the cause of action and it is embarrassing.
Section 725 of the Act provides:-
“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.” (my underlining)
The plaintiff has conceded that this claim is an “application or complaint under another law for the purposes of s 725 and s 732”.
The defendant argues that this court has no jurisdiction to entertain this application because it is an application made under a law of a State or Territory[1] and that at the time of making this claim there was already an unfair dismissal application by the plaintiff against the defendant in Fair Work Australia which had not been withdrawn nor had it failed for want of jurisdiction nor had it failed because Fair Work Australia was satisfied that the dismissal was a case of genuine redundancy[2].
[1] Section 732(2)(b)
[2] See section 729(1)
The plaintiff has conceded that she was “dismissed” within the meaning of s 725. The plaintiff has also conceded that she had made an “unfair dismissal application” within the meaning of s 729.
The defendant does not argue pursuant to paragraph 1(b) of this Application that “the Application does not disclose a cause of action and is embarrassing”.
The plaintiff argues that the Application is defective as neither rule 144(3) nor rule 16 specifically empower a court to “strike out” the claim.
The issues to be determined in this application are therefore:-
1. Is this application defective in seeking to “strike out” the plaintiff’s claim;
2. Were the proceedings in Fair Work Australia “withdrawn” as opposed to “dismissed”;
3. Does the timing of the “withdrawal” have any bearing on the operation of s 725;
4. Is this claim “in relation to the dismissal”.
Defective Application
The plaintiff argues that pursuant to Rule 144(3) and Rule 16 of the UCPR to strike out the application is defective as neither Rule 144(3) nor Rule 16 empowers the court to “strike out” proceedings.
Rule 144(3) provides that if a defendant files a conditional notice of intention to defend (as this defendant has done) the defendant must apply for an order under Rule 16 with 14 days after filing the notice. The defendant complied with this time limitation.
Rule 16 provides:-
“The court may—
(a)declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or
…
(e) set aside an originating process; or
…(g) stay a proceeding; or
…
(i) make another order the court considers appropriate.”
The Rule does not have the words “strike out” in it.
Rule 5 of UCPR provides:-
“(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with
the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
…”
The plaintiff has not been taken by surprise by the application to strike out her claim. The application itself specifically refers to Rule 144(3) and Rule 16 and sets out with particularity the grounds that this application is brought.
Accordingly to facilitate the just and expeditious resolution of the real issues in dispute in this particular application I am proceeding to hear this application and determine it on the basis that it is an application pursuant to Rule 16(a) to declare that the proceedings here has not for want of jurisdiction been properly started.
Were the proceedings in Fair Work Australia “withdrawn” as opposed to “dismissed”.
The plaintiff lodged an application for unfair dismissal remedy with Fair Work Australia on 14 April 2011.
On 30 September 2011 the plaintiff and defendant entered into a Deed of Settlement agreeing to settle those proceedings.
Also on 30 September 2011 the Commissioner in the Fair Work Australia proceedings pronounced:-
“I hereby order that Ms Cutter’s application be dismissed, with consent of the parties.”
The defendant argues that this was a dismissal of the matter rather than a withdrawal. The plaintiff argues that it was in fact a withdrawal.
In my view it is clear on the facts of the matter that there was never any adjudication of the application for unfair dismissal remedy, that the parties consented to the order dismissing the application and the consent dismissal of the application was given as a result of the Deed of Settlement entered into by the parties on the same day.
In CEO of Customs v Au[3] the New South Wales Court of Appeal gathered a number of authorities on the pleas of Autrefois Acquit and the Doctrine of Res Judicata which all point out that for a plea of such to succeed there must have been in substance a hearing on the merits. In that case the court was considering an appeal to it from a single judge decision dismissing a statement of claim which had in accordance with the endorsement by the magistrate on the charge sheet being “withdrawn and dismissed”. Thereafter the claimant instituted proceedings by way of Statement of Claim charging the defendant with the very same offences which had been the subject of the informations which had been “withdrawn and dismissed”. The defendant claimed that the proceedings were brought by the Statement of Claim as an abuse of process as they were subject to the principle of res judicata and/or issue estoppel.
[3] [2005] NSW CA 119 (21 April 2005)
There the Court of Appeal found that the order dismissing the informations was purely for the purpose, possibly agreed to by the informant and certainly sought by the defendant of preserving the local court’s jurisdiction to deal with the question of costs. It found[4] that: “The primary Judge erred when he disregarded the context in which the informations were dismissed and which he acknowledged as relating to the question of costs. No proper basis existed to justify his finding that a res judicata, an issue estoppel or an abuse of process precluded the claimant from proceeding in the Supreme Court pursuant to its Statement of Claim.”
[4] In paragraph 43
I am of the view that similarly this court must look at the context in which the dismissal was ordered. There being no hearing on the merits; there being a Settlement Deed entered into on the same day as the order for the dismissal and there being the fact that it is recorded the dismissal was by consent I am of the view that the proceedings were withdrawn rather than dismissed. The word “withdrawn” where it appears in sections 726 to 732 of the Act is to be read widely.
Does the timing of the “withdrawal” have any bearing on the operation of s 725
The defendant argues that as at the time of making this claim (16 August 2011) the application for unfair dismissal remedy had not been withdrawn (it having only been withdrawn on 30 September 2011) then s 725 prohibits the making of this claim.
In response to this the plaintiff argues that the phrase “‘make an application or complaint’ in s 725 has an ambulatory operation; that is it is to be considered at the point of time when the operation of s 725 falls to be determined”. That was the finding of Deputy President Bartel in Cook v ACI Operations Pty Ltd[5]. That case concerned an application for unfair dismissal remedy being lodged on 21 January 2011, a complaint being made to the Australian Human Rights Commission relating to his dismissal which was received on 24 January 2011 and a subsequent amendment of the complaint to the AHRC removing any reference to the termination of the complainant’s employment.
[5] [2011] FWA 3715 (14 June 2011) at paragraph 15
Sub-section 732(3) of the Act provides:-
“(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
This Subsection underlines the importance to the legislature of the timing of the making of the complaint by providing that when a complaint to the AHRC is made (with which might not have related to a dismissal) it is deemed to be made at a later point in time when an amendment to it then relates it to a dismissal.
If the legislature intended s 725 to have an ambulatory effect then there would have been no need to enact sub-section 732(3) because by the time the operation of s 725 fell to be considered in a hypothetical matter of an amended AHRC claim relating to a dismissal it would then already be such a claim and subject to prohibition by s 725.
Deputy President Bartel when he considered that the phrase “make an application or complaint” in s 725 to have an ambulatory operation was discussing that in the context of the facts in Cook v ACI Operations Pty Ltd that is in the context of an amendment which had been made to the complaint to the AHRC subsequently. The Deputy President considered that such an approach is consistent with the mischief intended to be cured by Subdivision B of the Act. The mischief he stated in paragraph 12 of that case to be the preventing of applicants from making multiple applications relating to the same dismissal and to force the applicant to elect which application he or she will pursue.
In the event that this claim is one brought “in relation to the dismissal” then the allowance of it to be brought whilst the application for unfair dismissal remedy to Fair Work Australia was still on foot would not, in my view, address the mischief about which Subdivision B of the Act was brought into existence.
In my view a person must not make a claim under another law in relation to the person’s dismissal if at the time of making that application an unfair dismissal application has already been made by the person in relation to the dismissal and the application has not been withdrawn by that person or has failed for want of jurisdiction. The words of the Act are plain.
Accordingly the timing of the withdrawal does have bearing on the operation of s 725. If the “withdrawal” had been prior to 16 August 2011 then this claim, if it is in relation to the dismissal, would not be barred by s 725. However if the unfair dismissal remedy application had not been withdrawn prior to the making of this claim, then, if this claim is in relation to the dismissal, this claim is barred by s 725.
Sub-section 15AB(1) of the “Acts Interpretation Act 1901” (C’wealth) provides that consideration may be given to extrinsic material which is capable of assisting in the ascertainment of the meaning of a provision of an Act to confirm that the meaning of the provision is the ordinary meaning or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision leads to a result that is manifestly absurd or unreasonable.
The Explanatory Memorandum to the Fair Work Bill 2008 provides[6] that the Subdivision is intended to prevent a person “double-dipping” when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
[6] At paragraph 2707
Paragraph 2708 of the Explanatory Memorandum goes on to say “Clause 725 is the key operative provision. It provides that if a person has made an application which falls within any of the clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.”
Paragraph 2710 states –
“In all cases the anti-double-dipping provisions will not apply where the initial application has:
· Been withdrawn; or
· Failed for want of jurisdiction.”
Paragraph 2711 provides “This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate then the remedy they initially sought.
The above portions of the Explanatory Memorandum support the view that I have expressed above that this claim, if it be in relation to the dismissal, is barred by s 725 as it was made when there was then at the time of making it a unfair dismissal application before Fair Work Australia which had not been withdrawn.
Is this claim in relation to the plaintiff’s dismissal
The Defendant argues that it is in relation to the plaintiff’s dismissal. Counsel for the defendant referred to the claim stating that by paragraph 7 of same it was alleged that “On 1 April 2010, the defendant notified the plaintiff that the plaintiff was terminated from her Position.”
And by paragraph 8 of the claim that the defendant by its conduct unlawfully repudiated the employment agreement by among other things in sub-paragraph (b)(viii) “failing to use dismissal as a last resort”. The defendant’s Counsel argued that the employment claim herein claimed damages for lost remuneration under the employment agreement, loss of opportunity to continue her career with the defendant and future economic loss all of which flow from the plaintiff’s dismissal.
The claim by the plaintiff against the defendant is a claim for unlawful repudiation of the employment agreement which existed between the two. The plaintiff alleges that the defendant unlawfully repudiated the employment agreement in paragraph 8 of the claim by:-
“(a) failing to follow and act in accordance with the disciplinary and grievance processes of the Procedures Manual;
(b) failing to follow and act in accordance with the disciplinary and grievance processes of the Employee Guidelines.”
The claim goes on then to particularise how the defendant failed to follow and act in accordance with the processes of the Procedures Manual and Employee Guidelines. It alleges that it failed in the same by failing to follow the disciplinary processes provided in the Procedures Manual and/or Employee Guideline, requesting that the plaintiff attend a disciplinary meeting without been informed what the meeting was about, failing to follow the grievance policy and procedures provided in the Procedures Manual and /or the Employee Guidelines, issuing the plaintiff with a show cause letter raising 17 allegedly unsubstantiated allegations against her, failing to provide the plaintiff with three warnings in accordance with the disciplinary procedures provided in the Manual and Guidelines referred to above, failing to provide timely feedback when necessary, failing to identify whether a problem is a misdemeanour or a major problem, failing to use dismissal as a last resort, failing to make all efforts to secure improvement and development and failing to provide an environment for discussion prior to commencing disciplinary action.
Whether these alleged failures, requests and other actions amount to a repudiation of the employment agreement fall to be determined elsewhere if this application is unsuccessful.
The plaintiff argues that if the procedures and processes set out in the Procedures Manual and Employee Guidelines were followed the plaintiff may have remained employed for a longer period.
Counsel for the defendant argues in essence that the words “in relation to the dismissal” where they appear in sections 725 and 732 of the Act are to be read broadly. Deputy President Bartel in Cook v ACI Operations Pty Ltd supra came to a contrary view and on the facts in that case where the complainant had lodged an amended complaint to the AHRC which did not rely upon his dismissal as a condition precedent to make the case that the employer there engaged in discriminatory conduct does not relate to the dismissal.
Similarly in this case the dismissal of the plaintiff is not a condition precedent to the bringing of this claim. The plaintiff here is seeking to remedy a different wrong. I agree with the reasoning of Deputy President Bartel in Cook v ACI Operations Pty Ltd that those words ought to be interpreted broadly.
It follows that this claim is not an application or complaint which has been made by the plaintiff in relation to the dismissal.
The Court has power and jurisdiction to hear and determine this matter as these proceedings are not prohibited by s 725 of the Act.
The claim herein does disclose a cause of action (damages for unlawful repudiation of an Employment Agreement) and is not embarrassing.
It follows that the defendant’s application to strike out the claim is dismissed.
C. Callaghan
Magistrate
23 February 2012
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