Debus v Condor Energy Services Limited

[2021] FCCA 342

FEDERAL CIRCUIT COURT OF AUSTRALIA

Debus v Condor Energy Services Limited [2021] FCCA 342

File number(s):

BRG 137 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

24 February 2021

Catchwords:

INDUSTRIAL LAW – Commonwealth – industrial courts – Federal Circuit Court – procedure – removal of parties.

INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – workplace rights – accessorial liability.

Legislation:

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth), ss 342, 351, 351(1), 361, 550(1), 550(2)(a)

Federal Circuit Court Rules 2001 (Cth), r 11.04

Number of paragraphs:

13

Date of last submission/s:

30 October 2020

Date of hearing:

30 October 2020

Place:

Heard in Brisbane, delivered in Hervey Bay

The Applicant:

Self-represented

Solicitors for the Respondents:

Legal Kitz Pty Ltd

ORDERS

BRG 137 of 2020

BETWEEN:

WAYNE PETER DEBUS

Applicant

AND:

CONDOR ENERGY SERVICES LIMITED (ACN 153 250 670)

First Respondent

CARTER CHISHOLM DUMONT

Second Respondent

ERIN DUFFIN

Third Respondent

KIM SCHULTZ

Fourth Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	24 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The third respondent Erin Duffin and the fourth respondent Kim Schultz be removed as parties to these proceedings.

2.Otherwise the application in a case filed on 17 September, 2020 be dismissed.

3.The application is adjourned to 1 April, 2021 at 9:30am for directions.

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. This interlocutory application commenced as an application by the second, third and fourth respondents to be removed from these proceedings in accordance with rule 11.04 of the Federal Circuit Court Rules 2001 (Cth). On 16 October, 2020 the applicant filed an amended statement of claim removing the third and fourth respondents from the proceedings. To that extent then, the present application has been overtaken by that event. The application for her removal from the proceedings is pressed by the second respondent.

2. The second respondent prosecutes the application not on the basis that the statement of claim relied upon by the applicant is deficient and does not plead a cause of action sufficient to give rise to liability on the second respondent’s part, but rather that the evidence that the applicant has filed does not establish his case.  In that sense, the application is akin to a summary dismissal application prosecuted on the basis that the applicant has no reasonable prospects of successfully prosecuting his application against her.

3. In his principal proceedings, the applicant seeks relief against the first respondent as his employer for a contravention of ss.342 and 351(1) of the Fair Work Act 2009 (Cth). The applicant claims that the first respondent terminated his employment because of his alleged mental disability. He says that the second respondent is liable for the first respondent’s contravention pursuant to s.550(1) of the Act.

4. The first respondent denies the applicant’s claims and alleges that:

   (a)the applicant’s termination was because of his conduct and concerns about his interaction with other staff;

   (b)the applicant was lawfully terminated within his probation period; and

   (c)none of the respondents were aware of the applicant’s disability (if any) until after the decision was made to terminate his employment.

5. Initially, the applicant commenced his proceedings without a statement of claim.  His originating application and Form 2 disclosed no basis for the joinder of the second, third and fourth respondents to the proceedings.  On 4 June, 2020 the parties agreed that the applicant should file and serve a statement of claim which particularised the basis of the alleged breaches that he pursued against the first respondent and which particularised the basis of the accessorial liability of the second, third and fourth respondents.

6. The applicant filed a statement of claim on 17 July, 2020.  In it, he alleged that:

   (a)the first respondent and second respondent contravened s.351 of the Fair Work Act; and

   (b)the second, third and fourth respondents were involved in the alleged contravention by the first respondent pursuant to s.550(1) of the Act.

7. On 16 October, 2020 (after the present application in a case was filed) the applicant delivered an amended statement of claim in which he removed the third and fourth respondents from the proceedings.  He excised that much of the pleading that alleged that they were involved in the first respondent’s contraventions of the Act. 

8. The amended statement of claim is a discursive document which includes allegations of material facts, allegations of immaterial fact, allegations of law and evidence.  Relevantly, for the purposes of the present application, it is alleged in the statement of claim that:

   (a)on 29 July, 2019 the applicant commenced employment as an assistant accountant with the first respondent on a permanent and full-time basis, subject to a six-month probationary period;

   (b)the applicant has been diagnosed with various mental health related conditions, managed by a psychiatrist, including:

   (i)autism spectrum disorder (Asperger’s Syndrome);

   (ii)attention deficit hyperactivity disorder;

   (iii)depression/generalised anxiety disorder; and

   (iv)obsessive-compulsive behaviours;

   (c)the applicant’s conditions constitute a disability for the purposes of the Disability Discrimination Act 1992 (Cth);

   (d)when interviewed for the position, the applicant made “certain disclosures… in relation to the manifestations of the applicant’s disability – namely a tendency to be blunt and direct in his honesty”;

   (e)the second respondent was the Chief Executive Officer of the first respondent and the primary decision-maker;

   (f)at a work function held on 8 August, 2019 the applicant informed the second respondent (amongst others) that he had been diagnosed with autism spectrum disorder and was “wired differently and would, at some point in the future, offend one of them without meaning to”;

   (g)after lunch on 7 November, 2019 the applicant had, “become aware of the symptoms leading to a manifestation of a mental health ‘episode’ leading to a ‘meltdown’ and was shortly after that ‘meltdown’ asked into the Boardroom by his acting line manager, Ms Duffin during which the applicant expressed his frustration and annoyance with regard to the lack of support and leadership being shown in the Second Respondents (sic) absence and was instructed to take the rest of the afternoon off.”;

   (h)the applicant was absent from work on 8 November, 2019 due to the continuation of symptoms associated with the previous day’s mental health “episode”;

   (i)on 11 November, 2019 at 9:00am, the applicant met with the second respondent, during which the second respondent terminated the employment of the applicant with the first respondent and informed the applicant that his termination was due to “poor cultural fit”; and

   (j)the second respondent aided, abetted, counselled or procured the conduct of the first respondent represented by the termination of the applicant’s employment.  He was the actor who made the decision to terminate the applicant’s employment and communicated that decision to the applicant.  In those circumstances the applicant alleges that the second respondent was involved in the first respondent’s contravention.

9. The second respondent argues both in his written submissions (filed on behalf of the second, third and fourth respondents) and orally that that the applicant has failed to provide any pleadings or particulars relevant to establishing a claim of accessorial liability of the second respondent.  However, that submission cannot be accepted.  It is clear from the amended statement of claim that the applicant pleads that the second respondent had knowledge, albeit constructive knowledge in his position as Chief Executive Officer of the first respondent, of his alleged disabilities, having been told of them by the applicant in his pre-employment interview with other officers of the first respondent.  The applicant also alleges that he told the second respondent directly in August, 2019 that he had Asperger’s Syndrome.  If the Court accepted that allegation it could be comfortably satisfied that the second respondent had knowledge of at least one aspect of the applicant’s alleged disability.

10. The applicant further pleads that the second respondent was the decision-maker in respect of his employment on behalf of the first respondent and that he communicated the termination of the applicant’s employment to him. Those matters are sufficient to satisfy the requirement in s.550(2)(a) that the second respondent aided, abetted, counselled or procured the conduct of the first respondent represented by the termination of the applicant’s employment.

11. The applicant will, most likely, have the benefit of s.361 of the Act to assist him to establish the first respondent’s state of mind at the time his employment was terminated. That is because, given the temporal connection between his mental health issue that occurred on 7 November, 2019, his absence from work on 8 November, 2019 to recover and his termination on 11 November, 2019 the applicant will probably satisfy the Court that there is a sufficient case made out by him to engage that section.

12. The second respondent argues that on the basis of his evidence, the applicant did not disclose to him that he suffered from or had been diagnosed with any mental health conditions or disability prior to the decision to terminate his employment.  However, the applicant’s case is different, as I have set out above.  The difference between the applicant’s position and that of the second respondent is an issue that requires determination at a trial.

    DISPOSITION

13. I am not satisfied that it is appropriate to remove the second respondent from these proceedings.  I am not satisfied having regard to the matters above that the applicant has no reasonable prospect of successfully prosecuting his application against the second respondent.  For those reasons, the application in a case filed on 17 September, 2020 is dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 24 February, 2021.

Associate:

Dated:       24 February 2021