DOE-NUNNEH v Ludowici Australia Pty Ltd
[2010] FMCA 458
•21 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOE-NUNNEH v LUDOWICI AUSTRALIA PTY LTD | [2010] FMCA 458 |
| INDUSTRIAL LAW – FAIR WORK – Dismissal by respondent of the applicant because of social origin and temporary absence from work – application by the respondent for summary dismissal – costs follow the event. |
| Fair Work Act 2009 Federal Magistrates Court Rules 2001 |
| Applicant: | ALBERT DOE-NUNNEH |
| Respondent: | LUDOWICI AUSTRALIA PTY LTD |
| File Number: | BRG 1012 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 21 June 2010 |
| Date of Last Submission: | 21 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 21 June 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person |
| Solicitors for the Respondent: | Herbert Geer |
ORDERS
That the application be dismissed.
That the applicant pay the respondent’s costs of and incidental to the proceeding, to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1012 of 2009
| ALBERT DOE-NUNNEH |
Applicant
And
| LUDOWICI AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
This is an application made by the applicant for relief under the Fair Work Act 2009 and in particular, he claims that his employment was unlawfully terminated. His claim does not particularise the basis upon which his employment was terminated. The form 3, which is the claim under the Fair Work Act alleging unlawful termination, simply notes in terms of the grounds that his employment was allegedly unlawfully terminated. First, because he had filed a complaint and participated in proceedings against the employer involving alleged violations of laws or regulations or recourse to competent administrative authorities, next on the basis of race, colour, sexual preference, age, physical and mental disability and mental status, family or carer’s responsibilities, pregnancy, religion, political opinion, natural extraction or social origin.
He has checked the other box but has not provided any details except that there is some evidence from him when he was called upon on the first day of his application where he says that he relies essentially upon the provisions provided for in section 772, subsection (1)(f), which is, in particular social origin or (h), temporary absence from work. To that end, he doesn’t seem to pursue the first of the complaints in the checked boxes in his application and interestingly, does not check the box in relation to temporary absence in the application.
The respondent has bought an application seeking to have the application dismissed and for summary relief, in those terms pursuant to FMC rule 13.10 on the basis that the application doesn’t disclose any arguable cause of action. I am dealing with the facts first. The applicant is a welder by trade and it is not in contest that he commenced employment with the respondent, Ludowici Australia Proprietary Limited, on 22 June 2009. Also, it is not in dispute that his employment ceased with the respondent on 29 September 2009, that being the dates alleged in his form 3.
Although, I should say this, while there does not appear to be any material ascending into detail about the terms of his employment, on one basis it seems that he was casually employed, but that matter is not entirely clear from the applicant’s material. In particular, I note statements made by him in annexure A to his affidavit filed 11 January 2010 where he swears that he was employed as a welder on a full-time basis, having started work on the same day that he had an interview but noting later in the course of that statement that a comment was made to him to the effect that he was a casual worker, a comment to which it appears he did not demur.
His basic responsibilities included prefabrication and welding of poly wedge and centrifuge baskets. He stated that for about 11 weeks, he worked continuously in a workshop doing prefabrication and welding panels before he was moved to the night shift, which he appears to have taken as a demotion. Notice of his transfer to the night shift appears to have occurred on 18 September and then he commenced the night shift on 21 September. He was terminated, as was earlier noted, a short time afterward.
The basis for termination, which he deposes to in his application, was essentially that he was often late for work. It seems that at about the time he was laid off, aside from the inconvenience he says that working night shift was causing him, there was a need for him to apply for a special hardship order for the issue of a driver’s licence by the Department of Transport as it appears he was about to commence a period of driver’s licence suspension. He says he sought documentation from his supervisors but his supervisor said he didn’t see the need to prepare such a document because he was considering laying the applicant off this Friday.
When he asked why he was being laid off at such a time, the supervisor, he said, promised that the position was a permanent one. He says he stated to that person that Stuart, the person who interviewed him at the outset, had promised the applicant the position was a permanent one. The supervisor, that is, Stuart, the person who put him on, responded that he did not promise or didn’t make promises of that kind to casual workers. The applicant says that he bowed his head in shock of the news and the arrogance with which it was delivered and that Stuart, the supervisor, went on to say that in any event, he had a report on the applicant and when asked about the report, the report was that the applicant was late to work “most of the time”.
The applicant has a view that his dismissal was as a result of a ploy that went wrong and that it was as a result of:
“Reckless persistence at coercion, harassment and bullying.”
Interestingly, none of the matters which the applicant relies upon in support of his affidavit nor in respect of which he informed the court of in some sworn testimony on the first day of the application address any of the grounds identified in section 772(1) of the Fair Work Act. The only ground which seems to have some basis, is the lateness for work. That ground, however, has to be considered against what is actually provided for in section 772(1)(h). It relevantly provides that:
“An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons – “
that being -
“(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable, having regard to all the circumstances.”
The lateness for work, while it may have been minute in each instance, no doubt, was not justified in the sense required by section 772(1)(h), and so as such constituted lateness for work. The applicant, by his own admission, seems to concede that he was employed on a casual basis, and accordingly, no question of termination of permanent employment appears to arise.
In the respondent’s application, the respondent complains fundamentally of the applicant’s failure to address the terms of his claim. I have sought to take a generous view of the applicant’s failure to comply with the strict requirements of the legislation and the court rules, in relation to the particulars of matters of claim, to circumvent the obvious difficulties that the applicant has in representing himself, and addressing matters of relevance. I afforded him the opportunity to inform the court, including the respondent, in open court on a sworn basis, without being subjected to cross-examination of the broad facts supporting his application. Nothing in any of the matters advanced by him in that brief testimony, support any basis for an action under section 772.
Likewise, the applicant has today produced a tape recording of a conversation that is said to have occurred in the workplace; which tape recording, he says, supports his position. I have listened carefully to the tape, which will become exhibit, 2 but notwithstanding the careful attention to the conversation that has occurred between the applicant himself and a third party, whom I suspect is either his team leader, or leading hand, there was nothing in the conversation which suggests that there are any difficulties between the applicant and any member of staff, or any member of his supervising staff, in terms of any of the matters identified in section 772(1). Indeed, if anything, the advice that is being provided by the other party to the conversation to the applicant, was more in the nature of helpful advice, rather than advice that could be seen in a negative or antagonistic sense, or comments that could be sought to support, for instance, any suggestion that the action that was being taken had its basis in the applicant’s social origin; that being the most likely basis to be advanced upon the matters advised by the applicant.
The applicant has been afforded previous opportunities to get his case in order. The matter came on first instance on 21 February 2010, when orders were issued directing the applicant to file material, or further material by 10 March; such that the matter could proceed to mediation on 20 April. When the matter came on, on 21 April, an application had been filed on 8 March, seeking dismissal of the applicant’s claim. It seems that orders were made on that occasion, dismissing that application, and directing the applicant to file points of claim on or before 21 May. It was hoped that the applicant would use that second opportunity to get his case in order.
When the matter returned on 16 June, there was a further application by the respondent, because the applicant had failed to comply with these further directions issued. It seems, in the circumstances, despite having afforded the applicant a number of opportunities to get his case in order, having been as liberal as one can be in terms of permitting the applicant opportunity to inform the court of the facts which might support a cause of action, and despite all those matters, no cause of action being apparent, it seems to me that this is an instance where the court ought bring these proceedings to an end, on the basis that the proceedings as they presently stand, do not disclose any reasonable cause of action. And that to permit the matter to go forward to trial, would simply result in all parties, in particular, in this instance, the respondent, incurring unnecessary costs.
The applicant resists an application for costs. In my view, costs ought follow the event. The applicant has had now three opportunities to get his case in order, and has failed to do so. I think the application for costs should follow the event in the application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate:
Date: 29 June 2010
0
0
2