Dube v Hills Community Options Inc
[2017] FCCA 976
•15 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUBE v HILLS COMMUNITY OPTIONS INC & ORS | [2017] FCCA 976 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal – application to strike out pleadings – amendment of pleadings. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 351 & 550 Federal Circuit Court of Australia Act 1999 (Cth),ss.3 & 17A(2) |
| Cases cited: ASIC v Cassimatis [2013] FCA 641 |
| Applicant: | CONSTANCE DUBE |
| First Respondent: | HILLS COMMUNITY OPTIONS INC |
| Second Respondent: | JOHN LOVEDAY |
| Third Respondent: | KEATH RIGBY |
| Fourth Respondent: | KIM PARISH |
| Fifth Respondent: | LYNNE DODD |
| File Number: | ADG 184 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 29 November 2016 |
| Date of Last Submission: | 29 November 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 15 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Lazarevich |
| Solicitors for the Applicant: | Starke Lawyers |
| Counsel for the Respondents: | Ms K Stewart |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant is to file and serve a further amended application within 14 days.
The respondents do file and serve responses to the further amended application within 35 days.
The Application in a Case filed 25 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 184 of 2016
| CONSTANCE DUBE |
Applicant
And
| HILLS COMMUNITY OPTIONS INC |
First Respondent
| JOHN LOVEDAY |
Second Respondent
| KEATH RIGBY |
Third Respondent
| KIM PARISH |
Fourth Respondent
| LYNNE DODD |
Fifth Respondent
REASONS FOR JUDGMENT
This is an Application in a Case by the respondents seeking orders summarily dismissing the claim alleging a breach of s.340 of the Fair Work Act 2009 (Cth) and striking out the claim alleging a breach of s.351 of that Act. In the alternative, the second to fifth respondents inclusive seek an order striking out both claims as against each of them.
The applicant opposes the orders sought by the respondent.
The applicant filed her Initiating Application in this matter on 16 June 2016. Pursuant to orders made by me, an Amended Application was filed on 22 August 2016. A second amended application was filed on 28 November 2017. It is the second amended application to which I refer in these reasons.
The respondents’ seek summary dismissal of the claim made under s.340 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). In their submissions, the pleadings with respect to adverse action allege every form of adverse action with the exception of dismissal, and yet the pleadings only assert that the applicant has suffered an injury, namely her mental health issues.
The respondents submit that there are no facts alleged to support a finding that there has been a prejudicial alteration of her position, or asserting the way in which the treatment of the applicant amounted to discrimination.
Further, it is submitted that neither the amended claim, or the proposed further amendments to that claim, make sufficient pleading with respect to the question of whether the alleged adverse action was taken because the applicant had the workplace rights she asserts. Accordingly, they submit that no breach of s.340 is alleged. This deficiency is made more stark, the respondents’ submit, because of the inherent unlikelihood that any of the respondents would bully or harass the applicant because she had the benefit of those laws and instruments that provided her with the right to a safe workplace. It would be fanciful, implausible or improbable to suggest that such a causal nexus existed.[1] It follows that I could not find that there was a reasonable prospect of success to this claim.
[1] ASIC v Cassimatis [2013] FCA 641 at [47].
As to the claim pursuant to s.351, the respondents submit that it should be struck out. The respondents submit that it is necessary for any claim based on adverse action because of a person’s sex to be clearly particularised.[2] It submits that the applicant has failed to properly particularise allegations of discrimination on the basis of sex or disability in the amended application, and has not alleged any facts that suggest evidence can or will be lead at trial on those matters. As a bare minimum the respondents’ submit that the applicant’s claim must plead the basic necessary facts in order to formulate a complete cause of action.[3]
[2] Hodkinson v The Commonwealth [2011] 207 IR 129 at 166.
[3] O’Brien v Michel’s Patisserie (WA) P/L and Calmer P/L & Ors v Michel’s Patisserie (WA) P/L & Anor [2010] FMCA 7.
The respondents contend that the applicant has merely stated a conclusion that the bullying and harassment was by reason of the applicant’s sex and or disability and for that reason it should be struck out.
As to ground two of the Application in a Case, it is submitted that under s.342, the taker of adverse action can only be an employer and self-evidently, s.351 is directed to an employer. It follows for that reason that the second to fifth respondents can only be liable as accessories.[4]
[4] Department of Immigration v Brahatheesan [2014] FCCA 440 at [2].
The respondents submit that s.550, dealing with being “involved in” a contravention of a civil remedy provision, has not been adequately pleaded and for that reason, the basis of accessorial liability under that section has not been identified. In that sense, it is embarrassing and the respondents cannot properly reply to it.
The respondents submit that both knowledge of the contravention and association with it through positive acts would need to be demonstrated in order for accessorial liability to be attracted to any of the second to fifth respondents.[5]
[5] ABCC v Abbott (No.4) (2011) 211 IR 267 at [193].
The respondents submit that the failure to adequately allege knowledge is also a contravention of r.16.43 of the Federal Court Rules 2011 (Cth), which are picked up by this Court.
The respondents submit that the applicant has not pleaded material facts relied on to allege that the second to fifth respondents engaged in bullying by reason of the applicant’s sex, or particularised the material facts it says support the proposed pleading that the applicant’s mental health problems were known to each of the second to fifth respondents inclusive, and used by them to increase the bullying and harassment. As such, the amended application and proposed further amended application do not disclose a reasonable cause of action thereby causing prejudice, embarrassment and potential delay to the second to fifth respondents inclusive should they be required to plead to the further amended application as proposed.
The applicant submits that both claims have been adequately pleaded and in the alternative if I am against her in that respect, that any defects in the pleadings can be remedied by amendment.
It is clear from the Federal Circuit Court of Australia Act1999 (Cth) that the Court has power to summarily dismiss a claim if there is no reasonable prospect of success. Pursuant to s.43(2) of the Act and r.1.05(2) of the Federal Circuit Court Rules 2001 (Cth), the Court also picks up the rules of the Federal Court in circumstances where its own rules are ‘insufficient’ and relevantly in this matter, has power to strike out pleadings in a clear case pursuant to r.16.21 of the Federal Court Rules 2011 (Cth). The power is to be used sparingly.
Consideration
With respect to ground one of the Application in a Case, as the respondents readily concede, no affidavit material has yet been filed and I am confined to the face of the pleadings in considering their application. Nevertheless, the amended pleadings are deficient in a number of respects. I accept the submission of the respondents that there is no allegation made in the pleadings to establish the causal nexus between the adverse action and the existence, exercise or proposed exercise of the workplace rights alleged. That is a foundational element to a contravention of s.340 under the Fair Work Act. Whether the adverse action was taken because the applicant had or exercised or proposed to exercise a relevant workplace right is central to the enquiry in these proceedings.[6] The pleadings are silent on that matter.
[6] Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114.
Paragraph 9 of the amended application alleges that all of the respondents individually and jointly engaged in, “concerted and intentional bullying and harassment” of the applicant. It asserts that each of the respondents was aware of and condoned or actively engaged in the bullying and harassment of the applicant by “each and every other respondent” but no particularity is provided as to the knowledge, participation or condoning of the second or fifth respondents. Of the eight episodes of bullying and harassment alleged in paragraphs 11.1 to 11.8, there is simply no reference to the second or fifth respondents. The pleadings simply make the bald assertion that they knew of, were actively involved in or condoned the conduct alleged. The second and third respondents are left to guess as to whether they are said to have been actively involved or in some way condoned the conduct or both. In his submissions, counsel for the applicant informed the Court from the bar table that the second respondent was the chairman of the first respondent and that the fifth respondent was the human resources manager. Both are alleged to have been aware of the bullying and harassment and neither did anything to ameliorate it. The applicant has submitted that any defect in the pleadings in that regard can be remedied by re-pleading.
I reject the submission of the respondents that no facts are alleged that might be capable of establishing that there had been a prejudicial alteration of the applicant’s position. It seems to me to be at least arguable that the matters alleged in paragraphs 11.5 and 11.6 of the amended pleadings might have amounted to a prejudicial alteration of her position. Further, as the applicant submitted, any action taken by an employer that amounts to an injury in employment will necessarily alter that employees’ position to their prejudice.[7]
[7] Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58 at [29].
The applicant relies on the instances of harassment and bullying alleged with respect to the s.340 claim in support of her claim made pursuant to s.351.[8] I accept the submission of the respondents that the pleadings as to harassment and bullying do not identify how the applicant says the matters pleaded at paragraphs 11.1 to 11.8 inclusive amounted to discrimination on the basis of her sex.
[8] Amended Claim, paragraph 17.
With respect to the s.351 claim, the applicant has also pleaded a number of instances in which she alleges that she was denied the opportunity to attend various external events with her “key client” because of her sex and that a male employee was instead assigned to attend at those events in her place. I reject that submission of the respondents that the applicant has failed to plead a factual basis to support an allegation that she was treated differently to other employees because of her sex. She has alleged that she was treated differently to the male employee assigned to attend the events she has identified and that this was explained to her as being because of her sex. It may be that evidence ultimately lead at trial will establish that all female employees were treated in this manner with respect to “key clients” who were male. It may be that the evidence will suggest that she was the only female employee to be treated in this way. In any event, I am satisfied that for the purpose of these proceedings that the applicant has established a reasonable cause of action with respect to this aspect of her claim. I decline to strike out this aspect of her pleadings.
As to the respondents’ submissions with respect to accessorial liability under s.550, I accept that with respect to the second to fifth respondents, the pleadings are inadequate. Section 550 of the Act provides as follows:
“(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.”
In order to be involved in the contraventions the second to fifth respondents would need to have acted in one of the manners identified in s.550. In my view, paragraphs 11.1 to 11.8 of the pleadings do allege the third and fourth respondents to have behaved in a manner that might attract accessorial liability under s.550(2)(a) as far as the bullying and harassment allegation is concerned. The pleadings do not identify how or if they are said to have been involved in the conduct with respect to the exclusion from external events with her key client. However on the face of the pleadings, the second and fifth respondents are not implicated in any of the identified incidents with respect to either the s.340 or s.351 claims.
As I have already noted, in so far as the bullying and harassment are concerned, the applicant has pleaded at paragraph 9 of the amended claim that, “each of the Respondents was aware of the bullying and harassment of Ms Dube by each and every other Respondent and condoned or actively engaged in the bullying and harassment.” but does not identify how each was aware of each-others conduct. The basis of that knowledge must presumably be capable of identification, or the allegation could not have been made. Even if the basis alleged by the applicant against each of the respondents was ultimately shown to be without foundation, she must have some factual basis in mind.
I accept the submission of the respondents that the amended claim makes no pleading of facts that might establish that any of the second to fifth respondents knew of the applicant’s mental health issues or the manner in which these problems were used by those respondents, “to increase the bullying and harassment” of the applicant. Were the applicant’s mental health problems openly discussed in the workplace? Did one of the second to fifth respondents raise the topic at a meeting at which one or more of the other respondents was present? On what basis is it alleged to have been the intention of all of the second to fifth respondents to, “force the Applicant to resign”? The respondents are given no hint of this in the pleadings as they presently stand. In my view, the respondents are entitled to make the complaint they do with respect to paragraph 20 of the amended claim.
This Court is not a court of strict pleading. The Court has broad powers to allow a party to amend any document with the exception of an affidavit.[9] One of the objects of the Act which establishes this Court is that the Court should operate as informally as possible in the exercise of judicial power.[10] In my view, one way in which that object can be facilitated is by declining to take an overly technical approach to the formal requirements of pleadings. That is not to suggest that pleadings however deficient should be allowed to stand. But where in an early stage of proceedings, amendments can readily remedy defects in pleadings, then that is the preferable approach. Relief in the nature of summary dismissal is rarely and sparingly granted.[11] It is necessary for the party seeking summary dismissal to show that the claim has no reasonable prospect of success. Whilst I have concluded that the pleadings are in some respects deficient, I am also satisfied that the defects can be remedied by amendment.
[9] Rule 7.01 Federal Circuit Court Rules2001 (Cth).
[10] Section 3, Federal Circuit Court of Australia Act1999 (Cth).
[11] Lindon v The Commonwealth (No.2) (1996) 136 ALR 251.
In the circumstances, I will allow the applicant to amend her pleadings in order to properly plead:
a)The nexus alleged between the existence, exercise or proposed exercise of the applicant’s workplace rights.
b)The basis on which the second to fifth respondents are alleged to have been aware of, condoned or actively involved in the bullying and harassment of the applicant by each other respondent.
c)The basis on which it is alleged that the matters pleaded at paragraphs 11.1 to 11.8 inclusive of the amended claim amounted to discrimination on the basis of her sex.
d)The factual basis on which any of the second to fifth respondents are alleged to have been involved in the matters pleaded at paragraphs 15.1 to 15.4 inclusive of the amended claim.
e)The factual basis on which it is alleged at paragraph 20 of the amended application that the mental health problems of the applicant were known to the respondents from 21 August 2014 and used to increase the bullying and harassment of her.
f)With respect to the second to fifth respondents inclusive, the basis under s.550 on which it is alleged accessorial liability is attracted to each of them.
I otherwise dismiss the application in a case and make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of Judge Heffernan.
Date: 15 May 2017
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