Edgar v Norton Rose Fulbright Australia Services
[2019] FCCA 1869
•5 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDGAR v NORTON ROSE FULBRIGHT AUSTRALIA SERVICES & ORS | [2019] FCCA 1869 |
| Catchwords: PRACTICE & PROCEDURE – Pleadings – application for strike out – application for summary dismissal – application for leave to amend. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 345, 351, 361, 550 Disability Discrimination Act 1992 (Cth) Federal Circuit Court Rules 2001 (Cth), r.13.10 |
| Cases cited: Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 Spencer v Commonwealth (2010) 241 CLR 118 Hodkinson v Commonwealth (2011) 248 FLR 409 Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424 |
| Applicant: | SUET YING (ALICE) EDGAR |
| First Respondent: | NORTON ROSE FULBRIGHT AUSTRALIA SERVICES PTY LTD |
| Second Respondent: | ALEX BOXSELL |
| Third Respondent: | LEX MELZER |
| Fourth Respondent: | LAUREN O’ROURKE |
| Fifth Respondent: | KATHRYN O’REILLY |
| Sixth Respondent: | KATE WETHERALL |
| File Number: | SYG 1937 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 8 May 2019, 7 June 2019 |
| Date of Last Submission: | 7 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Andelman of Counsel |
| Solicitors for the Applicant: | Harmers |
| Counsel for the Respondents: | Mr J. Darams of Counsel |
| Solicitors for the Respondents: | Lander & Rogers |
ORDERS
The amended statement of claim be struck out.
The applicant’s application to file the proposed further amended statement of claim annexed to the affidavit of Megan Prouatt affirmed 7 May 2019 be dismissed.
The applicant have leave to amend her application in a case filed on 7 May 2019 to seek leave to file a second amended statement of claim.
Any amendment, pursuant to order 3, of the applicant’s application in a case filed on 7 May 2019 be filed and served no later than 2 August 2019.
In the event that the applicant does not file an amended application in a case pursuant to orders 3 and 4, the matter be listed for further directions on 16 August 2019 at 10:15am.
The parties have liberty to apply on the question of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1937 of 2018
| SUET YING (ALICE) EDGAR |
Applicant
And
| NORTON ROSE FULBRIGHT AUSTRALIA SERVICES PTY LTD |
First Respondent
| ALEX BOXSELL |
Second Respondent
| LEX MELZER |
Third Respondent
| LAUREN O’ROURKE |
Fourth Respondent
| KATHRYN O’REILLY |
Fifth Respondent
| KATE WETHERALL |
Sixth Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Edgar, was employed by the first respondent, Norton Rose Fulbright Australia Services Pty Ltd (“Norton Rose Services”), as Digital Marketing Manager. Her employment came to an end and she has commenced this proceeding against Norton Rose Services and certain of its employees alleging breaches of her employment contract and contraventions of the Fair Work Act 2009 (“FW Act”).
The action is proceeding on pleadings and a statement of claim was filed on 26 October 2018. An amended statement of claim (“ASOC”) was filed on 8 February 2019.
On 29 March 2019 the respondents filed an interlocutory application in which they sought orders pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (“Rules”) dismissing the following paragraphs of the ASOC:
a. l0U – l0Z and 90(c), 94(b), 96(c); and/or
b. 10B, l0C, 10D.
In the alternative the respondents sought orders pursuant to r.16.21 of the Federal Court Rules 2011 (“FCA Rules”) striking out the entire ASOC or, alternatively, the following paragraphs:
a. 10B, 10C, 10D;
b. 10R- 10T;
c. 10U - 10Z;
d. 10AH- 10AK;
e. 10AL;
f. 10AM;
g. 10AN-10AO;
h. 73 - 87; and/or
i. 90- 101.
On 7 May 2019 Ms Edgar filed her own interlocutory application seeking leave to file a proposed further amended statement of claim (“Proposed FASOC”).
Both applications were heard together. This was possible without undue difficulty as many of the ASOC’s paragraphs to which the respondents objected also appeared in the Proposed FASOC and rulings on one pleading will necessarily affect the other. When the paragraphs in each pleading were the same, these reasons will refer only to the submissions concerning the ASOC. When it is necessary to refer to provisions which appear only in the Proposed FASOC or appear there in substantially amended form, that will be made clear.
The issues before the Court were whether:
a)the ASOC would be struck out in whole or in part and summary judgment in the form of dismissal entered in relation to certain of its allegations;
and whether
b)the applicant would be granted leave to file the Proposed FASOC.
For the reasons which follow, the ASOC will be struck out, leave to file the Proposed FASOC refused and Ms Edgar will be granted leave to amend her application in a case to seek leave to file a second amended statement of claim.
LEGISLATIVE PROVISIONS
Rule 13.10 of the Rules provides that:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Rule 16.21 of the FCA Rules provides as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
Section 342 of the FW Act relevantly provides:
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
PLEADINGS
The relevant terms of the ASOC and of the Proposed FASOC are set out later in the reasons where the parties’ arguments are considered.
SUBMISSIONS
In their written submissions dated 7 March 2019, which preceded Ms Edgar’s application in a case and so was addressed to the ASOC, the respondents argued that the following paragraphs of that pleading should be struck out for the following reasons:
a)paras.10 and 10A (alleged breaches of express contractual provisions):
i)disclosed no reasonable cause of action because the terms allegedly breached were either not in fact terms of the contract or, to the extent that they were, were hortatory rather than promissory; and
ii)did not disclose breaches of the express terms relied on even if those terms were promissory in nature.
The respondents submitted that the following paragraphs should be struck out or dismissed for the following reasons:
a)paras.10B, 10C and 10D (alleged breaches of implied contractual provisions):
i)disclosed no reasonable cause of action. Ms Edgar’s allegation that the respondents breached certain implied terms in her employment contract (namely a duty to co-operate, a duty to act in good faith, a duty of fair treatment and a duty of care) was “fundamentally misconceived” because such terms are not implied by operation of law in Australian employment contracts or, to the extent that they have been implied, have only been implied in respect of the performance of contracts; and
ii)were pleaded too generally and were “vague, ambiguous, [and] unintelligible”. Furthermore, paras.10C and 10D pleaded conclusions rather than material facts; and
b)paras.10U-10Z (alleged misrepresentations in contravention of s.345 of the FW Act) failed to disclose a cause of action. The respondents submitted that these paragraphs were vague and pleaded conclusions rather than material facts. For example, they argued that it was unclear from the pleading who made the alleged representations to Ms Edgar, when any such representations might have been made and when or whether Ms Edgar was shown the documents which were said to contain misrepresentations.
The respondents submitted that the following paragraphs should be struck out for the following reasons:
a)paras.10R-10T (alleged adverse action in contravention of s.342 of the FW Act) were vague, ambiguous and failed to disclose a reasonable cause of action. For example, the respondents submitted that the particular reasons for the adverse actions allegedly taken against Ms Edgar were unclear from these paragraphs and there were no “material facts on which the ‘before and after test’ can be applied”;
b)paras.10AH-10AK (alleged disability discrimination in contravention of s.351 of the FW Act) were vague and unintelligible and paras.10AJ and 10AK did not plead material facts which went to a cause of action alleged in the ASOC;
c)para.10AL (alleged sex discrimination in contravention of s.351 of the FW Act) did not plead a reasonable cause of action because the matters raised amounted to neither an injury to Ms Edgar in her employment nor a prejudicial alteration of her position and failed to establish the relevant material facts to show that she had been the subject of adverse action.The respondents alleged that adverse action in the form of injury in employment or prejudicial alteration of position was not established just because the alleged comments hurt or embarrassed Ms Edgar;
d)the sex discrimination allegations made in para.10AM and in paras.10AN-10AO were vague and unintelligible, pleaded conclusions as opposed to material facts and did not disclose a reasonable cause of action; and
e)paras.73-87 (alleged accessorial liability) did not plead that the alleged accessories intentionally participated in the contravening conduct and understood the motive behind it. The respondents submitted that it was unclear from the pleading that the alleged accessories were said to have been aware, at the relevant time and in a way that amounted to “knowing involvement”, that Ms Edgar had exercised her workplace rights.
The respondents also sought an order for costs.
RESPONSE
Ms Edgar submitted that, before filing their application, the respondents had been on notice that she proposed to rely upon the Proposed FASOC, an earlier version of which had been served on them on 20 March 2019. Consequently, Ms Edgar submitted that:
…it is appropriate for the Court to deal with the real issues in dispute and that is whether the applicant should have leave to file the proposed FASOC as served on the respondents on 6 May 2019, which only contains minor amendments to the document served on the respondents on 20 March 2019…
Referring to Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537, at 539-540 [6]-[7], Ms Edgar submitted that her pleadings fulfilled the functions required of them, namely that they outlined the issues in dispute, disclosed a reasonable cause of action, set out material facts and disclosed the case the respondents had to answer. In particular, she contended that the Proposed FASOC “fulfils its function” and sought leave to file it.
Ms Edgar submitted that there was a reasonable cause of action for breach of express and implied terms of the employment contract. She argued that the authorities recorded that implied contractual terms requiring parties to act in good faith and, in employment contracts, to observe a duty of care, had been found to exist in certain circumstances.
In relation to the respondents’ criticisms of the adverse action allegation (paras.10R-10T) she relevantly submitted:
It is alleged that some of the adverse action was carried out directly by Mr Melzer. It is also alleged that some of the adverse action was carried out by Ms Wetherell and Ms O'Rourke in the manner they carried out their duties as senior Human Resources Managers in the grievance making process, investigation process, decision to suspend and terminate Ms Edgar. It is also alleged that Ms O'Reilly took adverse action against Ms Edgar in that she was aware of the complaints and the adverse action.
In relation to the allegations of discrimination (paras.10AA-10AO), Ms Edgar submitted, albeit implicitly, that the absence from s.351 of the FW Act of references to “reasonable adjustments”, “direct” discrimination or “indirect” discrimination did not mean that that section did not comprehend those concepts and permit her a cause of action based on them.
Ms Edgar submitted that the Proposed FASOC properly pleaded the accessorial liability of the second to sixth respondents because it asserted:
… that each of the individual respondents were sufficiently aware of the all of the relevant material facts going to the alleged contraventions by the first respondent and intentionally participated. In fact the pleadings alleged that each of the individual participants were active participants and engaged in the conduct directly through their actions and inactions.
She argued that “why” each of the alleged accessories acted as they did was a matter for evidence, not the pleadings.
Ms Edgar submitted that she had:
… pleaded all the material facts and circumstances of each element of the contraventions alleged. Further particulars have not been and can be requested. The FASOC fulfils its function. It alleges the material facts to [sic] sufficient certainty so that the respondents can determine whether he or she admits or denies the alleged facts. Secondly, each of the elements of the FW Act contraventions and breach of contract elements are set out and the respondents can identify which allege [sic] facts relate to which contraventions.
CONSIDERATION
Principles to be applied
The parties went to some length in their submissions to stress the care and reticence which a court should exercise when considering whether to strike out pleadings or summarily dismiss claims and the considerations to which regard should be had when considering whether to permit an amendment of pleadings. I have had regard to the principles to which they referred.
General comment
The ASOC and so also the Proposed FASOC have numerous deficiencies including the too-frequent requirement to cross-reference allegations, which tends to make a pleading difficult to read. It has not been necessary to set out every one of those matters to decide the interlocutory applications presently before the Court.
Paragraphs 10 and 10A
Pleading
Paragraph 10 of the ASOC alleged that the contract between Ms Edgar and Norton Rose Services contained certain express contractual terms including cl.13 which Ms Edgar alleged was relevantly to the following effect:
a.Clause 13.1: that the Respondent would value the Applicant's contributions and have an appropriate opportunity to discuss and access performance outcomes and professional development.
b.Clause 13.3: that the Respondent would provide the Applicant with detailed guidance and support in preparing the performance plan.
Paragraph 10A of the ASOC also said:
10A.The Respondent failed to comply with Clause 13 of the Contract, in that the Second Respondent:
a.accused the Applicant of “pointing fingers” and said words to the effect of “You are just being emotional” when the Applicant tried to clarify her suggestion as to changes to systems of work;
b.standing up and walking out of a meeting;
Particulars
The conduct set out in paragraph 10A(a) and (b) occurred on 28 July 2017.
c.criticised the Applicant for one and a half hours during the Performance Review meeting and continuously said words to the effect of “You're not fit to be a manager”.
Particulars
The conduct occurred on 14 February 2018.
In the Proposed FASOC, para.10 was restructured but the only relevant change of substance was the addition of two particulars in the following terms:
…
b.Clause 14.1: that the First Respondent would provide the Applicant with a comprehensive framework for her to develop professional, technical and specialist skills.
c.Clause 14.2: that the First Respondent would provide the Applicant with formal as well as informal learning opportunities including mentoring and on-the-job coaching.
Paragraph 10A1 was also added in the Proposed FASOC. It alleged breaches of cl.14 of the contract.
Discussion
The respondents submitted that cl.13 of the contract was only hortatory and did not contain enforceable promises. No submission was made in relation to cl.14 of the contract but I assume if one had been made it would have been to the same effect. There is force in the argument but the point is sufficiently arguable that it should not be foreclosed at this point, having regard to what authorities say regarding the circumstances in which a case lacks reasonable prospects of success: eg Spencer v Commonwealth (2010) 241 CLR 118 esp. at 132 [25] and 141 [58]-[60]; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]-[7].
Implied terms of the contract – paras.10A2, 10B – 10D
Pleading
Paragraphs 10B, 10C and 10D of the ASOC said:
10B.To the extent that terms of the Contract were implied they included:
a.that the First Respondent would do what was reasonably necessary to enable the Applicant to perform her duties and responsibilities under her Contract; (“Duty to Co-operate Term”)
b.that the First Respondent would observe a duty of good faith and fair dealing in the manner and way it conducted itself with the Applicant consistent with the terms of the Contract (“Duty of Good Faith”)
c.the First Respondent would treat the Applicant fairly and with care to avoid or minimise adverse consequences to the Applicant in exercising a power or discretion (“Duty of Fair Treatment”); and
d.that the First Respondent provide and maintain a safe place of work and safe system of work and take all reasonable precautions for the safety of the Applicant while she was engaged at work (“Duty of Care”).
Particulars
The Duty to Co-operate Term, Duty of Good Faith, Duty of Fair Treatment and Duty of Care were implied by law.
10C.The Respondent failed to comply with the implied Duty of care by:
a.failing to put in place safe systems of work to protect the Applicant knowing that there was a previous complaint(s) against the Second Respondent as to his conduct;
b.failing to inform the Applicant that there was a previous complaint(s) against the Second Respondent in February 2018.
10D.The First Respondent failed to comply with the implied Duty of Good Faith, Duty of Fair Treatment and Duty to Co-operate by:
a.unjustified and persistent criticism of the Applicant by the Second Respondent;
b.exercising the discretion to suspend the Applicant in a capricious manner;
c.exercising the discretion to suspend the Applicant without considering reasonable alternatives;
d.failing to inform the Applicant of the rights in the Norton Rose Fulbright EEO & harassment & bullying complaint resolution policy and procedure as to EEO Contact Officers and Norton Rose Employee Handbook as to access and ability to appeal against finding by the investigator;
e.failing to properly investigate and resolve the Applicant’s formal complaint against the Second Respondent and the Third Respondent without detriment to the Applicant;
f.failing to inform the Applicant that making a complaint against the Second Respondent or the Third Respondent could lead to suspension or termination of employment;
g.not to damage the Applicant’s future job prospects by harsh and oppressive conduct.
Particulars
By making disparaging comments about the Applicant.
The Proposed FASOC contained a para.10A2, which had not been included in the ASOC. In it Ms Edgar alleged:
10A2.To the extent that terms of the Contract were implied duties, they were:
a.reasonable and equitable;
b.necessary to give business efficacy to the Contract;
c.implied by law;
d.capable of clear expression; and
e.did not contradict any express terms of the Contract.
In the Proposed FASOC, para.10B did not include the ASOC’s para.10B(c) or the pleaded particulars. In para.10B(b), the word “reasonableness” was inserted after “good faith”. In Paragraph 10C the allegation against the “Respondent” was changed to one against the “First Respondent”.
While para.10D of the ASOC pleaded various alleged breaches of the three implied terms, in the Proposed FASOC it was limited to alleged breaches of the asserted duty to co-operate.
The Proposed FASOC also included new paras.10BA, 10BB, 10BC and 10CA which made allegations concerning the content of the alleged implied duties and alleged breaches of them.
Discussion
The first thing to be said about these paragraphs and specifically para.10B is that Ms Edgar has not identified any authorities which hold that the law implies into contracts of employment terms providing for duties of good faith, fair treatment or care. Nor has she pointed to any other matters from which the Court might conclude that such terms are to be implied into that class of contract. Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 points to caution being necessary when considering the implication of terms as a matter of law. It was said in that case:
In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ emphasised that the “necessity” which will support an implied term in law is demonstrated where, absent the implication, “the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermind” or the contract would be “deprived of its substance, seriously undermined or drastically devalued”. The criterion of “necessity” in this context has been described as “elusive” and the suggestion made that “there is much to be said for abandoning” the concept. Necessity does, however, remind courts that implications in law must be kept within the limits of the judicial function. They are a species of judicial law-making and are not to be made lightly. It is a necessary condition that they are justified functionally by reference to the effective performance of the class of contract to which they apply, or of contracts generally in the case of universal implications, such as a duty to co-operate. Implications which might be thought reasonable are not, on that account only, necessary. The same constraints apply whether or not such implications are characterised as rules of construction. (at 189 [29] per French CJ, Bell and Keane JJ) (references omitted)
It should also be noted that para.10C of the Proposed FASOC spoke of the lack of safe systems of work without identifying the material facts necessary to support such an allegation. Ms Edgar similarly did not identify which failure to inform her of a “previous complaint” amounted to a breach of the contended-for duty of care. Amended para.10D also alleged breaches of the alleged duty to co-operate, by reference to certain express contractual terms, but it too failed to identify the material facts which might support those claims.
It is also not apparent that the conduct in either version of para.10D would amount to breaches of an implied term requiring co-operation, at least when tested against the generally understood scope of such a term: Commonwealth Bank of Australia v Barker at 187-188 [25].
In those circumstances the ASOC paragraphs alleging implied contractual terms will be struck out. Given the deficiencies in paras.10C and 10D, para.10A2 of the Proposed FASOC does not rescue the situation for that document.
The respondents sought summary dismissal of these allegations but such an order would be premature.
Adverse action – paras.10R – 10T
Pleading
Paragraphs 10R-10T of the ASOC said:
10R.The First Respondent took adverse action against the Applicant because she made the complaints or inquiries in regard to the Second Applicant [sic] and/or the Third Applicant [sic] as set out in the eight complaints/inquiries referred to in paragraph 10Q.
10S. The First Respondent took adverse action against the Applicant within the meaning of section 342(1) Item 1(a) by dismissing the Applicant on 9 May 2018.
10T.The First Respondent took adverse action against the Applicant within the meaning of section 342 Item 1(b) or (c) by:
a.asking the applicant to meet face to face with the Second Respondent and the Sixth Respondent on 27 February 2018;
Particulars
The request was made by Ms Williams orally.
b.the Sixth Respondent acting in a manner that was unhelpful, unsupportive and contrary to the First Respondent's policies, to the Applicant while she was attempting to explain the complaint against the Second Respondent on 1 March 2018;
Particulars
During a meeting with the Sixth Respondent. The policies are the Norton Rose Fulbright EEO and harassment and bullying complaint resolution policy and procedure and Norton Rose Employee Handbook.
c.failing to take reasonable steps to investigate the complaints by the Applicant against the Second Respondent from 19 February 2018 to 5 March 2018;
Particulars
Contrary to the Norton Rose Fulbright EEO and Harassment and Bullying Complaint Resolution Policy and Procedure and Norton Rose Employee Handbook
d.failing to take investigate [sic] the Seventh Complaint/Inquiry fairly or impartially;
Particulars
(a)The investigation was not carried out by an independent investigator;
and
(b)the investigator did not give any or did not give due consideration to previous complaints made about the Second Respondent.
e.threatening the Applicant with disciplinary action by the Third Respondent on 5 March 2018. He said words to the effect of “I will go straight to HR and they will issue you with a final warning if you don't apologise for your remarks about Mr Boxsell”;
Particulars
The threat was made orally to the Applicant by the Third Respondent.
f. suspending the Applicant's employment on 6 March 2018;
Particulars
The notice of suspension was in writing.
g.disparaging the Applicant to co-workers by the Third Respondent in March 2018 following the suspension from employment; and
Particulars
The disparagement was orally [sic].
h.issuing the show cause letter on 5 April 2018 by the Fourth Respondent.
In the Proposed FASOC, typing errors were corrected and the particulars to para.10T(c) were amended to read:
The Fourth Respondent and the Sixth Respondent were responsible for investigating alleged discrimination and bullying complaints and assisting the Applicant to make a complaint and comply with the Norton Rose Fulbright EEO and Harassment and Bullying Complaint Resolution Policy and Procedure and Norton Rose Employee Handbook.
Discussion
The respondents submitted in relation to those allegations and particulars that para.10R did not make clear why, according to Ms Edgar, the “adverse action” alleged in paras.10S and 10T had been taken. The pleading is clear enough in that Ms Edgar alleges that Norton Rose Services took adverse action against her because of the conduct she pleads in para.10Q which refers to eight complaints she alleges she made to it. That is sufficient but still problematical as will be discussed shortly.
On the issue generally, it is in the nature of an allegation that adverse action was taken for a prohibited reason that an applicant’s allegation as to a respondent’s motivation will, to an extent, be speculative because he or she cannot see into the respondent’s mind. It is for that reason that in circumstances of principal rather than accessorial liability, by virtue of s.361 of the FW Act the allegation will stand as its own proof unless it is disproved by the respondent. As long as the alleged motivation is expressed clearly enough for the respondent to know what is alleged, then it may be pleaded. Ms Edgar’s allegations as to motivation are more numerous than is usual but are clear enough. Moreover, the respondents’ fears are exaggerated. Although in a technical sense Norton Rose Services does carry the burden of displacing the s.361 presumption, failure to displace an onus is generally the consequence of a witness not being accepted, not of a failure to address matters in issue. As for the natural person respondents, in respect of whose alleged motives Ms Edgar bears the onus of proof, they are simply called upon to address more alleged motivations than is usually the case.
However, the respondents do have a point when they argue that the pleading does not attempt to identify whether particular motivations are especially relevant to particular occasions of adverse action or whether all of the alleged motivations are relied on in every case of adverse action. The latter situation would suggest an undiscriminating understanding of the case. Ms Edgar’s pleading potentially requires the respondents to address matters unnecessarily. She should link particular alleged motivations or allegedly motivating events with particular occasions of alleged adverse action, rather than create unnecessary burdens on the respondents by being less discriminating.
The respondents also submitted that para.10R simply pleaded that “adverse action” was taken against Ms Edgar without identifying the adverse action alleged. That is true. It seems that this paragraph is an introduction to the following paragraphs where the particular adverse actions are alleged. Subject to comments to follow, it would have been better if those alleged instances of adverse action, being:
a)dismissal (para.10S);
b)injury to Ms Edgar in her employment (para.10T); and
c)alteration of Ms Edgar’s position to her prejudice (also para.10T)
were set out as individual allegations which were particularised by reference to the individual acts, facts and circumstances, including any allegedly prohibited motivations and alterations to circumstances, which are alleged to constitute such contraventions.
Because of the lack of clarity in this part of the pleading, paras.10R to 10T of the ASOC will be struck out. However, before passing from these allegations some further comment is necessary. First, the allegation in para.10T(b) (of both the ASOC and the Proposed FASOC), that Norton Rose Services took adverse action against Ms Edgar by:
the Sixth Respondent acting in a manner that was unhelpful, unsupportive and contrary to the First Respondent's policies, to the Applicant while she was attempting to explain the complaint against the Second Respondent on 1 March 2018;
pleads Ms Edgar’s conclusions regarding the sixth respondent’s behaviour on a particular occasion. That is objectionable. If Ms Edgar wishes to rely on the events at that meeting then she needs to plead what happened, not her impressions of what was going on. She should also, as with other conduct said to be covered by items 1(b) or (c) of s.342(1) of the FW Act, identify why it amounts to injury in employment or prejudicial alteration of position.
Further the purported particular of para.10T(c) of the Proposed FASOC:
The Fourth Respondent and the Sixth Respondent were responsible for investigating alleged discrimination and bullying complaints and assisting the Applicant to make a complaint and comply with the Norton Rose Fulbright EEO and Harassment and Bullying Complaint Resolution Policy and Procedure and Norton Rose Employee Handbook
fails to particularise the allegation to which it is appended.
The allegation in subpara.10T(d), that the respondents failed to conduct the investigation of the Seventh Complaint/Inquiry fairly or impartially, would not be made out if the particulars of this allegation were proved and thus reliance should not be placed on them, at least not in the way that it has been.
Ms Edgar submitted that reference could be had to various authorities which demonstrated that particular acts can amount to adverse action. However, whether conduct amounts to adverse action is a fact-based enquiry which is dependent on the circumstances of the individual case. Decisions in other cases can be only of limited assistance.
Finally, the disparagement alleged is not particularised adequately by stating that it was oral. The disparagement alleged should be particularised in whatever detail is possible and reasonable. Again, why it amounts to injury in employment or prejudicial alteration of position should also be explained.
Misrepresentations – paras.10U – 10Z
Pleading
Paragraphs 10U – 10Z of the ASOC said:
10U.The First Respondent has made the following representations:
a.that it will not tolerate victimisation for making allegations of bullying or harassment in good faith and that it will provide and maintain healthy and safe premises and systems of work;
Particulars
Norton Rose Employee Handbook Parts B and G.
b.that it aims to ensure that there are no reprisals for making complaints;
Particulars
Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure clause 5.2.
c.that bullying will not be tolerated;
Particulars
Norton Rose Employee Handbook Parts B and G.
d.that an investigation into the complaint will be conducted in a fair manner by an impartial investigator;
Particulars
Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure clause 6.
e.that an appeal cannot be lodged from an investigation finding;
Particulars
Norton Rose Employee Handbook Part B.
f.that the Applicant was suspended because she was inattentive; and
Particulars
The representation was oral and made by the Third Respondent to other employees of the Respondent including Adam Hall.
g.that the Applicant was suspended because she made disparaging remarks.
Particulars
The representation was oral and made by the Third Respondent to other employees of the Respondent including Adam Hall.
10V.Each of the of the [sic] representations set out in paragraph 10U is a representation made by the First Respondent within the meaning of the term in s 345 of the FW Act.
10W.Each of the representations set out in paragraph 10U was in regard to the Applicant making an inquiry or a complaint to the First Respondent.
10X.Each of the representations set out in paragraph 10U(a) to (e) was made recklessly or knowingly in that the Fifth Respondent, Ms Williams and the Sixth Respondent should have been aware of the terms of the Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure and Norton Rose Employee Handbook.
10Y.Each of the representations set out in paragraph 10U(f) to (g) was made recklessly or knowingly in that the representations were contrary to the letter of termination.
10Z.Each of the representations set out in paragraph 10U were false or misleading because:
a.contrary to the representation made in 10U(a) and (b), the First Respondent has tolerated victimisation and or reprisal against the Applicant because she made a complaint in that:
i. her employment was suspended as set out in paragraph 10T(f);
ii. her employment was terminated as set out in paragraph 10S;
iii. there has been disparagement against her as set out in paragraph 10U(f) and (g);
iv. there was a threat of disciplinary action made against her as set out in paragraph 10T(e).
b.Contrary to the representation made in paragraph 10U(c) the First Respondent has tolerated bullying by failing to take action against the Second Respondent and the Third Respondent.
c.Contrary to the representations made in paragraph 10U(b) and (d) the Respondent failed to provide the Applicant with the entitlements pursuant to the Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy.
In the Proposed FASOC:
a)the particulars to paragraph 10U(e) was amended to read:
Statement made by the Fourth Respondent on 5 April 2018.
b)paragraph 10W was particularised as follows:
The representations were about the Applicant’s workplace rights or the exercise, effect of the exercise of the Applicant’s workplace right within the meaning of section 345(1)(a) and (b) of the FW Act.
c)paragraph 10X was amended to read:
10X.Each of the representations set out in paragraph 10U(a) to (d) was made recklessly or knowingly in that the Fourth Respondent and the Sixth Respondent were required to comply with the Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure and Norton Rose Employee Handbook and responsible for assisting the Applicant to understand and comply with the Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure and Norton Rose Employee Handbook and through their actions (including failure to act) made representations without believing them to be true or not caring whether they were true or false.
d)paragraph 10XA was inserted as follows:
10XA.The representation set out in paragraph 10U(e) was made recklessly or knowingly in that the Fourth Respondent made the representation without believing it to be true or not caring whether it was true or false.
e)paragraph 10Y was amended to read:
10Y.Each of the representations set out in paragraph 10U(f) to (g) was made recklessly or knowingly in that the Third Respondent made the representations without believing them to be true or not caring whether they were true or false.
Discussion
The ASOC states that each of the statements set out in para.10U was a misrepresentation for the purposes of s.345 of the FW Act, which relevantly provides:
345 Misrepresentations
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
…
Accepting for present purpose that the alleged statements referred to in para.10U(a)-(e) are to be found in:
a)the Norton Rose Services Employee Handbook; or
b)the Norton Rose Fulbright EEO and harassment & bullying complaint resolution policy and procedure manual,
they were representations and it is arguable that they concerned workplace rights of Norton Rose Services employees such as and including Ms Edgar. It appears that the matters set out in sub-paras.(f) and (g) are alleged to have been representations about the exercise, or about the effect of the exercise, of a workplace right by Ms Edgar.
The question is whether the pleading sets out matters which, if proved would demonstrate that one of the respondents had knowingly or recklessly made a false or misleading representation to any other person about those rights or the exercise of those rights: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 at [204]).
As a starting point, the pleading does not identify to whom most of the representations were made, plainly an essential element of the cause of action. Lacking such a vital contention, as subparas.10U(a) to (e) do, these allegations can go nowhere. Further, particulars of when the representations were made have not been pleaded so as to permit the respondents to know what case they would otherwise have to meet in connection with this allegation.
One also cannot understand from paras.10U(f) and (g) why statements that Ms Edgar was suspended because she was inattentive and had made disparaging remarks concerned her exercise, or the effect of her exercise, of a workplace right. This allegation is quite elliptical. Similarly elliptical is para.10W which pleads no material facts which could prove the allegation that all of the representations set out in para.10U concerned Ms Edgar making an inquiry or a complaint to the first respondent. The particularisation of para.10W in the Proposed FASOC was circular.
In the circumstances, where the antecedent paragraphs of the pleading give them no factual foundation, the allegations of knowledge and recklessness in para.10X, in both its versions, have no prospect of being made out. In particular, unless the makers of the representations are identified, no process by which a relevant state of mind may be determined can be engaged.
Both versions of para.10Y suffer difficulties similar to those of the antecedent subparagraphs on which they depend because they fail to plead a critical element of the relevant part of the cause of action, namely that the representations concerned a workplace right. As an aside it is not presently apparent how either version of para.10Y could survive an application of s.345(2) of the FW Act.
Paragraph 10Z is deficient because it suffers from a lack of factual foundation by the failure to plead necessary particulars of the alleged representations.
These paragraphs of the ASOC will be struck out.
Disability discrimination – paras.10AH – 10AK
Pleading
Paragraphs 10AH – 10AK of the ASOC said:
10AH.At the time of determining to suspend the Applicant's employment or any time thereafter during the employment period, the First Respondent did not make or did not propose to make reasonable adjustments for the Applicant.
10AI.The First Respondent's failure to make reasonable adjustments had the effect that the Applicant, because of the disability, was treated differently to an employee without the disability would have been treated in circumstances that are not materially different.
10AJ.As to suspension of employment, the disability discrimination claim is further and in the alternative to the adverse action claim in paragraph 10T.
10AK.As to termination of employment, the disability discrimination claim is further and in the alternative to the adverse action claim in paragraph 10S.
In the Proposed FASOC para.10AI was particularised as follows:
Section 351 of the FW Act required the First Respondent to make reasonable adjustments for the Applicant.
Discussion
The respondents submitted that these paragraphs are vague and unintelligible and should be struck out as embarrassing.
Paragraphs 10AH and 10AI allege that Norton Rose Services had to make reasonable adjustments for Ms Edgar. There is no basis for this allegation and, based on the particularisation of para.10AI in the Proposed FASOC, appears to be founded on a misconceived conflation of the discrimination provisions of the FW Act with the Disability Discrimination Act1992. Assuming that understanding to be correct, Ms Edgar’s approach is not an available one for the reasons discussed in Hodkinson v Commonwealth (2011) 248 FLR 409. See also Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424. Consequently these paragraphs will be struck out.
In light of that conclusion, paras.10AJ and 10AK serve no purpose and they will be struck out too.
Sex discrimination – paras.10AL – 10AO
Paragraph 10AL
Pleading
Paragraph 10AL of the ASOC said:
10AL.The First Respondent took adverse action against the Applicant because of her sex in contravention of section 351 of the FW Act during the employment period within the meaning of section 342(1) Item 1(b) and (c) by the following conduct:
a.the Second Respondent calling the Applicant “emotional” when she discussed certain matters that the Second Respondent did not understand or agree with;
Particulars
This occurred on numerous occasions including on 28 July 2018.
b.the Second Respondent calling the Applicant “disrespectful” when she discussed certain matters with the Second Respondent which the Second Respondent did not understand or agree with;
Particulars
This occurred on numerous occasions including on 29 June 2018.
c.the Second Respondent making a comment to the Applicant to the effect of “Aren't wives supposed to stay in the kitchen?” in reference to the Applicant's upcoming wedding in October 2018;
d.the Second Respondent making a comment to the Applicant to the effect of "Do your female magic thing" in relation to improving the relationship between the Marketing Department and the IT Department;
Particulars
This occurred in or around March 2017 in the office.
e.the Second Respondent being unreasonably critical of the Applicant;
Particulars
This occurred on numerous occasions. On 1 November 2017 the Second Respondent said to the Applicant words to the effect “I said good morning to you and you didn't respond. You negatively impact the team's dynamic and you're not fit to be a manager” in circumstances where the Applicant and other employees from time to time wear headphones.
On 14 February 2018 the Second Respondent said to the Applicant words to the effect “You are not fit to be a manger.”
f.the Second Respondent said to the Applicant words to the effect of “Ideally, I want someone who will just say ‘Yes, Sir!’ and do what I tell them to” in October 2017;
g.the Second Respondent criticised the Applicant for taking time to have an hour lunch break;
Particulars
This occurred on numerous occasions, including on 31 March 2017. The Second Respondent said words to the effect of “If you're so busy then you shouldn't have time to go and have lunch.”
h.the Second Respondent was dismissive when the Applicant talked to him about her views and opinions.
Particulars
The Second Respondent walked out of a meeting while the Applicant was talking to him.
Discussion
This paragraph contends that Mr Boxsell’s conduct injured Ms Edgar in her employment or altered her position to her prejudice. However, the pleading does not seek to make clear in what way name calling, accusatory behaviour, sexist comments or unreasonable criticism, unpleasant and unfair as such conduct would be, injured Ms Edgar in her employment or altered her position to her prejudice, as those terms are understood by reference to the cases. In addresses it was suggested that the Court could infer that subpara.89(c) of the particulars of loss and damage appearing at the end of the pleading:
pain, suffering, stress, anxiety, humiliation, dislocation to life and reputational damage;
reflected the consequences of this conduct and could be taken to evidence injury in employment or prejudicial alteration of position. However, that asserted connection is far too tenuous to be accepted, not least because unlike so many other parts of the pleading, there was no express attempt to link the two parts of the document.
As the paragraph does not address an essential element of the purported cause of action, it has no prospects of success in its current form and so will be struck out.
Paragraph 10AM
Pleading
Paragraph 10AM of the ASOC said:
10AM. The First Respondent took adverse action against the Applicant because of her sex in contravention of section 351 of the FW Act during the employment period within the meaning of section 342(1) Item 1(d) by treating her differently to Mr Jason Nguyen, her colleague, by the following conduct:
a.not calling him emotional or disrespectful;
b.not criticising him for taking time for lunch;
c.not being dismissive of his views and opinions; and
d.not being overly critical of his performance or conduct.
In the Proposed FASOC this allegation was particularised as follows:
The conduct was carried out by the Second Respondent.
Discussion
The respondents complained that the ASOC allegation was not particularised and did not identify who, on behalf of Norton Rose Services, was said to have taken the relevant action. The Proposed FASOC contains the particular set out above and so addresses that objection.
However, the allegation does not plead material facts from which it might be concluded that Mr Nguyen was an appropriate comparator because it has not been contended that apart from his sex his circumstances were the same, comparable or not materially different from Ms Edgar’s: cf Purvis v The State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at 160-161 [223]-[225] and 175 [273]; Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [43]. It might be expected that an allegation that Mr Nguyen was an appropriate comparator would particularise material facts tending to demonstrate that his circumstances could be so described.
Further, particulars (b)-(d) contain conclusory statements rather than material facts.
For these reasons this paragraph will be struck out.
Paragraphs 10AN and 10AO
Pleading
Paragraphs 10AN and 10AO of the ASOC said:
10AN. Further and in the alternative to paragraph 10AM, the First Respondent took adverse action within the meaning of section 342(1) Item 1(d) against the Applicant because of her sex in contravention of section 351 of the FW Act during the employment period by treating her differently to Mr Nguyen by requiring her to comply with an unreasonable requirement or condition with which she could not comply with [sic].
10AO.The requirement or condition referred to in paragraph 10AN was to submit to the Second Respondent's conduct towards the Applicant as set out in paragraph 10AM.
Discussion
Paragraphs 10AN and 10AO, which are an indirect discrimination version of the direct discrimination allegation made in para.10AM, are affected by the same difficulties as the latter. Further, para.10AO pleads a conclusion (“submit”) rather than necessary material facts.
At the hearing of these applications Ms Edgar advised the Court that she would not be relying on these paragraphs.
Accessorial liability – paras.73 – 87
In the ASOC the allegations of accessorial liability depended on the allegations found in paras.10T-10Z and paras.10AL-10AO. As paras.10AN and 10AO are no longer relied on and the remaining paragraphs will be struck out, none of the allegations of accessorial liability can succeed in their current form and so they too will be struck out.
But in any event, Ms Edgar has failed to plead all the necessary elements of an allegation of accessorial liability under s.550 of the FW Act which, most relevantly, include knowledge of the essential elements constituting the contravention: Yorke v Lucas (1985) 158 CLR 661; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 109 ff [334] ff, 150 [435]; Specifically, she has not pleaded that at the time the particular adverse action in which they were said to have been involved occurred, the natural person respondents knew that that action was motivated by a prohibited reason, whether under s.340 or s.351 of the FW Act: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 at 117 [240]; Ryan v Primesafe (2015) 323 ALR 107 at 126-127 [82]; Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [76]-[77].
Consequently paras.73 to 87 of the ASOC will be struck out.
At the hearing of the present applications, Ms Edgar abandoned paras.82-84 of the Proposed FASOC in which she had alleged that the fifth respondent, Ms O’Reilly, was liable for certain of Norton Rose Services’s alleged contraventions of the FW Act.
Prayers for relief – paras.90 – 102
The respondents submitted that Ms Edgar’s prayers for relief should be struck out consistently with whatever similar orders were to be made in relation to the substantive part of the pleading. In the circumstances a separate order will not be necessary.
CONCLUSION
I have concluded that many essential paragraphs of the ASOC are significantly flawed. They are sufficiently important to that pleading that the order appropriate to be made in connection with them is that the whole ASOC be struck out.
I have also concluded that the paragraphs which the Proposed FASOC shares with the ASOC, and which have been considered in these reasons, should not receive leave to be pleaded for the same reasons that the equivalent paragraphs in the ASOC will be struck out. Again, the paragraphs in question are sufficiently important to the proposed pleading that the order appropriate to be made in connection with them is that leave to file the Proposed FASOC be refused.
I am not presently of the view that the claims which the respondents wanted dismissed would be appropriately dismissed at this point. Ms Edgar should have an opportunity to replead. However, rather than be granted a general leave to replead, she will have leave to amend her application in a case dated 7 May 2019 to seek leave to file a new, and renumbered afresh, amended statement of claim.
The respondents sought an order for costs at this point. However, Ms Edgar wanted that argument to await this decision and the point was not fully argued. I will accede to her request.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 5 July 2019
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