Edinger v Ribshire Pty Ltd trading as Goodline
[2023] FedCFamC2G 1150
•7 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edinger v Ribshire Pty Ltd trading as Goodline [2023] FedCFamC2G 1150
File number: PEG 121 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 7 December 2023 Catchwords: PRACTICE AND PROCEDURE – application in a proceeding seeking summary dismissal of application for unpaid wages and entitlements – where there is factual dispute in relation to whether applicant was notified that her employment had been summarily terminated – where question of whether applicant’s employment was terminated is a material issue in the substantive proceeding – matter not appropriate for summary judgment Legislation: Fair Work Act 2009 (Cth) ss 117, 123
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641
Fair Work Ombudsman v Austrend International Pty Ltd (2018) 273 IR 429; [2018] FCA 171
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60
Quach v Commissioner of Taxation (2019) 168 ALD 130; [2019] FCA 1729
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Tom Plaska v Rail Corporation, NSW [2007] AIRC 333
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 27 November 2023 Place: Perth Counsel for the Applicant: Mr T Petherick Solicitor for the Applicant: Petherick Cottrell Lawyers Counsel for the Respondent: Mr C Beetham Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
PEG 121 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NADIA EDINGER
Applicant
AND: RIBSHIRE PTY LTD T/A GOODLINE
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
7 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the respondent on 8 September 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant, Ms Edinger, was employed by the respondent, Ribshire Pty Ltd T/A Goodline (Goodline) as a plant operator commencing on 14 June 2022. She worked on a fly in fly out (FIFO) basis at a site in Port Hedland. Following an incident on 18 October 2022, Ms Edinger was stood down. She has not been permitted to return to site accommodation since then. On 28 June 2023, she filed an application in this Court seeking unpaid wages, a project incentive payment and superannuation. She claims that she continues to be employed by Goodline.
On the other hand, Goodline says that Ms Edinger’s employment was summarily terminated on 2 December 2022 and all her entitlements upon termination were paid to her on 4 December 2022.
On 8 September 2023 Goodline filed an application in a proceeding seeking summary dismissal of Ms Edinger’s application to this Court (summary judgment application). Goodline seeks summary dismissal on the basis that Ms Edinger has no reasonable prospect of successfully prosecuting the proceeding because her claim is premised on an unsustainable proposition, namely, that her employment was not terminated. The summary judgment application is now before the Court and is addressed in these reasons.
LEGISLATION AND PRINCIPLES RELATING TO SUMMARY JUDGMENT
The Court has the power to make a summary judgment order pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which relevantly provides:
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) also allow the Court to summarily dismiss all or part of a proceeding. Rule 13.13 relevantly provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim…
There is no dispute between the parties as to the relevant principles that the Court should apply in determining whether to grant summary judgment in this matter. These principles were summarised by Jackson J in Quach v Commissioner of Taxation (2019) 168 ALD 130; [2019] FCA 1729 at [12]:
(1)It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].
(2)It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].
(3)As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].
(4)The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].
(5)Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].
(6) Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court 'may' give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].
(7) A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].
Although these principles are expressed in relation to s 31A of the Federal Court of Australia Act 1976 (Cth), they are equally applicable to s 143 of the FCFCOA Act, which is relevantly in the same terms as s 31A.
For reasons which will become apparent below, the determinative issue in the application before the Court relates to a question of fact. It is therefore relevant to consider in greater detail some of the authorities that address when summary judgment may be ordered notwithstanding that there is a dispute in relation to a question of fact.
In Fair Work Ombudsman v Austrend International Pty Ltd (2018) 273 IR 429; [2018] FCA 171 (Austrend) the Federal Court (Gilmour J) said at [19] and [20]:
19.In George v Fletcher (Trustee) [2010] FCAFC 53, Ryan and Logan JJ said, at [75], after referring to the judgment of Lindgren J in White Industries Australia Ltd v Cmr of Taxation (2007) 160 FCR 298, at [50]–[54]:
…[Section] 31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s 31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s 31A(3) (and s 17A(3)).
20.Accordingly, the mere existence of a factual dispute is not necessarily a bar to a grant of summary judgment. Rather the Court is required to evaluate the quality and weight of the evidence. When this leads to a conclusion that the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous then summary judgment must be granted. So understood there is, in such a case, no real issue of fact: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]–[47].
As can be seen from the above extract, the Federal Court in Austrend relied on an earlier judgment in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 (Cassimatis). In that case, the Federal Court (Reeves J) said at [46]-[47] (emphasis added):
46.It is apparent from these authorities that s 31A has lowered the bar, or softened the test, for summary judgment, or summary dismissal, as compared to that set by earlier summary judgment or summary dismissal regimes. At the same time, it sets a different inquiry from that required under those regimes. The critical question under s 31A in a summary dismissal application such as the present one is whether ASIC, the applicant, has “reasonable” prospects of successfully prosecuting these proceedings. As the moving party in this summary dismissal application, the Cassimatises bear the onus of persuading the Court of this criterion. These authorities reveal that the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
47.Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J said at [25] (emphasis added):
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Also in Austrend, Gilmour J said at [14] that:
Once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary. General or non-particularised denials will be insufficient to defeat the motion: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J, as her Honour then was, at [127].
The paragraph of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 (Jefferson Ford) cited by Gilmour J relevantly reads:
…it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]…
With these principles in mind, I now turn to the facts of the present case.
EVIDENCE BEFORE THE COURT
Goodline relies on four affidavits in support of its summary judgment application. Those affidavits are the affidavits of Robin Francis Humphreys filed on 8 September 2023, 9 October 2023 and 29 November 2023 and the affidavit of Catherine Kennedy filed on 9 October 2023.
Mr Humphreys is a partner at Mills Oakley, the lawyers for Goodline. His first two affidavits annex correspondence sent between Mills Oakley and Ms Edinger’s lawyer, Petherick Cottrell Lawyers, prior to filing the summary judgment application. His third affidavit was filed after the hearing to attach a legible copy of a document annexed to Ms Kennedy’s affidavit in circumstances where I had expressed concern at the hearing that part of the annexure was illegible. Ms Kennedy is a director and Executive Manager of Goodline and her affidavit contains relevant facts and annexes relevant documents relating to Ms Edinger’s employment with Goodline.
Ms Edinger relies on one affidavit, deposed by her and filed on 27 November 2023, in opposing the summary judgment application.
SHOULD MS EDINGER’S APPLICATION BE SUMMARILY DISMISSED?
In my view, there is a significant factual dispute between the parties that is relevant to the determination of the summary judgment application. That factual dispute relates to whether Ms Kennedy advised Ms Edinger by telephone on 2 December 2022 that her employment had been terminated.
Before turning to the parties’ evidence in relation to that issue, it is appropriate to refer to some of the other facts in evidence which provide greater context and explains the significance of that factual dispute. These include:
(a)Ms Edinger commenced employment with Goodline on 14 June 2022. She worked a roster of ‘three weeks on, one week off’ and was not paid for her week off. Ms Edinger worked on a site in Port Hedland, which was owned and operated by Fortescue Metals Group (FMG), which is a client of Goodline.
(b)On or about 18 October 2022 Ms Edinger was involved in an incident while driving a bus. She returned home the following day.
(c)On 19 October 2022 Ms Edinger was asked by Goodline to provide her chain of events in relation to the incident on 18 October 2022. Ms Edinger was stood down pending an investigation. There were various communications between Ms Edinger and Goodline, following which Ms Edinger prepared a statement that was signed and dated 21 October 2022. Ms Edinger also made inquiries, some through her lawyer, in relation to her entitlement to pay while she was stood down.
(d)FMG revoked Ms Edinger’s onsite accommodation access.
(e)Goodline decided to terminate Ms Edinger’s employment. Ms Kennedy annexed to her affidavit a document referred to as a ‘Just Culture Decision Tree’ which she described as a tool used by Goodline to decide on an appropriate sanction when an employee has engaged in misconduct and to ensure there is a record of that decision-making process. The Decision Tree highlighted a path that resulted in termination. The ‘Just Culture Trigger’ was described as ‘Failure to comply with Code of conduct’. There was a place for three people to sign the Decision Tree: Ms Kennedy as ‘Just Culture Facilitator’, Ms Edinger as ‘Just Culture Recipient’, and Mr Neil Brook as ‘Just Culture Third Party’. Only Mr Brook signed the Decision Tree, which was dated 30 November 2022.
(f)Ms Kennedy gave evidence that she had a telephone conversation with Ms Edinger on 1 December 2022, which lasted for approximately 15 minutes. This is supported by telephone records. Ms Kennedy deposed that in this telephone conversation, amongst other things, she told Ms Edinger that stand down entitlements were not payable over rest and recovery periods, but she was otherwise entitled to stand down payments, and that her employment was going to be terminated due to her conduct and FMG revoking her accommodation privileges. Ms Edinger’s evidence is silent in relation to this telephone conversation. Relevantly, she does not deny that the conversation took place, and she does not dispute Ms Kennedy’s account of the content of that conversation.
(g)The telephone records show that a further telephone conversation took place between Ms Kennedy and Ms Edinger on 2 December 2022. The evidence in relation to this telephone conversation is discussed in greater detail below. For present purposes, it is sufficient to note that Goodline’s position is that during this conversation, Ms Kennedy advised Ms Edinger that her employment with Goodline was terminated.
(h)Also on 2 December 2022 Ms Kennedy purported to send an email to Ms Edinger attaching a notice of termination dated 1 December 2022. The covering email commenced with the words ‘[a]s discussed on the phone, please see attached’. The notice of termination advised that Goodline considered Ms Edinger had engaged in ‘serious misconduct’ and her employment with Goodline was terminated ‘effective immediately’. Ms Kennedy made an error in typing Ms Edinger’s email address and therefore Ms Edinger did not receive the email.
(i)On 6 December 2022 Ms Kennedy attempted to call Ms Edinger to confirm whether she had received the letter of termination. Ms Edinger did not answer and so Ms Kennedy left a short voice message and requested that Ms Edinger return her call. Ms Edinger did not return Ms Kennedy’s call and claims there was no telephone message left for her to remind her to return a signed copy of the termination notice.
(j)On 13 December 2022 Ms Kennedy sent an email to Ms Edinger’s lawyer, in response to an email from Ms Edinger’s lawyer sent on 12 December 2022 again seeking to follow up on payment of Ms Edinger’s wages while she was stood down. Ms Kennedy’s email referred to Ms Edinger as ‘our former employee’.
It is clear from this outline of facts and other documents annexed to the affidavits that Goodline decided, on 1 or 2 December 2022, to terminate Ms Edinger’s employment on a summary basis and treated her employment as terminated from 2 December 2022. There is, however, a dispute in relation to whether this was effectively communicated to Ms Edinger.
The content of the conversation of 2 December 2022 is of central importance in this matter because it is the only communication which may amount to Goodline informing Ms Edinger that her employment was terminated (at least as at that date). There is no suggestion that Ms Kennedy advised Ms Edinger in the telephone conversation of 1 December 2022 that her employment was terminated, as opposed to that it would be terminated and the purported written notification was ineffective because it was sent to the wrong email address.
I pause here to address the parties’ submissions in relation to the failed attempt to notify Ms Edinger in writing of the termination of her employment. Section 117 of the Fair Work Act 2009 (Cth) (Fair Work Act) prohibits an employer from terminating an employee’s employment unless the employer gives the employee written notice of the day of termination (which cannot be retrospective) and either the minimum period of notice required by that section or payment in lieu of notice. However, pursuant to s 123(1)(b) of the Fair Work Act, s 117 does not apply to an employee whose employment is terminated because of serious misconduct. Goodline relies on s 123 of the Fair Work Act in submitting that written notification of termination was not required and Ms Edinger was effectively notified of the termination of her employment as a result of the oral notification on 2 December 2022.
At the hearing, I asked both parties’ Counsel questions relating to whether there is authority to the effect that oral notification of termination is sufficient where s 117 of the Fair Work Act does not apply. Neither party disputed that an employer may give notice orally to an employee that their employment is terminated for serious misconduct.
Counsel for Goodline referred me to Tom Plaska and v Rail Corporation, NSW [2007] AIRC 333, where Senior Deputy President Cartwright said at [8] (footnotes omitted):
A Full Bench of the Commission, considering the same expression “the day on which the termination took effect”, expressed the view that “… termination does not take effect unless and until it is communicated to the employee whose employment is being terminated.” More recently, a Full Bench in Makenja v Baptist Community Services observed, “Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case.” The employee may be informed orally.
Although the weight of the evidence clearly shows that Goodline decided to terminate Ms Edinger’s employment, if Ms Edinger can establish that Ms Kennedy did not inform her orally on 2 December 2022 that her employment was terminated, she may have an arguable case that her termination did not take effect on that date. This is relevant to her claim that she continues to be entitled to ongoing wages while, on her version of events, she is stood down.
I then turn to the evidence in relation to the 2 December 2022 phone call.
In relation to the telephone call on 2 December 2022, Ms Kennedy gave the following evidence:
At 9.58 am on 2 December 2022, I telephoned the applicant for a second time, during which, relevantly but amongst other things:
a)I confirmed with the applicant that she would be paid all her entitlements, including while she was stood down, up to the date of termination which I told the applicant was effective immediately.
b)I remember that there was no significant discussion or argument in relation to termination of the applicant’s employment. I reiterated a few times that her conduct was found to be serious misconduct.
c)I attempted to end the conversation in a positive manner, and although I cannot recall the exact words used, I recall discussing that I was attending a Keith Urban concert that weekend and asking the applicant if she had anything planned for the upcoming weekend.
Counsel for Goodline submitted that Ms Kennedy’s evidence of this call is supported by the misdirected email that Ms Kennedy sent shortly after this call, discussed at [19(h)] above. Counsel for Goodline submitted that the email gives rise to an irresistible inference that Ms Kennedy had a telephone call with Ms Edinger on 2 December 2022 and that during that call Ms Kennedy told Ms Edinger that her employment was terminated.
Ms Edinger gave the following evidence:
Goodline’s lawyers, in their letter of 18 August 2023… claim I was orally dismissed on 2 December 2022 for serious misconduct. This is not true. I have received no oral confirmation of termination of employment, and I understood the investigation had not been completed as I have not been interviewed over what allegedly occurred and responded to the application.
Counsel for Goodline submitted that Ms Edinger does not address the telephone call of 2 December 2022. She does not deny that the telephone conversation occurred and she does not say anything about Ms Kennedy’s version of events or proffer an alternative narrative, despite the importance of this call. Counsel for Goodline also made submissions relating to the way in which the paragraph is drafted, including that:
(a)the opening part of the paragraph seeks to characterise a claim made by a lawyer in a letter and does not say anything about what in fact occurred; and
(b)it is implicit from the use of the word ‘confirmation’ in the phrase ‘I have received no oral confirmation of termination of employment’ that Ms Edinger was told that her employment was terminated and she is expressing the view that it was never confirmed.
Counsel for Goodline submitted Ms Edinger’s evidence is no answer to the validity of termination, which is not in issue, and is no answer to the summary judgment application. Counsel for Goodline also submitted that Ms Edinger’s evidence is tenuous and amounts to a general and non-particularised denial, and is contradicted by all available documents and materials. Counsel for Goodline submitted that this does not raise a real issue of factual dispute that requires the Court to determine the matter at trial.
On the other hand, Counsel for Ms Edinger relevantly submitted that the paragraph of Ms Edinger’s affidavit extracted above is not ambiguous and she is clearly saying that she was never told she was dismissed and she understood the investigation had not been completed. Counsel for Ms Edinger referred to Ms Kennedy’s evidence that there was no significant discussion or argument about termination in the telephone call on 2 December 2022 and submitted that Ms Edinger’s actions, including that she continued to engage lawyers to write about unpaid monies are consistent with her belief that her employment had not been terminated.
In my view, there is a factual dispute in relation to the content of the 2 December 2022 telephone conversation that renders this matter inappropriate for summary judgment.
It is concerning that Ms Edinger did not provide more detailed evidence in relation to what she says was communicated in that telephone conversation. However, she does clearly state that she was not orally dismissed on 2 December 2022 for serious misconduct and that she received no oral confirmation of termination of employment. This is a clear refutation of Ms Kennedy’s evidence and identifies a particular factual or evidentiary dispute that is more appropriately resolved at a hearing, at which evidence may be tested in cross-examination.
While I acknowledge the concerns raised by Counsel for Goodline regarding part of Ms Edinger’s evidence purporting to characterise a letter from Goodline’s lawyers, that does not of itself undermine the evidence that follows, namely, that she was not orally dismissed on 2 December 2022 and that she has never received oral confirmation of the termination of her employment. Ms Edinger’s evidence that she did not receive oral confirmation of her termination does not necessarily give rise to an inference that she has already been told that her employment was terminated in circumstances where there is uncontradicted evidence that she was told in telephone call on 1 December 2022 that her employment would be terminated. Notably, Goodline does not rely on the telephone call of 1 December 2022 as notification of termination.
The weight of the evidence before the Court clearly shows that Goodline had decided to terminate Ms Edinger’s employment and may support Ms Kennedy’s evidence as to what she said to Ms Edinger in the telephone conversation on 2 December 2022. However, it does not prove what she said. The Court has before it a situation where Ms Kennedy says that she told Ms Edinger on the phone on 2 December 2022 that her employment was terminated with immediate effect and Ms Edinger says that Ms Kennedy did not say that. Neither witness’s evidence has been tested in cross-examination and no other witnesses to the conversation have been identified. While I have expressed concerns above about the lack of detail in Ms Edinger’s evidence, I do not consider that her evidence to the effect that her employment was not orally terminated on 2 December 2022 and that she has never received oral confirmation that her employment was terminated amounts to the type of general and non-particularised denial referred to in cases such as Austrend and Jefferson Ford.
In these circumstances, it is not appropriate to order summary judgment, taking into account the authorities referred to above. While Ms Edinger does not have a strong case based on the evidence currently before the Court, I cannot find that she has no reasonable prospects of success.
OTHER MATTERS RAISED IN PARTIES’ SUBMISSIONS
There were other matters raised in the parties’ submissions that it is appropriate to briefly mention here, notwithstanding that they have not been determinative in this application.
Counsel for Ms Edinger at one stage made speculative submissions about the telephone conversation of 2 December 2022, submitting that ‘if it was said, we don’t even know if it was received’ and ‘we don’t even know how strong the telephone conversation was’. I place no weight on these submissions. It is not an answer to Goodline’s summary judgment application to speculate about matters about which Ms Edinger could have given evidence had she chosen to do so.
Large parts of the submissions advanced on behalf of Ms Edinger related to the process that Goodline adopted, or should have adopted, in its investigation of her conduct and steps that it should have taken if it wanted to terminate her employment. These matters have little bearing in this proceeding on the questions of whether Goodline in fact terminated Ms Edinger’s employment and whether (or when) this was communicated to her. This is not an unfair dismissal proceeding.
In the course of making these submissions, Counsel for Ms Edinger speculated about Goodline’s motives for particular actions in a way that was unhelpful and unsupported by evidence and which Counsel for Goodline at one stage described as scandalous. These submissions advanced on behalf of Ms Edinger were inappropriate.
Counsel for Ms Edinger also made a submission to the effect that Goodline was placing too much emphasis on termination and that the claim was also for unpaid wages and superannuation for the period when she was stood down, which commenced some weeks prior to the decision to terminate. These submissions fall away in circumstances where I have found that there is a disputed issue of fact in relation to whether Ms Edinger was notified of her termination on 2 December 2022 and that, if she can establish that she was not notified of termination on that date, she may have an arguable case that her termination did not take effect on that date. However, I would observe that the payroll information annexed to Ms Kennedy’s affidavit, particularly for the entries with payroll end dates of 27 November 2022 and 4 December 2022, contains clear entries for payments relating to ‘Stand down’ and ‘Australian Super’, which suggests that these entitlements have been paid up to the date on which Goodline decided to terminate Ms Edinger’s employment.
CONCLUSION
Ms Edinger’s case does not, on the material currently before the Court, appear to be a strong one, but it is not one that has no reasonable prospect of success. There is a clear issue of fact in relation to whether she was orally advised on 2 December 2022 that her employment was terminated with immediate effect, and if that issue is determined in Ms Edinger’s favour, it may give rise to a question of law as to whether the termination of her employment took effect on that date. That in turn may impact whether she is entitled to any payments in relation to her employment after 2 December 2022. It is therefore not appropriate to summarily dismiss the application.
I therefore dismiss the summary judgment application.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 December 2023
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