Fassina v Commercial Motor Industries Pty Ltd
[2016] FCCA 2114
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FASSINA v COMMERCIAL MOTOR INDUSTIES PTY LTD | [2016] FCCA 2114 |
| Catchwords: INDUSTRIAL LAW – Employment – alleged adverse action as a result of exercise of workplace right – applicant claims his employment was terminated in contravention of general protection arising under the Fair Work Act – application for summary dismissal of application claim – reasonable prospects of success of application – lack of existence of link between behaviour complained of and workplace right – no link established – application summarily dismissed. |
| Legislation: Fair Work Act 2009, ss.12, 340; 340(1); 341; 341(1); 342(1); 351; 351(1); 360; 361 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Webster v Lampard (1993) 177 CLR 598 Tardy v Secretary of the Department of Community Services & Health Morton v Mitchell Products [1996] FCA 828 Travers v New South Wales [2000] FCA 1565 Assal v Department of Health, Housing & Community Services [1992] EOC 92-409 Paramasivam v Wheeler & Ors [2000] FCA 1559 Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 Street v Queensland Bar Association (1989) 168 CLR 461 Hodkinson v Commonwealth (2011) 207 IR 129 Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Rana v Commonwealth of Australia [2013] FCA 189 |
| Applicant: | DANNY FASSINA |
| Respondent: | COMMERCIAL MOTOR INDUSTRIES PTY LTD |
| File Number: | ADG 424 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 May 2016 |
| Date of Last Submission: | 17 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Burfoot |
| Solicitors for the Respondent: | Lynch Meyer |
ORDERS
The application filed on 17 November 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 424 of 2015
| DANNY FASSINA |
Applicant
And
| COMMERCIAL MOTOR INDUSTRIES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Danny Fassina was employed by Commercial Motor Industries Pty Ltd “CMI”, as a sales consultant, pursuant to a written agreement dated 12 August 2015. The agreement specified that Mr Fassina was to be employed, by CMI, as a sales consultant, pursuant to the provisions of the Vehicle Manufacturing, Repair and Services Retail Award 2010.
The agreement specified Mr Fassina’s hours of work and his rate of remuneration. Significantly, the agreement, which took the form of a letter of offer of employment, which Mr Fassina executed, signifying his acceptance of its conditions, contained the following provision:
“… it is the policy of CMV to offer all new employees a six month qualifying period in order for the company to fully assess and determine your suitability for ongoing employment. During the qualifying period an assessment is made in terms of application of skill and knowledge, approach to teamwork, staff and customer relations and your overall behaviour towards the company’s business. During the qualifying period either party may terminate this contract of employment with the appropriate notice period.”[1]
[1] See agreement dated 12 August 2015 annexed to the Fair Work claim filed 17 November 2015
The agreement specified that the relevant period of notice, for both Mr Fassina and CMI was one week, if the period of employment in question was less than one year.
There is no controversy between the parties concerned that Mr Fassina was dismissed from his position on 29 September 2015 by Mr Anthony Searle, who at relevant times was the manager of CMI’s used car department.
On 17 November 2015, Mr Fassina commenced proceedings against CMI, in this court, alleging that in the termination of his employment, CMI had taken adverse action against him “in contravention of a workplace right”[2] which pertained to Mr Fassina. In so doing, Mr Fassina alleges that CMI has contravened the provisions of section 340 of the Fair Work Act 2009 (Cth).[3]Section 340(1) of the FWA provides as follows:
“(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
[2] See Fair Work claim filed by Mr Fassina at paragraph 24.1
[3] Hereinafter referred to as “the FWA” or “the Act”
(b) to prevent the exercise of a workplace right by the other person.”
The expression adverse action is defined by a table set out in section 342(1) of the FWA. Relevantly, in the present matter, item 1 of the table reads as follows:
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2
if …1
an employer against and 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
Given the terms of section 340, particularly the use of the conjunction because it is necessary for there to be a nexus between any adverse action suffered by the holder of the relevant workplace right. The expression workplace right is defined by section 341(1) of the FWA;
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
The applicable award in these proceedings, the Vehicle Manufacturing, Repair, Services & Retail Award is a workplace instrument as defined by the FWA. In his application, Mr Fassina seeks to be reinstated in his position or alternatively to be paid the sum of $50,000.00 by way of compensation for his lost position.
CMI responded to this application on 1 December 2015. It denies that it has taken any adverse action against Mr Fassina in terms envisaged by section 340 of the FWA. CMI further claims that Mr Fassina’s employment was terminated because of repeated performance issues, which included swearing at a colleague and complaints received from customers of the firm about his conduct towards them.
These incidents led to Mr Fassina receiving a number of formal warnings, prior to his actual termination. In these circumstances, it is CMI’s position that it was justified in ending Mr Fassina’s employment, which was unrelated to any rights relevant to Mr Fassina arising under either the FWA or the applicable award. It is CMI’s further position that Mr Fassina was paid one weeks’ salary in lieu of notice.
In its response, CMI asserts that Mr Fassina has failed to specify the particular workplace right, which he asserts CMI has breached. In these circumstances, CMI seeks the summary dismissal of Mr Fassina’s application pursuant to the provisions of rule 13.10 of the Federal Circuit Court Rules 2001.
In addition, in his affidavit evidence, Mr Fassina has alleged as follows:
“Throughout my employment at CMI Toyota West Terrace Used Cars I was discriminated against and had adverse action taken against me due my race, colour, marital status and national extraction on numerous occasions.” [4]
[4] See affidavit of Danny Fassina filed 25 January 2016 at paragraph 8
In particular, Mr Fassina complains that one of his former colleagues, Mr Aaron Jamieson, referred to him, on several occasions as a “wog cunt” and made other derogatory comments to him when flowers were delivered to him, at the premises of CMI, at the instigation of a former girlfriend.
In his written submissions to the court,[5] Mr Fassina complains that he was the subject of adverse action, taken against him by CMI, because of his race, colour, marital status and national extraction in contravention of section 351 of the FWA. This complaint relates to his allegations made against Mr Jamieson in his affidavit.
[5] See Submissions of Mr Fassina filed on 3 May 2016
Section 351(1) reads as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
However this aspect of his claim was not formally raised by Mr Fassina in his originating application and, in my view, was only obliquely raised in his affidavit material. In addition, Mr Fassina declined to expand upon this complaint in his oral submissions to the court.
As a consequence of the late stage and the manner in which this complaint of a breach of the general protection provisions of the Act, on the basis of discrimination, was raised by Mr Fassina, CMI did not address the complaint specifically in either its response or in the written submissions of its counsel.
Pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) the court has authority to enter judgment in favour of a relevant party if it is satisfied that the other party concerned either has no reasonable prospects of prosecuting or defending the application concerned. The section provides as follows:
“(1)The Federal Circuit Court of Australia 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 prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia 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.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
As a consequence of this provision, the court has enacted Rule 13.10 of the Federal Circuit Court Rules 2001 , which reads as follows:
“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; 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.”
Mr Fassina, who has acted on his own behalf throughout these proceedings, opposes the summary dismissal of his application, which was instituted in this court following the failure of the Fair Work Commission to resolve the dispute between the parties concerned.
On the other hand CMI asserts that Mr Fassina has no reasonable prospects of successfully pursuing his application chiefly because he has not identified the particular workplace right which he asserts his former employer has breached by terminating his employment. In addition, any claim that he has been subject to adverse action because of his race, colour, marital status or national extraction is inchoate and not supported by any evidence advanced by Mr Fassina.
These reasons for judgment are directed to determining whether Mr Fassina’s application should be summarily dismissed, at this preliminary stage of proceedings or whether the matter should proceed to a full hearing, at some stage in the future.
Mr Fassina’s case
Mr Fassina has prepared an affidavit, in which he has outlined his perspective on the period of his employment with CMI.[6] It is clear, from this affidavit, that his employment with the respondent was marked by a level of conflict between him and a former colleague, Aaron Jamieson.
[6] See affidavit of Danny Fassina filed 25 January 2016
Mr Fassina deposes that on 3 September 2015 he and other sales consultants, including Mr Jamieson attended a meeting in the office of Mr Searle, who as previously indicated was the manager of CMI’s used car division and so the immediate manager of both Mr Fassina and Mr Jamieson. Mr Fassina asserts that Mr Jamieson referred to him as a “fat wog cunt” during the course of this meeting.
Later on that day, Mr Fassina concedes that he and Mr Jamieson “exchanged words” when they had a further altercation about the needs of a customer of CMI. In his claim, Mr Fassina acknowledges swearing at Mr Jamieson but asserts that it “in response to Aaron provoking him by refusing to speak to customers as he was getting ready to go home.”[7]
[7] See Application filed 17 November 2015 at Part G paragraph 6
These incidents came to the notice of Adam McCallum. Mr McCallum is branch manager of CMI and so Mr Searle’s immediate superior. Mr McCallum called a meeting of sales consultants on 4 September 2015, in which he indicated to all concerned, including Mr Fassina and Mr Jamieson, that it was not acceptable to CMI that any staff members used foul language to one another at the workplace.
Mr Fassina confirms that a conversation, to this effect, took place. He deposed as follows:
“Adam told us all that this type of language and behaviour that he had been hearing about from us all and the behaviour that he had been seeing lately was not acceptable and would not be tolerated by CMI. Adam said that no more calling each other names.”[8]
[8] See affidavit of Danny Fassina filed 25 January 2016 at paragraph 2
Mr Fassina indicates that both he and Mr Jamieson received a written warning in respect of their conduct from Mr Searle. In Mr Fassina’s case the written warning was provided to him on 7 September 2015 and was in the following terms:
“During our discussion, you were advised of my concerns regarding the use of bad language and the manner in which you speak to people at times.
The specific issues of concern raised during our meeting included:
·Use of bad language.
·How you speak to fellow employees.
·Maintain respectful/polite standards.
During our meeting you were unable to offer a satisfactory explanation for these performance issues.
Danny, the performance issues listed above our not acceptable to CMI Toyota standards must be improved. We agreed that you will ensure you communicate in a respectful and polite manner to both staff and guests of CMI Toyota.
This letter is an official warning regarding your performance…”[9]
[9] See annexure DF 2 to the application filed 25 January 2015
Between 9 September and the date of his termination by CMI, Mr Fassina asserts that Mr Jamieson continued to denigrate and abuse him, particularly in the context of flowers and a cake being delivered to him (Mr Fassina) at the premises of CMI and a discussion about domestic violence, which took place between sales consultants on 12 September. Mr Fassina complains that he “was continually harassed by Aaron Jamieson about my race, colour, marital status and national extraction.”[10]
[10] See affidavit of Danny Fassina filed 25 January 2016 at paragraph 8
On 29 September 2015, Mr Fassina asserts that he was approached by Mr McCallum, who informed him that he (Mr McCallum) had received a letter of complaint, via email, from a customer of CMI, which related to Mr Fassina. Mr Fassina denied any inappropriate behaviour on his part. Nonetheless, Mr McCallum determined to terminate Mr Fassina’s employment. Mr Fassina requested to view the email in question, as he wished to defend any allegations of misconduct made against him.
In this context, Mr Fassina asserts that this was the first time a customer had ever made a complaint against him. As such, he contends that he was entitled to be given an official warning in respect of the complaint and thereafter defend any allegations made against him. In his application, Mr Fassina contends that this conduct, on the part of CMI, constitutes a contravention of the general protections provisions of the FWA.
In this regard, his application contends as follows:
“The applicant’s employment was terminated by the respondent on 29 September 2015.
The applicant was told he was dismissed due to a complaint made by a customer on 29 September 2015.
This was the first complaint made by against the applicant by a customer.
The applicant was not given an official warning in respect of the complaint and was not told the details of the complaint.
The applicant was denied the opportunity to defend himself against the allegations and the dismissal.
Section 44 of the Act states that an ‘employer must not contravene a provision of the National Employment Standards’.
The respondent breached a provision of the National Employment Standards when it failed to give written notice of the day of termination and the minimum period of notice as required under section 117 of the Act.”[11]
[11] See Application filed 17 November 2015 at Part G paragraphs 14 - 20
CMI’s case
CMI relies on two affidavits deposed to by Mr Searle and Mr McCallum respectively. Mr McCallum confirms that he learnt of a verbal altercation between Mr Fassina and Mr Jamieson on or around 3 September 2015.
As a consequence, Mr McCallum arranged to speak to Mr Fassina, in order to hear his (Mr Fassina’s side of the story). Mr Fassina confirmed that he had abused Mr Jamieson but only in response to verbal provocation from Mr Jamieson. As a consequence of the incident, Mr McCallum convened a meeting of the used car department at which he informed all staff that the use of offensive language was unacceptable to CMI and would not be tolerated.
Mr McCallum further deposes that Mr Fassina was warned that if there were any further incidents of bad language involving him, his employment was likely to be terminated. In his affidavit, Mr Searle confirms that a written warning was given to both Mr Fassina and Mr Jamieson.
In his affidavit, Mr Searle deposes that on 24 September 2015 he received a complaint from a customer of CMI in which the customer concerned complained that Mr Fassina had “a bad attitude”. As a consequence of this complaint, Mr Searle advised Mr Fassina that “he needed to be more courteous towards customers and be aware of how he spoke to them.”
On 28 September 2015, Mr McCallum received a written complaint about Mr Fassina from another customer, in which Mr Fassina was described as being erratic in his behaviour towards the customer concerned. The customer further indicated that because of what he regarded as offensive behaviour he had determined to take his business elsewhere.
Mr McCallum referred the complaint to Mr Searle, who determined that Mr Fassina’s employment should be terminated. In his affidavit, Mr Searle deposed as to his motivation for Mr Fassina’s termination as follows:
“The three incidents described above all occurred in a very short time frame and it showed to me that Danny did not have good customer staff or customer relation skills. Danny’s poor customer relations in particular led to CMI losing two potential customers.”[12]
[12] See affidavit of Anthony Searle filed 1 December 2015 at paragraph 10
In all these circumstances, it is CMI’s position that Mr Fassina’s employment was terminated, during the qualifying period, solely due to repeated performance issues and following a formal warning to him. It denies that at any relevant time Mr Fassina was exercising or proposing to exercise any workplace right as defined by section 341(1) of the FWA.
In these circumstances, it denies that Mr Fassina’s employment was terminated because of any workplace right pertaining to him. Rather, CMI contends that Mr Fassina was dismissed because it was dissatisfied with how he conducted himself whilst in the employ of the firm. As such, CMI denies that it took any adverse action against Mr Fassina in contravention of any general protection contained in section 340 of the Act.
Legal considerations applicable
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[13] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[14] In Webster v Lampard[15] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[13] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J at 415 [12]
[14] Dey v Victorian Railway Commissioners (1949) 78 CLR 62
[15] Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[16]
[16] Ibid at 416 [18]
Particular care must be taken in respect of applications for summary dismissal in cases in which the applicant concerned is self-represented. Such persons are very often at a significant disadvantage because of a lack of legal knowledge and an ignorance of pleading practices. As such, they may experience difficulty in properly formulating otherwise valid legal claims because of a lack of legal vocabulary and capacity to identify salient legal issues and express them in appropriate form.
In this context, I must bear in mind the possibility that an unrepresented litigant could possibly be assisted, through appropriate channels, to get his/her application into proper form for consideration by the court.[17] However, whilst caution is appropriate, in a summary dismissal application, the court is not to ignore the interests of the other party concerned. In Morton v Mitchell Products[18], Sackville J said as follows:
“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which he otherwise might have done.”
[17] See Tardy v Secretary of the Department of Community Services & Health (unreported, 9 October 1990 per McLelland J)
[18] Morton v Mitchell Products [1996] FCA 828
In appropriate cases, the court should not shy away from summarily dismissing applications, which have no tenable grounds as it is in the public interest that unmeritorious cases be dismissed sooner rather than later. In Travers v New South Wales[19] Lehane J affirmed the view of the former President of the Human Rights & Equal Opportunity Commission, Sir Ronald Wilson, who said as follows in Assal v Department of Health, Housing & Community Services:[20]
“It is in the public interest, as well as the interest of both parties, that the hearing of a complaint which is clearly showing to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power … in circumstances where that exercise is clearly warranted.”
[19] Travers v New South Wales [2000] FCA 1565
[20] Assal v Department of Health, Housing & Community Services [1992] EOC 92-409 at 78,900
Lehane J added, in Travers:
“That is especially so, perhaps, in this court where an unsuccessful litigant if proceedings are protracted, may face what can be the considerable burden of a costs order.”
These considerations are all relevant to the present proceedings. Mr Fassina is unrepresented. He has no legal training. I consider however that he has been given an ample opportunity to present his case. He was invited to respond to oral submissions made on behalf of CMI in its summary judgment application but largely declined to do so.
At the end of the day, there are few evidentiary matters in dispute between the parties. The terms of Mr Fassina’s contract of employment are uncontroversial. His employment was subject to a probationary period, during which both parties were entitled to terminate the agreement on seven days’ notice, or in the case of the employer, payment of seven days’ wages in lieu of notice.
In addition, Mr Fassina concedes that he used abusive language to a colleague in the workplace, albeit in response to similar verbal provocation. Mr Fassina also acknowledges that there was an email complaint, from a customer of CMI, which, ostensibly at least, was the precipitating factor for his termination.
The source of Mr Fassina’s grievance, in respect of this email, appears to be that he was not provided with the name of the customer concerned and so was not able to refute the allegations of discourteous behaviour attributed to him. I do not consider that Mr Fassina has any specific entitlement to see the correspondence in question, certainly not as a consequence of any workplace right pertaining to him. I note that he was provided with a copy of the correspondence concerned, with the name of its author redacted, as part of Mr McCallum’s affidavit material.
The court should act to prevent an unrepresented person from falling into the traps or pitfalls, in litigation, to which a represented person would be alerted, particularly in regards to legal technicalities in regards to such matters as pleadings. However, this obligation, incumbent upon the court, does not extend to allowing an unmeritorious application to continue unchecked. That would not be in the public interest or fair to the other party or parties concerned.
In this context, the onus is on CMI to establish that Mr Fassina does not have an arguable case to put before the court. The onus to be discharged is a high one, as the respondent must establish:
“… a high measure of satisfaction in the court that the proceedings are of a character that they should be dismissed.”[21]
[21] See Paramasivam v Wheeler & Ors [2000] FCA 1559 per Moore J
In Ebber v Human Rights & Equal Opportunity Commission[22] Drummond J summarised the level of material, which the claimant needed to muster, in order to defeat an application for summary dismissal. His Honour said as follows:
“A complainant must therefore have at the outset of the inquiry into his complaint sufficient material, it need not be legally admissible evidence, … to show that he has more than a remote possibility of a well-founded claim if he is to defeat an application for summary dismissal of the case that can be made out at the start of the inquiry.”
[22] Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 468
In this case, there can be no doubt that CMI has taken adverse action against Mr Fassina, as defined by the table set out in section 342(1) of the FWA. Given the structure of section 340, the central evidentiary in the case is the reason or reasons why CMI acted in the manner in which it did, in respect of its decision to terminate Mr Fassina’s employment.
Employers can take a particular action, against one of their employees, for a combination of reasons, some potentially illegal, under the FWA, some potentially not. In this context, the question arises as to who has the onus of establishing why adverse action has occurred and how any such onus is to be discharged.
In this context, sections 360 and 361 of the FWA are relevant. Section 360 is headed Multiple reasons for action and reads as follows:
“For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361 provides as follows:
“Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.”
Section 361 creates a reverse onus. The onus is on the employer rather than the employee to establish why a person was adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[23] explained the operation of section 361 of the FWA in the following terms:
“That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.” (citations removed).
[23] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]
It must also be borne in mind that the issue, in an adverse action claim, arising under section 340 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason. As White J said in Tsilibakis v Transfield Services (Australia) Pty Ltd[24]
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics[25] when it said:
“... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...”
[24] Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
[25] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ
Nor is an application under section 340 of the FWA an opportunity for an applicant to raise any type of grievance, arising from his/her employment. Accordingly these proceedings are not a broad inquiry as to whether Mr Fassina has been “subject to a procedurally fair or substantially unfair outcome.”[26]
[26] Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J
In the context of this summary dismissal application, in my view, the court must focus on the evidence relating to the following broad issues to determine whether Mr Fassina has no reasonable prospects of pursuing his claim for infringement of any general protection arising under either section 341 or 351 of the FWA:
·Did Mr Fassina suffer adverse action within the meaning of section 342(1) item 1 of the FWA;
·Was the alleged adverse action taken because Mr Fassina had or exercised a relevant workplace right or because of any of the attributes, relevant to Mr Fassina, described in section 351;
·Did Mr Fassina have or exercise a relevant workplace right within the meaning of section 341 of the FWA;
·What is alleged to be the nexus between the alleged workplace right and the alleged adverse action; and
·What is alleged to be the nexus between the alleged discrimination against Mr Fassina and the alleged adverse action.
To suffer adverse action, an employee must suffer one or more of the following: dismissal; injury; a prejudicial alteration of his/her position; or some form of discrimination between him/her and other employees. I accept that Mr Fassina has suffered termination of his employment. It also appears to be his case that he has suffered some form of discrimination.
The issue of what constitutes discrimination, within the context of item 1 of section 342(1) was canvassed by Perry J in Sayed v Construction, Forestry, Mining & Energy Union.[27] In the case Her Honour adopted the analysis formulated by Gaudron J in Street v Queensland Bar Association[28] in which Her Honour said:
“Although in its primary sense “discrimination” refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is “discrimination between”; the legal sense is “discrimination against”.
[27] Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 at 31 [158]-[160]
[28] Street v Queensland Bar Association (1989) 168 CLR 461 at 570-571
In this context, Perry J concluded as follows:
In my opinion, the language in Item 1(d), and its use of the word “between”, suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees? By s 351, the “irrelevant” reasons for the different treatment (to adopt the concept used by Gaudron J in Street) are then specified. The inquiry is thus a straightforward one, to that point, and does look only for differential treatment, as the applicant submits.
It is for Mr Fassina to establish what is the workplace right, which he contends has been infringed, because of his termination. In the alternative, Mr Fassina must establish that he has been the victim of discriminatory conduct, as defined by section 351, which has been the operative cause of his termination.
In the context of the possible application of section 351 to the circumstances of the current matter, Hodkinson v Commonwealth[29] is relevant. In the case, Cameron FM (as His Honour then was) indicated that allegations that adverse action had been taken because of a person’s disability should be made and particularised clearly. In my view, the same is true of allegations relating to adverse action as a consequence of a person’s ethnicity.
[29] Hodkinson v Commonwealth (2011) 207 IR 129 at 166
In this case, in my view, the applicant has not particularised, at all, any allegation that the respondent discriminated against him because of his race or colour or any other aspect of his background. Mr Fassina has not established that he was treated differently, by CMI, because of his racial background or ethnicity.
Rather Mr Fassina has asserted that Mr Jamieson made racially insulting comments about him, which he found hurtful. This may be so, but there must be some connections between these actions, on Mr Jamieson’s part and the adverse action taken by CMI. Mr Fassina must establish that he was treated differently, by CMI, from other employees because of his background.
The onus is on Mr Fassina to establish these matters. To utilise the terminology of Collier J, provided in Jones v Queensland Tertiary Admissions Centre, it is necessary for Mr Fassina to provide objective facts to evidence his assertion of an infringement of any general protection afforded by the FWA. It is not sufficient for Mr Fassina to assert that he was abused in the workplace and thereafter he was dismissed.
In addition, in my view, on the evidence thus far provided by Mr Fassina, he has failed to identify any workplace right, pertaining to him, which CMI has infringed. He has not specified the workplace law or instrument, which he alleges CMI has contravened in his case. In particular, he has not articulated any specific workplace right which relates to the entitlement to receive a warning, in respect of alleged misbehaviour or to be able to confront a complainant in regards to allegations of poor work performance.
The High Court, in Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd,[30] has emphasised that the issue of whether an action of an employer has been taken for a prohibited reason or otherwise is a question of fact. The question of fact to be resolved being why was adverse action taken and was it because of a reason protected by the FWA. Such an inquiry will generally involve an examination of the state of mind of the decision-maker concerned, although it is not limited solely to this issue.
[30] Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [19] per French CJ and Kiefel J
The uncontroverted evidence of Mr Searle and Mr McCallum is that Mr Fassina’s employment was terminated because his performance in the workplace was found to be wanting. Mr Fassina has not been able to point to any circumstance, which indicates that this was not the operative cause of his termination or that he was discriminated against because of any aspect of his background.
The evidence of the respondent is that Mr McCallum informed Mr Fassina, on 29 September 2015, that he was being terminated for reasons relating to his performance, particularly because of a customer complaint of inappropriate behaviour. In his claim, Mr Fassina does not dispute that this was the reason given by CMI for his termination.[31]
[31] See Mr Fassina’s Claim at Part G paragraph 9
I bear in mind what was said by the Full Court in Khiani namely that general protection applications are not to be utilised as a forum to ventilate any general grievances a particular employer may have about his or her treatment in the workplace. In this context, I accept that Mr Fassina is likely to be aggrieved if what he asserts Mr Jamieson said to him did occur. He is also likely to be annoyed that a particular customer complained about him to management.
However, the onus remains on Mr Fassina to establish his entitlement to a workplace right, which has been contravened by CMI. The expression workplace right is exhaustively defined in the applicable legislation. It is in this context that the court must assess the evidence available to it to determine whether Mr Fassina has no reasonable prospect of success, in light of the applicable authorities, particularly those which delineate the necessity for the court to focus on the question of why adverse action has taken place. I must also bear in mind that the court is not able to make definitive findings of fact.
The exercise is one of evaluation of evidence. Issues of causation, at the summary judgment stage, may be inchoate because the court is unable to determine what did or did not happen in the workplace concerned because available evidence has not been tested through cross examination or other scrutiny.
In this particular case, in my evaluation, the evidence untested though it is, is incapable of supporting any connection between the uncertain or otherwise unspecified workplace rights asserted by Mr Fassina and the adverse action in respect of which Mr Fassina is undoubtedly aggrieved.
The parties agree that the reason given for Mr Fassina’s termination was the complaint of the customer to the management of CMI about his behaviour. In these circumstances, I am satisfied that the evidence mustered by Mr Fassina, even when taken at its highest, does not establish that he has any reasonable prospects of being successful in the claim as pleaded by him.
Ms Burfoot, counsel for CMI, also asserts that Mr Fassina’s claim can be characterised as being vexatious. In this context, she relies on what was said by Mansfield J in Rana v Commonwealth of Australia[32] namely:
“Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court…”
[32] Rana v Commonwealth of Australia [2013] FCA 189 at [42]
I am not in a position to determine whether Mr Fassina has any ulterior motive for commencing these proceedings. However, I am satisfied that the evidence available to me indicates that they are obviously untenable. For these reasons, I have come to the conclusion that it is appropriate that Mr Fassina’s application be summarily dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 19 August 2016
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