Fox v Stowe Australia Pty Ltd
[2012] FMCA 976
•26 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FOX v STOWE AUSTRALIA PTY LIMITED | [2012] FMCA 976 |
| PRACTICE AND PROCEDURE – Court forms do not define the relief which may be sought – in an industrial proceeding in the Federal Magistrates Court of Australia an applicant may file and rely on both a Form 2 claim form and a Form 4 claim form. PRACTICE AND PROCEDURE – Fair Work Act 2009 – the motivation for adverse action said to be in contravention of the Fair Work Act 2009 must be clearly and specifically alleged and particularised. STATUTORY INTERPRETATION – Fair Work Act 2009 – the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is a workplace law for the purposes of the Fair Work Act 2009. INDUSTRIAL LAW – Fair Work Act 2009 – if one party takes adverse action against another because the latter has rights under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), such action is taken for a reason prohibited by the Fair Work Act 2009 and is actionable under that Act. |
| Constitution, s.109 Fair Work Act 2009, ss.12, 340, 341, 351, 352, 361, 369, 371, 545 Workers Compensation Act 1987 (NSW), s.151A Workplace Injury Management and Workers Compensation Act 1998 (NSW), s.49 Federal Court Rules2011, rr.9.01, 30.11 Federal Magistrates Court Rules2001, rr.1.05, 2.04, 45.06, 45.08 |
| Bishop v Bridgelands Securities (1990) 25 FCR 311 Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 |
| Applicant: | CIARAN FOX |
| Respondent: | STOWE AUSTRALIA PTY LIMITED |
| File Number: | SYG 1648 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 October 2012 |
| Date of Last Submission: | 23 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Hugh & Associates |
| Counsel for the Respondent: | Mr G. Boyce |
| Solicitors for the Respondent: | Moray & Agnew |
ORDERS
The applicant have leave to file his Form 4 claim form dated 25 July 2012.
The applicant be refused leave to rely for the purposes of his Form 4 claim on paras.18, 19, 20 and 25(a) of the points of claim.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1648 of 2012
| CIARAN FOX |
Applicant
And
| STOWE AUSTRALIA PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant alleges that he was employed by the respondent on 15 January 2008. He says that on 5 February 2008 he suffered an injury to his left wrist which caused physical disability and in respect of which he lodged a workers compensation claim. He further alleges that he was dismissed by the respondent on 28 March 2012 with effect from that day. In the points of claim annexed to his Form 2 claim form filed with the application initiating this proceeding the applicant alleges that his dismissal was adverse action, as defined by the Fair Work Act 2009 (“FWA”), taken in contravention of ss.340, 351 and 352 of the FWA. He claims compensation in respect of losses he alleges he has suffered as a result of his dismissal together with the imposition upon the respondent of civil penalties for alleged contraventions of the FWA.
It is apparent from the points of claim annexed to the applicant’s Form 2 claim form dated 25 July 2012 that he also says that between the point when he was injured and the date of his dismissal the respondent contravened the FWA by refusing an application for leave, by refusing his request to mediate their differences and by failing to give him, in the context of his physical disability, suitable duties as provided for under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). Section 49 of the latter Act refers to such work as “suitable employment”. However, as this proceeding currently concerns only the applicant’s claim arising out of his dismissal, the allegations of prohibited conduct during the course of the applicant’s employment with the respondent are not presently relevant for consideration and determination by the Court.
The matter is brought before the Court at this point on an interlocutory basis because the applicant wishes to file a Form 4 claim form to seek relief in relation to the respondent’s alleged contraventions of the FWA during the course of his employment. The applicant informed the Court during argument that when he sought to commence his proceeding he wished to file Form 2 and Form 4 claim forms but was directed by the registry that he could only file one claim form with his initiating application. The applicant has provided the Court with a copy of his Form 4 claim form dated 25 July 2012.
The Form 2 claim form has been approved by the Chief Federal Magistrate pursuant to rr.2.04(1A) and 45.06 of the Federal Magistrates Court Rules 2001 and must be filed with an initiating application in cases where an applicant alleges dismissal in contravention of a general protection provided by the FWA. The Form 4 claim form has been approved by the Chief Federal Magistrate pursuant to rr.2.04(1A) and 45.08 and must be filed with an initiating application in cases where an applicant alleges other sorts of contraventions of the general protections provided by the FWA.
The respondent makes no objection to the filing of a Form 4 claim form to raise the applicant’s allegations concerning the leave application and the request to mediate differences but does oppose the interlocutory application to the extent that the applicant seeks to allege that it failed to provide him with suitable employment. The respondent’s opposition specifically relates to paras.20(b), 20(aa) and aspects of paras.24, 26 and 27 of the points of claim.
Court forms do not define the relief which may be sought
Notwithstanding the respondent’s concession in relation to two of the issues the applicant seeks to press, it is appropriate to make some observations on the procedure to be adopted when an applicant wishes to file both a Form 2 and a Form 4 claim form.
Rules 45.06 and 45.08 provide no basis to conclude that discrete claims for breach of general protections manifested by dismissal and by other conduct must be brought in separate proceedings. The Form 2 and Form 4 claim forms are no more than documents designed with a view to assisting the management of the Court’s work and to providing guidance to litigants. As many litigants in this Court, particularly in its small claims jurisdiction, are unrepresented, the Court has chosen to use forms rather than affidavits or pleadings as the procedure by which most industrial proceedings are commenced. One of the features of this approach is that the Form 2 claim form specifically requires applicants to answer questions in relation to whether they are in possession of a certificate pursuant to s.369 of the FWA, an obligation which is not found in the Form 4 claim form. This reflects the precondition to this Court’s jurisdiction over unlawful dismissal claims, found in s.371 of the FWA, namely that Fair Work Australia has issued a s.369 certificate stating that it is satisfied that all reasonable attempts to resolve the parties’ dispute have been, or are likely to be, unsuccessful.
The claim forms were designed for practical utility rather than as a descriptor of how cases are to proceed. Subject to the discussion which follows concerning the respondent’s particular objections to the applicant’s application to file his proposed Form 4 claim form, if these proceedings had been based on pleadings, rather than on the particular forms which the Court employs in industrial matters, then there would have been no doubt that all of the applicant’s claims against the respondent could have been made from the outset.
Further, although in circumstances such as the present the use of two forms may be cumbersome, which in turn suggests that a review of the forms might be warranted, that should not be allowed to detract from the Court’s duty to operate as informally as possible and to use streamlined processes. In this regard, r.9.01 of the Federal Court Rules2011 provides:
An applicant may claim relief in the same proceeding in relation to as many causes of action as the applicant has against a respondent, whether or not the applicant is claiming the relief in the same capacity.
This Court does not have an equivalent to that rule but r.1.05(2) does provide that if in a particular case this Court’s rules are insufficient or inappropriate the Court may apply the Federal Court Rules as necessary. That is the situation here and it is appropriate that r.9.01 of the Federal Court Rules be applied in circumstances where an applicant in industrial proceedings wishes to raise more than one issue against a particular respondent.
Another rule found in the Federal Court Rules but not in this Court’s rules is r.30.11. It provides:
30.11 Consolidation of proceedings before trial
If several proceedings are pending in the Court and the proceedings:
(a)involve some common question of law or fact; or
(b)are the subject of claims arising out of the same transaction or series of transactions;
any party to any of the proceedings may apply to the Court for an order that the proceedings be:
(c)consolidated; or
(d)heard together; or
(e)heard immediately after one another; or
(f)stayed until after the determination of any of the other proceedings.
Although more concerned with consolidating proceedings having common issues but different parties, that rule is also relevant to proceedings having common parties but different issues, which is essentially the situation presented by the present application. It is appropriate to apply that rule to the present proceeding where the applicant’s claims have some common questions of law and arise out of the one employment relationship.
If the application to raise the Form 4 allegations in this proceeding were refused then there would be no reason why the applicant should not commence separate proceedings to seek that relief. However, were he to do so a practical consequence would be the duplication of time, effort and expense on the part of the parties and of the Court in considering certain matters twice. Other disadvantages might also flow. It is apparent that, other things being equal, it would be more efficient and more in keeping with the goals of this Court that all the applicant’s allegations against the respondent be dealt with in one proceeding.
In Bishop v Bridgelands Securities (1990) 25 FCR 311, in the context of an application to join parties in a proceeding, Wilcox J said:
The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. (at 314)
Applying the criteria for the exercise of discretion suggested by Wilcox J, but subject to the following discussion concerning the respondent’s particular opposition to the applicant raising a claim associated with the workers compensation legislation of New South Wales, the applicant should have leave to file and rely on the Form 4 claim form which he previously sought to file. Indeed, he should have been permitted to file it when he filed his application initiating these proceedings, with any objections to its contents being a matter for later argument by the parties and decision by a justice of the Court.
Should the applicant be permitted to raise claims associated with the workers compensation system of New South Wales?
Submissions
The applicant’s claim associated with the workers compensation laws of New South Wales may be summarised as follows:
a)under the WIM Act, the respondent was required to provide him with suitable employment while he was partially disabled;
b)the respondent refused or failed to provide him with such employment when it was available which constituted an injury to him in his employment or an alteration of his position to his prejudice;
c)because he was not given suitable employment he suffered hurt, humiliation and distress as well as financial loss represented by the difference between what he would have earned had he been working and the workers compensation benefits and the top up insurance payments he received during that period.
The relevant provision of the WIM Act is s.49 which provides:
49 Employer must provide suitable work
(1)If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.
Maximum penalty: 50 penalty units.
(2)The employment that the employer must provide is employment that is both suitable employment (as defined in section 43A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.
(3) This section does not apply if:
(a)it is not reasonably practicable to provide employment in accordance with this section, or
(b)the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or
(c)the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.
In addition to arguing that it would be a more efficient approach to the litigation if all matters in issue were dealt with in the one proceeding, the applicant submitted that the FWA gave this Court jurisdiction to consider and determine matters associated with what he identified as the respondent’s failure to provide him with suitable employment in breach of its obligations under the WIM Act. The applicant also submitted that, in any event, his claim arising out of the respondent’s alleged breach of the WIM Act is not justiciable before the Workers Compensation Commission of New South Wales.
The respondent submitted that there is nothing in the FWA to suggest that it was intended to alter any rights arising out of State workers compensation entitlements. It further submitted that the workplace injury management arrangements set out in chp.3 of the WIM Act amount to a specific and detailed scheme for the rehabilitation of injured workers and that the obligation on employers to provide “suitable employment”, as defined by the WIM Act, is a creature of that legislative scheme.
The respondent submitted that the workplace injury management and compensation system provided for mechanisms to resolve any disputes. It submitted that the workers compensation legislation makes no provision for a worker to elect to not avail themselves of the suitable employment provisions in the WIM Act while employed and instead to seek damages once employment has ceased. It is implicit in the respondent’s submissions that the applicant never formally sought to be given suitable employment during the relevant period.
The respondent submitted that, contrary to the applicant’s submissions, the WIM Act does deal with disputes concerning the failure by a party to a dispute to comply with an obligation imposed by or under chp.3 of that Act, such as the obligation to provide suitable employment. The power to make orders of that sort was, it was submitted, supplemented in the WIM Act by certain pecuniary sanctions.
The respondent submitted:
It is prejudicial to the respondent for the applicant to now, given that his employment has ceased, to seek relief by way of compensation, on the basis that he was not supplied with suitable duties pursuant to s.49 of the Act. This is a dispute that could have been dealt with at the relevant time had the applicant so wished, through the use of the appropriate dispute resolution mechanisms provided for in the WIM Act.
At the time the Workers Compensation Commission (“WCC”) could have considered all the circumstances bearing upon the practicability of such duties being provided, including whether such duties were being sought and whether, if given, the applicant would be ready, willing and able to perform them. If it was ruled that suitable duties should be made available then the respondent would have to comply and its workers compensation insurer would have to pay the worker the higher amount prescribed by the workers compensation legislation.
To bring the claim at this time means suitable duties cannot be provided (if deemed by the WCC to be appropriate) and for the workers compensation scheme to operate in relation to any resultant change to the applicant’s workers compensation payments. Instead, equivalent damages to payments that may have been available through the workers compensation scheme would now have to be paid by the respondent out of its own funds.
The respondent further submitted that as the WIM Act provides its own sanctions for a failure to provide suitable duties pursuant to s.49 it was unfair that it could be exposed to sanctions under the FWA as well as ones under the WIM Act.
It was also argued by the respondent that the applicant’s claim was circular and misconceived because he was seeking to establish that it had not provided him with suitable duties (as provided under the WIM Act) because it was required to provide him with suitable duties under the WIM Act. In this connection para.20 of the points of claim relevantly states:
In the period 4 March 2010 to 28 March 2012, the Respondent took adverse action against the Applicant because of the Applicant’s workplace rights …
Consideration
Although the respondent took me to the provisions of div.3 of pt.5 of chp.7 of the WIM Act, which concern disputes about non-compliance with chp.3 of that Act, where s.49 is found, I am not persuaded that that division of the WIM Act is concerned with providing compensation to an employee for an employer’s failure to provide suitable employment or indeed with preventing the provision of such compensation. Its concerns appear to lie elsewhere. Consequently, even if, contrary to s.109 of the Constitution, a State Act could affect the operation of a Federal Act on the basis that it operated as an exclusive code, that would not be the operation or effect of the WIM Act in the present case. For this reason, and contrary to the respondent’s submission, the approach taken by the applicant would not undermine the workers compensation scheme. However, even if it did, that would not prevent the proper operation of the FWA according to its terms. Further, the relief which may be available under the FWA is not available to the applicant under the WIM Act and so could not have been properly addressed under that statute, contrary to the respondent’s submissions.
Further in this regard, little attention was given by the parties to the basis on which rights or benefits associated with State workers compensation legislation might give rise to rights under the FWA. In this regard, reference should be had to three provisions of the FWA. The first two are ss.340 and 341 which relevantly provide:
340Protection
(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
(b)to prevent the exercise of a workplace right by the other person. …
341Meaning of workplace right
(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.
The third is s.12 which relevantly provides:
workplace law means:
(a) this Act; or
(b) the Fair Work (Registered Organisations) Act 2009; or
(c) the Independent Contractors Act 2006; or
(d)any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
The WIM Act is a workplace law: Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 at 121 [81]. It is also apparent that the applicant was entitled to the benefit of that Act, could initiate proceedings under it and was entitled to make a complaint under it in relation to his employment. Consequently, if the respondent took adverse action against the applicant because he had those rights under the WIM Act then such action would have been taken for a prohibited reason and be actionable under the FWA.
As to the respondent’s claim to be prejudiced by the applicant seeking relief notwithstanding that his employment has been terminated, as long as the applicant is within the time for the commencement of proceedings under the FWA, this argument does not provide a proper basis to refuse leave to raise issues which the applicant could raise in separate proceedings against the respondent. Further, to the extent that the respondent fears having to pay compensation twice, it is not clear to me whether compensation under s.545(2)(b) of the FWA would not be covered by s.151A of the Workers Compensation Act 1987 (NSW) which prevents the recovery of compensation under that Act if damages are obtained in respect of the same injury. However, as no submissions were addressed to the question of how any compensation ordered under the FWA would affect the sanctions which might be imposed on the respondent under the WIM Act, or the obligations of its workers compensation insurer to make payments to the applicant which the respondent might have to reimburse, I am not in a position to state a concluded view on this issue. In the circumstances, the respondent has not demonstrated that the possibility of double compensation exists or that the application for leave should be refused, at least in part, on that account.
I do not accept the respondent’s submission concerning the asserted misconception underlying the applicant’s claim. While there is an apparent circularity in the way the applicant has pleaded para.20 of the points of claim, that shortcoming reflects a need to clarify the pleading, not the absence of a cause of action. All the same, the lack of clarity in the pleading is important. In paras.18 and 19, where the applicant alleges that the respondent failed to provide him with suitable employment notwithstanding his requests for it, he does not identify the workplace right he was supposedly seeking to exercise. In para.20 the applicant alleges certain adverse action on the part of the respondent but particularises the prohibited motivation for that conduct in a fashion which is imprecise and confusing. In circumstances where s.361 of the FWA imposes on the respondent a reverse onus of proof in relation to its motivation for taking adverse action, clarity in such allegations is essential: vide: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 559-561 [31]-[37], 566 [54], 574-575 [74]-[75]. The motivation for adverse action said to be in contravention of the FWA must be clearly and specifically alleged and particularised. Consequently, the applicant should not be permitted to rely on those paragraphs in their present form, at least in the context of the Form 4 claim. As a consequence of that conclusion, unless and until those paragraphs are suitably repleaded the applicant should also not be permitted to rely in that context on para.25(a) of the points of claim, where he seeks a civil penalty against the respondent for its alleged failure to provide him with suitable employment during the relevant period.
Conclusion
The applicant should be permitted to file his Form 4 claim form and to rely in that context on the points of claim which have already been filed, with the exception of paras.18, 19 and 20 of the points of claim and, unless and until those paragraphs are repleaded, para.25(a) of the points of claim.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 26 October 2012
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