In v Giri Australia
[2023] FedCFamC2G 689
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
In v Giri Australia [2023] FedCFamC2G 689
File number(s): MLG 1682 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 2 August 2023 Catchwords: PRACTICE AND PROCEDURE – application for leave under rule 11.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to include a party in the proceeding – where applicant alleges that proposed party was “involved” in a contravention of the Fair Work Act 2009 (Cth) – whether there is an arguable case for the alleged involvement – no appearance by the proposed second respondent – orders made for proposed second respondent to be included in the proceeding Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 550.
Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2021 r 11.02.
Hospitality Industry (General) Award 2020.
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of last submission/s: 2 August 2023 Date of hearing: 2 August 2023 Place: Melbourne Pro- bono counsel for the Applicant: Mr D Murphy of Counsel First Respondent: No appearance Proposed Second Respondent: No appearance ORDERS
MLG 1682 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MICHELLE IN
ApplicantAND: GIRI AUSTRALIA PTY LTD
First RespondentLALIT GIRI
Second Respondent
order made by:
JUDGE Symons
DATE OF ORDER:
2 AUGUST 2023
THE COURT ORDERS THAT:
1.The Applicant has leave to file and serve by 4pm on 4 August 2023, an Amended Statement of Claim, being the document annexed to the Amended Form 2 dated 4 July 2023 and described as “Annexure 1” (“Amended Statement of Claim”).
2.The First Respondent file and serve on the other parties a Notice of Address for Service by 4pm on 11 August 2023.
3.The First Respondent file and serve on the other parties a response to the Amended Statement of Claim by 4pm on 1 September 2023.
4.The hearing of the Applicant’s application for default judgement against the First Respondent dated 4 July 2023 be adjourned to 9 November 2023 at 10.00am
5.The Applicant file and serve on the other parties any further affidavit material in support of the application for default judgement dated 4 July 2023 by 4pm on 6 October 2023.
6.The First Respondent file and serve on the other parties any response, including any affidavit material, to the application for default judgement dated 4 July 2023 by 4pm on 27 October 2023
7.The Applicant has leave pursuant to rule 11.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rule 2021 (the Rules) to include Mr Lalit Giri as the Second Respondent in the proceeding.
8.The Second Respondent file and serve a notice of address for service by 4pm on 11 August 2023.
9.The Second Responded file and serve on the other parties a response to the Amended Statement of Claim by 4pm on 1 September 2023.
10.The Applicant serve on the First and Second Respondent a sealed copy of these orders on or before 4pm on 4 August 2023.
11.The Applicant file an Affidavit of Service demonstrating compliance with paragraph 10 of these orders on or before 4pm on 11 August 2023.
12.The Amended Statement of Claim referred to in paragraph 1 of these orders be served on the Second Respondent by sending it by email to the Second Respondent at ‘[email protected]’ with service deemed effective on the day that such email is sent.
13.There be no order as to costs.
14.There be liberty to apply.
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
(Revised from transcript)JUDGE SYMONS:
INTRODUCTION AND BACKGROUND
By an application in a proceeding filed on 4 July 2023, the applicant (Ms In) seeks leave pursuant to r 11.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2021 (the Rules) to include Mr Lalit (Lenny) Giri as a party to the proceeding already commenced against Giri Australia Pty Ltd on 14 July 2022.
If she is successful in her application to join Mr Giri, Ms In proposes to rely upon an amended application and a document identified as “Annexure 1” that was filed on 4 July 2023 pursuant to orders of the Court made on 6 April 2023 and identifies proposed causes of action against Mr Giri.
In that application, Ms In alleges that Giri Australia carried on a hospitality business at venues that included Strange Concept Tapas in Beaumaris, Victoria and the RSL Club in Colac and that Ms In was employed by Giri Australia on a casual basis between 23 June 2021 until 23 March 2022 (the employment period) and at all material times, the Hospitality Industry (General) Award 2020 (the Award) applied to Ms In’s employment.
Ms In alleges that Giri Australia failed to comply with various provisions of the Award when it underpaid her for hours worked across the employment period and which fell to be remunerated at a rate prescribed for ordinary hours, evening work, Saturday and Sunday work, public holidays and overtime performed on a weekend.
Ms In also alleges that she was underpaid by Giri Australia in respect of superannuation contributions.
Ms In proposes to seek default judgement against Giri Australia in respect of these allegations.
Ms In also claims that the circumstances of her dismissal from Giri Australia on 23 March 2022 give rise to a cause of action under the General Protections provisions of the Fair Work Act 2009 (the FW Act). In particular, Ms In claims that on 22 March 2022 and on 23 March 2022 she made a complaint and/or inquiry in relation to her employment and in doing so exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act. Ms In claims that on 23 March 2022, Mr Giri had a phone conversation with her during which he said – amongst other things – that he (Mr Giri) “no longer wanted to continue working” with Ms In and that Ms In should not attend for work again. As events transpired, Ms In was not offered any further shifts with Giri Australia.
Ms In claims that what occurred during this conversation constituted a dismissal (and adverse action as defined under the FW Act) and that the dismissal was motivated by reason of, or for reasons including, that she had exercised workplace rights as earlier described.
Ms In claims that the company, Giri Australia, as employer is liable for the alleged contravention of s 340(1)(a) of the FW Act. However, she proposes to include Mr Giri as an accessory to this contravention on the basis that Mr Giri communicated and was instrumental in the decision to dismiss Ms In. She alleges that Mr Giri had knowledge of the 22 March and 23 March 2022 complaints and/or inquires having regard to the words he stated in the phone call made to Ms In on 23 March 2022 which included (beyond those already identified) that Ms In had “gone behind my back” (in reference to having made both complaints and/or inquiries) and that Ms In’s action were “unprofessional”.
Ms In will allege that these circumstances engage either s 550(2)(a) of the FW Act, which involves the aiding, abetting, counselling or procuring of the dismissal, or s 550(2)(c) of the FW Act, which involves a person by their actions, being knowingly concerned in or a party to the dismissal.
Ms In also relies (in addition to the “Annexure 1” document) upon her affidavit filed on 4 July 2023.
To the extent that it bears on the application made under r 11.02 of the Rules, it describes how Mr Giri “effectively ran” the Strange Concept restaurant and that from November 2021, Ms In started reporting directly to Mr Giri who (according to Ms In) worked almost every day. Ms In also refers to Mr Giri having had control over Giri Australia’s transaction business account and that he would use his phone to make direct deposits (referable to employee entitlements) to Ms In.
PRINCIPLES
It is understood that rule 11.02 of the Rules provides this Court with an unfettered discretion to grant leave to include a party to a proceeding, which should be exercised judicially and having regard to all the circumstances of the case.
It has been acknowledged in previous cases of this Court that s 550 of the FW Act (upon which Ms In proposes to rely) is a legislative provision which is a factor to be considered when determining whether a person should be named as a party, or joined as a party, and a factor which suggests that if otherwise appropriate, a person who is arguably accessorily liable for contravening conduct ought to be joined as a party.
CONSIDERATION
Here, the delay in making the application to include Mr Giri is largely explained by Ms In’s previous lack of legal assistance and the wholesale lack of engagement to date by the respondent. Ms In acted promptly in bringing the initiating application. With the assistance of pro bono counsel, she has refined her case to recognise the role played by Mr Giri and to formulate a claim that picks up the accessorial liability provisions of the FW Act. However, in its earlier iteration, this role was, in substance, identified or foreshadowed (for example, Ms In referred to Mr Giri in earlier documents filed and prepared by her as “her ex-employer”).
Given the centrality of Mr Giri to the events alleged by Ms In and in particular the words and knowledge, (including corporate knowledge) attributed to him during the phone call on 23 March 2022, I am satisfied that it is an appropriate exercise of the Court’s discretion to make orders that will authorise the inclusion of Mr Giri as the second respondent to the proceeding. I am satisfied that there is an arguable case – emerging from the affidavit of Ms In and the “Annexure 1” document – that Mr Giri was involved in the alleged contravention of s 340(1)(a) of the FW Act and will make orders accordingly.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 4 August 2023
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