Jeng v Taxi Clothing Pty Ltd and ORS and Li v Taxi Clothing Pty Ltd and ORS

[2016] FCCA 244

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENG v TAXI CLOTHING PTY LTD & ORS and LI v TAXI CLOTHING PTY LTD & ORS [2016] FCCA 244

Catchwords:
PRACTICE OF PROCEDURE – Summary dismissal – whether applicants have reasonable prospects of successfully prosecuting claims purportedly made pursuant to the Fair Work Act 2009 (Cth) – most but not all claims dismissed.

Legislation:

Fair Work Act 2009, ss.12, 119, 119(1), 340, 340(1), 341(1), 342, 342(1), s.343, 343(1), s.344, s.351, 351(1), 352, 360, 361(1), 365, 368(3)(a), 372, 550
Federal Circuit Court of Australia Act 1999 (Cth), ss.17A(2), 17A(3)
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 13.10(c), 45.06

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923; (2015) 299 FLR 342
Re James Kenneth Parsons; Ian Stephen James and Patrick Redmond Mccarthy v Ian Geoffrey Martin ; Ian Mckenzie Murchison; Peter Hugh Lloyd Peter D'Arcy Clarke, David John Germain, John Michael Gillon; Robin David Huston; John Arthur Prideaux (Rex) Boyden [1984] FCA 408; (1984) 5 FCR 235

Applicant: HSIEN-CHUANG JENG

First Respondent: TAXI CLOTHING PTY LTD

Second Respondent: MICHAEL PILKINGTON

Third Respondent: LU MIN YONG

File Number: SYG 3316 of 2014

Applicant: XIN LI

First Respondent: TAXI CLOTHING PTY LTD

Second Respondent: MICHAEL PILKINGTON

Third Respondent: LU MIN YONG

File Number:  SYG 3317 of 2014

Judgment of: Judge Manousaridis

Hearing date: 30 March 2015

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent: Mr M Seck

Solicitors for the Respondent: Coleman Greig Lawyers

ORDERS

In proceeding No.SYG 3316/2014:

1. Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) all the applicant’s claims are dismissed except those claims that are based on the alleged contravention of s.351(1) of the Fair Work Act 2009 (Cth), on the applicant’s alleged entitlement to redundancy pay, and on the applicant’s having been allegedly dismissed without reasonable notice.

2. The proceedings, so far as they have not been dismissed, stand over for directions on a date to be fixed.

In proceeding No.SYG3317/2014:

1. Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) all the applicant’s claims are dismissed except the claim based on the applicant’s having been allegedly dismissed without reasonable notice.

2. The proceedings, so far as they have not been dismissed, stand over for directions on a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3316 of 2014

HSIEN-CHUANG JENG

Applicant

And

TAXI CLOTHING PTY LTD

First Respondent

MICHAEL PILKINGTON

Second Respondent

LU MIN YONG

Third Respondent

SYG 3317 of 2014

XIN LI

Applicant

And

TAXI CLOTHING PTY LTD

First Respondent

MICHAEL PILKINGTON

Second Respondent

LU MIN YONG

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Hsien-Chuang Jeng and his wife, Ms Xin Li, commenced separate proceedings against Taxi Clothing Pty Ltd (TCP) and its two directors, Mr Michael Pilkington and Mr Lu Min Yong, seeking relief under the Fair Work Act 2009 (Cth) (FW Act).[1] Mr Jeng and Ms Li claim TCP contravened s.340, s.343, s.344, s.351, and s.352 of the FW Act.

   [1] Mr Jeng’s proceeding is SYG3316/2014 and Ms Li’s proceeding is SYG3317/2014.

2. When the applications came before me on a first court date on 9 December 2014, counsel for the respondents indicated the respondents intended to apply to have the applications summarily dismissed. Because Mr Jeng and Ms Li were not legally represented, I suggested that the respondents withhold their decision whether they should apply for summary dismissal until after Mr Jeng and Ms Li filed all the evidence on which they intended to rely in support of their claims. Counsel for the respondents accepted my suggestion. I then directed Mr Jeng and Ms Li to file all affidavits on which they intend to rely by 16 January 2015, and stood the matter over to 2 February 2015 for further directions.

3. Mr Jeng and Ms Li filed affidavits, as I had directed. A dispute arose about access to documents Mr Jeng and Ms Li believed the respondents held. On 2 February 2015 I made orders that resolved that dispute. I also made orders permitting Mr Jeng and Ms Li to file additional affidavits, and the respondents to file by 16 March 2015 applications in a case for summary dismissal. In the event, the respondents filed applications for summary dismissal, and I heard those applications on 30 March 2015.

4. These reasons for judgment deal with the respondents’ applications for summary dismissal, and are arranged as follows. First, I set out the facts as revealed by the affidavits on which Mr Jeng and Ms Li rely. At the hearing of 30 March 2015, I admitted the affidavits Mr Jeng and Ms Li on the basis that I would only consider the affidavits to the extent they were admissible. I also made an order that the evidence in each of the proceedings Mr Jeng and Ms Li brought be treated as evidence in the other. Second, I set out the claims Mr Jeng and Ms Li make, as stated in the claims they each filed. Third, I set out the principles that should guide me to determine the applications for summary dismissal. Finally, I consider each of the claims made by each of Mr Jeng and Ms Li against TCP, Mr Pilkington, and Mr Yong with a view to determining whether Mr Jeng or Ms Li have reasonable prospects of succeeding on any one of their claims.

Facts alleged by Mr Jeng and Ms Li

1. On 15 July 1998 Mr Jeng commenced his employment with TCP as its Administration Accountant.[2] TCP was a member of the Danchen Group of companies.[3] Ms Li commenced her employment with TCP on 1 October 2002 as an office clerk.[4]

   [2] Affidavit of H C Jeng,  16.01.15, [1]

   [3] Affidavit of H C Jeng, 16.01.15, [1]

   [4] Affidavit of X Li, 16.01.15, [1]

2. Mr Jeng’s initial working hours were 8.30 am to 5.30 am from Monday to Friday.[5] In 1999, after Mr Jeng was directed to assume responsibility for TCP’s information technology, Mr Pilkington requested that Mr Jeng commence work at 8.00 am rather than at 8.30 am.[6] Whenever TCP encountered difficulties with its information technology, Mr Pilkington required Mr Jeng to work to resolve the difficulties outside normal business hours to minimise disruption of TCP’s business operations.[7]

   [5] Affidavit of H C Jeng, 16.01.15, [5]

   [6] Affidavit of H C Jeng, 16.01.15, [6]

   [7] Affidavit of H C Jeng, 16.01.15, [6]

3. On occasions during his employment with TCP, Mr Pilkington called or text messaged Mr Jeng in the middle of the night or early morning to take cash TCP received from customers that TCP kept in a safe and to deliver the cash to Mr Pilkington at the Casino.[8] On other occasions during his employment, Mr Pilkington directed Mr Jeng to alter the accounts that recorded loans from TCP to Mr Pilkington.[9]

   [8] Affidavit of H C Jeng , 16.01.15, [7]

   [9] Affidavit of H C Jeng , 16.01.15, [7]

4. During the financial year that ended on 30 June 2006, TCP’s directors requested Mr Jeng extend his working hours to work from 8.00 am to 6.00 pm. Due to family commitments, however, Mr Jeng was unable to agree. That resulted in Mr Jeng being “denied pay appraisals on several occasions”.[10] On a number of occasions, in response to Mr Jeng’s declining requests that he work after 5.30 pm because he had to go home and look after his children, Mr Pilkington said Mr Jeng was the bread winner and that Mr Jeng should get his wife to do that.[11] In October 2013, when Mr Jeng did not attend a weekend meeting after informing the directors he would be unable to do so, Mr Yong informed Mr Jeng that he and Mr Pilkington were angry that Mr Jeng did not attend the meeting.[12] In around July 2014, the directors gave staff a pay increase, but no increase was given to Mr Jeng or Ms Li. Mr Yong informed Mr Jeng that Mr Jeng’s job was not as important as the other jobs because “you did not work long hours as we had asked you” to.[13]

   [10] Affidavit of H C Jeng, 16.01.15, [9]

   [11] Affidavit of H C Jeng, 16.01.15, [9]

   [12] Affidavit of H C Jeng, 16.01.15, [9]

   [13] Affidavit of H C Jeng, 16.01.15, [14]

5. Mr Jeng also refers to a number of incidents with TCP’s directors, the details of which it is unnecessary to set out here, in relation to what Mr Jeng claims constituted financial irregularities[14] and attempted fraud.[15]

   [14] Affidavit of H C Jeng, 16.01.15, [11]

   [15] Affidavit of H C Jeng, 16.01.15, [12], [15]

6. In late September 2014 Mr Jeng rented a motorhome and took his family and his mother on a 9-day camping trip.[16] Near the end of his holiday, a TCP staff member telephoned Mr Jeng about office matters but “accidently” informed Mr Jeng that Mr Pilkington’s son had taken Mr Jeng’s “fully maintained company car “Kia”” to use it to move house.[17] Mr Jeng was surprised by the short notice he was given, and the inconvenience it would cause him. Ms Li owned her own car, but it was unavailable because it was undergoing repairs at a panel beater’s shop.[18] Mr Jeng sent a text message to TCP’s directors in which he asked how “the tiny Kia which cannot even fit two large standard luggage [sic], is able to help with moving furniture?”[19] Mr Jeng also sent a text message to Mr Pilkington that “there was a large company van available for use instead and the inconvenience that created to my family upon returning from camping trip by taking away our only transportation Kia”.[20] Mr Jeng arranged for a colleague to collect Ms Li’s car from the panel beater and leave it at TCP’s warehouse. On 5 October 2014 Mr Jeng and his family, on returning from their camping trip, went to TCP’s warehouse and drove home with Ms Li’s half painted car.[21] Mr Jeng was unable to fit into his wife’s car all of the camping gear and luggage that had been used for the trip.[22]

   [16] Affidavit of H C Li, 16.01.15, [3]

   [17] Affidavit of H C Jeng, 16.01.15, [17]

   [18] Affidavit of H C Jeng, 16.01.15, [17]

   [19] Affidavit of H C Jeng, 16.01.15, [17]

   [20] Affidavit of H C Jeng, 16.01.15, [17]

   [21] Affidavit of H C Jeng, 16.01.15, [17]

   [22] Affidavit of H C Jeng , 16.01.15, [18]

7. At around 6.30 am on 6 October 2014 Mr Jeng received a text message from Mr Pilkington stating: “He must have been drinking again I think we should do some action today and prevent him coming to office”.[23] Mr Jeng believed Mr Pilkington intended to send the message to Mr Yong, not to Mr Jeng. Mr Jeng sent a text message to Mr Pilkington in which he said: “drinking, must be you, wanna sack me, no problem, just get my final pay to my bank account directly”.[24]

   [23] Affidavit of H C Jeng, 16.01.15, [19]

   [24] Affidavit of H C Jeng , 16.01.15, [19]

8. Late in the afternoon of 6 October 2014, Mr Jeng’s brother-in-law drove Mr Jeng to TCP’s warehouse to collect the camping gear and luggage he had left there on 5 October 2014. Mr Jeng saw Mr Pilkington and his wife were in the boardroom. After Mr Jeng and his brother-in-law packed up the camping gear, Mr Jeng noticed that Mr Chris Button, an employee of TCP, and Mr Pilkington were looking at him. Mr Jeng’s brother-in-law said to Mr Jeng: “they are watching you and in consideration of Michael’s text message early in the morning, they don’t want to come to office tomorrow, so you had better returning [sic] your office keys as well as asking Michael to check his car, in case we were being accused of stealing and trespassing”.[25] Mr Jeng went to the boardroom, walked towards Mr Pilkington and asked him to check his bother-in-law’s car. Mr Pilkington did not respond. Mr Jeng then left the office keys on the staircase and said to Mr Pilkington: “this is what you want, you don’t want me to be here”.[26] Mr Jeng then left.

   [25] Affidavit of H C Jeng, 16.01.15, [20]

   [26] Affidavit of H C Jeng, 16.01.15, [20]

9. At 8.00 pm on 6 October 2014, Mr Yong telephoned Mr Jeng and asked him to meet him on 7 October 2014. Mr Jeng said he could not attend a meeting on that day because he had a pre-arranged appointment with a doctor. On 8 October 2014, in response to a text message from Mr Yong, Mr Jeng met Mr Yong at 10.00 am at a bar at Liverpool Street. Mr Yong started the meeting by stating Mr Jeng resigned. Mr Jeng denied he had resigned. When asked why he had returned the keys to Mr Pilkington, Mr Jeng said it was because of the text message he received on 6 October 2014 that stated Mr Yong and Mr Pilkington were taking actions to prevent Mr Jeng going to work. Mr Yong said that was a misunderstanding. Mr Yong further said that if Mr Jeng did not resign he could come back to work, but he could not do any accounting work, he will not be a financial controller, and he will have no entitlement to a company car. Mr Jeng was shocked; he claimed he was being demoted. Mr Jeng complained that TCP's directors had bullied him and discriminated against him with the intention of pushing him out. He gave examples of the bullying and discrimination. After further discussion, and after Mr Jeng said he wanted to return to work, Mr Yong told Mr Jeng to go home and think about his demotion, and then come to TCP’s office on 9 October 2014.[27]

   [27] Affidavit of H C Jeng, 16.01.15, [22]

10. After Mr Jeng returned home, he informed Ms Li of his discussion with Mr Yong. Ms Li then helped Mr Jeng draft a text message to Mr Yong in Chinese. The English translation of the text message is as follows:[28]

    Lu Yong, thank you for your discussion today. I am very perplexed about why you mentioned to me today that I can come back to work but cannot perform my usual duties. Why? What are you afraid of? In addition, I need to understand clearly when I can come back to normal work and perform my usual duties. Please must reply by tomorrow! Thank you!

    [28] Affidavit of X Li, 16.01.15, [5]

11. On 9 October 2014 Mr Jeng went to TCP’s premises. He observed Mr Pilkington in the boardroom with Mr Yong and Mr Steven Booth, an employment lawyer. Mr Jeng was called into the boardroom. Mr Jeng was told: “you come back to work but not a financial controller and company will take away my entitlement to the company car”.[29] Mr Jeng did not accept that, and insisted he be returned to his former duties and pay conditions. After further discussion, Mr Pilkington said “we are suspending your duties from today with fully [sic] pay without affecting any of your leave entitlement until 20 October 2014, giving you time to consider”.[30] Mr Jeng was then asked to go home. When he returned home, Mr Jeng telephoned the office of the Fair Work Ombudsman (FWO) and the NSW Worker Safety Authority to obtain advice.[31]

    [29] Affidavit of H C Jeng, 16.01.15, [24]

    [30] Affidavit of H C Jeng, 16.01.15, [24]

    [31] Affidavit of H C Jeng, 16.01.15, [24]

12. On 10 October 2014 Mr Jeng sent a text message to “both Directors” saying words to the effect that his suspension had been illegal, that his demotion could not be accepted without any valid reasons, and that he would report the directors’ wrongdoing to the relevant authorities. Mr Jeng “recently lost” his telephone that contained the text message, so he could not set out the exact words he used in his text message.[32]

    [32] Affidavit of H C Jeng, 16.01.15, [26]

13. In the morning of 11 October 2014 Mr Jeng received by courier two letters from TCP both dated 10 October 2014 and both signed by Mr Pilkington.[33] One was an open letter as follows:

    1.Last weekend (4-6 Oct) you sent a number of hostile texts (some of them in the middle of the night), and one of them indicating that you were setting “a surprise” for us for Tuesday morning.

    2.On Monday (the public holiday), you cleared out your office and removed your personal belongings, and left your office key on the steps when you left. You said that this was what I wanted, which was not the case: we had not made any decision to end your employment.

    3.You did not attend work on Tuesday or Wednesday (but I note that you had previously advised that you would be attending a medical appointment on Tuesday).

    4.Lu and I understood that you had resigned (and although not specifically mentioned, we also took that to apply to the employment of your wife, Xin Li).

    5.In a meeting with Lu on Wednesday (8 Oct), you said that you would not return to work unless you were provided with a company car, and received a salary increase. As you had already been told that these things were not possible, and you were setting conditions about retuning to work, this confirmed our understanding that you had resigned, and on that basis Taxi Clothing accepts your resignation and will proceed on that basis.

    6.In your meeting with us on Thursday, you apologised for your conduct and asked to come back to work on the terms and conditions which had applied previously.

    [33] Affidavit of H C Jeng, 16.01.15, [26], annexure 2 (HCJ2)

    Lu and I have considered your request, but do not believe that we can re-establish a positive working relationship in view of your conduct. Taxi Clothing will therefore not be re-employing you or Xin Li, and will finalise the employment of both of you on the basis that you resigned effective Monday 6 October. The amount due to both of you with respect to accrued annual and long service leave, subject to any necessary adjustments, will be paid into your usual bank accounts on our next normal payday.

    Thank you for your years of service to Taxi Clothing.

14. The other letter Mr Jeng received was marked “Without prejudice”. It referred to Mr Yong having advised Mr Jeng on 8 and 9 October 2014 that TCP was open to making an ex gratia payment to Mr Jeng in recognition of his past service, but that it would do so only if Mr Jeng and Ms Li would execute a deed of release. The letter further noted that Mr Jeng “absolutely rejected” Mr Yong’s proposal, and threatened to report TCP to the authorities. The letter stated that TCP nevertheless remained willing to “finalise our relationship on a more positive note”, and remained willing to consider making an ex gratia payment.

15. Mr Jeng returned to TCP’s premises on 13 October 2014 “to collect my office keys”.[34] After Mr Jeng refused to leave the premises, “the Directors” called the police. At the same time, Mr Jeng called the NSW Work Safety Authority and the office of the FWO. Mr Pilkington attempted to grab Mr Jeng’s mobile telephone while Mr Jeng was making the telephone calls, and, afterwards, Mr Pilkington and Mr Yong arranged to suspend the telephone service to Mr Jeng’s mobile telephone.[35]

    [34] Affidavit of H C Jeng, 16.01.15, [27]

    [35] Affidavit of H C Jeng, 16.01.15, [27]

16. On 24 October 2014 Mr Jeng received a letter dated 23 October 2014 from TCP, signed by Mr Pilkington and Mr Yong.[36] The letter is marked “Without prejudice except as to costs”. It refers to a meeting “on Monday” and noted that Mr Yong and Mr Pilkington “have considered your requests”, but “[w]e are not prepared to lend substantial funds as you suggested”. The letter continued:

    However, in view of your past lengthy good service, we are prepared to make payments to you, on the basis that your employment came to an end because of redundancy (since we do not intend to employ anyone to replace you).

    We remain of the view that you resigned by your conduct on and after 7 October, and would defend any claims with respect to the termination of your employment on that basis.

    [36] Affidavit of H C Jeng, 16.01.15, [3], [29], annexure 1 (HCJ1)

17. The letter then made an offer, conditional on Mr Jeng and Ms Li signing a deed of release, that TCP would pay to Mr Jeng and to Ms Li an amount equivalent to four months salary. Mr Jeng and Ms Li did not accept that offer. Instead, they filed an application with the Fair Work Commission pursuant to s.365 and s.372 of the FW Act. On 18 November 2014 the Commission issued a certificate pursuant to s.368(3)(a) of the FW Act certifying it was satisfied that all reasonable attempts to resolve the dispute between Mr Jeng and Ms Li on the one hand and TCP on the other had been made, and have been or unlikely to be unsuccessful.

Mr Jeng’s and Ms Li’s claims

1. Mr Jeng and Ms Li have commenced these proceedings without the benefit of any legal advice or assistance. That must be borne in mind when considering the claims made in the prescribed “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Form 2 Claim) each have filed with the Court. I first turn to the Form 2 Claim Mr Jeng has filed, and in particular to section G of that form. In considering those claims, I have also considered the submissions contained in a document prepared by Mr Jeng titled “Applicants’ response to the submission by the respondent in relation to the application in this case”.

Mr Jeng’s claims

1. The first complaint Mr Jeng makes is that TCP prevented Mr Jeng and Ms Li “from going to work on 6 October 2014”, both were made redundant on 20 October 2014, and yet neither Mr Jeng nor Ms Li have received “their legal entitlements to redundancy”. Associated with this complaint is the allegation that Mr Jeng’s and Ms Li’s “final pay is being held as a  ransom unless we sign an unacceptable and unjust deed of release which reduces our entitlement payments and allows the directors of Taxi to sweep their wrong doings under the carpet so that they can still conduct illegal activities”. This part of the claim then sets out alleged illegal activities of TCP’s directors.[37]

   [37] Form 2 Claim of H C Jeng, [1.1]-[1.7]

2. The second complaint is that TCP did not have in place an occupational health and safety policy. Mr Jeng claims he had raised those issues with the directors of TCP but was angrily told that engaging consultants to write up such policy will cost money. Mr Jeng claims that this constituted a contravention of s.340 of the FW Act.[38] Mr Jeng also claims that the attempted removal of his mobile telephone on 13 October 2014 constituted the creation of an unsafe working environment and bullying.[39]

   [38] Form 2 Claim of H C Jeng, [2]

   [39] Form 2 Claim of H C Jeng, [2.4], [2.5]

3. The third complaint is that, by the text message Mr Pilkington intended to send to Mr Yong on 6 October 2014, but which was sent to Mr Jeng in error, TCP prevented Mr Jeng from returning to work, and then considered Mr Jeng’s absence from work as constituting a resignation by Mr Jeng. Mr Jeng claims this constituted a contravention of s.352 of the FW Act.[40]

   [40] Form 2 Claim of H C Jeng, [2.1], [2.2]

4. Mr Jeng’s fourth complaint is that he had been subjected to coercion on many occasions, contrary to s.343 of the FW Act. These alleged occasions are as follows:

   a)On 6 October 2014 Mr Jeng was prevented from returning to work; on 8 October 2014 Mr Yong offered Mr Jeng a demotion; and on 9 October 2014 Mr Pilkington and Mr Yong demoted Mr Jeng, and suspended Mr Jeng’s duties.[41]

   b)During the meetings referred to in (a), the directors informed Mr Jeng they were going to close down TCP’s business within 12 months, so they would have nothing for Mr Jeng to do. The directors wished to get rid of Mr Jeng to clean out the accounts and cover up their wrongdoing.[42]

   c)The directors suspended the telephone service Mr Jeng held after they heard Mr Jeng made enquiries of the FWO.[43]

   d)The directors attempted to coerce Mr Jeng to conduct various illegal payments and cash withdrawals, but Mr Jeng resisted those attempts. Mr Jeng, therefore, was “victimised for their ultimate revenge on me”.[44]

   e)Mr Jeng was threatened with immediate dismissal if he did not prepare the accounts according to the directors’ wishes, and because Mr Jeng was not able to work the long hours demanded by the directors.[45]

   f)The directors attempted to coerce Mr Jeng to sign a deed of release that provides for less than Mr Jeng is entitled.[46]

   [41] Form 2 Claim of H C Jeng, [3.1]

   [42] Form 2 Claim of H C Jeng, [3.2]

   [43] Form 2 Claim of H C Jeng, [3.3]

   [44] Form 2 Claim of H C Jeng, [3.4]

   [45] Form 2 Claim of H C Jeng, [3.5]

   [46] Form 2 Claim of H C Jeng, [3.6]

5. Mr Jeng’s fifth complaint is that, contrary to s.344 of the FW Act, TCP brought to bear undue influence and pressure on Mr Jeng in the following ways.[47]

   a)On returning from his holiday, Mr Jeng was demoted, and, after insisting he be reinstated, TCP treated him as having resigned.[48]

   b)On a number of occasions, the directors informed Mr Jeng that his job was not important and that he had been overpaid.[49]

   c)On various nights, Mr Pilkington directed Mr Jeng to attend TCP’s premises, obtain cash from the safe, and deliver the cash to Mr Pilkington at the casino.[50]

   d)Mr Jeng’s working hours were 8.00 am to 5.30 pm, yet he was often required to work beyond 6.00 pm; although he received meal allowances for working beyond 6.00 pm, he did not receive any overtime.[51]

   e)Mr Jeng was subjected to abusive language from Mr Pilkington in front of staff.[52]

   [47] Form 2 Claim of H C Jeng, [4]

   [48] Form 2 Claim of H C Jeng, [4.1]

   [49] Form 2 Claim of H C Jeng, [4.2]

   [50] Form 2 Claim of H C Jeng, [4.3]

   [51] Form 2 Claim of H C Jeng, [4.4]

   [52] Form 2 Claim of H C Jeng, [4.5]

6. Mr Jeng’s sixth complaint is that TCP discriminated against him, contrary to s.351 of the FW Act, in the following ways:[53]

   a)Mr Jeng worked more than the maximum weekly hours of 38 hours a week, yet the directors in June 2014 informed Mr Jeng that they proposed to reduce his salary for a number of reasons, including his not working long enough hours, and his inability to attend meetings on the weekend. Mr Jeng said he had family responsibilities and needed time to care for his children and mother. A few weeks later, the directors gave all staff in his department a pay rise, but not Mr Jeng. Mr Jeng claims he “was denied a pay rise that was not relating to my performance but related to not being able to work long hour due to the need for caring from my” family.[54]

   b)On 13 October 2014 the directors suspended the telephone service to Mr Jeng’s mobile telephone and refused to allow Mr Jeng to have the number transferred to him.[55]

   c)The directors prevented Mr Jeng from returning to TCP’s office to recover his belongings and to say goodbye to his colleagues and business associates.[56]

   [53] Form 2 Claim of H C Jeng, [5]

   [54] Form 2 Claim of H C Jeng, [5.1]

   [55] Form 2 Claim of H C Jeng, [5.2]

   [56] Form 2 Claim of H C Jeng, [5.3]

7. Mr Jeng claims injunctions directed to what Mr Jeng alleges are illegal activities by TCP’s directors. These include orders to remove the directors from their positions as directors and the appointment of an independent administrator or auditor “for fraudulent transactions”.

8. In addition, Mr Jeng claims compensation from TCP in relation to the following:

   a)The first are amounts Mr Jeng claims were payable on termination of his employment. The calculations are premised on Mr Jeng’s employment having been terminated because his position was made redundant, not because he had resigned, as claimed by TCP in its letter of 10 October 2014. The amount Mr Jeng claims includes an amount in lieu of notice. Mr Jeng claims $41,794.81, plus an additional $1,023.08 in superannuation.

   b)The second amount represents unpaid overtime over 16.2795 years. Mr Jeng claims $626,848.35.

   c)The third amount is compensation for discrimination, emotional abuse, and humiliation. Mr Jeng claims $883,095.30.

9. Mr Jeng also alleges that he personally served Mr Pilkington for 16.2795 years. Mr Jeng therefore claims compensation from Mr Pilkington an amount of $94,830.77 for each year of service, the total amount of that claim being $1,543,793.

10. Finally, Mr Jeng claims reinstatement of his employment, but only if the Court makes orders removing Mr Pilkington and Mr Yong as directors.

Ms Li’s claims

1. Ms Li makes a number of complaints. First, she alleges that she and Mr Jeng were made redundant because Mr Jeng was honest in identifying frauds committed by the directors, and that the directors had constantly bullied and abused Mr Jeng, and had discriminated against him.[57]Second, TCP’s directors ignored Mr Jeng’s family responsibilities by insisting that he work longer hours. As a result, Mr Jeng and Ms Li were denied pay appraisals when every other employee had received a pay increase “recently”.[58] Third, TCP’s directors had often said that Mr Jeng is not important and he is overpaid.[59] Fourth, Mr Pilkington abused his position by demanding that Mr Jeng collect money from TCP’s premises to deliver it to Mr Pilkington at the casino.[60] Fifth, Ms Li alleges TCP contravened s.340 of the FW Act because her workplace right was not protected “due to the directors put profit in front of work place safety, as there is no OH&S policies & procedures as required by the law”.[61] Ms Li also alleges that TCP breached s.340, s.343, s.344, and s.351 of the FW Act.[62] In that regard, Ms Li suggests that the reader refer to the separate application filed by Mr Jeng.[63] I do not read this part of Ms Li’s Form 2 Claim as asserting a claim on Ms Li’s behalf.

   [57] Form 2 Claim of X Li, [9]

   [58] Form 2 Claim of X Li, [10]

   [59] Form 2 Claim of X Li, [11]

   [60] Form 2 Claim of X Li, [12]

   [61] Form 2 Claim of X Li, [17]

   [62] Form 2 Claim of X Li, [18]

   [63] Form 2 Claim of X Li, [18]

2. Ms Li claims compensation against TCP. First, she claims $39,182.63 plus an additional $959.14 in superannuation.  That is said to be the sum of twenty weeks worth of redundancy pay, five weeks in lieu of notice, ten days pay from 7 October 2014 to 14 October 2014, and additional annual leave accrued during 7 October 2014 to 20 October 2014. This claim, therefore, may be treated as a sixth claim made by Ms Li, that claim being that she was made redundant or, in the alternative, that her employment was terminated in breach of an implied term to give reasonable notice.

3. Ms Li also claims $435,461.54 in relation to overtime worked by Mr Jeng and $827,901.80 for damages done to her family because of the injury done to Mr Jeng by TCP’s discriminatory and abusive conduct towards Mr Jeng. Ms Li also claims reinstatement, but only if the Court makes orders removing Mr Pilkington and Mr Yong as directors. In addition, Ms Li claims $1,072,448.00 against Mr Pilkington personally for damage done to Ms Li and Mr Jeng’s family. The basis of that claim is Mr Pilkington’s behaviour towards Mr Jeng in using foul language in front of staff, and requiring Mr Jeng to obtain cash from TCP’s premises and deliver it to Mr Pilkington at the casino.

Principles and approach

1. In their written submissions the respondents rely on a number of grounds for the dismissal of Mr Jeng’s and Ms Li’s proceedings. The respondents principally rely on s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) which provides:

   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.

2. Subsection 17A(2) of the FCC Act must be read with s.17A(3) of the FCC Act which provides:

   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.

3. Subsection 17A(2) of the FCC Act requires the Court to assess the probability of an applicant succeeding in the claims the applicant makes at a final hearing. That requires the Court to consider at least two matters.[64] The first is the allegations of fact the applicant makes in a statement of claim, or in a document prescribed by rules of court that is intended to serve the same purpose as a statement of claim. What must be considered is whether the applicant has reasonable prospects of succeeding on his or her claims, assuming the facts alleged in the relevant document will be established at the final hearing. The second matter that must be considered is whether the applicant has a reasonable prospect of proving the facts alleged in the statement of claim or equivalent document.

   [64] See Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923; (2015) 299 FLR 342 at [3]-[17]

4. The Federal Circuit Court Rules 2001 (Cth) (FCC Rules) do not require an applicant to file and serve a statement of claim in proceedings for relief under the FW Act. The FCC Rules require, however, that an applicant file what may be regarded as a document that is intended to fulfil the functions of a statement of claim. That document is the prescribed Form 2 Claim that is titled “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”. Item 24 of the form asks: “What are the grounds for the claim that the employee was dismissed in contravention of a general protection?” and directs the applicant “[s]et out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim”. The form also directs that if the applicant relies on s.340 of the FW Act, he or she must specify the “workplace right” claimed; and if the applicant relies on s.351 of the FW Act, he or she must specify “the attribute in s.351(1)” of the FW Act.

5. Mr Jeng and Ms Li have each filed and served a Form 2 Claim. In addition, as I have already noted, Mr Jeng and Ms Li have filed and served affidavits. Accordingly, whether Mr Jeng and Ms Li have reasonable prospects of succeeding on their claims, depends on:

   a)whether, assuming one or more of the facts alleged in their Form 2 Claims will be established at final hearing, Mr Jeng and Ms Li have reasonable prospects of succeeding on their claims; and

   b)to the extent (a) is answered in the affirmative, whether Mr Jeng and Ms Li have reasonable prospects of proving the facts they allege in their Form 2 Claims.

6. The respondents also rely on r.13.10 of the FCC Rules which 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; 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.

   42.The respondents specially rely on r.13.10(c) of the FCC Rules in relation to those parts of Mr Jeng's and Ms Li’s claims that rely on the alleged wrongdoing by TCP and its directors.

7. The Court also has such implied powers “as are incidental and necessary to the exercise of the jurisdiction or the powers” conferred on the Court.[65] In my opinion, that power would extend to power to deal with a party’s not complying with the FCC Rules where there is no express rule to deal with such non-compliance.

   [65] Re James Kenneth Parsons; Ian Stephen James and Patrick Redmond Mccarthy v Ian Geoffrey Martin ; Ian Mckenzie Murchison; Peter Hugh Lloyd Peter D'Arcy Clarke, David John Germain, John Michael Gillon; Robin David Huston; John Arthur Prideaux (Rex) Boyden [1984] FCA 408; (1984) 5 FCR 235 at [34]

Mr Jeng’s claims against TCP

1. As I have already noted, Mr Jeng alleges TCP has contravened s.340, s.343, s.344, s.351, and s.352 of the FW Act.

Claims based on contravention of s.340(1) of the FW Act

1. Subsection 340(1) of the FW Act provides:

   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.

2. The expression “adverse action against another person” is defined in s.342(1) of the FW Act. That subsection contains a table that “sets out circumstances in which a person takes adverse action against another person”. The table identifies in one column the persons by whom and against whom adverse action may be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer must take the adverse action is “an employee”. And the employer takes “adverse action” if 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.

3. The expression “workplace right” is defined in s.341(1) of the FW Act as follows:

   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.

4. The expression “workplace law” is defined in s.12 of the FW Act to mean, among other things, “any . . . 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)”.

5. To contravene s.340(1) of the FW Act, an employer must take adverse action “because”, among other things, the employee has a workplace right or has exercised or proposes to exercise a workplace right. The word “because” is interchangeable with the words “for a particular reason”.[66] Under s.360 of the FW Act, a person “takes action for a particular reason if the reasons for the action include that reason”.

   [66] Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at [26] (Tracey J)

6. In determining whether adverse action has been taken for a particular reason, s.361(1) of the FW Act is important. That subsection provides:

   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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

7. Thus, in order to state a reasonably arguable cause of action based on a contravention of s.340(1) of the FW Act (s.340 cause of action), an employee must allege he or she was an employee; the employee has or has exercised, or proposes to exercise a workplace right; the employer has taken adverse action against the employee; and the employee alleges that the employer took the adverse action because the employee has or has exercised or proposed to exercise a workplace right.

8. The allegations of fact on which Mr Jeng relies for claiming that TCP contravened s.340(1) of the FW Act are contained in paragraph 2 of his Form 2 Claim, which I have set out in paragraph 24 of these reasons. This part of Mr Jeng’s Form 2 Claim does allege facts that arguably constitute some of the elements of a s.340 cause of action: Mr Jeng alleges he is an employee; TCP’s allegedly preventing him from attending work arguably constitutes the taking of adverse action against Mr Jeng; TCP’s allegedly attempting to take away from Mr Jeng his mobile phone when attempting to call the office of the FWO arguably constitutes the taking of adverse action; and Mr Jeng’s right to a safe work place arguably is a workplace right within the meaning of s.341 of the FW Act.

1. Mr Jeng’s Form 2 Claim, however, does not allege TCP took the adverse action because Mr Jeng had exercised or proposed to exercise rights he had to a safe workplace. Mr Jeng complains that TCP breached his right to a safe workplace. That, however, does not arguably constitute a contravention of s.340(1) of the FW Act. An employer does not contravene s.340(1) of the FW Act simply by infringing rights that the employee may have under a “workplace law”, such as a law obliging an employer to provide a safe workplace; the employer contravenes s.340(1) of the FW Act if he or she takes adverse action because the employee has, or has exercised, or proposes to exercise, a right under a workplace law. For this reason, Mr Jeng’s Form 2 Claim does not disclose a reasonable s.340 cause of action and, therefore, Mr Jeng does not have reasonable prospects of successfully prosecuting this part of his claims against TCP.

Claims based on contravention of s.343(1) of the FW Act

1. Subsection 343(1) of the FW Act provides:

   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   (b)exercise, or propose to exercise, a workplace right in a particular way.

2. To maintain a cause of action based on a contravention of s.343(1) of the FW Act, an employee must show two things. First, a person has taken or organised or has threatened to take or organise action against some person. Second, such action has been taken, or has been threatened to be taken by that person with the intention to coerce the other person or a third person from exercising or not exercising a workplace right.

3. The allegations of fact on which Mr Jeng relies for claiming that TCP contravened s.343(1) of the FW Act are contained in paragraph 3 of his Form 2 Claim, which I have summarised in paragraph 26 of these reasons. This part of Mr Jeng’s Form 2 Claim does not identify any workplace right. Nor does it expressly or impliedly allege that TCP engaged in the alleged conduct with the intention to coerce Mr Jeng or Ms Li to exercise or not to exercise any workplace right they had. Mr Jeng, therefore, does not have any reasonable prospects of succeeding on this part of his claims.

Claims based on contravention of s.344 of the FW Act

1. Section 344 of the FW Act provides:

   An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

   (a)make, or not make, an agreement or arrangement under the National Employment Standards; or

   (b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

   (c)agree to, or terminate, an individual flexibility arrangement; or

   (d)accept a guarantee of annual earnings; or

   (e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

2. The allegations of fact on which Mr Jeng relies for claiming that TCP contravened s.344 of the FW Act are contained in paragraph 4 of his Form 2 Claim, which I have summarised in paragraph 27 of these reasons. Those allegations do not disclose a reasonable cause of action based on a contravention of s.344 of the FW Act. Even if it is assumed that the conduct alleged against TCP arguably constitutes undue influence or undue pressure, the allegations contained in paragraph 4 of the Form 2 Claim cannot reasonably be read as alleging that TCP’s conduct was directed to any of the matters identified in s.344 of the FW Act.

Claims based on contravention of s.351(1) of the FW Act

1. Section 351(1) of the FW Act provides:

   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 preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

2. The allegations of fact on which Mr Jeng relies for claiming that TCP contravened s.351(1) of the FW Act are contained in paragraph 5 of his Form 2 Claim, which I have summarised in paragraph 29 of these reasons. From that summary it will be seen that Mr Jeng relies on three matters. Mr Jeng does not have reasonable prospects of establishing the second and third of those matters, namely, the suspension of the telephone service to his mobile, and his not being allowed to enter TCP’s premises to remove his belongings, constitute the taking of adverse action because of any of the attributes specified in s.351 of the FW Act. That is so because these allegations do not allege discrimination. The first of the three matters on which Mr Jeng relies, however, namely, his working more than the maximum weekly hours of 38 hours a week, does, in substance, allege discrimination.

3. Mr Jeng claims he “was denied a pay rise that was not relating to my performance but related to not being able to work long hour due to the need for caring for my” family.[67] On a fair reading of this part of his Form 2 Claim, Mr Jeng claims he was denied a pay increase because he had carer’s responsibilities. The definition of “adverse conduct” in s.342 of the FW Act includes conduct by which an employer “discriminates between the employee and other employees of the employer”. Mr Jeng’s claim of discrimination is supported by evidence, which I have set out earlier in paragraph 8 of these reasons, of statements made by the directors of TCP which, if Mr Jeng’s evidence is accepted, could reasonably support a claim that TCP discriminated against him because of his carer’s responsibilities.

   [67] Form 2 Claim of H C Jeng, [5.1]

4. I am not satisfied, therefore, that Mr Jeng does not have reasonable prospects of succeeding on his claims to the extent they are based on his having been discriminated against by not being given a pay rise because of Mr Jeng’s claimed carer’s responsibilities.

Claims based on contravention of s.352 of the FW Act

1. Section 352 of the FW Act provides that an “employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”. Mr Jeng’s claim based on a contravention of s.352 of the FW Act is contained in paragraph 2.2 of his Form 2 Claim:

   A text message from Michael [Pilkington] to me on 6 Oct 2014 stated that “directors are taking actions today to prevent me coming to office tomorrow”. This deprived my right to be at work to perform my normal duties. And later they used my absence (as I was prevent[ed] from attending workplace) to allege that I resigned. This was also contrary to Section 352 of the Fair Work Act that deals with Absence.

2. Mr Jeng has no reasonable prospects of succeeding in claiming that TCP contravened s.352 of the FW Act. That is so because Mr Jeng does not allege that TCP dismissed him because he was temporarily absent from work because of illness or injury.

Other claims – redundancy pay and payment in lieu of notice

1. From my summary of Mr Jeng’s claims, and the relief Mr Jeng seeks, it is clear that Mr Jeng makes additional claims to those based on contraventions of s.340, 344, 343, 351, and 352 of the FW Act. First, Mr Jeng claims he is entitled to a redundancy payment. The basis of that claim is the letter dated 23 October 2014 from TCP marked “Without prejudice except as to costs”. Mr Jeng alleges that, by that letter, he was made redundant.[68]

   [68] Jeng Form 2 Claim, [1]. In this paragraph, Mr Jeng says he was made redundant on 20 December 2014. It appears that this is an error. A copy of TCP’s letter dated 23 October 2014 is attached to the Form Claim and it appears that Mr Jeng relies on this letter.

2. Subsection 119(1) of the FW Act provides that an employee is entitled to be paid redundancy pay by the employer if, among other things, the employee’s employment is terminated “at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour”. An employee’s entitlement to a redundancy payment under s.119 of the FW Act depends on two things. The first is that the employee’s employment has been “terminated . . . at the employer’s initiative”. In its open letter of 10 October 2014 TCP asserted that Mr Jeng resigned effective on 6 October 2014. Assuming the truth of the matters to which Mr Jeng has deposed in his affidavit, TCP has a reasonably arguable case that by the evening of 6 October 2014 Mr Jeng had resigned and, by so resigning, Mr Jeng repudiated his contract of employment. It is also reasonably arguable, however, again assuming the truth of the matters to which Mr Jeng deposes in his affidavit, that in his conversation with Mr Yong on 7 October 2014, before TCP could be said to have accepted his resignation, Mr Jeng withdrew his resignation by stating that he did not intend to resign. It is therefore arguable that TCP, by its letter dated 10 October 2014, repudiated Mr Jeng’s contract of employment and it was TCP, therefore, who initiated the termination of Mr Jeng’s employment.

3. The second matter that must be established in order to make out a claim for a redundancy payment under s.119 of the FW Act is that the employer terminated the employee “because the employer no longer requires the job done by the employee to be done by anyone”. TCP’s letter of 23 October 2014 arguably contains an admission that TCP did not intend to employ anyone to replace Mr Jeng. Quite apart from that arguable admission, however, Mr Jeng’s evidence of his conversations with Mr Yong which I have set out in paragraph 13 of these reasons is a basis from which it could reasonably be inferred that, if TCP initiated the termination of Mr Jeng’s employment, it did so because TCP no longer required that Mr Jeng’s job be undertaken by anyone.

4. For these reasons, I do not accept Mr Jeng has no reasonable prospects of succeeding on his claims for redundancy pay.

5. Even if Mr Jeng were to fail in his claim for redundancy pay, he would have a reasonably arguable case that he was dismissed without reasonable notice.

Other claims - underpayment

1. Mr Jeng claims he was underpaid. The basis of that claim is that he was initially employed to work between 8.30 am and 5.30 pm, and that those hours had been extended. He also relies on his being required to work outside of those hours, particularly in relation to information technology issues that arose from time to time.

2. Mr Jeng does not allege, however, any terms of his employment contract that related to the hours he agreed to work, or the basis on which he would be remunerated for his work. Mr Jeng relies on what in his first affidavit he described as the “Administration & Clerical Award”.[69] In his second affidavit, Mr Jeng deposes that his award was classified as “Administrative and Clerical Award which under the Private sector award I was the employee of” TCP”.[70] Mr Jeng has not tendered evidence of any award.

   [69] Affidavit of H C Jeng, 16.01.15, [4]

   [70] Affidavit of H C Jeng, 02.03.15, [4]

3. Given that he has not identified the award on which he relies, or any other basis for claiming he was entitled to be paid overtime, Mr Jeng has no reasonable prospects of succeeding on a claim based on underpayment.

Other claims – wrongdoing by directors

1. Mr Jeng claims that the directors of TCP engaged in wrongdoing. The alleged wrongdoing is described in paragraphs 1 of Mr Jeng’s Form 2 Claim and in paragraph 35 of Mr Jeng’s affidavit of 16 January 2015.  The allegations are also made elsewhere.

2. This part of Mr Jeng’s claims should be struck out. The allegations are bald allegations of wrongdoing; Mr Jeng has not alleged facts or particulars which, if accepted, could arguably disclose wrongdoing by TCP’s directors. To that extent, Mr Jeng’s Form 2 Claim does not comply with the prescribed form contemplated by r.45.06 of the FCC Rules. As I have already noted, the prescribed from requires the applicant to set out “the facts relied on”. It is within the Court’s implied incidental power to strike out allegations made in prescribed forms that do not comply with the form in which the allegations must be stated.

3. I next turn to Mr Jeng’s affidavits in which he purports to depose to matters that show wrongdoing. Mr Jeng alleges Mr Pilkington promoted salary splitting arrangements;[71] Mr Pilkington used TCP’s cash for his own purposes; [72] Mr Pilkington signed cheques on TCP’s account without authority;[73] Mr Pilkington and Mr Yong acquired their interest in TCP by use of TCP’s money;[74] Mr Jeng was directed to make payments against bogus invoices;[75] and Mr Yong had lent TCP funds to friends which had been set aside for the payment of GST, resulting in TCP being late in paying GST.[76] All these allegations are expressed in the form of conclusions; Mr Jeng does not identify the underlying facts which could arguably support such conclusions. For that reason, Mr Jeng’s affidavits of 16 January 2015 and 3 March 2015 would be inadmissible at a final hearing to prove the matters Mr Jeng alleges.

   [71] Affidavit of H C Jeng, 02.03.15, [1.4]

   [72] Affidavit of H C Jeng, 16.01.15, [7]; Affidavit of H C Jeng, 02.03.15, [7]

   [73] Affidavit of H C Jeng, 16.01.15, [8]; Affidavit of H C Jeng, 02.03.15, [8]

   [74] Affidavit of H C Jeng , 02.03.15, [9.1]

   [75] Affidavit of H C Jeng , 16.01.15, [12]; Affidavit of H C Jeng, 02.03.15, [12.2]

   [76] Affidavit of H C Jeng , 16.01.15, [13]; Affidavit of H C Jeng, 02.03.15, [13]

4. Finally, and in any event, whether or not TCP’s directors have engaged in any wrongdoing is not arguably relevant to the claims Mr Jeng makes under the FW Act. Even if it were assumed, therefore, that TCP’s directors engaged in the wrongdoing Mr Jeng alleges, there are no reasonable prospects that Mr Jeng would succeed on his claims based on TCP’s contraventions of the FW Act.

5. This conclusion suggests Mr Jeng has made the allegations of wrongdoing for purposes that are foreign to vindicating rights he claims to have under the FW Act. The relief Mr Jeng seeks confirms this suggestion. In his Form 2 Claim, Mr Jeng states that he will “cancel” his claim against TCP if the Court orders the removal of TCP’s directors, Mr Pilkington and Mr Yong. It follows that Mr Jeng’s claims, to the extent they rely on allegations of wrongdoing by TCP’s directors, constitutes an abuse of process.

Mr Jeng’s claims against the directors

1. Mr Jeng does not allege Mr Pilkington and Mr Yong are his employers. The only basis on which, therefore, those two persons can be liable for contraventions of the FW Act is if they were “involved” within the meaning of s.550 of the FW Act in Mr Jeng’s employer’s – that is, in TCP’s – contraventions of the FW Act.

2. Given I have concluded Mr Jeng does not have reasonable prospects of succeeding in his claims against TCP based on contraventions of s.340, s.342, s.344, and s.352, it follows that Mr Jeng also has no reasonable prospects of succeeding in establishing that Mr Pilkington and Mr Yong were involved in TCP’s alleged contraventions of those provisions.

3. I am not satisfied, however, that Mr Jeng does not have reasonable prospects of succeeding against Mr Pilkington and Mr Yong on his claims based on contravention of s.351 of the FW Act, and on being entitled to a redundancy payment under s.119 of the FW Act. Although Mr Jeng has not in terms referred to s.550 of the FW Act, and he has not in terms alleged that Mr Pilkington or Mr Yong were “involved” in TCP’s contravention of s.351 and in s.119 of the FW Act, Mr Jeng’s Form 2 Claim alleges, and Mr Jeng in his affidavits deposes to sufficient facts which prevent me from being satisfied that Mr Jeng does not have reasonable prospects of succeeding in a claim based on Mr Pilkington and Mr Yong being involved on TCP’s alleged contraventions of s.351 and s.119 of the FW Act.

Ms Li’s claims

1. As I have already noted, Ms Li’s first claim to which I refer in paragraph 33 of these reasons is that she and Mr Jeng were made redundant because Mr Jeng was honest in identifying frauds committed by the directors, and that the directors had constantly bullied and abused Mr Jeng, and have discriminated against him.[77] It appears that the “frauds” referred to are the wrongs Mr Jeng alleges were committed by the directors of TCP.

   [77] Li Form 2 Claim, [9]

2. Ms Li does not, as is required by the prescribed Form 2 Claim, identify the provision or provisions of the FW Act on which she relies; nor does she identify any workplace right. Further, with the possible exception of the presence of the word “redundancy”, this part of the Form 2 Claim does not employ language that readily links the claim to any provision of the FW Act, or to a contravention of any provision of the FW Act. Further, although Ms Li uses the word “redundancy”, her Form 2 Claim does not allege facts that indicate that her job was one that TCP no longer required anyone to perform. Nor is there anything in the affidavits she and Mr Jeng have filed which, if accepted, could reasonably show that TCP no longer required any person to do the job Ms Li was employed to do. For these reasons, this part of the Form 2 Claim does not disclose a reasonable cause of action.

3. Ms Li’s second claim is that TCP’s directors ignored Mr Jeng’s family responsibilities by insisting that he work longer hours. As a result, Mr Jeng and Ms Li were denied pay appraisals when every other employee had received a pay increase “recently”. Ms Li does not have reasonable prospects of succeeding on this claim. There is no logical connection, and there is no evidence that could reasonably show any logical connection, between Mr Jeng’s not being given a pay rise because he declined to work longer hours, and Ms Li’s not being given a pay rise.

4. Ms Li’s third claim is that TCP had often said that Mr Jeng is not important and he is overpaid. That, too, does not state any arguable cause of action in the hands of Ms Li, because it relates to TCP’s alleged treatment of Mr Jeng, not Ms Li.

5. Ms Li’s fourth claim is that Mr Pilkington abused his position by demanding that Mr Jeng collect money from TCP’s premises and deliver it to Mr Pilkington at the casino. That does not state any arguable cause of action in the hands of Ms Li, because it relates to TCP’s alleged treatment of Mr Jeng, not Ms Li.

6. Ms Li’s fifth claim - that TCP contravened s.340 of the FW Act because TCP did not provide a safe workplace - has no reasonable prospects of succeeding for the same reasons I have held that Mr Jeng’s claim based on TCP not providing him with a safe workplace does not have reasonable prospects of success.

7. Ms Li’s sixth claim is her employment was terminated without reasonable notice. Here, Ms Li does have a reasonably arguable case. TCP’s letter of 10 October 2014 assumed that Mr Jeng resigned not only on his behalf, but also on behalf of Ms Li. It is reasonably arguable that TCP’s assumption was unwarranted. I am not satisfied, therefore, that Ms Li has no reasonable prospects of successfully prosecuting a claim based on her having been dismissed without reasonable notice.

8. Ms Li does not have reasonable prospects of successfully prosecuting her claims for compensation in relation to the overtime Mr Jeng claimed he worked. Any legal entitlement for overtime would be a right that vests in Mr Jeng, not Ms Li. Nor does Ms Li have reasonable prospects of successfully prosecuting claims for compensation based on the alleged abuse of Mr Jeng by TCP, Mr Pilkington and Mr Yong.

9. Given Ms Li has no reasonable prospects of successfully prosecuting any claim against TCP based on the FW Act, it follows Ms Li as no reasonable prospect of successfully prosecuting any claim against Mr Pilkington or Mr Yong under the FW Act.

Conclusion and disposition

1. I am satisfied that, subject to two exceptions, Mr Jeng has no reasonable prospects of successfully prosecuting the claims he makes in his application against TCP or Mr Pilkington or Mr Yong. The two exceptions are Mr Jeng’s claim based on TCP’s contravention of s.351(1) of the FW Act in relation to his not having been given a pay rise, while other employees had been given a pay rise, because Mr Jeng had carer’s responsibilities; and Mr Jeng’s claim for redundancy payment or, in the alternative, payment in lieu of notice. If Mr Jeng succeeds on these claims, I would expect that he would be entitled to around the amount that TCP offered to pay to Mr Jeng in its “Without prejudice” letter dated 23 October 2014.

2. I am also satisfied that, subject to one exception, Ms Li has no reasonable prospects of successfully prosecuting the claims she makes against TCP or Mr Pilkington or Mr Yong. The exception relates to her claim that she was dismissed without reasonable notice. Assuming Ms Li succeeds on that claim, she will be entitled to an amount that reflects the wages she would have earned during the period the Court will find constituted a reasonable period of notice.

3. Accordingly:

   a)in relation to the proceedings brought by Mr Jeng, I propose to order that all claims made in those proceedings be dismissed except those claims that are based on the alleged contraventions of s.351(1) of the FW Act, on Mr Jeng not having been paid a redundancy payment as required by s.119 of the FW Act, and on Mr Jeng’s employment contract having been terminated without reasonable notice; and

   b)in relation to the proceedings brought by Ms Li, I propose to order that all claims made in those proceedings be dismissed except her claim that her employment contract had been terminated without reasonable notice.

4. I also propose to stand over the proceedings, to the extent they have not been dismissed, to a date for the making of directions.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 12 February 2016