Liongson v Olims Canberra Hotel
[2009] FMCA 572
•26 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIONGSON v OLIMS CANBERRA HOTEL | [2009] FMCA 572 |
| INDUSTRIAL LAW – Claim of unlawful termination of employment – alleged constructive termination – application dismissed for want of jurisdiction – summary dismissal (principles). |
| Federal Court of Australia Act 1976 (Cth), s.31A Federal Magistrates Act 1999, s.17A Workplace Relations Act1996 (Cth), ss.642 (3), 659 (2), 659 (2)(a)-(i) |
| ABB Engineering Construction Pty Ltd v Doumit Print N6999 BC Stubbs v Austar Entertainment Pty Ltd Print Q0008 Clement v Minister for Finance and Deregulation [2009] FMCA 43 Daw v Flinton Pty Ltd (1998) 85 IR 1 Essential Personnel Pty Ltd v Wray (1996) 70 IR 109 Jefferson Ford Pty Ltd v Ford Motor Company Australia (2008) 246 ALR 465; [2008] FCAFC 60; (2008) 167 FCR 372. Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; (1996) 70 ALJR 541. Liongson v Capital Roasters [2009] AIRC 236 Mohazab v Dick Smith Electronics Pty Ltd (No. 2)(1995) 62 IR 200 Mosey v Australian Customs Service (2002) 116 IR 1; Print PR92064 Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; (1999) 97 IR 392; [1999] FCA 1660. Rheinberger v Huzley Marketing (1996) 67 IR 154 Shumack v Commonwealth of Australia [2009] FMCA 428 Slifka v J W Sanders Pty Ltd (1996) 67 IR 316 White Industries Australia Ltd v Federal Commissioner of Taxation [2007] 160 FCR 298; (2007) 240 ALR 792; (2007) 95 ALD 30; [2007] FCA 511. Western Excavating (ECC) Ltd v Sharpe [1978] QB 761 |
| Applicant: | CARL LIONGSON |
| Respondent: | OLIMS CANBERRA HOTEL |
| File Number: | CAG 53 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 10 June 2009 |
| Date of Last Submission: | 10 June 2009 |
| Delivered at: | Canberra |
| Delivered on: | 26 June 2009 |
REPRESENTATION
| Advocate for the Applicant: | Mr Liongson in person |
| Counsel for the Respondent: | Mr Rogers |
ORDERS
That all outstanding applications be dismissed.
That the Applicant pay the Respondent’s costs as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 53 of 2008
| CARL LIONGSON |
Applicant
And
| OLIMS CANBERRA HOTEL |
Respondent
REASONS FOR JUDGMENT
A. Introduction
The applicant in these proceedings, Mr Liongson, seeks relief in relation to his claim that his employment with the respondent was unlawfully terminated, contrary to the Workplace Relations Act1996 (Cth).
From his materials most recently filed, and by his appearance in Court, it was clear that Mr Liongson has an injured left arm. His arm was in a sling. Before the hearing proceeded, I asked him directly if he was in any way incapacitated or otherwise hampered in conducting his case as a result of his injury. He confirmed that he was not. Later, in sworn evidence in the course of cross-examination, he stated that he was currently employed as a delivery van driver. I leave to one side how he undertakes that job safely with an injured arm.[1]
[1] After the interim hearing concluded Mr Liongson filed an affidavit in which he contended that he was, in effect, incapacitated to conduct the hearing. In the light of what I have said, there was no evidence that he was unable to do so.
In his material filed on 25 November 2008, Mr Liongson stated that he was employed as a Night Audit Manager at Olims Canberra Hotel. He stated that he worked in that position from 25th July 2008 until 1st September 2008. In fact, he was employed as a casual Night Audit Manager.
On my calculations, the period for which he was employed was approximately five weeks.
In his amended application, filed on 6th February 2009, Mr Liongson sought relief in the following terms:
a)Reinstatement with conditions;
b)Damages for loss of potential earnings;
c)The calculated amount in net wages potentially earned between 2 September 2008 to day of judgment (amended).
Somewhat curiously, on the same day, that is 6th February 2009, Mr Liongson also filed a Notice of Discontinuance, pursuant to which he indicated that he no longer sought damages for loss of potential earnings. He estimated those damages as $5,351.04.
Therefore, if I understand his current position correctly, by his amended application, Mr Liongson only seeks an order to reinstate him to the position at Olims Hotel, from which, he contends, he was unlawfully dismissed.
B. Background & Particulars of Claim
As I comprehend the bases of his claim, summarily stated,
Mr Liongson contends that:
a)he was hired by the Respondent, with the Respondent knowing full well that he did not have relevant experience and skills in working at the reception of a hotel;
b)he received no or inadequate training in relation to the position, including the use of relevant software;
c)he was “harassed by unreasonable, demanding and impatient customers” and seemingly that the management of the hotel did not protect him from such persons;[2]
d)he was the subject of various forms of bullying and/or victimisation and/or discrimination;
e)he was improperly or unlawfully demoted to Night Porter (in part due to illness);
f)he was the subject of ‘domestic violence” of fellow staff; and
g)the management of the hotel refused to engage in appropriate dispute resolution processes.
[2] The Respondent did not advance any argument to the effect that Mr Liongson applied for a position with a hotel which, by its very nature, deals with all manner of people, including those who are sometimes (perhaps more) `unreasonable, demanding and impatient.’ That is to say, he could not have known that he would be dealing with such persons. It seems to me that such an argument was readily available.
The Respondent contends that Mr Liongson was not fulfilling his duties in the casual position for which he was employed. The General Manager of the Respondent, Mr Paulka, contends that Mr Liongson was unable to grasp basic concepts relevant to the job. On the basis of reports he had received from those who worked directly with
Mr Liongson, Mr Paulka formed the view that Mr Liongson’s performance was inadequate. Because of that assessment by the management and supervisors of the Respondent, Mr Liongson was transferred to other duties, namely that of Night Porter.
This move to other duties followed a meeting between Mr Paulka and Mr Liongson on 2nd September 2009. At that time, Mr Liongson was still in the probationary period of his employment. In the course of his affidavit filed on 8th April 2009, Mr Paulka denied that Mr Liongson’s periods of illness while employed had any relevance to the actions taken in relation to him being moved to a position, which, in
Mr Paulka’s view, was more in keeping with Mr Liongson’s skills and which would enable him to learn from others, and which might, in time, enable him to resume the duties required of someone in the position of the Night Audit Manager.
Annexed to Mr Paulka’s affidavit to which I have referred is a letter from Work Cover, dated 6th March 2009 advising that the allegations of bullying claimed by Mr Liongson were unsubstantiated.
Multiple applications have been filed in these proceedings – by both parties but especially by Mr Liongson. Those applications relate, among other things, to seeking security for costs from Mr Liongson, and varying or discharging Orders previously made regarding Mr Liongson providing an address for service.
There are two final matters that should be noted to complete this general overview. First, when the matter was last before the Court Mr Liongson submitted that the Court should arrange for pro bono legal assistance for him in the conduct of his case. Without going into too much detail, arrangements were made through the ACT Pro Bono Clearing House to provide Mr Liongson with two hours of legal advice. The Court is, of course, unaware of the nature of any of the advice that may have been given to Mr Liongson by Minter Ellison regarding his claims and the conduct of these proceedings.
The second matter to note is that the Court has been advised that Mr Liongson has some significant history in relation to employment-related litigation. Counsel for the Respondent, Mr Rogers, confirmed that searches have revealed that Mr Liongson has instigated four separate actions in very recent times in the Australian Industrial Relations Commission. Those actions have been against different employers, including the current Respondent. One of those matters has been reported. It is cited as Liongson v Capital Roasters,[3] a decision of Commissioner Deegan, delivered on 10th March 2009.
[3] [2009] AIRC 236.
That case involved Mr Liongson’s casual employment with the respondent, Capital Roasters. As in this case, Mr Liongson was employed for a very short period of time – literally a matter of weeks.
Mr Liongson contended in that case, as he does in the current proceedings, that his employment had been unlawfully terminated. The basis of his claim in the Capital Roasters proceedings was that a payment summary to Mr Liongson, which had a hand-written notation on it in the following words “If this is not enough info just let me know. All the Best, Pat”, constituted the termination of his employment with Capital Roasters.
In that case, as in this one, Mr Liongson contended that his employment had been terminated by virtue of the conduct of the employer. That conduct related to the words that I have quoted, and (he contended) because he had complained to the Workplace Ombudsman.
Commissioner Deegan accepted the evidence of the employer in the case before the Commission. It necessarily follows that the Commissioner did not accept Mr Liongson’s evidence and the contentions that he raised. Commissioner Deegan found that the contention of Mr Liongson, that his employment had been terminated by the actions of the employer, was unsustainable. The Commissioner found that there was no jurisdiction for the application because there had been found that there was no such termination as alleged. The application in those proceedings was dismissed.
The immediate applications before this Court are from the Respondent. They are (i) that the proceedings be dismissed on the basis that there is no jurisdiction; and (ii) that in the event the Court found that there was jurisdiction, the applicant should be ordered to provide security for costs.
In the course of the hearing there was discussion about whether there may also be consideration, as a further alternative, of an application to dismiss the proceedings summarily under section 17A of the Federal Magistrates Act 1999 (Cth).
C. The Evidence
Both parties filed affidavit material. Mr Liongson was cross-examined. A small bundle of email correspondence between Mr Liongson and persons acting on behalf of the Respondent was tendered by
Mr Rogers. It became Exhibit A.
The substance of Mr Liongson’s claim, as previously indicated, is that he was forced to resign his employment with the Respondent because he was, in his words, “demoted to lesser duties”. He conceded however that he was offered this employment – as a Night Porter – at the same hourly rate of pay to that which he was entitled as a Night Audit Manager. Thus, there clearly was no reduction in his pay.
In my view, factually, the evidence is clear. First, any contention that Mr Liongson was bullied by staff of the Respondent and therefore that it was a reason for his termination is rebutted by the finding from Work Cover that no such allegations could be substantiated. Work Cover’s report is annexure E to Mr Paulka’s affidavit filed 8th April 2009.
Secondly, in Mr Paulka’s affidavit to which I have previously referred, he confirmed that as General Manager of the Respondent Hotel, he was “content to put him [Mr Liongson] into a position which I expected that he could handle and from which he could learn some of the tasks which, to that date, had been beyond him.” Mr Paulka also confirmed that there were no concerns in relation to Mr Liongson’s absence from work due to illness. He also confirmed that he was unaware of any filing of a complaint by Mr Liongson with Work Cover. In the absence of any challenge to this evidence, let alone any evidence to the contrary, I accept this evidence of Mr Paulka.
Thirdly, Mr Liongson contended that his employment was terminated on 2nd September 2008. However, in the course of the email correspondence that comprises Exhibit A, two things are clear: (i) there was on-going discussion between Mr Liongson and the Respondent regarding his duties after the claimed date of termination; and (ii) by email dated 8th September 2008 Mr Liongson advised Mr Paulka that he was “forced to resign”. On the basis of the correspondence tendered, in relation to which Mr Liongson was cross-examined, in my view, it is clear that (a) Mr Liongson was not forced to resign, (b) his contention that his employment was terminated on 2nd September 2008 is untenable, and (c) he resigned on 8th September by email to Mr Paulka.
On the basis of these factual findings, and on the basis of legal authority to which I will shortly turn, in my view, there is no jurisdiction for this Court to determine the application by Mr Liongson and all other applications that are ancillary to or dependent on it. All applications by Mr Liongson currently before the Court should be dismissed with costs.
Mr Liongson also contended that he had filed a complaint with Work Cover on 29 August 2008. Out of all of the documents that he has provided to the Court - and there are many of them – this document of complaint to Work Cover was not among them. Mr Liongson said that he did not think it was relevant. Mr Rogers contended that the reference to the email was no more than part of a “set-up” of the Respondent and that it never actually existed.
Because of my factual conclusions and findings, I do not need to make any formal finding that such a complaint was in fact lodged. I turn now to the submissions of the parties.
D. Submissions
Mr Liongson’s submission was simply that his employment was terminated by the actions of the respondent and in particular because he was demoted. This was his essential submission in the proceedings before this Court. In papers filed in the Australian Industrial Relations Commission, a copy of which is Annexure C to Mr Paulka’s affidavit of 8th April 2009, Mr Liongson alleged that he was dismissed from his employment with the Respondent because of either or both of (i) a temporary absence from duty due to illness and/or (ii) the “filing of a complaint regarding an employer for breach of laws or regulation or recourse to competent administrative authorities.”
For his part, Mr Rogers’ submission on behalf of the Respondent was along the following lines. He noted that under s.659(2) of the Workplace Relations Act, it was necessary for there to have been a termination of an employee’s employment by an employer, and that the termination was, in whole or in part, for one or more of the reasons identified in s.659(2)(a) – (i). Mr Rogers’ simple point was to the effect that because there was no termination of the Applicant’s employment by the Respondent there is no jurisdiction in this Court to entertain the application of Mr Liongson. He further contended that, as a matter of fact and as a matter of law, the termination of Mr Liongson’s employment with the Respondent was something which was effected by Mr Liongson only.
I note, too, that in the bundle of emails to which I have earlier referred, there is an email from Mr Paulka dated 8th September 2008 to
Mr Liongson in the course of which he noted that Mr Liongson had not attended for his rostered shifts at the weekend and enquired whether or not he would be returning to duty. On the face of the email chain in evidence before the Court, it was only upon receipt of that communication on 8th September 2008 that Mr Liongson forwarded the later email to Mr Paulka in the course of which he said that he was unable to continue his employment and that he was “forced to resign.”
E. Legal issues for determination
I. Was there constructive dismissal?
In Western Excavating (ECC) Ltd v Sharpe,[4] Lord Denning MR described the basis of constructive dismissal as follows:
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or…he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. [Emphasis added.]
[4] [1978] QB 761 at p. 679.
Lord Denning’s test was adopted and followed by North J in Slifka v J W Sanders Pty Ltd.[5]
[5] (1996) 67 IR 316 at p. 318.
In the course of the Full Court of the Federal Court’s judgment in Pawel v Australian Industrial Relations Commission,[6] Dowsett J examined a number of authorities in relation to constructive dismissal. In particular he referred to the regularly cited decision of the Full Court of the Industrial Relations Court, in Mohazab v Dick Smith Electronics Pty Ltd (No. 2).[7] At [205] in the Mohazab judgment, quoted by Dowsett J at [49] of the Pawel decision, the following instruction is found:
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer. But plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. [Emphasis added.]
[6] (1999) 94 FCR 231 (Branson , Marshall and Dowsett JJ).
[7] (1995) 62 IR 200.
In Mosey v Australian Customs Service,[8] Munro J, SDP Drake and Cargill C considered the following, at [33] to [35]:
[8] Print PR90064; (2002) 116 IR 1
In Essential Personnel Pty Ltd v Wray,[9] a Full Bench of the Commission gave close consideration to the judgments in Mohazab and related cases and concluded:
[9] (1996) 70 IR 109.
"... for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign."
That broad approach was endorsed by Full Benches in several cases including ABB Engineering Construction Pty Ltd v Doumit and B.C. Stubbs v Austar Entertainment Pty Ltd.[10] However, in Austar the Full Bench brought more sharply into focus the importance of both the employer's intention and the causative effect of the employer's action when it said:
"We consider that for the purposes of this decision, it is consistent with authority to determine this matter on the basis that for a termination to be at the initiative of the employer, the resignation which consummates it must be the direct or consequential effect of:
`... some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...'[11]
The Full Bench in Austar also cited with approval in that context the last sentence of an observation made in ABB Engineering to the following effect:
"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary." (Emphasis added.)
[10] Print N6999 and Q0008.
[11] Rheinberger v Huzley Marketing (1996) 67 IR 154 at 160.
In my view, there is no question that the conduct of the employer was completely appropriate in all of the circumstances of the matter before this Court. This is also to say that no action of the employer, in my view, forced Mr Liongson to resign. Indeed, the Respondent did everything within its power and made it known to Mr Liongson that he could continue working at the hotel at the same rate of pay at which he was originally employed. Moreover, once he had acquired the necessary skills – which he clearly did not have and which he was having significant difficulty in acquiring – the Respondent indicated to Mr Liongson that he would be likely to return to the duties of the original position.
For the sake of completeness, I might also note that under the terms of s.642(3) of the Workplace Relations Act, `termination or termination of employment’ does not include demotion in employment if (a) the demotion does not involve a significant reduction in the remuneration or the duties of the demoted employee; and (b) the demoted employee remains employed with the employer who effected the demotion. As I have already indicated, given that Mr Liongson was continuing to be offered employment on the same terms and conditions as originally engaged, and with duties that would enable him to continue training with the view to improving his skills with the prospect of returning to his originally scheduled duties, on any view I do not see how he can claim that he had been demoted.
By way of summary, I refer to two questions that were posed by von Doussa J in Daw v Flinton Pty Ltd.[12]In the course of his submissions, Mr Rogers referred me to this decision of his Honour, and posed the question in two ways in relation to constructive dismissal.
i)Was the conduct of the employer such that the employee could not be expected to put up with it?
ii)Did the employer act in such a way as to coerce the employee into resigning, leaving the employee with no real alternative?
[12] (1998) 85 IR 1.
In my view, the answer to both questions must be in the negative.
Summary Dismissal?
In two recent cases I have addressed at some length the authorities that deal with summary dismissal of proceedings under s.17A of the Federal Magistrates Act1999. Those cases are Clement v Minister for Finance and Deregulation and Shumack v Commonwealth of Australia.[13]
[13] [2009] FMCA 43 and [2009] FMCA 428 respectively.
In the course of those judgments I referred to the decision of Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation.[14]His Honour considered at some length the import and effect of s.31A of the Federal Court of Australia Act and s.17A of the Federal Magistrates Act. At [55] of the judgment his Honour noted from the Attorney-General’s Second Reading Speech words to the following effect: “[the new summary disposal provisions would strengthen] the powers of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.” Later in the same judgment at [58], Lindgren J dealt with a range of cases in this Court and in the Federal Court which considered the operation and application of statutory summary disposal provisions. Amongst other things, his Honour there observed: “… the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects.”
[14] [2007] 160 FCR 298.
In the Shumack judgment, I also referred to the principles articulated by Kirby J in Lindon v Commonwealth of Australia (No 2) in which his Honour also set out basic principles, in the context of the High Court rules, in relation to summary disposal.[15]
[15] (1996) 136 ALR 251, see particularly at [14].
There is also the very recent Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd.[16] In my earlier judgment to which I have just referred, I noted Gordon J’s analysis of s.31A of the Federal Court of Australia Act 1976 at [122] – [135] and the six principles that her Honour there helpfully articulated. In my view, those same principles are applicable to applications in this Court under s.17A of the Federal Magistrates Act.
[16] (2008) 246 ALR 465.
A final observation relates to my concern at the amount of very scarce resources that have already been expended in this litigation, not to mention in the previous similar applications brought by Mr Liongson in another jurisdiction. Although I do not have to make any formal finding as to whether or not the application should be summarily dismissed under s.17A of the Federal Magistrates Act1999, if I was required to do so, I think there would be very good prospects of such an application succeeding.
Conclusion
For all of the above reasons, Mr Liongson’s principal application, together with all other applications filed by him in these proceedings, must be dismissed. He should pay the costs of the Respondent, either as agreed or taxed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 26 June 2009
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