LYNCH v Acknowledge Education Pty Ltd
[2015] FCCA 3069
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LYNCH v ACKNOWLEDGE EDUCATION PTY LTD | [2015] FCCA 3069 |
| Catchwords: INDUSTRIAL LAW – Purported small claims application – respondent seeking summary dismissal – applicant asserting contravention of consultative requirements where employee redundant – whether such claim can properly engage the terms of s.548 of the Fair Work Act 2009 – whether amounts claimed are “amounts” within the meaning of s.548(1A) – applicant declining opportunity to amend – applications misconceived – summary judgment granted. |
| Legislation: Fair Work Act 2009, ss.542, 548 Federal Circuit Court of Australia Act 1999, s.17A Federal Court of Australia Act 1976, s.31A |
| Beer v Limb & Anor [2012] FMCA 494 Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; (2008) 103 ALD 505; (2008) 246 ALR 465; [2008] FCAFC 60 Ritchie v Chubb Security Services Ltd (2010) 196 IR 174; [2010] FMCA 361 Spencer v Commonwealth of Australia (2010) 241 CLR 118; (2010) 269 ALR 233; (2010) 84 ALJR 612; [2010] HCA 28 Wills v Ningaloo Resorts Proprietary Limited [2011] FMCA 433 |
| Applicant: | SANDRA LYNCH |
| Respondent: | ACKNOWLEDGE EDUCATION PTY LTD |
| File Number: | MLG 2012 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 August 2015 |
| Date of Last Submission: | 19 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Barkatsas |
| Solicitors for the Respondent: | VECCI |
ORDERS
The application filed on 3 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2012 of 2014
| SANDRA LYNCH |
Applicant
And
| ACKNOWLEDGE EDUCATION PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 26 August 2015, I ordered the respondent to file and serve written submissions in support of the oral application, made on 26 August 2015, to dismiss the applicant’s substantive application pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (“the Circuit Court Act”). I set a timetable for those submissions to be filed and for submissions in reply, both of which have now been received. Thereafter, the matter was ordered to be determined on the papers.
For the reasons that follow, I have decided that the application should be dismissed.
In order to understand this outcome, it is necessary to traverse the materials filed in this case and procedural history of the matter in some detail.
On 3 October 2014, the applicant filed an application in the Fair Work Division of the court. The application form indicated that the applicant elected for the proceeding to be dealt with under the court’s small claims procedure.
The Form 5 small claim under the Fair Work Act 2009 (“the Act”) indicated, inter alia, that the applicant had been employed by the respondent as an administration officer – student services. It indicated her asserted hours of work and the fact that she had last worked on 16 June 2014. The form asserted that the employment was governed by the Educational Services (Schools) General Staff Award 2010, and further asserted that cl.8.1 of that award had been contravened. The terms of the clause alleged to have been contravened are set out as follows:
8.1 consultation regarding major workplace change
(a) employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs, (et al). (our emphasis)
The remedy sought was said to be $6900 in wages, together with $11,150 for “pain and suffering, humiliation and discrimination”.
In part I, Details of the Claim, the wages component of the claim was described as:
6 x $1153.00 = $6,918.00 representing the six weeks the applicant was unemployed following her termination.
Under the heading “Other”, the form detailed:
$10,000 representing compensation for pain and suffering caused by the employer including but not limited to humiliation in the workplace and discrimination based on ageist comments made by a fellow employee.
The matter was originally in the docket of Judge Turner, but, no doubt owing to his Honour’s impending retirement, on 10 March 2015 his Honour vacated a listing on 10 March 2015 and adjourned it before me on 3 June 2015. The court noted that the applicant had provided a medical certificate and that the respondent did not oppose the adjournment.
On 3 June 2015, a Mr Close, who is apparently an industrial relations advisor and not a qualified lawyer, was permitted to appear on behalf of the applicant, with a solicitor employed by VECCI appearing on behalf of the respondent. The title of the respondent was amended to reflect its corporate status, and a timetable for written submissions was set.
The respondent filed such submissions on 23 June 2015. According to those submissions, the applicant was employed by the respondent on 24 September 2013, and was dismissed by reason of redundancy on 16 June 2014. Thereafter, the applicant made a general protections application to the Fair Work Commission, which led to a mediation conference before Commissioner Blair which failed to resolve the matter.
The submissions then adverted to the filing of the small claim application and the fact that a remedy of $16,918 was sought, characterised as “wages and other”.
The written submissions went on to traverse the court’s jurisdiction in relation to small claims and, relevantly, paragraph 10 submitted:
in order for a matter to be dealt with as such, the prerequisites of s.548 must be met.
The terms of s.548 were then set out in full. Putting the matter shortly, it was submitted that the amounts sought by the applicant in her small claim application were not amounts that an employer was required to pay to, or on behalf of, the employee, under the Act or a fair work instrument. Rather, they were properly characterised as ‘damages’ as a result of an alleged contravention of a fair work instrument (such contravention itself being denied; see paragraph 17).
The written submissions quoted authority in this court in support of the position contended for, and asserted at paragraphs 20 and 21:
Lastly, the Respondent submits it is clear from the decisions utilising the ‘small claims procedure’ and the statutory language of the Act the small claims process is intended to enable applicant employees (or trade unions on an employees’ behalf) to recover amounts they are entitled to under the fair work system (of modern awards, enterprise agreements, or the Act itself). It is not intended to be a forum to determine alleged contraventions of fair work instruments; much less a forum for the complicated process of determining a breach of the ‘general protections’ located in Part 3‑2 of the Act (attendant with the ‘reverse onus provisions’ and further complex evidentiary considerations explored by the High Court and Full Federal Court).
The Respondent submits the Applicant is directed to file written materials, including affidavit evidence as necessary, setting out the basis for the alleged contraventions; or alternatively the basis upon which it is claimed an amount for pain and suffering is required to be paid by the respondent. The court and the respondent would then be in an informed position regarding the basis for the applicant’s claim, and the respondent would be able to respond accordingly.
The applicant filed submissions in response on 17 July 2015. Although described as submissions, they are essentially a narrative written in the first person singular.
The submission confirms the dates of the employment and the applicant’s salary and hours of work. The submissions then go on to traverse the process whereby the employment came to an end. It is sufficient to say for these purposes that the narrative described by the applicant articulates the grievance that her dismissal took place without any form of discussion or negotiation and with no flexibility on the part of the respondent.
The submission goes on to complain of a failure on the respondent’s part to meaningfully negotiate the claims that the applicant brought in the Fair Work Commission. The submission gave details of what the applicant described as humiliating behaviour imposed upon her by the respondent and its officers, and intimated at paragraph 39 an intention to proceed against the respondent and its officers for discriminatory conduct (albeit that that conduct is not, so far as I can see, described with any precision). The submission went on to detail a without prejudice offer made by the applicant before Commissioner Blair, and concluded with an open offer to settle for $11,150. I will pass over whether or not it was appropriate for such matters to have been included in the submission.
On 20 July 2015, the matter returned to court, and on that occasion I ordered the applicant to file any amended application, affidavit or written submissions before 10 August 2015, and listed the matter for 20 August 2015 for mention. I do not have transcript of the proceeding, but my recollection is that I made it clear that the applicant had to address the jurisdictional issues raised by the respondent in its written submissions. I gave the applicant the opportunity to do so. I further granted leave to the parties to appear by telephone on the return date.
On 10 August 2015, the applicant wrote to the court and relevantly stated:
The affidavit accompanying this e‑lodgement complies with orders issued by his Honour Judge Burchardt on 3 June 2015. I ask that this matter be treated as confidential to protect my privacy and the integrity of the case.
The affidavit in support, filed contemporaneously, again repeats the complaints of lack of consultation on the part of the respondent, repeats and adds to the history of the matter before Commissioner Blair (once again, disclosing without prejudice offers made during the hearing before Commissioner Blair, which should have remained confidential), and repeated at paragraph 23, in respect of the total of $16,918 claimed:
This amount included six (6) weeks of salary lost during the period from when I was unfairly terminated to commencing a new role with a new employer, and ten thousand dollars ($10,000), being for et al pain and suffering and discrimination.
The gravamen of the matter is probably set out at paragraph 26:
As my claim is below $20,000, I genuinely believe the Federal Circuit Court Small Claims Division is the appropriate jurisdiction to have my claim heard.
At paragraphs 35-38, the applicant recorded, I believe correctly:
At the 3 June 2015 hearing before his Honour, the respondent focused predominantly on whether the Small Claims Court was, indeed the correct jurisdiction to hear this matter.
This was yet another delaying tactic by the respondent when they should have been trying to look at the matter at hand and attempt to resolve this matter which they commenced in May 2014.
I believe this Court is the appropriate jurisdiction to hear my claim.
I have made numerous attempts to resolve this matter, commencing on 20 May 2014 when, after being presented with a new work contract following no consultation whatsoever, I made every effort to discuss the significant workplace changes which were set to prejudice me as it applies to my workplace health and safety and work/life balance.
Following an abortive hearing on 20 August 2015, when the applicant did not appear and was not represented, the matter was listed for telephone mention on 26 August 2015. The applicant appeared in person. From subsequent representations made to my staff, it appears that Mr Close had anticipated that he would be included in the telephone hook‑up. The respondent made an oral application for the dismissal of the proceeding, pursuant to s.17A of the Circuit Court Act, and I set the timetable to which I have already referred.
The respondent’s written submissions, filed 18 September 2015, can be summarised briefly. The submissions point to the failure of the applicant to file any amended application and submitted that the applicant’s claim, as put, simply did not engage with the matters in section 548 of the Act, and that therefore there was no reasonable prospect of the applicant successfully prosecuting her claim. Relevantly, for these purposes, the submissions asserted at paragraph 16:
Via an affidavit dated 10 August 2015, the Applicant states the Application was made pursuant to the small claims procedure as the amount claimed was less than $20,000. Respectfully, no basis was put by which the respondent was “required to pay” this amount, as per s.548 of the FW Act.
The submissions set out the terms of s.17A of the Circuit Court Act and referred to authority, including that of the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118; (2010) 269 ALR 233; (2010) 84 ALJR 612; [2010] HCA 28.
It was submitted that the application, as put, simply did not raise any contravention of a modern award, such as to engage properly the terms of s.548.
The applicant’s responding submissions, filed on 19 October 2015, relevantly assert at paragraphs 3-5:
My claim was I was denied a workplace right.
That right was the right to be consulted on major workplace change.
This is covered under clause 8.1 of the Educational Services (Schools) General Staff Award 2010.
Otherwise, in my view, the applicant’s submissions, which once again are more of a narrative written in the first person singular, do not progress the matter.
I have set out this procedural history at some length to establish two matters. The first is that the respondent has, from the inception of the proceeding, been taking clearly articulated jurisdictional objection to the applicant’s claim. The second is that, despite being offered an opportunity to do so, the applicant has not sought to recast or amend her application in any way, but has simply continued to assert that, because the claim is less than $20,000 and arises out of a contravention of the consultative provisions of the alleged award, it is an appropriate matter for this court.
Section 17A of the Circuit Court Act reads, relevantly:
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
It should be noted that s.31A of the Federal Court of Australia Act 1976 is in relevantly identical terms to s.17A of this court’s Act, and that section has been considered both by the High Court and the Full Federal Court.
In Spencer v Commonwealth, French CJ and Gummow J said at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.
Their Honours went on to say at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.
Hayne, Crennan and Kiefel and Bell JJ said at [52]-[53]:
Secondly, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of subs(2) and (3) is that the inquiry requited in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s.31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.
At [56], their Honours continued:
Because s.31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s.31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes.
I refer also to the guidance given by the Full Court of Federal Court about s.31A in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; (2008) 103 ALD 505; (2008) 246 ALR 465; [2008] FCAFC 60. I pay particular regard with respect, to the observations of Rares J at [45] and Gordon J at [123]-[134], although given their length it is inappropriate to set them out in full.
The terms of s.548 of the Act are, relevantly:
(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i)under this Act or a fair work instrument; or
(ii)because of a safety net contractual entitlement; or
(iii)because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
The section goes on to limit claims to awards of $20,000 (for present purposes).
The applicant has undoubtedly complied with s.548(1) (applying for an order other than a pecuniary penalty order), and (c), indicating that she wishes the matter to be dealt with as a small claim.
The difficulty that arises is whether the amount she seeks comes within the terms of subsection (1A).
Put at its highest, what the applicant seeks is an award of damages for an alleged breach of consultative provisions in relation to redundancy or change of work in the award she specified. She further seeks ancillary damages for pain, humiliation and the like.
As a matter of what the words in subsection (1A) mean, it seems to me that, on their face, they require there to be an amount precisely prescribed (such as a rate of pay or an allowance or the like) under the Act, a fair work instrument, a safety net contractual entitlement or an employee entitlement under s.542(1).
The sort of claim the applicant seeks to bring just does not meet that character, and in this regard I think the respondent’s submission is entirely correct.
Although I have been referred to three matters in the respondent’s written submissions filed 23 June 2015, namely, Ritchie v Chubb Security Services Ltd (2010) 196 IR 174; [2010] FMCA 361, Wills v Ningaloo Resorts Proprietary Limited [2011] FMCA 433, and Beer v Limb & Anor [2012] FMCA 494, none of those authorities are directly on point. It can be said, however, that such brief observations as the presiding judicial officers made in those cases would generally to be the same effect as that contended for by the respondent here.
In the end, the matter can be stated shortly. The claim that the applicant makes for damages is for pay lost during a period of unemployment following her dismissal by the respondent. There is, self‑evidently, no obligation arising under the award itself, assuming its terms to be as the applicant states, that would require the respondent to pay the applicant that money. Still more so does this apply to the claim for damages for hurt and distress and the like (assuming such damages to be available, in any event).
I have given the applicant the opportunity to amend her case, should she be so advised, and she has expressly disdained any intention to take it. Her case is, I regret to say, as presently formulated, hopelessly misconceived. Not only has the applicant not sought to amend it, but, given the nature of the claims, there is no prospect whatever that any amendment could bring it within the terms of s.548(1A).
In these circumstances, in my view, the applicant has no reasonable prospect of successfully prosecuting her claim, and it follows that the application is dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 November 2015
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