McAlister v Yara Australia Pty Ltd
[2017] FCCA 332
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCALISTER v YARA AUSTRALIA PTY LTD | [2017] FCCA 332 |
| Catchwords: PRACTICE AND PROCEDURE – Application to strike out parts of Statement of Claim and/or for particulars. |
| Legislation: Fair Work Act 2009 (Cth), ss.16, 44, 117, 119, 340, 342, 351, 361 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 43 Federal Circuit Court Rules 2001 (Cth), rr.1.05, 4.05 Federal Court Rules 2011 (Cth), rr.16.02, 16.06, 16.21, 16.41-16.45 |
| Cases cited: Australian Securities and Investments Commission v Kobelt(No.2) [2014] FCA 1118 Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 |
| Applicant: | JANELLE MCALISTER |
| Respondent: | YARA AUSTRALIA PTY LTD |
| File Number: | SYG 463 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Muir |
| Solicitors for the Applicant: | Petrine Costigan Lawyers |
| Counsel for the Respondent: | Ms Andelman |
| Solicitors for the Respondent: | Lavan Legal |
ORDERS
Paragraphs 12, 57 and 68 of the Statement of Claim filed on 22 April 2016 be struck out with leave to re-plead.
The Applicant have leave to file an Amended Statement of Claim by a date to be fixed, not only re-pleading paragraphs 12, 57 and 68 and correcting typographical errors in paragraphs 42, 44, 61 and 69.4 but also clarifying the bases for the asserted causes of action under the Fair Work Act 2009 (Cth) and in contract.
The Applicant provide particulars of the “planning role” pleaded at paragraph 56 of the Statement of Claim by the date on which the Amended Statement of Claim is to be filed.
The date by which the Respondent is to file and serve its Defence be extended to 14 days after the Applicant files an Amended Statement of Claim.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 463 of 2016
| JANELLE MCALISTER |
Applicant
And
| YARA AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
These Proceedings
Ms McAlister commenced proceedings in this court in March 2016 by way of an application accompanied by a Form 2 claim alleging dismissal by Yara Australia Pty Ltd (Yara) in contravention of a general protection under the Fair Work Act 2009 (Cth) (the FW Act). She sought penalties and compensation.
As directed, Ms McAlister subsequently filed a Statement of Claim (the SoC). She alleged contraventions of the FW Act and breaches of contract by Yara as discussed further below.
There followed an exchange of correspondence between Yara’s solicitors and Ms McAlister’s solicitors in relation to asserted pleading deficiencies (including whether the SoC disclosed a contractual cause of action beyond a reasonable notice claim). Yara’s solicitors indicated that they would consent to amendment of the SoC. Ms McAlister’s solicitors disputed the assertions of inadequacies in the SoC. They volunteered particulars in some respects, but did not accept that any amendment was appropriate.
Yara then filed the Application in a Case that is the subject of this judgment. Yara sought that certain paragraphs of the SoC be struck out and that Ms McAlister be granted leave to re-plead; that Ms McAlister have leave to amend specified typographical errors in the SoC; that she provide particulars in relation to certain matters referred to in the SoC; that the date by which Yara file and serve its defence be extended; and costs.
In support of the Application in a Case, Yara relied on affidavits of Cinzia Lee Donald affirmed on 22 June 2016 and Angharad Sian Watkins affirmed on 4 July 2016. Ms McAlister relied on an affidavit of Petrine Costigan sworn on 21 June 2016.
For the reasons that follow, I am of the view that some paragraphs of the SoC should be struck out, with leave to re-plead, but that it is also appropriate that (as Yara had originally proposed) leave be granted to Ms McAlister to file and serve an Amended SoC in which, in addition to re-pleading particular paragraphs that are struck out and amending typographical errors, Ms McAlister should also clarify the nature and number of breaches of contract intended to be pleaded and provide some of the particulars sought by Yara.
Relevant legal principles
Division 45.3 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) provides that applications in relation to certain contraventions of the FW Act must be in accordance with the approved form and be accompanied by a claim in accordance with the approved form and that such an application need not be accompanied by an affidavit, statement of claim or points of claim (cf. r.4.05). Ms McAlister commenced these proceedings in accordance with r.45 on the basis that the application was a claim under the FW Act alleging dismissal in contravention of a general protection provision. However, as directed, she subsequently filed and served a statement of claim.
In these circumstances, notwithstanding that the proceedings were not commenced by way of a statement of claim, the principles in relation to striking out part of a statement of claim arise for consideration.
Under s.43 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act), the practice and procedure of this court is to be in accordance with the Rules, but s.43(2)(b) relevantly provides that insofar as the provisions of the Rules are “insufficient”, the rules made under the Federal Court of Australia Act 1976 (Cth) (the Federal Court Rules) apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Court as to the practice and procedure of the Court.
Rule 1.05 of the Rules is as follows:
(1) It is intended that the practice and procedure of the Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules … in whole or in part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2):
…
(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
(emphasis added)
Under Part 2 of Schedule 3 to the Rules, various provisions in Part 16 of the Federal Court Rules (which deals with pleadings) are applicable. As pointed out in submissions for Ms McAlister, paragraphs (a), (b) and (d) of r.16.02(1) of the Federal Court Rules are listed in Part 2 of Schedule 3 to the Rules.
Rule 16.02(1) of the Federal Court Rules is as follows:
(1) A pleading must:
(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and
(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(e) state the provisions of any statute relied on; and
(f) state the specific relief sought or claimed.
Ms McAlister submitted that paragraphs (c), (e) and (f) of r.16.02(1) of the Federal Court Rules do not apply to Federal Circuit Court proceedings because these paragraphs are not included in the list in Part 2 of Schedule 3 of the Rules. However, s.43(2)(b) of the FCCA Act is expressed generally and, consistent with s.43, r.1.05 of the Rules makes it clear that the fact that certain specified provisions in the Federal Court Rules apply to proceedings in this court by virtue of Part 2 of Schedule 3 does not limit the general principle in r.1.05(2) that if in a particular case the Rules are insufficient or inappropriate the Court may apply the Federal Court Rules in whole or in part as necessary.
The Rules do not address the content of pleadings. That may in part reflect the fact that this court was not initially seen as a court of pleadings (see Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 at [37] per Lander J). However the Rules were amended in 2007 to contemplate that proceedings may be commenced by a statement of claim.
In my view in this case it is appropriate to apply subrules 16.02(1)(c), (e) and (f) of the Federal Court Rules under r.1.05 having regard to the nature of the proceedings. Ms McAlister seeks the imposition of penalties on Yara under the FW Act. Insofar as adverse action for a proscribed reason is alleged, a reverse onus of proof will be imposed on Yara in relation to its reason for taking adverse action if the prerequisites in s.361(1)(a) and (b) of the FW Act are met. Clarity in such allegations is essential (see Kirk v IndustrialRelations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at 559-61 and Fox v Stowe Australia Pty Ltd (2012) 271 FLR 372; [2012] FMCA 976 at [27]). In addition Ms McAlister seeks substantial damages of over $2 million as loss suffered “for adverse action and breach of contract”. In such circumstances the SoC (which relies on grounds other than those identified in the initial application and claim form) should identify the issues Ms McAlister wants the Court to resolve so as to put Yara on notice of the case it has to meet and should state the provisions of the FW Act relied upon and the specific relief sought. To some extent the SoC does address these issues. However any suggestion that the absence of a reference to paragraphs (c), (e) and (f) of r.16.02(1) in Schedule 3 to the Rules excuses any inadequacies in this respect overlooks the basic purpose of pleading, in particular the need for clarity in relation to causes of action intended to be relied upon.
Ms McAlister also submitted that r.16.02(2) of the Federal Court Rules does not apply to proceedings in this Court. Again that suggestion overlooks r.1.05(2) of the Rules. In any event, having regard to Part 2 of Schedule 3 to the Rules it is clear that r.16.21 of the Federal Court Rules is intended to be applicable in its entirety. Rule 16.21 of the Federal Court Rules provides for applications to strike out pleadings on grounds which reflect the limitations in r.16.02(2) of the Federal Court Rules as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
It was not suggested and nor am I satisfied that there are any “necessary changes” to the application of r.16.21 of the Federal Court Rules as contemplated by r.1.05(3)(b) of the Rules.
Relevantly, the concept of embarrassment in this context “… carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense” (see Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 at [25] per Carr J and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]).
Part 2 of Schedule 3 to the Rules also applies rr.16.41-16.45 of the Federal Court Rules to proceedings in this court. Among other things, these rules require a party to state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim or other matter pleaded and provide for an application for particulars. Where a respondent applies for particulars before filing a defence (as here) it must satisfy the Court that an order is necessary or desirable to enable it to plead (see r.16.45(3) of the Federal Court Rules). Ms McAlister provided some particulars in correspondence. Yara now seeks additional particulars.
The parties were not in dispute in relation to the general purpose of pleadings or the principles that apply to applications to strike out pleadings in part. In Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [5] Tracey J summarised relevant principles in relation to pleadings (albeit in the context of considering an application to strike out a statement of claim in its entirety) as follows:
The principles governing the exercise of the Court’s power summarily to dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 415–421. It is not necessary to restate, at length, his Honour’s exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that:
The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–130; Webster v Lampard (1993) 177 CLR 598 at 602–603.
The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff.
A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712–713.
It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114–5.
There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle (HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59]), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits (State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828–9).
Not all conclusionary pleadings will be struck-out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Assn (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557.
The pleading should not be evasive or ambiguous or likely to cause prejudice, embarrassment or delay in the proceedings. The SoC should give the respondent fair notice of the case to be made, in particular (as discussed further below) of the causes of action relied upon and the material facts on which the applicant relies, so that a proper defence can be filed. I have borne in mind the need for restraint in circumstances where a deficiency causes no confusion and does not raise issues of substantive principle or where it can be overcome by ordering the provision of particulars or the furnishing of affidavits. As Drummond J stated in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at [22] it is legitimate for the Court to ensure that “a party is not required to incur the expense of providing masses of information in its pleadings that can be seen to be unnecessary for the proper disposition of the case, even though the prima facie obligation of a party to plead all material facts necessary to make out its cause of action could be said to require that.” However as his Honour went on to observe (at [22]), this is “not to suggest that clarity in pleading is not important. The need to focus on pleadings being used to identify the matters really in issue is particular pressing in a complex case. But the rules of pleading do not now provide the only means for achieving this.”
Insofar as Ms McAlister placed reliance on remarks in Christie v Woolworths Ltd [2015] FCCA 2211 as to an informal approach to pleadings in this court, that case concerned proceedings in which an applicant was self-represented. That is not the present situation. Nor is this a case involving a relatively small claim. As indicated, Ms McAlister seeks damages or compensation in excess of $2 million as well as penalties under the FW Act. Further, references in Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702 to the informality of proceedings in this court (and see ss.3 and 42 of the FCCA Act and r.1.03 of the Rules) related to a time at which, as Lander J stated in Rana at [37], the Court was seen as having “abandoned” pleadings in favour of affidavits. Nonetheless I have borne in mind the objects in s.3 of the FCCA Act (and r.1.03 of the Rules) of operating in a manner that is as informal as possible in the exercise of judicial power, that resolves proceedings justly, efficiently and economically and that uses streamlined procedures and avoids undue delay, expense and technicality. I have had regard to the fact that there are various ways in which the Court might address deficiencies in pleadings without taking an unduly technical view, provided the primary purpose of pleadings is satisfied (see Australian Securities and Investments Commission v Kobelt(No.2) [2014] FCA 1118 at [7] per White J).
Yara seeks orders striking out paragraphs 12, 52-60, 68, 69.1, 69.2 and 69.5 in the SoC and particulars in relation to matters pleaded in several paragraphs of the SoC. Before turning to issues raised in relation to particular paragraphs of the SoC it is relevant to note the context in which the impugned paragraphs appear.
Much of the early part of the SoC involves pleading of a contractual relationship between the parties, including pleading a contract of employment containing an implied term as to reasonable notice “of [Yara’s] intention to terminate [Ms McAlister’s] employment otherwise than for breach” and an implied term that Yara was entitled to summarily terminate Ms McAlister’s employment if she engaged in serious misconduct (paragraph 11). It is pleaded that Yara had agreed to provide Ms McAlister with certain “employment benefits” listed in paragraph 12 (subsequently particularised as contractual entitlements). The SoC then addresses Yara’s conduct towards Ms McAlister from February 2015, asserting that Yara made unilateral changes to her terms and conditions of employment and that she made complaints and enquiries. After pleading relevant to s.351 FW Act claims, it is pleaded that Yara engaged in bullying and harassment of Ms McAlister by reference to earlier pleaded conduct, discussions and changes to her terms and conditions of employment. The SoC then pleads an investigation by Yara in about October 2015 into allegations of employment-related misconduct by Ms McAlister. The SoC details the allegations said to be the subject of the investigation and responds to such allegations, including by asserting that none of these matters amounted to misconduct or gave rise to serious misconduct on Ms McAlister’s part justifying termination of her employment.
In paragraphs 38-40 (under the heading “Termination of the Applicant’s employment”) it is pleaded that by letter of 16 October 2015 Yara terminated Ms McAlister’s employment “with immediate effect”. In paragraph 39 this is said to be “purportedly on the ground that she had engaged in serious misconduct”. However at paragraph 40 it is also pleaded that on the same date Yara paid Ms McAlister “inter alia” five weeks’ salary and superannuation. The particulars to this paragraph refer to a document entitled “Termination Pay Calculation” dated 21 October 2015.
Under the heading “Respondent’s breach of its obligation to give the Applicant reasonable notice”, it is pleaded:
41. By reason of the matters pleaded in paragraphs (sic) 35 above, the Respondent had no entitlement to summarily terminate the Applicant’s employment on 16 October 2015, and thereby acted in breach of the Contract.
42. The Respondent therefore was obliged to afford give (sic) the Applicant reasonable notice of its intention to terminate her employment, in accordance with the implied term pleaded in paragraph 9 (sic) above.
43. In the circumstances, and in particular, given the Applicant’s length of service, her age, her ability to find another comparable position, the Respondent was obliged to give the Applicant 18 months notice, or alternatively, 15 months notice, or alternatively, 12 months notice, that it intended to terminate her employment, or alternatively, payment in lieu of that notice.
44. By summarily terminating the Applicant’s employment, and paying her only five weeks salary on termination, the Respondent breached the implied term of the Contract pleaded at paragraph 9 (sic) above.
In correspondence between the parties it was conceded that the references to paragraph 9 in paragraphs 42 and 44 were intended to be references to paragraph 11 (which, however, pleads two implied terms).
After pleading in relation to Ms McAlister’s subsequent employment, in paragraphs 48 to 51 under the heading “Claim for unpaid superannuation” it is pleaded that for each of September and October 2015 Yara withheld $200 per month for Ms McAlister’s “salary sacrificing”, that in or about late 2015 and early 2016 Ms McAlister asked Yara to “pay her outstanding superannuation contributions”, that to date Yara had not paid $400 that it withheld from Ms McAlister’s salary for salary sacrifice to her superannuation fund and that by reason of this Yara had breached “its obligation under the Contract to pay superannuation” to Ms McAlister. There is, however, no subsequent separate claim for loss in this respect.
The SoC also pleads a claimed entitlement to redundancy pay under s.119 of the FW Act. It is claimed that Yara breached its employment contract with Ms McAlister and contravened s.119 (sic) of the FW Act (although the SoC refers to the National Employment Standards and it appears that it is intended to assert a contravention of s.44 of the FW Act).
Paragraphs 61 to 63 the SoC address what is described as the Respondent’s “disparagement” of the Applicant after her employment was terminated.
The SoC then details (in paragraphs 64-68) “Adverse action that the Respondent took against the Applicant”. The “Investigation” is said to have been initiated because Ms McAlister “had made the complaints to, and enquiries of [Yara] pleaded above, and thereby exercised a workplace right”. This investigation is said (in paragraphs 64 and 65) to amount to adverse action within s.342 of the FW Act. Further or in the alternative, “initiat[ing] the Investigation and terminating [Ms McAlister’s] employment” is said to amount to adverse action because of Ms McAlister’s physical disability and/or age within s.351 of the FW Act (paragraphs 66-67). As discussed further below, paragraph 68 appears to be intended to summarise these claims and state the provisions of the FW Act relied upon (but refers generally to “by terminating the Applicant’s employment in the circumstances pleaded above”).
Loss of over $2 million is pleaded in paragraphs 69.1-69.2 of the SoC in relation to what are described as “Claims for adverse action and breach of contract”. This amount includes loss and reduction in earnings calculated by reference to Ms McAlister’s “salary package… including superannuation and benefits (health, telephone and car)” until “retirement age” and paragraph 69.3 also seeks unquantified general damages. There is a separate, apparently additional, claim in paragraph 69.4 for loss said to be occasioned by Yara’s asserted failure to give reasonable notice calculated on alternative bases as representing 18 months, 15 months or 12 months notice on the basis of the “total value” of Ms McAlister’s “total salary package” plus superannuation as at the date of termination of her employment and also a claim in paragraph 69.5 for redundancy pay under the FW Act.
On its face it appears from paragraph 69 that a breach of contract other than the reasonable notice claim is asserted such as to provide a basis for the claimed loss pleaded in paragraphs 69.1-69.3.
The SoC ends by seeking, relevantly, compensation and “a” pecuniary penalty under the FW Act and damages for breach of contract.
It is apparent from the correspondence between the solicitors for the parties and the submissions in relation to the Application in a Case that Yara discerned opacity in the pleading of the asserted breach of contract said to ground the claim for loss of over $2 million plus general damages. It would seem unlikely that the $400 “superannuation” claim which is pleaded as a breach of contract at paragraphs 48 to 51 of the SoC is intended to be the basis for such a significant damages claim. Yara’s concern appears to underlie several of the specific allegations of pleading deficiencies. Yara submitted that it was not clear from the SoC what breach of contract Ms McAlister was intending to assert beyond the reasonable notice and superannuation claims, in particular whether it was intended to plead a breach of contract based on the pleaded allegations about unilateral changes in her role and the removal of what were said to be her “employment benefits” by Yara and/or on the basis of her summary dismissal. This issue is discussed further below.
In support of the Application in a Case Yara identified three categories of objection.
Yara submitted first that paragraphs 12, 69.1 and 69.2 of the SoC (and the paragraphs Yara understood referred to the “entitlements” listed in paragraph 12, being paragraphs 19, 21, 29, 30, 48-51) failed to disclose a reasonable cause of action, being a breach of contract claim in relation to which the loss pleaded in paragraphs 69.1 to 69.3 was claimed (that is, a breach of contract claim other than the reasonable notice and superannuation claims).
Yara submitted that the SoC failed to allege or was confusing as to the material facts in paragraph 12, that there was a failure to plead a complete cause of action and also that there was a conflation of the adverse action and breach of contract claims. It was submitted that such pleading was ambiguous and likely to cause prejudice, embarrassment and delay in the proceedings.
Paragraph 12 of the SoC is as follows:
12. During the periods set out below, the Respondent agreed to provide the Applicant with these employment benefits:
12.1 from 13 December 1996 to about 13 April 2015, sole occupancy of an office;
12.2 from 13 December 1996 to about 13 April 2015, entitlement to a permanent parking space at the Respondent’s office as part of her salary package;
12.3 from 2003 to about 13 April 2015, a salary sacrifice arrangement that involved payment of an annual amount that could be used for travel and entertainment;
12. 4 from 13 December 1996 until 16 October 2015, company motor vehicle and payment of all costs associated with the motor vehicle as part of her salary package;
12.5 from 13 December 1996 to 16 October 2015, payment of private health, life, and income protection, insurance premiums;
12.6 from 13 December 1996 to 16 October 2015, payment of mobile telephone costs and home telephone costs;
12.7 from 13 December 1996 to 16 October 2015, payment of superannuation, the rate for which varied over time.
Paragraphs 69.1 and 69.2 form part of the pleading of loss in paragraph 69 which is as follows:
Loss the Applicant has suffered due to the Respondent’s conduct
69. The Applicant has suffered, and continues to suffer, loss, being:
Claims for adverse action and breach of contract
69.1 Loss of earning during the period 17 October 2016 to 7 March 2016.
Particulars
Four months and 18 days, being the period during which the Applicant was unemployed x approximately $191,200 per annum including superannuation and benefits (health, telephone, car) per annum = approximately $523.80/day x 141 days = about $73,855.80.
69.2 Reduction in earnings during the period 8 March 2016 up until retirement at age 65.
Particulars
The difference between the Applicant’s salary package while employed by the Respondent (being approximately $191,200 per annum including superannuation and benefits (health, telephone, car)) and her new salary package being about $21,037.14 per annum including superannuation = approximately $170,162.86 per year x about 11 years and four months to age 65 = about $1,927,945.
69.3 General damages (including damages for pain and suffering and loss of amenities or enjoyment of life, including hurt, distress, embarrassment, humiliation, and anxiety).
Respondent’s failure to give reasonable notice
69.4 In relation to the Applicant’s claim for breach of the implied term of the Contract to give her reasonable notice:
69.3.1 18 months x the total value of her total salary package as at 16 October 2015 ($191,200 per annum) = $286,800 plus superannuation, less the five weeks salary and superannuation already paid to the Applicant on about 16 October 2015 ($16,209.86) = $270,590.14 plus superannuation; or
69.3.2 alternatively, 15 months x the total value of her total salary package as at 16 October 2015 ($191,200 per annum) = $239,000 plus superannuation, less the five weeks salary and superannuation already paid to the Applicant on about 16 October 2015 ($16,209.86) = $222,790.14 plus superannuation; or
69.3.3 alternatively, 12 months x the total value of her total salary package as at 16 October 2015 ($191,200 per annum) = $191,200 plus superannuation, less the five weeks salary and superannuation already paid to the Applicant on about 16 October 2015 ($16,209.86) = $174,990.14 plus superannuation.
Redundancy
69.5 In relation to the Applicant’s claim for redundancy, the Applicant’s annual base rate of pay as defined in s.16 of the Fair Work (sic), being salary of $152,000 per annum excluding superannuation and benefits ÷ 52 weeks = $2,923/week x 12 weeks = total of $35,076.
And the Applicant claims:
(a) Compensation under s. 545 Fair Work Act;
(b) Damages for breach of contract;
(c) Imposition of a pecuniary penalty order on the Respondent under s. 546 Fair Work Act;
(d) In relation to the claims brought under the Fair Work Act: interest up to judgment under s. 547 Fair Work Act;
(e) In relation to the claims not brought under the Fair Work Act: interest under s. 76 Federal Circuit Court Act 1999 (Cth).
(f) In relation to the claims not brought under the Fair Work Act claims: costs under s. 79 Federal Circuit Court Act 1999 (Cth); and
(g) Such further or other orders as the Court sees fit.
Yara pointed out that the employment benefits described in paragraph 12 of the SoC were said in the particulars provided in a schedule to a letter from Ms McAlister’s solicitor dated 2 June 2016 to be benefits that were provided under the contract of employment. These particulars also stated that the agreement to provide Ms McAlister with some of these benefits arose by virtue of the parties’ conduct and constituted a variation of the contract of employment
On the assumption that it appeared from the SoC that Ms McAlister may be intending to claim a breach of contract entitling her to the loss pleaded in paragraphs 69.1 to 69.3 of the SoC arising from her asserted demotion and the discontinuance of aspects of her so-called “employment benefits”, Yara submitted that she had failed to allege a material fact and thereby plead a complete cause of action. It was pointed out that paragraphs 19, 21, 29 and 30 of the SoC pleaded what were described as changes to the terms and conditions of Ms McAlister’s employment (referring to the benefits pleaded in paragraph 12) which were said to represent a significant reduction in her level of responsibility and status, in her day to day workload and in the overall value of her salary package as well as being substantially less favourable than her existing terms and conditions and were said to represent a singling out by Yara of Ms McAlister from other employees. Such changes were said not to have been willingly accepted by Ms McAlister. Similarly, paragraphs 48 to 50 appeared to assert a breach of contract related in some way to the contractual superannuation benefit referred to in paragraph 12.7. In essence, Yara submitted that there was inadequate pleading of the breach of contract for which loss was claimed in paragraphs 69.1 to 69.3 which was apparently intended to be claimed in addition to the loss occasioned by the asserted breach of an implied term as to reasonable notice pleaded in paragraph 69.4 of the SoC.
Yara also submitted that the material facts pleaded in paragraph 12 were “hopelessly commingled” in relation to the allegations of adverse action and breach of contract, that in paragraphs 69.1 and 69.2 Ms McAlister had “mixed up” claims for damages for adverse action and breach of contract and that she apparently sought to rely on matters pleaded in paragraph 12 in both contexts.
In addition, Yara contended that the SoC did not clearly identify the terms of the asserted employment contract, when it was made and how and when it was varied (see Fair Work Ombudsman v Eastern Colour Pty Ltd & Ors (2011) 209 IR 263; [2011] FCA 803 at [46]). It was suggested that the particulars provided in relation to the contractual benefits pleaded in paragraph 12, the entitlement to which was said to have resulted from variation of the contract of employment, were in conflict with the pleading in paragraph 5 of the SoC as to whose conduct was that of Yara. In addition, insofar as benefits were said in the particulars to have been provided pursuant to terms of the contract (which was also said to include terms that details of such benefits were to be agreed upon) it was contended that no particulars had been provided as to any such agreement. Accordingly, Yara sought further particulars as to how, when and who on behalf of Yara was said to have agreed to provide each employment benefit referred to in paragraph 12.
Such issues were said to warrant striking out paragraphs 12 and 69.1-69.2 as pleading that was ambiguous or likely to cause prejudice, embarrassment or delay in the proceedings. In particular, it was said to be necessary for Yara to know the case it had to meet.
Ms McAlister submitted that there was nothing “wrong” with paragraphs 12, 69.1 or 69.2 of the SoC that justified either strike out or re-pleading. It was also submitted that the application to strike out paragraph 12 of SoC was inconsistent with Yara’s application for particulars, pointed out that particulars had been provided and submitted that nothing had been identified that required further particularisation. Ms McAlister contended that matters such as how and when and who on behalf of Yara had agreed to provide each of the employment benefits pleaded in paragraph 12 of the SoC were not facts that were material in relation to any cause of action pleaded. Yara was said to be seeking irrelevant information that did not assist it to know the case it had to meet or plead. Ms McAlister also submitted that requiring a re-pleading or further particulars would impose an undue burden on her and would not assist the conduct of the case.
Counsel for Ms McAlister contended that what was relevant to the adverse action claim was the fact of her demotion, which was said to involve the loss of certain duties and entitlements, and that these matters were adequately pleaded. The benefits Ms McAlister enjoyed at the date of her termination were said to be relevant to the calculation of her loss, which was said to have been adequately pleaded and particularised at paragraph 69. Ms McAlister submitted, in effect, that the material fact was that she suffered a loss of earnings as pleaded in paragraph 69, that the quantum was particularised and that proof of the salary package (including its precise make up) was a matter for evidence.
Such submissions related to the adverse action claim. However, the main difficulty with these aspects of the pleading and, indeed, with the SoC generally, is that, as Yara submitted, it is not clear what the “breach of contract” is to which paragraphs 69.1 to 69.3 of the pleading is intended to relate and whether and to what extent the benefits pleaded in paragraph 12 are relevant to any such contractual cause of action. In particular, it is not clear on the face of the SoC whether and, if so, to what extent Ms McAlister intends to assert a breach of contract and/or adverse action arising out of her pleaded demotion and the removal of certain of the benefits specified in paragraph 12 as the basis for the claim of substantial loss pleaded in paragraphs 69.1 to 69.3. In this respect the pleading is confusing and ambiguous and likely to cause prejudice, embarrassment and delay in the proceedings.
In oral submissions counsel for Ms McAlister stated that while certain “benefits” were pleaded in paragraph 12 of the SoC, there was no claim for breach of contract consisting of or arising from a removal of those benefits or the claimed demotion of Ms McAlister. It was suggested that the matters pleaded in paragraph 12 were relevant to the adverse action claim which is discussed below.
Having regard to these issues and the pleading in paragraphs 69.1 to 69.3 of the SoC I asked counsel for Ms McAlister what breach of contract claim was intended to be pleaded other than the asserted failure to give reasonable notice and to pay some $400 into a superannuation fund. Initially, counsel indicated that there was no other breach of contract claim. If that is so, then the pleading in paragraphs 69.1 to 69.3 in relation to both adverse action and breach of contract is ambiguous and embarrassing.
However, later in oral submissions counsel for Ms McAlister appeared to indicate that there was in fact another breach of contract claim. It was said that summary termination of Ms McAlister’s employment in circumstances where there was no serious misconduct was pleaded as a breach of contract in addition to the reasonable notice and superannuation claims.
Paragraph 11 of the SoC pleads an implied term that Yara “was entitled to summarily terminate [Ms McAlister’s] employment if she engaged in serious misconduct” and an implied term that Yara “was upon terminating [Ms McAlister’s] employment, obliged to give her reasonable notice of its intention to terminate her employment otherwise than for breach”. Paragraph 41 of the SoC pleads that Yara had no entitlement to summarily terminate Ms McAlister’s employment (with a reference to earlier pleading that matters referred to in paragraph 32 as allegations of serious misconduct did not amount to misconduct). However paragraph 41 appears in the context of pleading a breach of Yara’s obligation to give the Applicant reasonable notice. Moreover it follows an acknowledgment (in paragraph 40) that Ms McAlister was paid “inter alia” five weeks’ salary and superannuation on or about the date of termination of her employment.
The basis for the pleading of loss in paragraphs 69.1 to 69.3 in relation to a breach of contract is susceptible to various meanings and is not made clear in the SoC.
As Yara submitted, there are other issues in relation to paragraph 12 of the SoC. To some extent the significance of these issues in the present context depends on the precise nature of the intended breach of contract and adverse action claims. The basis on which Ms McAlister asserts that Yara agreed to provide her with “employment benefits” (particularised as contractual entitlements) which were then changed, including who acted for Yara (given the wording of paragraph 5) and how and when the asserted variation or variations to the contract occurred and the relevance of such benefits to the cause or causes of action relied on ought to be pleaded clearly, whether by way of incorporation of particulars in the pleading or by clarification of the asserted variations to the contract of employment in the SoC. Insofar as paragraph 12 asserts entitlements to benefits which are said to be part of Ms McAlister’s salary package (such as health, telephone, car and superannuation), if the only relevance of these benefits is as part of the asserted loss, quantification may be addressed in evidence. At present that is not clear. Further in the particulars provided by Ms McAlister some of these benefits were said to have been contained in the contract in terms such as “company car – yes details to be agreed upon”. The particulars referred to similar contractual terms in relation to health insurance and telephone. There is, however, no pleading and no particulars of any such subsequent agreement. There should be if such matters are intended to form part of the basis of any cause of action. Confusingly, the asserted agreement in relation to superannuation was said in particulars to be contained in the contract as “superannuation – 10%”. However the particulars also stated that the rate of superannuation paid to Ms McAlister varied during the period of her employment, but that it was 10% at the date her employment was terminated. This is unclear, as is its relevance.
Paragraph 12 of the SoC appears in part of the pleading in relation to what are said to be “relevant contractual arrangements”. This raises an ambiguity if Ms McAlister’s contractual entitlements prior to April or October 2015 are not part of the basis for a breach of contract claim. Further, the relationship between this part of the pleading and the adverse action claim based on s.340 of the FW Act suggested in oral submissions is also not entirely clear having regard to the subsequent pleading in that respect which, as discussed below, suggests that the only adverse action relied on under s.340 was the investigation initiated in about October 2015. It appeared to be suggested that the removal of such benefits was part of such claim. As discussed further below, the scope of the general reference in paragraph 68 (which relates to the adverse action claims) to the “terminat[ion] of the Applicant’s employment in the circumstances pleaded above” is not clear. Ms McAlister suggested that the “circumstances” were those pleaded in paragraphs 13-40 (not paragraph 12). At present the SoC is confusing and ambiguous in this respect. This should be clarified.
I note that in one other respect paragraph 12 (seen in conjunction with the claim for “unpaid superannuation” in paragraphs 48-51 of the SoC) is confusing and ambiguous. Paragraphs 48-51 of the SoC plead what is described as a breach of Yara’s “obligation under the Contract” to pay superannuation to Ms McAlister. However at the same time this aspect of the SoC appears to relate to Ms McAlister’s asserted salary sacrifice arrangement. It is difficult to reconcile the pleading in paragraphs 12.3 and 12.7 with the claim about a failure to pay $400 that Yara withheld for salary sacrifice to Ms McAlister’s superannuation fund. The pleading in this respect is unclear, confusing and ambiguous, but the problem may lie in paragraphs 48-51 more than paragraph 12. Once again, in an attempt to achieve an efficient and effective resolution of this issue, this should be addressed in an Amended SoC. Further, if this aspect of the claim is intended to be encompassed in any of the paragraph 69 pleads of loss this should be made clear.
I also note that in her affidavit of 4 July 2016, Ms Watkins, a solicitor employed by the solicitor for Yara, asserted that the solicitor for Ms McAlister had stated that the employee entitlements pleaded in paragraph 12 of the SoC were not contractual entitlements. This was not clarified in submissions.
In these circumstances, having regard to the lack of clarity in relation to the relevance of these aspects of the pleading as well as the wider issues discussed above, the SoC does not give fair notice to Yara of the case, if any, to be made against it in relation to the asserted agreement to provide these pleaded employment benefits.
Paragraph 12 should be struck out with leave to re-plead. In re-pleading Ms McAlister should provide particulars in relation to any contractual variation and/or details agreed upon in relation to any of the employment benefits of relevance to an adverse action or breach of contract claim rather than simply as part of quantification of the salary package on termination. There is a need for such re-pleading to enable Yara to plead.
However, insofar as Yara sought details of amounts provided at various times throughout the whole of Ms McAlister’s employment for each of the pleaded categories of benefit in paragraph 12, it appears that such details are not in themselves material to any cause of action pleaded or apparently intended to be pleaded.
It appears from the whole of paragraph 69 of the SoC that Ms McAlister is claiming both loss of earnings from the date of her termination to age 65 and general damages for the asserted adverse action and unparticularised breach of contract claims as well as the total value of her “total salary package” for a period of either 18, 15 or 12 months as loss occasioned by the asserted breach of an implied term of the contract requiring reasonable notice. As drafted, it appears that these are cumulative, rather than alternative, claims. If there is an asserted breach of contract other than the asserted failure to give reasonable notice (and the “superannuation” claim), this ought to be clarified at this stage to avoid confusion and delay in the proceedings and to identify the issues to which Yara has to respond. Beyond this, the difficulty with paragraphs 69.1 to 69.2 is not the drafting as such, but rather the lack of clarity elsewhere in the SoC as to the nature of any breach of contract claim addressed therein.
In my view, striking out paragraphs 69.1 and 69.2 with leave to re-plead those paragraphs would not address the underlying need to plead clearly the causes of action to which paragraphs 69.1 to 69.3 are intended to apply. The oral submission for Ms McAlister in relation to the number of breach of contract claims confirms my view that the SoC is confusing and ambiguous, and that the causes of action relied upon (particularly the breach of contract claims) require clarification. The explanations provided in oral submissions are not sufficient to address this issue.
In addition to re-pleading and particularising paragraph 12, Ms McAlister should file an Amended SoC. This would appear to be the most practical and efficient way to enable the confusion and ambiguity as to the bases of the intended causes of action to be addressed, where appropriate, in the SoC. Yara initially proposed such an approach, which the solicitor for Ms McAlister rejected. In all the circumstances this is not an undue burden on Ms McAlister. It would assist in the conduct of the case.
Accordingly, in the hope of ensuring that the case Yara has to meet and the issues the Court must decide are made clear at this stage of the proceedings, Ms McAlister will be given leave to file and serve an Amended SoC not limited to re-pleading the paragraphs the subject of the Application in a Case and correcting typographical errors. If there is a claim for breach of contract other than the asserted breach of the implied term of reasonable notice and the superannuation claim (in relation to which there is no separate plea of loss in paragraph 69) the nature of the claim said to have occasioned the loss sought in paragraphs 69.1 to 69.3 of the SoC ought to be made clear. Whether the claim in paragraph 69.4 is intended to be pleaded on a cumulative or alternative basis should also be clarified.
The second category of Yara’s objections to the SoC relates to paragraphs 52-60 and 69.5 of the SoC. These paragraphs address Ms McAlister’s asserted entitlement to redundancy pay under s.119 of the FW Act and are as follows:
The Applicant’s entitlement to redundancy pay
52. While she was employed by the Respondent:
52.1. the Contract, as varied from time to time, did not provide for redundancy;
52.2. the National Employment Standards applied to the Applicant;
52.3. the Respondent employed 15 or more employees at all relevant times.
53. Between about late September 2015 about October 2015, the Respondent employed a new person, Ms Blair Leslie, to perform human resources tasks that been undertaken by the Applicant before 10 April 2015.
Particulars
These duties were completing all employee personal details, preparing salary increase calculations, preparing letter for increase in salaries, preparing contracts for new staff members, preparing termination letters and calculations, attending meetings with employees when warnings were issued.
54. The other human resources tasks that the Applicant performed as at 10 April 2015, were subsequently, and still are, performed by:
54.1 a new employee who replaced Ms Leslie and who is based in Sydney, New South Wales: and
54.2 Ms Sharon Larson, an existing employee who is based in Pilbara, Western Australia.
55. From about 10 April 2015 and continuing, the logistics tasks the Applicant performed before 10 April 2015 have been performed by several employees of the Respondent.
Particulars
(a) Ms Karen Murphy and Mr Neill Wiseman, who are based in Sydney, New South Wales.
(b) Ms Pam Young who is based in Griffith, New South Wales.
56. To the best of her knowledge, Mr Sullivan is now performing the the (sic) planning role and is based in Moree, New South Wales.
57. By reason of the matters pleaded in paragraphs 53 to 56 above the Respondent no longer required the Applicant’s role or position, and instead re-distributed her functions between several employees.
58. As 16 October 2015:
58.1 the Applicant’s base rate of pay in her employment with the Respondent was $152,000 (excluding superannuation).
58.2 the Applicant had served at least ten years in the Respondent’s employment;
58.3 from 1 January 2010, the Applicant had served at least five years but less than six years in the Respondent’s employment.
59. by reason of the matters pleaded in sub-paragraphs 52 to 58 above, the Applicant was entitled, by s.119 Fair Work Act, to payment of 12 weeks’ pay at her base rate of pay as at 16 October 2015.
60. To date, the Respondent had not made any redundancy payment to the Applicant, and had thereby breached s.119 Fair Work Act and the National Employment Standards.
…
Redundancy
69.5 In relation to the Applicant’s claim for redundancy, the Applicant’s annual base rate of pay as defined in s.16 of the Fair Work (sic), being salary of $152,000 per annum excluding superannuation and benefits ÷ 52 weeks = $2,923/week x 12 weeks = total of $35,076.
Yara submitted that Ms McAlister had advanced a case that could not succeed on the law as it stood on two different bases and that these paragraphs should be struck out with leave to re-plead.
As presently drafted, the SoC asserts an entitlement to both damages for breach of an implied term to give reasonable notice (in paragraph 69.4) and to 12 weeks’ redundancy pay under s.119 of the Act (in paragraph 69.5). It fails to assert a contravention of s.44 of the FW Act, but reference is made to a breach of the National Employment Standards in paragraph 60 of the SoC.
Section 119(1) of the FW Act relevantly provides:
1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) 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…
Yara took issue with the fact that the asserted breach of an implied term to provide reasonable notice on termination and the redundancy claim were not pleaded in the alternative. It was submitted that where there was provision for notice in statutory or award form there was no capacity to imply a term for notice by law because it was not necessary.
However Ms McAlister’s statutory claim is a claim for redundancy pay not (for example) a claim for the statutory period of notice provided for in s.117 of the FW Act. Authorities cited by Yara, such as Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807, relate to claims for notice, not redundancy pay, and are not directly in point. On the authorities cited I am not persuaded that it is clear that Ms McAlister cannot succeed on a redundancy claim in addition to a claimed breach of an implied term to provide reasonable notice. If there is an issue as to whether an applicant can claim both damages for breach of an implied term to provide reasonable notice and also redundancy pay such issue may be determined at the final hearing.
Yara also pointed to the fact that the redundancy and the adverse action allegations were not pleaded as alternatives, despite what were said to be the different (and potentially inconsistent) reasons which are relevant in relation to these different causes of action.
As Yara submitted, in relation to the adverse action part of the claim it is necessary for an applicant to allege that the respondent took action for a particular reason or with a particular intent and that taking that action for that reason or with that intent would constitute a contravention of the relevant part of the FW Act (see s.361). While there was said to be confusion in some respects in the adverse action pleading (as discussed further below), Yara submitted that it was at least clear that in reliance on s.351 of the FW Act, Ms McAlister was alleging that it initiated its investigation and terminated her employment either because of her asserted disability (related to her need for spinal fusion surgery and 6-8 weeks off work to recover) or because of her age. Further, insofar as Ms McAlister intended to assert that termination of her employment was part of the circumstances that amounted to adverse action within s.340 of the FW Act (again, a matter discussed below) it was pointed out that this involved an assertion that Yara took adverse action against Ms McAlister because she exercised a workplace right. It was pointed out that to make good a claim under s.340 or s.351 the proscribed reason for the termination must be a “substantial and operative factor” (see General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 612 and 616 cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [56]-[57], [85] and [88]).
While no authority was cited in relation to the scope of s.119(1) of the FW Act, as Yara submitted, a necessary element for the statutory entitlement to redundancy pay to arise under s.119(1) of the FW Act is that the employment was terminated “because the employer no longer requires the job done by the employee to be done by anyone” (emphasis added).
Ms McAlister contended that whether paragraph 57 of the SoC satisfied the s.119(1) FW Act requirements was a matter for legal argument at the hearing. This appeared to be in response to Yara’s submission that paragraphs 52-60 of the SoC did not adequately plead causation as required under s.119 of the FW Act. However the impact of a possible inconsistency between reasons pleaded as enlivening an adverse action claim and as enlivening a s.119 redundancy entitlement was not addressed in Ms McAlister’s submissions.
It appears that Ms McAlister envisages arguing for a broad operation for s.119(1) of the FW Act. However it is nonetheless necessary to plead a causal connection between the primary facts (in particular the termination of Ms McAlister’s employment) and the legal ramifications of those facts (see Forty Two International Pty Ltd v Barnes [2010] FCA 397 at [114]). I note that r.16.06 of the Federal Court Rules provides that a party must not plead inconsistent allegations of fact or inconsistent grounds or claims, except as alternatives.
In these circumstances paragraph 57 should be struck out with leave to re-plead and Ms McAlister’s leave to amend the SoC should extend to leave to plead the s.119 redundancy claim further or in the alternative to the adverse action claims based on termination of her employment.
Yara also contended that while there was some pleading in relation to human resources, logistics tasks and a planning role previously undertaken by the Applicant in paragraphs 52-60, this part of the SoC did not appear to be comprehensive such that it could be said to cover all of the duties of the position, insofar as no mention was made of administrative functions or duties that elsewhere in the SoC were said to have been performed by the Applicant (see, for example, paragraphs 8 and 16 of the SoC).
Insofar as this contention was intended to support the application for particulars of the “planning role” referred to in paragraph 56, it appears that this is a reference to the role pleaded in paragraph 17 of the SoC (which, when read with paragraph 15, appears to distinguish between the position of planning co-ordinator and a “planning role” the Applicant was to assume from about 13 April 2015).
Given the centrality of this asserted role to the redundancy claim, Ms McAlister should provide particulars of the planning role referred to in paragraph 56 (as has already been done in relation to the other functions pleaded in this part of the SoC). Having regard to the need for an Amended SoC, the provision of such particulars (rather than leaving this issue to affidavit evidence) should not be an unduly onerous burden on Ms McAlister and should not unduly increase the cost and delay associated with the litigation.
The third category of objections raised by Yara relates to paragraph 68 of the SoC. Paragraph 68 appears under the heading “Section 342 Fair Work Act: adverse action by dismissal, injury or discrimination”. It follows paragraphs 64, 65, 66 and 67 which appear under the heading “Adverse action that the Respondent took against the Applicant”. In order to consider the objections to paragraph 68 it is necessary to consider this part of the SoC in its entirety. It is as follows:
Adverse action that the Respondent took against the Applicant
64 The investigation
64.1. was initiated by the Respondent because she had made the complaints to, and enquiries of, the Respondent pleaded above, and thereby exercised a workplace right;
64.2. was initiated by the Respondent for the purpose of terminating the Applicant’s employment.
65. By reason of the matters pleaded in paragraph 64 above, the Investigation amounted to adverse action that the Respondent tool against the Applicant within the meaning of s.342 Fair Work Act.
Section 351(1) Fair Work Act: discrimination (physical disability)
66. Further or in the alternative to the matter pleaded above:
66.1. the Applicant’s back condition and medical need to have spinal fusion surgery was a physical disability and proscribed reason under s.351(1) Fair Work Act;
66.2. the Respondent initiated the Investigation and terminated the Applicant’s employment because she needed to have spinal fusion surgery, and six to eight weeks off work to recover from that surgery.
66.3. by initiating the Investigation and termination her employment on the basis of the disability, the Respondent treated the Applicant less favourably than its other employees who did not suffer from disability, and require time off work due to that disability.
66.4. by reason of the matters pleaded in paragraph 66 above, the Applicant’s termination constituted adverse action in respect of a general protection to which she was entitled by operation of s.351 Fair Work Act.
Section 351(1) Fair Work Act: discrimination (age)
67. Further or in the alternative to the matters pleaded above:
67.1. the Applicant’s age is a proscribed reasons under s.351(1) Fair Work Act.
67.2. the Respondent initiated the Investigation and terminated the Applicant’s employment because of her age.
Particulars
(a) Five new employees of the Respondent in 2015 were under 30 or 35 years of age: Blair Leslie, Laura Constadine, Karlien Slott, Andrew Stott, and a new agronomist named Trent. David Parker Procurement Management, and Ashley Murphy, Sales and Marketing Manager were both made redundant in about March 2015. Both were about 50 years of age.
(b) The Applicant repeats the allegation at paragraph 22 above.
(c) Further particulars to be provided after discovery.
67.3. by initiating the Investigation and terminating her employment on the basis of her age, the Respondent treated the Applicant less favourably than its other employees who were younger than the Applicant.
67.4. by reasons of the matters pleaded in paragraph 67 above, the Applicant’s termination constituted adverse action in respect of a general protection to which she was entitled by operation of s.351 Fair Work Act.
Section 342 Fair Work Act: adverse action by dismissal, injury or discrimination
By terminating the Applicant’s employment in the circumstances pleaded above, the Respondent:
68.1. discriminated between the Applicant and its other employees; or
68.2. injured the Applicant in her employment within the meaning of s. 342(1) Item 1 Column 2(b) Fair Work Act; or
68.3. altered the position of the Applicant to the Applicant’s prejudice within the meaning of s. 342(1) Item 1 Column 2(c) Fair Work Act; and
68.4. took adverse action against the Applicant within the meaning of s. 342(1) Item 1(d) Fair Work Act against the Applicant; and
68.5. acted in breach of s. 340 and s. 351(1) Fair Work Act.
In this part of the SoC Ms McAlister asserted contraventions of ss.340 and 351 of the FW Act. It was pleaded that Yara took adverse action because Ms McAlister made complaints or enquiries (s.340) and/or that it took adverse action because of her age or physical disability (s.351). However, while there is a reference to the termination of Ms McAlister’s employment in the pleading in relation to s.351 in paragraphs 66 and 67, the pleading in paragraphs 64 and 65, apparently intended to invoke s.340 of the Act, refers only to the investigation described earlier in the SoC. There is no reference in this part of the SoC to any other action by Yara. Nonetheless, paragraph 68 pleads the asserted adverse action in breach of ss.340 and 351 of the FW Act as “by terminating the Applicant’s employment in the circumstances pleaded above” (emphasis added). Ms McAlister suggested that “the circumstances” are the circumstances pleaded in paragraphs 13 to 40 of the SoC. It is not clear whether any such “circumstances” are intended to be pleaded as constituting “adverse action”. This may be so despite the language of paragraphs 64 and 65, given that in paragraph 68 the adverse action is said to consist of either discrimination between the Applicant and other employees “or” injuring the Applicant in her employment within s.342(1), Item 1(b) “or” altering her position to her prejudice within s.342(1), Item 1(c)) “and” (sic) adverse action within s.342(1), Item 1(d) (which refers to discrimination between the employee and other employees). There is no reference to Item 1(a) in s.342(1) of the FW Act.
As Yara submitted, the initial reference in paragraph 68 to “in the circumstances pleaded above” is unclear and confusing. On its face this would appear to refer only to paragraphs 64 to 67. Insofar as it is suggested that this is a reference to the circumstances pleaded in paragraphs 13 to 40 of the SoC, this is not apparent on the face of the SoC and does not include paragraph 12, which was said in oral submissions to be relevant to the adverse action claim. Moreover there remains an unresolved confusion between the claim of “adverse action” particularised in paragraphs 64 and 65 based on the investigation (not earlier action or the termination) and the broad reference in paragraph 68 to termination of Ms McAlister’s employment in the circumstances pleaded. Paragraph 68 is ambiguous, confusing and embarrassing.
Counsel for Ms McAlister conceded that the substance of the allegation in paragraph 68.1 was duplicated in paragraph 68.4 but this was said to be plain from a reading of both subparagraphs. I accept this, but what is not clear is the intended overlap and relationship between the assertions of various kinds of adverse action relied upon. It appears from the explanation provided for Ms McAlister in correspondence and in submissions that reliance is intended to be placed only on Items 1(b) or (c) or (or possibly “and”) (d) in s.342(1), notwithstanding that the conduct described in the introductory words to paragraph 68 refer to termination and paragraphs 66 to 67 refer to termination. On the other hand, the assertion of adverse action in paragraph 64 does not plead that Ms McAlister’s employment was terminated because she made complaints to and enquiries of Yara. It refers only to the “investigation”. Paragraph 68 is also embarrassing in this respect, because it is ambiguous, susceptible to various meanings and confusing.
It is relevant to bear in mind that these proceedings seek penalties under the FW Act and that there is a reverse onus provision. In such circumstances it is essential that the nature and number of contraventions of the FW Act alleged is pleaded with clarity in an Amended SoC. Paragraph 68 of the SoC should be struck out, but Ms McAlister should have leave to re-plead generally to clarify the bases for the asserted FW Act causes of action.
The second order sought in the Application in a Case is that Ms McAlister have leave to amend specified typographical errors. She should have such leave and, given the need for an Amended SoC, these errors should be corrected.
Yara’s request for particulars in paragraph 3 of the Application in a Case was not addressed in submissions beyond the matters canvassed above. There was no explanation as to how the particulars already provided by Ms McAlister in relation to some of the matters listed in proposed order 3 were inadequate and no suggestion in submissions that it was necessary or appropriate that all the particulars provided voluntarily should be incorporated in an Amended SoC. In these circumstances I do not propose to make other orders sought in paragraph 3 of the Application in a Case beyond the above.
I will hear the parties in relation to a timetable for the provision of an Amended SoC and a Defence, directions to progress this matter and in relation to Yara’s costs application.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 28 February 2017
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