McCulloch v Transport Workers' Union of Australia Western Australian Branch
[2018] FCCA 676
•22 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCULLOCH v TRANSPORT WORKERS’ UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH | [2018] FCCA 676 |
| Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal – factors for consideration – whether alternative workplace right may be relied on. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 96, 97, 102, 103, 107, 340, 352, 360, 361, 570 Fair Work Regulations 2009 (Cth), reg.3.01 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03, 13.10, 21.02 Federal Court of Australia Act 1976 (Cth), s.31A |
| Cases cited: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) AILN 7; (1995) 38 AILR 3-194 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v CJ Manfield Pty Ltd [2011] FMCA 374; (2011) 63 AILR 101-370 George v Fletcher (Trustee) [2010] FCAFC 53 Hodkinson v The Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 Rogers v Millennium Inorganic Chemicals Ltd & Anor [2009] FMCA 1; (2009) 178 IR 297; (2009) 229 FLR 198 |
| Applicant: | JUDITH ANNE MCCULLOCH |
| Respondent: | TRANSPORT WORKERS’ UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH |
| File Number: | PEG 269 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 May 2017 |
| Date of Last Submission: | 19 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 22 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Lewis |
| Solicitors for the Applicant: | Roger Lewis Legal |
| Counsel for the Respondent: | Ms R Cosentino |
| Solicitors for the Respondent: | Slater + Gordon Lawyers |
ORDERS
That the respondent’s Application in a Case filed 1 February 2017 be dismissed.
That the applicant have leave to file a Proposed Amended Substituted Statement of Claim by 12 April 2018.
That the hearing listed for 5 and 6 April 2018 be adjourned to dates to be fixed.
Otherwise, the proceedings be adjourned to a directions hearing at 2.00pm on 27 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 269 of 2015
| JUDITH ANNE MCCULLOCH |
Applicant
And
| TRANSPORT WORKERS' UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH |
Respondent
REASONS FOR JUDGMENT
Introduction
The Originating Application is an application alleging that the employment of the applicant, Judith Anne McCulloch (“Ms McCulloch”) was terminated by the respondent, the Transport Workers’ Union of Australia Western Australian Branch (“Union”), for a prohibited reason because Ms McCulloch exercised a right to be temporarily absent from work due to illness pursuant to the provisions of s.352 of the Fair Work Act 2009 (Cth) (“FW Act”) and reg.3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”). Although the pleadings further state that the illness or injury was of a kind prescribed by reg.3.01(4) of the FW Regulations, Ms McCulloch says that her case is not constrained to that subsection, and it is open to her to argue at hearing that the absence falls within s.352 of the FW Act, by virtue of one of the other limbs of reg.3.01 of the FW Regulations.
By an Application in a Case filed 1 February 2017 the Union seeks to have the Originating Application summarily dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
Relevant legislative provisions
Section 352 of the FW Act provides as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the FW Regulations provides as follows:
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee's absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation.
Section 12 of the FW Act defines “medical certificate” as follows:
“medical certificate” means a certificate signed by a medical practitioner.
Sections 96 and 97(a) of the FW Act provide as follows:
96
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave.
Accrual of leave
(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year.
97
Taking paid personal/carer’s leave
An employee may take paid personal/carer's leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee;…
Section 102 of the FW Act provides as follows:
An employee is entitled to 2 days of unpaid carer's leave for each occasion (a permissible occasion ) when a member of the employee's immediate family, or a member of the employee's household, requires care or support because of:
(a) a personal illness, or personal injury, affecting the member; or
(b) an unexpected emergency affecting the member.
Section 103 of the FW Act relates to the taking of unpaid carer’s leave and provides that:
(1) An employee may take unpaid carer's leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.
(2) An employee may take unpaid carer's leave for a particular permissible occasion as:
(a) a single continuous period of up to 2 days; or
(b) any separate periods to which the employee and his or her employer agree.
(3) An employee cannot take unpaid carer's leave during a particular period if the employee could instead take paid personal/carer's leave.
Section 107(2) and (3) of the FW Act provides as follows:
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer's leave--the leave is taken for a reason specified in section 97; or
(b) if it is unpaid carer's leave--the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or
(c) if it is compassionate leave--the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).
Section 340(1) of the FW Act deals with adverse action and provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Sections 360 and 361 of the FW Act provide as follows:
360. For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361. (1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Substituted Statement of Claim
In a Substituted Statement of Claim (“SSOC”) Ms McCulloch pleads her claim as follows:
a)that the termination of her employment was for the prohibited reason of her exercising her generally protected right to be temporarily absent from work as provided by s.352 of the FW Act: SSOC at [5];
b)that she was temporarily absent from work because of illness of a kind prescribed by the FW Regulations: SSOC at [4];
c)that her illness or injury was of a kind prescribed by reg.3.01(4) of the FW Regulations in that she had “provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act” for taking paid personal leave for a personal illness as mentioned in s.97(a) of the FW Act: SSOC at [6]; and
d)that she provided notice to the Union in accordance with s.107(2) of the FW Act, and that the Union did not require her to provide any evidence of the type described in s.107(3) of the FW Act: SSOC at [7] and [8].
The facts in support of Ms McCulloch’s claim as they appear in the SSOC are as follows:
a)Ms McCulloch's date of commencement of employment with the Union was 19 May 2014: SSOC at [1];
b)the date of termination of Ms McCulloch’s employment with the Union was 24 October 2014: SSOC at [3], (and so she was employed for a total of 22.6 weeks);
c)in late July 2014 Ms McCulloch suffered a number of serious health problems: SSOC at [12(d)];
d)Ms McCulloch's elderly father (for whom Ms McCulloch was primary family carer) also suffered major setbacks in his health at about this time: SSOC at [12(f)];
e)by September 2014 Ms McCulloch's health had deteriorated and she was required to take time away from the Union office: SSOC at [12(m)];
f)Ms McCulloch's doctor discussed her health situation with Ms McCulloch and advised her to work 4 days per week temporarily until her personal health issues, and those of her father had settled: SSOC at [12(p)]; and
g)on 20 October 2014 following a meeting of Union organisers Ms McCulloch spoke to Mr Dawson (the Union’s Acting Branch Secretary: SSOC at [12(a)]) about her doctor’s letter: SSOC at [12(q)], and Ms McCulloch’s employment was terminated four days later: SSOC at [3].
The Union’s Application in a Case and submissions
The Union’s Application in a Case seeks that the proceedings be dismissed or permanently stayed pursuant to s.17A(2) of the FCCA Act and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on the grounds that Ms McCulloch’s claim has no reasonable prospect of success.
The Union’s Application in a Case is supported by the affidavit of Rachel Cosentino sworn 1 February 2017 (“Ms Cosentino’s Affidavit”). Ms Cosentino’s Affidavit is said to be sworn in support of an application for summary dismissal pursuant to r.13.10 of the FCC Rules. Ms Cosentino is a lawyer acting for the Union.
In relation to relevant factual material Ms Cosentino’s Affidavit asserts as follows:
a)that between 19 May 2014 and 20 October 2014 Ms McCulloch was absent from work for a total of 15.5 days: Ms Cosentino’s Affidavit at [5] and Annexure RC-1, being a document recording leave taken by Ms McCulloch (“Leave Record”);
b)based on the Leave Record Ms McCulloch had exceeded any entitlement to paid personal leave under the FW Act, and had no right to paid personal leave for personal illness or injury from any time after 16 July 2014 as she had a deficit of leave accrued from that time: Ms Cosentino’s Affidavit at [5];
c)Ms McCulloch told Mr Dawson on separate occasions that she wanted time off work because the roof had fallen in on her house, and to visit her father who was in a nursing home, as well as because of her own ill health: Ms Cosentino’s Affidavit at [6]; and
d)that the reasons given by Ms McCulloch for the leave taken by her do not constitute paid personal leave for personal illness or injury and were therefore not a temporary absence due to illness as defined by the FW Act: Ms Cosentino’s Affidavit at [8] (no objection was taken to this evidence which is in fact a submission).
In the Union’s submissions in support of the Application in a Case the Union:
a)sets out the relevant legislative provisions relied upon being s.17A(2) of the FCCA Act and r.13.10 of the FCC Rules, and asserts that summary dismissal is sought because Ms McCulloch’s application has no reasonable prospect of being successfully prosecuted, in particular because her claim fails to meet the statutory criteria for a temporary absence due to illness;
b)sets out the principles with respect to assessing whether a case has no reasonable prospect of success for the purposes of s.17A of the FCCA Act, and does so in substantially the same terms as are repeated hereunder at [20], those terms being principally taken from Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 (“Jackson”) at [15] per Judge Lucev, and notes that the Court’s power to summarily dismiss is discretionary, with the party seeking summary dismissal of an application bearing the onus of persuading the Court to make that order, citing Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 (“Cassimatis”) at [46] per Reeve J;
c)says that aside from the plea that Ms McCulloch was absent from work due to illness, no particulars of her absences are pleaded;
d)relying upon the Leave Record, says that Ms McCulloch was absent from work for a total of 15.5 days in the period 4 June 2014 to 16 September 2014;
e)says that Ms McCulloch has not filed any evidence to contend the absences referred to in the SSOC were not those contained in the Leave Record;
f)says that neither Ms McCulloch in her SSOC nor the Leave Record distinguishes between periods of time Ms McCulloch was absent from work for “serious health problems”, her father’s health setbacks, “health deterioration” or “health issues”;
g)says that reg.3.01 of the FW Regulations is an exhaustive statement of the illnesses or injuries which will support a claim under s.352 of the FW Act and that if a particular absence does not fall within it, the protection has no application even if ordinarily the absence could be said to be temporary, citing Rogers v Millennium Inorganic Chemicals Ltd & Anor [2009] FMCA 1; (2009) 178 IR 297; (2009) 229 FLR 198 at [52]-[53] per Lucev FM (“Rogers”); Hodkinson v The Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 at [157] per Cameron FM (“Hodkinson”);
h)says that the test set by reg.3.01 of the FW Regulations requires Ms McCulloch to have taken the steps which the relevant sub-regulations set out, and that Ms McCulloch is required to produce evidence to demonstrate those steps: Hodkinson at [158] per Cameron FM;
i)says that s.97(a) of the FW Act refers to paid personal/carer's leave taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee;
j)says that Ms McCulloch's absences due to her father's health issues are neither personal illness nor personal injury and therefore do not fall within the protections in s.352 of the FW Act;
k)says that none of Ms McCulloch’s absences after 4 June 2014 were leave under s.97(a) of the FW Act because Ms McCulloch was not entitled to take paid personal/carers' leave, as under s.96 of the FW Act, the entitlement to paid personal/carer’s leave is:
i)10 days for each year of service; and
ii)accruing progressively during a year of service according to the employee’s ordinary hours of work;
l)says that for a full time employee, paid personal leave accrues at the rate of 0.19 days per week of completed service, and that as at 4 June 2014, Ms McCulloch had accrued an entitlement to paid personal leave of 0.38 days;
m)from 4 June 2014 Ms McCulloch’s absences exceeded any entitlement to paid personal leave as demonstrated in the following table:
Date Balance Accrued (days) Taken (days) Balance after leave (days) 4 June 2014 0.19 1 -0.81 16 June 2014 0.52 2 -1.48 29 July 2014 1.687 3 -1.313 8 August 2014 1.958 3.5 -1.542 18 August 2014 2.26 5.5 -3.24 20 August 2014 2.31 6 -3.68 2 September 2014 2.39 8 -5.61 8 September 2014 2.55 10 -7.44 10 September 2014 2.60 11 -8.39 23 September 2014 2.95 14.5 -11.55 20 October 2014 3.71 15.5 -11.79
n)says Ms McCulloch's absences were not paid personal leave under reg.3.01(4) of the FW Regulations and were therefore not a “temporary absence from work because of illness or injury” for the purposes of s.352 of the FW Act.
Ms McCulloch’s submissions
Ms McCulloch’s submissions are as follows:
a)Ms McCulloch alleges that her employment was terminated for a prohibited reason, namely that she exercised her generally protected right to be temporarily absent from work under s.352 of the FW Act, and that at the time of her termination of employment she was temporarily absent from work because of an illness of a kind prescribed by the FW Regulations;
b)that although the SSOC states that the illness or injury was of a kind prescribed by reg.3.01(4) of the FW Regulations, Ms McCulloch says that her case is not so constrained, and it is open to her to argue at hearing that her temporary absence fell within one of the other limbs of reg.3.01 of the FW Regulations;
c)that the Federal Circuit Court is not a court of strict pleadings: Leske v Trinity Lutheran College Mildura & Ors [2015] FCCA 572 at [13] per Judge Whelan;
d)that she will give evidence at hearing that she sent a copy of a letter from her doctor, and signed by her doctor (“Doctor’s Letter”), to Mr Dawson by email on 19 or 20 October 2014 (of which she does not have a copy as, despite multiple requests, discovery of those documents has not been provided by the Union);
e)that the Doctor’s Letter meets the definition of a “medical certificate” in s.12 of the FW Act;
f)to the extent that her leave for personal illness was unpaid, and that although the Doctor's Letter (“medical certificate”) was not provided within 24 hours of the absence, it is at least arguable it was provided within “such longer period as is reasonable in the circumstances”, as provided by reg.3.01(2)(b) of the FW Regulations, with those circumstances including the termination of Ms McCulloch’s employment (citing the discussion in Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892 at [72]-[74] per Lucev FM (“Devonshire”));
g)that in Devonshire the Court said at [52] per Lucev FM:
For an employer to succeed in avoiding an adverse finding under the provision the employer must prove either that it did not know the reason for the absence or that it did not terminate the employment by reason of the absence: Sperandio v Lynch [2006] FCA 1648; (2006) 160 IR 360 at 383 per Jessup J; [2006] FCA 1648 at para.91 per Jessup J.
h)that in relation to relevant particulars the following are said to be the relevant particulars:
i)of SSOC at [12(e)] - Ms McCulloch’s doctor advised her to take sick leave while tests were carried out;
ii)of SSOC at [12(f)] - at around the same time, Ms McCulloch's elderly father (for whom Ms McCulloch was the primary family carer in conjunction with his aged care residence) also suffered major setbacks in his health;
iii)of SSOC at [12(g)] - these events resulted in Ms McCulloch being required to take a number of periods of personal leave;
iv)of SSOC at [12(h)] - Ms McCulloch informed her immediate supervisor, Industrial Coordinator, Mr Glenn Ferguson, of her personal situation;
v)of SSOC at [12(i)] - the Union at no time requested that Ms McCulloch provide medical certificates, Doctors' letters or statutory declarations attesting to the reasons for taking personal leave;
vi)of SSOC at [12(j)] - Ms McCulloch continued to keep the Union apprised of her situation and the need to be away from the Union office, and to take personal leave; and
vii)of SSOC at [12(k)] - during the course of Ms McCulloch's employment, the Union introduced a system of leave forms to be completed, with which Ms McCulloch complied;
i)as referred to in Ms Cosentino’s Affidavit at [6]-[8], the Union was aware of the reasons for Ms McCulloch’s absences being her own ill-health, and the requirement to care for her elderly father due to his ill-health;
j)there is a strongly arguable case that the Union terminated Ms McCulloch’s employment because she was temporarily absent from work;
k)the Union subsequently stated, via its Response to the Fair Work Application, that the reasons for termination of Ms McCulloch's employment were that:
The applicant had an excessive amount of time off work; The applicant was rude and disruptive in the office, and The applicant regularly disagreed with instructions given by the Branch Secretary about her work.
l)further, and in the alternative, it would be open to Ms McCulloch, on the facts as pleaded in the SSOC, to argue that her employment was terminated, at least in part, due to her exercising her right to take unpaid carer's leave, pursuant to s.102 of the FW Act;
m)in contrast to a strike-out application, an application for summary judgment requires consideration of matters outside the pleading: Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 (“Takemoto”) at [4] per Flick J (and the cases there cited), and where having cited Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [24]-[25] per French CJ and Gummow J the Federal Court in Takemoto at [13] per Flick J observed as follows:
Third, the requirement that there be “no reasonable prospects of success” can be satisfied where there is a defect in the pleadings which cannot be cured or, alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J (as his Honour then was).
n)any defects in Ms McCulloch's pleadings are capable of being cured, as it remains open to her to apply for leave to amend her pleadings pursuant to r.7.01 of the FCC Rules, and pursuant to r.7.03(4) of the FCC Rules, such amendment can include the adding of a cause of action (if it relates substantially to the same facts as pleaded); and
o)it cannot be said that Ms McCulloch has no reasonable prospect of successfully prosecuting the proceeding.
Consideration
Principles
The phrase “no reasonable prospect of success” is referred to in both s.17A of the FCCA Act and an equivalent provision in s.31A of the Federal Court of Australia Act 1976 (Cth).
In assessing whether a case has “no reasonable prospect of success” under these provisions, the following principles apply:
a)the power to dismiss an action summarily should not be exercised lightly, or as was put in Takemoto at [12] per Flick J, “the power must necessarily be approached with caution”;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. In a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court will be more reluctant to dismiss a proceeding on the face of a pleading;
c)summary dismissal applications should not involve the Court in lengthy and elaborate hearings for the purposes of determining whether or not a proceeding has no reasonable prospect of success;
d)if there is an issue of fact or law to be decided, and the rights of the parties depend upon it, it is appropriate that the matter goes to hearing;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the Court must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a hearing;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a hearing on the merits but not an actual adjudication of those merits such that the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to hearing, it may succeed.
See Jackson at [15] per Judge Lucev citing: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298; (2007) 66 ATR 306; (2007) 240 ALR 792; (2007) 95 ALD 30 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 46 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
The Court’s power to summarily dismiss an application is discretionary. The party making the summary dismissal application bears the onus of persuading the Court to make such an order: Cassimatis at [46] per Reeve J.
Application of the principles to this case
In this case it is plainly argued by Ms McCulloch on the materials before the Court that:
a)she had an illness or injury which:
i)was the subject of evidence provided to the Union for the taking of paid personal leave for personal injury: FW Regulations, reg.3.01(4); or
ii)was the subject of a medical certificate (the Doctor’s Letter arguably being a “certificate” that is “writing on paper certifying to the truth of something or to status … etc”: Macquarie Dictionary (7th Edn) (Macquarie Dictionary Publishers: Sydney, 2017), page 255) provided to the Union in a period more than 24 hours after the taking of an absence because of illness or injury, but within a period which was reasonable in the circumstances: FW Regulations, reg.3.01(2); or
b)she had an entitlement to two days unpaid carer’s leave: FW Act, s.102, to care for her father, and that as a consequence of exercising a workplace right (to take that carer’s leave) adverse action was taken against her by reason of the termination of her employment by the Union, contrary to s.340(1) of the FW Act.
In the Court’s view any one of the above arguments, properly pleaded and supported ultimately by evidence, might succeed, and each is a possibly plausible reason, or part of a plausible reason: FW Act, s.360, for Ms McCulloch’s termination of employment, and therefore a foundation for an arguable case of termination of employment for a prohibited reason.
A number of arguments raised by the Union against Ms McCulloch’s claims do not stand the scrutiny necessary to meet the high standard required to warrant summary dismissal of an application. In that regard:
a)first, the purpose for which particular leave was taken by Ms McCulloch – and whether it would be for ill health or injury or to care for her father – is a matter capable of being properly pleaded and the subject ultimately of evidence. It is notable, for example, that the Leave Record now produced by the Union as Annexure RC-1 to Ms Cosentino’s Affidavit characterises Ms McCulloch’s leave as “sick leave”, and that the Response to the Fair Work Application is said to give, as part of the reason for her termination that she had “an excessive amount of time off work”, which presumably included the “sick leave”. If there is a defect in pleading in this regard then it is plainly curable;
b)second, and likewise, if any particular steps were required by the terms of reg.3.01 of the FW Regulations compliance with those can be pleaded and ultimately be the subject of evidence, and thus, once again, any alleged defect in the pleading is curable;
c)third, even if Ms McCulloch’s absences were due to her father’s health issues and neither personal illness nor personal injury and therefore not within the protections of s.352 of the FW Act and reg.3.01 of the FW Regulations, Ms McCulloch may still have been exercising a workplace right, and as the argument was put at the hearing of the Application in a Case, that workplace right under s.102 of the FW Act may have been the reason, or part of the reason: FW Act, s.360, for adverse action taken against her by way of termination of employment, and that is a matter that can plainly be pleaded and the subject of evidence in due course; and
d)fourth, the Union’s argument proceeded on the basis that Ms McCulloch was not entitled to take paid personal/carer’s leave under s.96 of the FW Act because the entitlement was to 10 days for each year of service accrued progressively during a year of service according to the employee’s ordinary hours of work, and that Ms McCulloch had exceeded her entitlement. That argument assumes that the quantum of any entitlement to paid personal/carer’s leave does not exceed the minimum prescribed by the relevant National Employment Standard (“NES”) in s.96 of the FW Act. Those entitlements, which it is mandatory to meet as a minimum, are a minimum entitlement and do not prescribe a maximum entitlement or a requirement to only pay the minimum entitlement: Kilminster v Sun Newspapers Limited (1931) 46 CLR 284; (1931) 32 SR (NSW) 313; CLR at 289 per Gaven Duffy CJ, Starke, Dixon and McTiernan JJ; Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) AILN 7; (1995) 38 AILR 3-194; CLR at 421 per Brennan CJ, Dawson and Toohey JJ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v CJ Manfield Pty Ltd [2011] FMCA 374; (2011) 63 AILR 101-370 at [22] per Lucev FM (an appeal against this judgment on a different issue was dismissed: CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 253). In this case it is not apparent on the materials presently before the Court that the leave Ms McCulloch took was unpaid leave falling out with the ambit of s.352 of the FW Act. The Court notes that in the Leave Record the leave taken by Ms McCulloch has been characterised as sick leave, notwithstanding the anonymous hand-written note seeking to qualify that characterisation by saying that it is suspected that the “sick leave taken” records absences not necessarily sick leave. There is no positive evidence to indicate that the leave taken was unpaid: Takemoto at [13] per Flick J. In the circumstances, it may be open to Ms McCulloch to argue that she was granted an entitlement to paid personal/carer’s leave in excess of that prescribed by the NES in s.96 of the FW Act, and therefore still falls within the ambit of s.352 of the FW Act. Alternatively, unpaid periods of leave may be caught by ss.102 and 103(1) and (2)(b) of the FW Act.
In all of the above circumstances, it cannot be said that Ms McCulloch’s application has no reasonable prospect of success. The Union’s Application in a Case to summarily dismiss Ms McCulloch’s application must be dismissed. Although it appeared to be conceded by her Counsel at the hearing of the Application in a Case that the SSOC might be better pleaded, it nevertheless remains open for Ms McCulloch to further amend the SSOC: FCC Rules, rr.7.01 and 7.03(4). In that regard the Court notes that the SSOC is the first occasion on which a Statement of Claim has been drafted for Ms McCulloch by her lawyer, and it would not be unusual for a party to be granted leave more than once for their lawyer to amend a Statement of Claim to properly reflect the substance of what might be claimed by an applicant. The Court has, therefore, also concluded that leave should be granted to Ms McCulloch to file a Proposed Amended SSOC: “Proposed” because of the requirements of rr.7.01 and 7.05(4) of the FCC Rules. The hearing presently listed on 5 and 6 April 2018 ought to be adjourned to dates to be fixed, and otherwise the matter ought to be adjourned to a future directions hearing.
Conclusions and orders
For the reasons set out above the Court has concluded that:
a)the Union’s Application in a Case to summarily dismiss Ms McCulloch’s application must be dismissed;
b)leave should be granted to Ms McCulloch to file a Proposed Amended Substituted Statement of Claim;
c)the hearing listed for 5 and 6 April 2018 is to be adjourned to dates to be fixed; and
d)otherwise, the matter is to be adjourned to a further directions hearing.
On the face of it this is a no costs matter: FW Act, s.570(1). If, however, any party considers that they might be entitled to costs: see FW Act, s.570(2), that is a matter which can be the subject of an appropriate application pursuant to r.21.02(1) of the FCC Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 March 2018
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