Mozumder v Little Zak's Academy
[2022] FedCFamC2G 860
•21 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mozumder v Little Zak’s Academy [2022] FedCFamC2G 860
File number(s): SYG 646 of 2022 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2022 Catchwords: INDUSTRIAL LAW – application for summary dismissal – application for costs. Legislation: Fair Work Act 2009 Cth) ss 13, 14, 383, 570, 587, 772, 776, 778
Federal Circuit and Family Court Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Federal Circuit Court Rules 2001 (Cth) r 13.07
Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Cases cited: Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166
Construction, Forestry, Mining and Energy Union v Corinthian Industries(Australia) Pty Ltd (No 2) [2014] FCA 351
Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199
Re Australian Education Union (NT Branch) (No 2) [2011] FCA 728
Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 17 October 2022 Date of hearing: 17 October 2022 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Munzenrieder ORDERS
SYG 646 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAZMUN MOZUMDER
Applicant
AND: LITTLE ZAK'S ACADEMY
First Respondent
THE TRUSTEE FOR LZ UNIT TRUST 27
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The application is dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant to pay the Respondent’s costs fixed in the sum of $3,142.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
On 5 May 2022, Nazmun Mozumder, the applicant, filed an application in the Court alleging unlawful termination of employment pursuant to the Fair Work Act 2009 (Cth) (‘the Act’). In part G of the application, at question 24, the applicant claimed that her termination by the respondents was for the reason of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion national extraction or social origin.
Attached to the Initiating Application were a number of documents, including a certificate under s 776 of the Act issued by the Fair Work Commission, indicating that a conference had taken place on 7 April 2022 but was unsuccessful in resolving the dispute.
Also attached to the Initiating Application was a contract of employment between the applicant and Little Zak’s Bondi (LZ Unit Trust 27) ABN 31 769 482 938. Relevantly, at paragraph 3.1 of the contract of employment, commencing 9 November 2021 the following condition appears:
3. Probation
3.1 Your employment will be subject to an initial 6 month probationary period. During probation, the Employer will assess the suitability of your continuing employment, and either party may terminate your employment by providing one week’s written notice to the other party (or pay in lieu of notice).
It is common ground between the parties that the applicant’s employment was terminated on 25 November 2021 on the basis that the applicant had been unsuccessful in completing her probationary period. In that letter the reason for termination was stated as follows:
The Company has assessed your suitability for the position of Certificate 3 Room Assistant and has been identified that you are not suitable, therefore the Company has decided to terminate your employment, with notice.
It is not in dispute that the applicant received one week’s pay in lieu of notice and was paid for all hours worked up till 16 November 2021.
In its Response, the respondents made certain claims including that the application was defective as the respondents were not accurately identifiable. Further, the applicant had failed to supply any material or evidence in support of her claims of unlawful dismissal or particularise the basis upon which he says her dismissal was unlawful.
Accordingly, the Court made orders in June 2022 that the matter was listed for summary dismissal hearing. The applicant was ordered to file and serve an outline of submissions of no more than 10 pages before 1 July 2022, noting that the respondent had filed appropriate submissions on 9 June 2022.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. She was assisted by an interpreter. Notwithstanding Court orders, no evidence or written submissions were filed by the applicant in support of her case. Following leave being granted, the applicant tendered a copy of her contract of employment, a form F9A application form filed in the Fair Work Commission and a Form F37 also filed in the Fair Work Commission.
At the commencement of the hearing, the applicant was advised as to the purpose of the hearing, that being an application for summary dismissal by the respondent. The Court ensured that the applicant was in possession of a copy of the respondent’s written submissions together with extracts of an Affidavit sworn by Lazar Krstic, solicitor for the respondent. The Court also explained to the applicant that if the application for summary dismissal was successful, the respondent would be making an application for legal costs. The Court allowed an adjournment, in order for the applicant to reread the applicant’s written submissions and the relevant parts of the Affidavit of Mr Krstic. Following the adjournment, the applicant confirmed that she did not wish to withdraw the application by her before the Court, and wished to contest the application for summary dismissal.
The applicant told the Court that she was just trying to do her job. She was engaged in changing nappies when one of their workers told her that she was too slow. The applicant felt that she was insulted and humiliated in front of the children. She said “they had no right to tell me I was too slow”. The applicant states that she was trying to discharge her duties to the best of her ability. The next day, the applicant told the team leader, of what happened and said that the other worker spoke to her in an inappropriate manner. Later in the day, she was called in to see the Director of the Childcare Centre, who allegedly told the applicant that she was not energetic and passionate about the children. The Director informed her that the respondent proposed to terminate her employment with the centre.
The Court noted in the form F37 that the applicant alleged her termination was unfair as it was not after the six month probation period had been completed and the termination was immediate. Additionally, she alleged the termination within the probation period was not based on the reasons stated with the signed employment contract. The applicant stated she had been negatively impacted financially and mentally and she should have been employed to the end of the six-month period with a notice of one week at the end of the period.
The applicant stated that she had been humiliated and insulted by the termination and her employers had no right to tell her she was too slow. She asked the Court to provide her with justice.
The Respondent’s Submissions
In written submissions, the respondent noted that the initial application to the Fair Work Commission by the applicant was for unfair dismissal. This initial application was dismissed by the Fair Work Commission on 21 December 2021, pursuant to s 587 of the Act, on the basis that the applicant did not serve the minimum period of employment, as defined by s 383 of the Act.
By way of form F9, the applicant lodged an application to the Fair Work Commission citing an unlawful termination dispute. Notably, the applicant alleged that she was an employee who was not a “national system employee” and/or that she was not employed by “national system employer” (as those terms are defined by ss 13 and 14 of the Act respectively).
At paragraph 12.1 of form F9, the applicant alleged that she was unlawfully terminated from her employment for reason of her age, race and physical or mental disability.
In its Response, the respondent alleged that the applicant had been arguing about the responsibilities which had been allocated to her within the particular room in which she was caring for children. She was spoken to as to the expectations of a room assistant and offered further support if required. The applicant was reported by other staff members at the centre including complaints such as the applicant was argumentative, was aggressive in a communication with others, was unhelpful in the room she was allocated to and was disruptive to other staff members in that she failed to put in the same level of effort as the others. It was further alleged that the applicant was not making an effort to attend the majority of the children in the room, rather, tended to focus on only one child.
It was submitted the respondent determined to terminate the applicant’s employment on the basis that the applicant was negative and aggressive in a communications with the centre Director and other staff members. She failed to collaborate with her colleague which was a major failure in so far as the nature of the employment is concerned, noting the importance of teamwork. Further, the applicant’s behaviour was causing a disharmony within the baby’s room for which she was hired for.
The respondent denied the allegations that the applicant was terminated in relation to her race, age or physical or mental disability. In the absence of any evidence, it was submitted that the applicant had no reasonable prospect of successfully prosecuting the proceedings, in the alternative, they were frivolous or vexatious, and all the proceedings were an abuse of the process of the court.
It was also submitted that the respondent was in fact a national system employer and disputes the applicant is entitled to seek any relief and/or that the commission held the requisite jurisdiction to hear the applicant’s claim.
It was also submitted that the applicant was outside the relevant time frame stipulated in
s 778(a)(ii) of the Act in that she did not file her application to the Court within 14 days after the day that the s 776 certificate was issued by the Fair Work Commission, that being on 11 April 2022 and the application being filed in this Court on 5 May 2022. It was submitted the Court should not grant leave to the applicant to file outside the extension of time.
It was further submitted that no evidence had been provided to support any of the allegations that the applicant was unlawfully terminated on the basis of any of the criteria set out in s 772 of the Act. Further, she had failed provide any information in support of the relief she was seeking including the amount of compensation sought in the quantification of same, the basis upon which reinstatement would be sought, where reinstatement would be inappropriate given, it was alleged, there was a loss of trust confidence between the parties and the failure to provide any basis upon which pecuniary penalty could be sought.
It was submitted the claim, as presently formulated, could not be substantiated and should be dismissed as not enjoying any reasonable prospects of success, that the proceedings are frivolous or vexatious or were an abuse of process.
The Law
Section 143(2) of the Federal Circuit and Family Court Act 2021 (Cth) relevantly provides as follows:
2) The Federal Circuit and Family Court of Australia (Division 2) may give judgement for one party against another in relation to the whole or any part of a proceeding if:
a.The first party is defending the proceeding or that part of the proceeding; and
b.The court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’) provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, the Court is satisfied that:
a. the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
b. the proceeding or claim for relief is frivolous or vexatious; or
c. the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.13(a) of the Rules repeats that contained within former r 13.07(1)(b) (ii) of the repealed Federal Circuit Court Rules 2001 (Cth), which in turn reflected s 17A of the repealed Federal Circuit Court of Australia Act 1999 (Cth). In the Explanatory Memorandum for the introduction of s 17A of the Federal Circuit Court of Australia Act 1999 (Cth), the Minister said:
26. This item inserts a new section 17 A into the Federal Magistrates Act. Section 17A provides that the FMC may give summary judgement in a matter where it is satisfied that a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding has no reasonable prospects of success.
27. Subsection 17A(3) provides that for the purposes of giving summary judgement, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless bound to fail further to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgement by reference to the “no reasonable cause of action” test in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable.
In Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 Driver FM (as he was then) discussed the law relating to the test applicable under the Act saying:
[29] I agree with French J that s.17A, like s.31A, has nothing to do with striking out pleadings. The section, and the Court rules which amplify it, deal with summary judgment and summary dismissal. Pleadings may be relevant in order to determine whether a party should receive summary judgment or suffer summary dismissal but the section, and the rules, are not vehicles for dealing with deficient pleadings. That is, if anything, more clear in this Court, which is not a court of pleadings. Further, in considering whether an apparently hopeless case can be saved by amendment, or further evidence, it may be necessary to consider the conduct of the party who would benefit from that indulgence, and the other circumstances of the proceedings, and determine whether that party is entitled to it, or whether the party should be denied that indulgence.
[30] Otherwise, in the absence of guidance from the Full Federal Court on the interpretation of s.31A, I will follow the cautious approach of Rares J and Jacobson J. In particular, I agree with and will apply the principles summarised by Jacobson J, in the following slightly amended terms:
In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
•There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
•Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
•Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
•The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.
The Evidence
In the Court’s view, the proceedings currently before the Court are misconceived. The applicant’s submissions to the Court indicate that she is of a view that she was entitled to be employed for the full six months of her probation period and could only be terminated at the end of that probation period with one week’s notice. A fair reading of clause 3 of the employment contract between the applicant and the respondent clearly indicates that the applicant could be terminated with one week’s notice during the probationary period.
It is clear, again, from the applicant’s own submissions that her principal course of complaint is that she felt with insulted and humiliated by the feedback she received from a fellow employee. That feedback included that she was too slow and the spending too much time with one child rather than attending to the needs of all of the children of the baby’s room.
The termination letter from the respondent clearly sets out the basis of the termination with it being identified that the applicant was not suitable for the position. This occurred within a few days of the applicant commencing work with the respondent. No evidence has been provided to the Court that would indicate that the applicant was terminated unlawfully due to one of the grounds set out in s 772 of the Act. The Court does not accept that the applicant was discriminated against because it was alleged she was told “you are slow” and “you are not energetic”. These are not attributes which fall under the description with contained within in s 772(1)(f) of the Act which include a race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
In these circumstances, the Court is satisfied, pursuant to r 13.13(a) of the Rules, that the applicant has no reasonable prospect of successfully prosecuting her claim. Accordingly, the proceedings are summarily dismissed.
The Court notes the jurisdictional objection raised by the applicant together with the submission that originating process was filed with the Court out of time. The Court is satisfied that these matters are not of sufficient gravity for summary dismissal and in an appropriate case, could have been properly dealt with by an amendment to the originating application and leave being granted for the application to be filed out of time, noting it was only a few days.
The Issue of Costs
The respondent has also asked the Court to make an award for costs against the applicant, quantified in a fixed amount $3,142.00 by reference to the relevant scale. Submissions from both parties were taken as part of the summary dismissal hearing to obviate the need for a further hearing.
The applicant claimed that she was indigent and would be unable to meet any costs order
Costs may only be awarded in proceedings under the Act if the relevant matters under s 570(2) are satisfied. Section 570(2) of the Act reads as follows:
2) The party may be ordered to pay costs only if:
a.the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
b.the court is satisfied that the parties unreasonable act or omission because the other party to incur costs; or
c.the court is satisfied of both of the following:
i.the party unreasonably refuse to participate in a matter before the FWC;
ii.the matter arose from the same facts as the proceedings.
In this case, the respondent submits that the proceedings were either vexatious or instituted without reasonable cause.
In relation to the latter, it was submitted the test as to whether not proceeding has been instituted without reasonable cause, has been taken to mean that, at the time of the commencement of the proceedings, the parties case had reasonable prospects: Re Australian Education Union (NT Branch) (No 2) [2011] FCA 728; Construction, Forestry, Mining and Energy Union v Corinthian Industries(Australia) Pty Ltd (No 2) [2014] FCA 351. This is to be distinguished from a party who commenced proceedings reasonably and were unsuccessful. In Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199 at [60] it was held that “a proceeding will be instituted without reasonable course if it has no reasonable prospects of success, or was doomed to failure.” That test can be answered by asking whether the party bringing the claim, on the facts apparent to the party and its lawyers, properly advised, should have known that the claim had no reasonable prospect of success : Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 at [9]-[10]. In Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322, Barker J stated at [10]:
If success depends upon resolution the applicant’s favour of one or more arguable points of law, it is inappropriate to say that the proceeding was instituted “without reasonable cause’. But where are the applicant’s own version of the facts it is clear the proceeding must fail, it may be said it lacks a reasonable cause.
To paraphrase the words of Barker J at [12], as applicable to this case, in my view, as much as the applicant feels highly aggrieved at her termination from the respondent’s employment, on the basis that she felt humiliated and insulted, on the facts apparent or which should have been apparent to the applicant had she taken legal advice at the time of instituting the proceedings in this Court, she should have appreciated that there was no substantial or realistic prospect of success on the grounds or basis advanced by her in the proceeding. The fact she was, self-represented, can make no difference to this question of law on the facts before the Court.
In these circumstances, the Court is satisfied that the applicant instituted the proceedings in this Court without reasonable cause within the expression of s 570(2) of the Act.
That being the case, there is no need for the court to consider whether not the proceedings were vexatious. The Court is satisfied that an amount of costs fixed in the amount of $3,142.00 is an appropriate mount by reference to the relevant scale cost for the proceedings which had been defended by the applicant. These costs should be paid within 28 days of the date of the orders of the Court or such other time as may be agreed between the applicant and the respondent.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 21 October 2022
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