Ms Tarja Bray v Corporation of the Synod of the Diocese of Brisbane T/A Anglicare Southern Queensland 'Abri'

[2013] FWC 7805

[2013] FWC 7805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

s.587 - Dismissing applications

Ms Tarja Bray
v
Corporation of the Synod of the Diocese of Brisbane T/A Anglicare Southern Queensland - 'Abri'
(U2013/8027)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 OCTOBER 2013

Application for unfair dismissal remedy - Application to dismiss under s.399A and s.587 - Finding that application has no reasonable prospects of success - Application under s.587 granted dismissing unfair dismissal application.

Overview

[1] This decision concerns an application by Ms Tarja Bray under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by The Corporation of the Synod of the Diocese of Brisbane t/a Anglicare Southern Queensland - “Abri”.

[2] Ms Bray’s application was made on 28 March 2013 and states that following written complaints to her employer about bullying, harassment and intimidation in the workplace, she was advised that her allegations were denied and that this left her no alternative but to resign her employment. Ms Bray contends that this amounts to constructive dismissal. It is asserted in the application that Ms Bray suffers from a “distressed psychological state” and that Anglicare’s actions against her are unreasonable and were taken in an unreasonable way. The application also states that Ms Bray is represented by Connollys Lawyers Pty Ltd.

[3] In its response to Ms Bray’s application, filed on 16 April 2013 Anglicare raised a jurisdictional objection on the ground that Ms Bray was not dismissed and resigned from her position. Anglicare disputes Ms Bray’s contention that she was constructively dismissed because of conduct or a course of conduct on its part.

[4] The matter was not resolved in conciliation, and was listed for hearing on 27 August 2013. For reasons which will become obvious, that date was required to be vacated.

[5] Ms Bray’s application and the proceedings associated with it have been impacted by a number of factors including the late withdrawal of Ms Bray’s legal representative and her failure to understand and comply with the requirements set out in Directions for the hearing and determination of her application. The situation has not been assisted by the fact that the vast majority of the material filed by Ms Bray is either incomprehensible or irrelevant to the matters in dispute. The material that is comprehensible is late and was not filed in accordance with Directions issued for the conduct of this matter.

[6] On the basis of Ms Bray’s non-compliance with Directions, Anglicare applied under s.399A of the Act for Ms Bray’s application to be dismissed. Anglicare subsequently sought to rely on s.587 of the Act, to have Ms Bray’s application dismissed on the grounds that it has no reasonable prospects of success. This decision concerns Anglicare’s application under s.587 of the Act.

The history of Ms Bray’s application

[7] It is necessary to set out the history of Ms Bray’s application. When the matter was not resolved in conciliation, a Directions Conference/Hearing was held on 19 June 2013, in relation to the jurisdictional objection.

[8] By that stage, a Notice of representative commencing to act was filed on behalf of Anglicare advising that Anglicare was represented by Carter Newell Lawyers. In light of the allegations made in Ms Bray’s application, and the fact that Ms Bray was legally represented, it is entirely reasonable that Anglicare engaged legal representation.

[9] At the Directions Conference/Hearing on 19 June 2013, Ms Bray was represented by Ms Andrea Hohn of Connolly’s Lawyers. Ms Hohn did not have Ms Bray present with her during the Conference/Hearing. Anglicare was represented by Mr Heath of Carter Newell Lawyers.

[10] Directions were issued requiring Ms Bray to file submissions and statements of evidence from each witness she proposed to call and to serve a copy on Anglicare by 4.00 pm on 10 July 2013. Relevant legislative provisions in relation to the meaning of “dismissed” were appended to the Directions.

[11] On 8 July 2013, 2 days before Ms Bray’s material was required to be filed in the Commission and served on Anglicare, Connolly’s lawyers filed a Notice of Representative Ceasing to Act. Material was filed in the Commission by or on behalf of Ms Bray on 9 July 2013. More will be said later about that material.

[12] On 11 July 2013, Carter Newell Lawyers corresponded with the Commission advising that Ms Bray had not complied with Directions issued by the Commission with respect to filing and service of submission and witness statements, and requesting that the matter be relisted to deal with an application by Anglicare under s.399A of the Act for Ms Bray’s application to be dismissed, on the basis of that non-compliance. At this point an application under s.399A had not been made.

[13] My Associate made contact with Ms Bray in relation to the alleged non-compliance and it became apparent that although Ms Bray had filed material in the Commission she had not served that material upon the legal representative for Anglicare. Ms Bray took steps to have the material served on Anglicare’s legal representatives, through a friend, Ms Barber, who has also provided a number of statements in support of Ms Bray’s application.

[14] On 16 July 2013, Carter Newell Lawyers again corresponded with the Commission stating that material had now been received from Ms Bray but did not comply with the Directions insofar as it did not include any submissions outlining the grounds upon which Ms Bray’s application is made or any evidence of witnesses relevant to the issue of Ms Bray’s alleged unfair dismissal.

[15] It is further asserted that the material filed by Ms Bray is incomprehensible and to the extent that it is comprehensible is entirely irrelevant to the issue of her alleged unfair dismissal. The letter concludes by again requesting that the matter be relisted for the purpose of hearing an application pursuant to s.399A of the Act, that Ms Bray’s application be dismissed, and states:

“If a hearing date is set for this purpose, we will file our material and submissions in support of that application and serve it upon Ms Bray, in advance of the hearing of the application.”

[16] On 23 July 2013 further Directions were issued requiring Anglicare to file an application under s.399A to have Ms Bray’s unfair dismissal application dismissed and an outline of submissions and witness statements. Ms Bray was required to file submissions in reply and any witness statements she proposed to call in relation to the s.399A application. The matter was listed for hearing on 23 July 2013.

[17] Anglicare complied with the Directions and filed an outline of submissions and statements of evidence from:

● Ms Catherine Norris, Human Resources Manager; and
● Ms Deborah Waters, Facility Manager Abri.

[18] Ms Bray filed material in response to the s.399A application. The matter was listed for hearing on 23 July 2013. Ms Bray sought an adjournment and the matter was heard on 9 August 2013. As a result of the delay occasioned by Ms Bray seeing an adjournment, Ms Waters was not available for cross-examination.

The s.399A application

[19] Anglicare was given permission to be legally represented for the purpose of the s.399A application, on the basis that it would enable the matter to be dealt with more efficiently and that Anglicare provided an undertaking to the Commission that it would not seek costs in relation to the s.399A application.

[20] Anglicare submitted that the application under s.399A was originally filed on the basis of material received from Ms Bray two days late, which is irrelevant to her application for an unfair dismissal remedy and entirely incomprehensible. That material was described as:

“...a graphic showing demons, a statutory declaration of Ms Barber which is irrelevant to any matter in issue, a statutory declaration of Ms Bray which doesn’t deal with the issue of the unfair dismissal or the meeting of December 2012, certain documents which appear to be file notes generated by Ms Barber concerning other employees and certain correspondence which Ms Barber has had with the regulatory authority, none of which was germane to the issue of Ms Bray’s resignation from her employment and the circumstances which led to that which was the meeting of 5 December 2012.”

[21] It was also submitted by Anglicare that:

“Since the application has been filed we have received further material from Ms Bray. Significantly, ultimately Ms Bray has not filed or served a statement of her evidence. It’s surmised, although we shouldn’t have to surmise, but I surmise that the document which is called, “The factors why my application for unfair dismissal should not be dismissed,” which is the first document in the bundle which has been received which Ms Bray has signed and it’s got a certification on it by a chemist that that’s her true signature. This looks like what is intended to be the statement of her evidence. If we achieve nothing else today we might achieve - if this is the statement of her evidence - if it is the statement of her evidence then, insofar as the matters traversed in this document are relevant to the issue of the alleged unfair dismissal, only those matters traversed in paragraph 2 concern the issue of the meeting of 5 December 2012. The rest of the material is irrelevant.

If we had received something like this in compliance with the commission’s first order, then perhaps we wouldn’t have brought the application understanding that the applicant is doing the best she can as an unrepresented person but, in my submission, my client is entirely justified in bringing the application in the first instance having regard to the sort of material we received the first time around. We accept, however, that there is some material in the most recent quantity of material which is relevant to the issue of the unfair dismissal. Insofar as that material is relevant it’s really the matter that’s traversed in paragraph 2, and some of the issues that she traverses in paragraph 3 concerning the forms of complaint which were discussed on that occasion. Nothing else goes to it.”

[22] In particular, Anglicare points to the fact that the later material includes:

● Allegations that go back over a number of years which are unsubstantiated, largely scandalous and do not go to the meeting of December 5, 2012 which Ms Bray asserts ultimately forced her to resign her employment;
● A witness statement made by Ms Barber who has not worked for Anglicare since December 2011 and recites a litany of complaints she had with the Corporation prior to her departure;
● Details of an issue traversing the nature of provisions of the Aged Care Act and certain complaints made to the Department of Health; and
● An unsigned and undated witness statement from Ms Mibus of doubtful provenance, which is not relevant to the matters in dispute.

[23] Anglicare submits that while Ms Bray touches on the alleged culture of bullying in her original application, the matters set out there are not an explanation for her resignation and have not been made the subject of any complaint by Ms Bray to her employer. Anglicare further submits that if the matter is allowed to go to hearing, no better material would be forthcoming from Ms Bray relevant to her claim.

[24] Anglicare concedes that some of the second tranche of material does go to Ms Bray’s complaints about the meeting of 5 December 2012, and that it is a matter for the Commission to determine whether there is sufficient material to warrant the matter going to a full hearing.

[25] Anglicare also concedes that s.399A is not the appropriate provision for consideration of whether Ms Bray’s application should be dismissed, and instead, maintains that it should be dismissed pursuant to s.587 of the Act on the grounds that the application by Ms Bray has no reasonable prospects of success.

[26] Anglicare also stated that the material filed by it in support of the s. 399A application would be the same material that would be relied on if the application to dismiss was not granted and the matter went to a full hearing.

Legislation

[27] Section 587 of the Act is in the following terms.

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration

[28] There is a general principle that:

“Prima facie, every litigant has the right to have matters of law as well as of fact, decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”

[29] The approach to deciding whether an application should be dismissed on the grounds in s.587 was considered by Deputy President McCarthy in Applicant v Respondent  1. In that case, it was noted that there is a distinction in the legislation between a frivolous and vexatious application and one that has no reasonable prospects of success and that these grounds are separate and distinct. I would add that the inclusion of separate grounds for dismissing applications on the basis that they are “frivolous and vexatious” or “have no reasonable prospects of success” means that the former term does not colour the latter.

[30] Deputy President McCarthy endorsed the approach taken by the Federal Court in applying s.31A of the Federal Court Act which provides that an application may be summarily dismissed if a party has no reasonable prospect of prosecuting or defending a proceeding or part of a proceeding. The relevant principles are:

● The moving party does not have to demonstrate that the defence is hopeless or unarguable;
● The pleadings and the evidence must be considered with a critical eye to see whether the respondent to the application to dismiss a case has evidence of sufficient quality and weight to be able to succeed at trial;
● The respondent party is not required to present its full case in order to defeat the summary judgement but must at least present a sufficient outline of the evidence in order to allow the Court to come to a preliminary view about the merits for the purpose of considering the statutory test for summary judgement to be issued;
● The test may require greater scrutiny of the evidence and pleadings in some cases than it does in others. The words in the provision compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is an issue that should be permitted to go to trial.

[31] I agree with Deputy President McCarthy that the approach for applying s.587(1)(c) of the Act should be similar to that followed by the Federal Court in considering whether a matter should be summarily dismissed under relevant provisions of the Federal Court Act.

Conclusions

[32] It is important to note that the present proceedings are not about whether Ms Bray was unfairly dismissed. The issue in dispute is whether Ms Bray was dismissed as defined in s.386(1)(b) of the Act. I have considered Ms Bray’s evidentiary material, and I am satisfied that if all of the matters relevant to the issue in dispute asserted by Ms Bray were accepted, Ms Bray would not have reasonable prospects of establishing on the balance of probabilities that she was forced to resign due to conduct or a course of conduct engaged in by Anglicare.

[33] There are a number of facts that are not in dispute:

● On 30 November 2012, a written notice headed “Record of Issue/Concern” was issued to Ms Bray in relation to some feedback from student nurses about Ms Bray’s dealings with residents.
● The student nurses had completed feedback forms wherein they stated that Ms Bray had been rough with residents and in particular commented on her technique of showering residents.
● Ms Bray was requested to attend an informal meeting with Ms Waters to discuss these matters and the meeting was held on 5 December 2012.
● There was a discussion about the implications of a formal complaint of elder abuse although there is a dispute about whether this discussion was illustrative of the alternative to the informal approach taken by Ms Waters, or whether Ms Bray was told that the allegations against her were being treated as elder abuse.
● Copies of the complaints were not provided to Ms Bray and she was not informed of the identity of the student nurses who had provided the feedback.
● Ms Bray denied the allegations and there was a discussion about Ms Bray being assessed through observation of her showering technique.
● On 6 December Ms Bray went on sick leave and did not return to the workplace, other than for a “return to work meeting” on 6 February 2012 before submitting her resignation.
● A Workers’ Compensation claim in respect of stress said to be referrable to the meeting of 5 December 2012 was refused.
● There was a series of exchanges between Ms Bray’s legal and medical representatives and Anglicare while she was absent from the workplace disputing the validity and lawfulness of the meeting of 5 December in which Anglicare at all times maintained that Ms Bray was welcome to return to work subject to a medical clearance.
● There is evidence of Ms Bray claiming that she was being picked on in response to issues previously being raised with her in 2012 in respect to time keeping and interactions with residents.
● There is no evidence that Ms Bray made any complaint of bullying, harassment or intimidation before the letter of resignation was provided to Anglicare.

[34] Ms Bray wrote a letter of resignation dated 13 March 2013 some three months after the meeting of 5 December 2012 that she claims lead to her being forced to resign. The letter accepting her resignation belies her assertion that she was forced to resign. The terms of that letter are set out below:

“In view of your refusal to make essential changes to my work place environment to prevent future intimidation, harassment and bullying of myself and other co-worker, you have intentionally made it impossible for me to resume my work duties at my place of employment. Accordingly for these reasons I have no alternative but to give you 2 weeks notice of resignation of my employment.

Notwithstanding my resignation all my rights are reserved against you, Anglicare and the relevant offending co-workers including my right to claim damages in tort and/or damages for breach of my employment contract (including jointly in any class action), interest and costs and including my right to appeal against the decision of WorkCover to pay me WorkCover and common law damages for personal injury and/or breach of my employment contract.

Please note your records of my change of address to 8 Meyer Street Southport Q. 4215.

Please forward to me immediately a “Statement of Service” outlining my position, period of employment, hours of service and duties performed.

Please also forward to me immediately a separation certificate to minimise further economic hardship.”

[35] Anglicare responded in a letter of 15 March 2013 and accepted the resignation. That letter stated:

“We write to formally accept your resignation provided in writing on 13 March 2013 from Anglicare in your position of Personal Care Worker at Abri.

We refer to our last correspondence to you dated 15 February 2013 in which we outlined the following:

“Tarja, as Ms Waters and Ms Norris mentioned in their meeting with you we would welcome you back to the workplace when you receive a clearance from your Doctor.

They also mentioned that prior to coming back into the workplace you would be required to participate in a mediation meeting with Ms Waters to establish an agreement to facilitate your return to work. This Agreement may include things such as how you and Ms Waters communicate with each other in the future and how you raise and discuss issued.”

Therefore we restate our commitment was to welcome you back to the workplace.

We do however respect your decision to resign from employment.

We have made a note of your new address in our records as requested.

Your final payment will be processed today and your final payslip, a separation certificate and statement of service will be forwarded to you by our payroll team.”

[36] Regardless of Ms Bray’s views of the fairness of anonymous complaints and the inappropriateness of an assessment of her showering technique, it is my view that in the circumstances of this case, there was nothing unreasonable about the way in which Anglicare dealt with Ms Bray.

[37] It had written concerns and discussed them informally with Ms Bray. No adverse finding was made about her and whether she offered or was requested to undergo a review of her showering technique, such a review was entirely reasonable and her participation in it could lawfully have been required.

[38] Ms Bray had a choice to undergo the review and to establish her assertions about her own competence. Instead, Ms Bray chose to resign her employment. There are no reasonable prospects that Ms Bray will be able to establish at a hearing that she was forced to resign.

[39] I have given consideration to and made allowances for the fact that Ms Bray lacks legal knowledge and experience in pursuing an unfair dismissal application, and that her legal representative withdrew shortly before her material was due to be filed.

[40] However, the Directions I issued in relation to her application clearly set out the requirements with respect to the filing and service of material and the matters that she was required to address. Ms Bray’s initial material was incomprehensible, contained no statement from her about why she claimed to have been dismissed and included a range of statements from persons who were not employed at the time of her resignation about matters that were entirely irrelevant to the issues in dispute in this case. The description of that material given in the oral submissions of Anglicare is entirely accurate.

[41] It is apparent from proceedings in relation to the s.399A application, and the additional material that Ms Bray has now filed that she is seeking to pursue a number of irrelevant matters on behalf of other persons who have issues with Anglicare. None of these matters have any bearing on whether Ms Bray was forced to resign because of a course of conduct by Anglicare. Some of the allegations are scandalous and it is not appropriate that further proceedings in relation to Ms Bray’s unfair dismissal application be used as a forum to air them.

[42] Ms Bray has had two opportunities to put material before the Commission that would be necessary to make out her case that she was forced to resign. She has failed to do so. I can see no basis for accepting material that Ms Bray filed in response to an application by Anglicare under s.399A as a statement of evidence in response to Anglicare’s jurisdictional objection. That material has been filed well outside the time required in the Directions issued in relation to the unfair dismissal application.

[43] As previously stated, even if that material was accepted, and all of the relevant assertions it contains were made out, Ms Bray would not meet the onus she bears of establishing that she was forced to resign.

[44] Anglicare has responded to the application and has expended significant time, effort and no doubt money, on defending an application that, after two opportunities to articulate some grounds capable of supporting it, is ill defined and does not have reasonable prospects of success. The present situation is that an undertaking has been given that Anglicare will not seek its costs in relation to the application to dismiss Ms Bray’s application.

[45] Anglicare obtained legal representation at a point when Ms Bray was legally represented. Although there are issues of fairness associated with Ms Bray not being legally represented, it could equally be argued that Anglicare’s legal representative has had carriage of the matter and it would now be unfair to require Anglicare to conduct the case on its own behalf if it proceeds to hearing. There is a prospect that Ms Bray will be exposed to costs if the matter proceeds.

[46] In all of the circumstances, I am satisfied that this is not a matter that should be allowed to proceed to a full hearing with the attendant costs and consequences that such a hearing will entail. Accordingly, I dismiss Ms Bray’s application for an unfair dismissal remedy and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr B.J. Heath on behalf of The Corporation of the Synod of the Diocese of Brisbane t/a Anglicare Southern Queensland - ‘Abri’

Ms T. Bray on her own behalf.

Hearing details:

2013.

Brisbane:

August 9.

 1   [2010] FWA 1765

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