Pietrobon v BMD Constructions Pty Ltd & Ors
[2017] FCCA 1730
•27 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIETROBON v BMD CONSTRUCTIONS PTY LTD & ORS | [2017] FCCA 1730 |
| Catchwords: PRACTICE AND PROCEDURE – Pleadings – leave to amend statement of claim – whether proposed amendments properly formulated – discretionary power. |
| Legislation: Fair Work Act 2009 (Cth), ss.97, 340, 341, 342, 343, 550 Federal Circuit Court of Australia Act 1999 (Cth), s.43(2) Federal Circuit Court Rules 2001, r.7.01 Federal Court of Australia Rules 2011 (Cth), rr.16.02(1)(d), 16.21(1), 16.41(1), 16.45(1) |
| Cases cited: Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238 Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 |
| Applicant: | VITTORIO PIETROBON |
| First Respondent: | BMD CONSTRUCTIONS PTY LTD |
| Second Respondent: | PAUL CAFARO |
| Third Respondent: | ANDREW MARCOS |
| Fourth Respondent: | STEVEN THOMAS |
| File Number: | BRG 503 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 March 2017 |
| Date of Last Submission: | 23 March 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 27 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Healy |
| Solicitors for the Applicant: | Bennett & Philp |
| Counsel for the Respondents: | Ms Moody |
| Solicitors for the Respondents: | Gadens Lawyers |
ORDERS
Paragraph 5 of the application in a case filed on 21 February, 2017 be dismissed.
The application be adjourned to 21 August 2017 at 9:30am for directions in the Federal Circuit Court of Australia sitting at Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 503 of 2016
| VITTORIO PIETROBON |
Applicant
And
| BMD CONSTRUCTIONS PTY LTD |
First Respondent
| PAUL CAFARO |
Second Respondent
| ANDREW MARCOS |
Third Respondent
| STEVEN THOMAS |
Fourth Respondent
REASONS FOR JUDGMENT
This is an application for leave to file and serve a second amended statement of claim.
The applicant’s claim is for compensation and the imposition of pecuniary penalties for alleged contraventions of the Fair Work Act 2009 (Cth) arising out of the termination of his employment by the first respondent. The second, third and fourth respondents are said to be liable as accessories.
The matter was listed for hearing on 8 March, 2017. Following submissions by the parties in relation to three outstanding applications, including an application by the applicant seeking leave to file a second amended statement of claim, the matter was adjourned to the following day.
At the conclusion of the hearing on 9 March, 2017 I identified a number of deficiencies in the applicant’s amended statement of claim. I directed that the applicant file and serve a properly constituted application for leave to amend which included a draft of the amendments sought to be made.
I heard that application on 23 March, 2017. Both parties handed up documents outlining their submissions and made further oral submissions.
The respondents’ oppose the application and argue that the proposed second amended statement of claim fails to plead, properly or at all, each of the relevant causes of action sought to be pursued by the applicant. They further argue that the majority of the paragraphs do not make sense, are wholly irrelevant, are embarrassing or are unnecessary.
Amendment in the Federal Circuit Court
Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) gives the Court a wide discretion to allow a party to a proceeding to amend a document.
The matters that the Court should consider when exercising that discretion were discussed by Lucev FM, as his Honour then was, in Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569, where his Honour said:
19. There are several relevant considerations in determining whether or not to exercise the discretion that the power under r.7.01(1) of the FMC Rules gives to the Court:
a) firstly, the interests of justice. In SZGTE it was said that the interests of justice were paramount, and in both SZGTE and Vijayakumar the interests of justice were said to be the “ultimate consideration”;
b) secondly, it is relevant to consider whether the party seeking the amendment is acting in good faith;
c) thirdly, it is relevant to consider whether the amendment sought would be futile. If the grounds for the amendment are of “doubtful merit” it is likely that they will be refused;
d) fourthly, it is relevant to consider whether any injustice to the non-amending party cannot be adequately compensated for. This includes consideration of the consequences of a late adjournment if an amendment is granted, including consideration of whether costs orders are likely to be met (the latter is a factor applicable especially in migration cases in this Court); and
e) fifthly, it is relevant to consider the question of case management.
20. In exercising any discretion, the Court must take into account the objects of the FM Act in s.3, the mode of operation of the Court in s.42 of the FM Act, and the objects of the FMC Rules in r.1.03, which make it apparent that the Court is intended to operate in a manner:
a) as informal as possible in the exercise of judicial power;
b) which is not protracted in its proceedings;
c) which resolves proceedings justly, efficiently and economically;
d) which uses streamlined procedures; and
e) that avoids undue delay, expense and technicality.
Recognising the importance of the objects of the (now) Federal Circuit Court Act Heffernan J in Dube v Hills Community Options Inc & Ors [2017] FCCA 976 observed at [25] that:
…one way in which that object can be facilitated is by declining to take an overly technical approach to the formal requirements of pleadings. That is not to suggest that pleadings however deficient should be allowed to stand. But where in an early stage of proceedings, amendments can readily remedy defects in pleadings, then that is the preferable approach.
The terms of the proposed amendments will assist the Court’s consideration of most, if not all, the considerations identified in Nerd Group Australia. There is no injustice in refusing amendments that are unnecessary, that obscure the issues between the parties or which offend the usual rules of pleading. Amendments which do not help elucidate the causes of action pursued by the applicant for the amendments are unjustified and have a real potential to visit prejudice on the opposing party.
Because the terms of the amendments inform, or assist to inform, the considerations relevant to the grant of leave, the usual practice is for any such application to be accompanied by a draft of the proposed amendments. It was an established rule of practice that leave to amend was given only when and to the extent that the proposed amendments have been properly and exactly formulated: see Hyams v Stuart King [1908] 2 KB 696 at 724 applied in Beta Carotene Industries Pty Ltd v Arthur Young per Adams M.
That practice has been followed in this Court. In MZWQU v Minister for Immigration [2005] FMCA 1054 McInnes FM said:
[5] Where an applicant is represented, the Court in my view, is entitled to expect that grounds and any amendment to an application ought to be properly formulated at an early stage.
In Ogawa v Federal Magistrate Phipps [2006] FCA 361 Finkelstein J said:
[5] When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise a “fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks”: Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey & Co Ltd v G H Hirst & Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.
Thus, in all but the simplest of cases, an application for leave to amend should have available for the Court a draft of the proposed amendments. A draft will enable the Court to properly consider the matters for consideration on an application for leave to amend and it will provide the opposing party with the opportunity to consider the amendments and decide upon their attitude towards all or any of them.
It was for those reasons that I insisted upon counsel for the applicant furnishing a draft of the proposed amendments in respect of which leave was sought.
Pleadings
The function of pleadings is to state with sufficient clarity the case that must be met: Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517, Dare v Pulham (1982) 148 CLR 658 at 664, Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Akhil Holdings at 286.
The Federal Circuit Court Rules 2001 contain no provisions relating to pleadings. Under s.43(2) of the Federal Circuit Court of Australia Act 1999 (Cth), to the extent that the Federal Circuit Court Rules are insufficient, the Federal Court of Australia Rules 2011 (Cth) will apply, with necessary modifications and subject to directions of this Court: see for example Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238 at [12].
Rule 16.02(1)(d) of the Federal Court Rules provides that a pleading must:
[S]tate 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…
What constitutes a “material fact” was recently considered by the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50. In that case, Greenwood, Flick and Rangiah JJ found that the “material facts” referred to in r.16.02(1)(d) of the Rules are those that are necessary for formulating a complete cause of action. Their Honours referred to Bruce v Odhams Press Ltd [1936] 1 KB 697, where Scott J said at 712-713:
The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word “material” means necessary for the purpose of formulating a complete cause of action; and if any one “material” fact is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck out”…
The function of “particulars” under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim–gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a “material fact” and a “particular” piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping…
Rule 16.21(1) of the Federal Court Rules provides that a pleading must not:
a)contain scandalous material;
b)contain frivolous or vexatious material;
c)be evasive or ambiguous;
d)be likely to cause prejudice, embarrassment or delay in the proceeding;
e)fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
f)be otherwise an abuse of the process of the Court.
Rule 16.41(1) of the Federal Court Rules deals with the provision of particulars as follows:
(1) A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.
Rule 16.45(1) of the Federal Court Rules provides:
(1) If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:
(a) particulars of the claim, defence or other matter stated in the pleading;
…
The causes of action
With that background in mind, I turn to consider the amendments for which the applicant now seeks leave.
The applicant’s proposed second amended statement of claim attempts to set out causes of action for adverse action and coercion arising under the Fair Work Act and accessorial liability therefore on the part of the second, third and fourth respondents. There is also a proposed claim for breach of contract.
Adverse Action
By s.340 of the Fair Work Act 2009 (Cth) a person must not take adverse action against another person for the reasons set out in that section.
Section 342 of the Act defines the circumstances in which a person takes adverse action against another person. In terms of employers and employees, if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees of the employer, the employer will be taken to have taken adverse action against the employee concerned.
The Fair Work Act does not proscribe the taking of any adverse action against employees, only adverse action which is taken for a reason proscribed by s.340 of the Act.
To succeed on an application that alleges a contravention of s.340 of the Fair Work Act, an applicant must plead (where there are pleadings in the case) and prove:
a)the existence of an employee/employer relationship between the applicant and the respondent;
b)the employee had a particular workplace right or rights as defined by s.341 of the Fair Work Act, identified in the pleading;
c)the employee either had, had not, proposed, or proposed not to exercise the workplace rights as the case might be;
d)the facts comprising the conclusion that the employer took adverse action against the employee as defined by s.342 of the Fair Work Act; and
e)a causal link between the acts comprising the adverse action and the employee’s election to exercise or not to exercise that workplace right.
By the definition in s.341 of the Fair Work Act, a person has a workplace right if they are:
a)entitled to the benefit of, or have a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
b)able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
c)able to make a complaint or inquiry:
i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii)if the person is an employee – in relation to his or her employment.
In the present case, the applicant pleads the employment relationship between him and the first respondent (paragraphs 1 and 2 of the current and proposed amended pleading). It is not in dispute.
Personal/carers leave is a prescribed workplace right under s.97 of the Fair Work Act. The applicant pleads at least inferentially, that he had a workplace right to take paid personal leave relying “upon section 97(a)” of the Fair Work Act (paragraph 17A of the proposed amended statement of claim).
The applicant pleads that he exercised that right on two occasions, namely:
a)1 February, 2016 (paragraph 17A(a) and 20 of the proposed amended pleading); and
b)11 February, 2016 (paragraph 30 of the proposed amended pleading), which is perhaps better described as a proposal by the applicant to exercise a workplace right, namely his right to take paid personal leave for two weeks.
The applicant pleads that the first respondent terminated the applicant’s employment on 11 February, 2016 (paragraphs 35(k) and 39). He pleads that the first respondent took adverse action against him by terminating his employment (paragraph 39 of the proposed amended pleading).
What is apparent from the applicant’s proposed pleading is that he does not allege that the first respondent took adverse action against him for a purpose proscribed by the Fair Work Act. There is nothing else in the pleading that clearly, or at all, alleges the reason or reasons for which the first respondent took the adverse action against the applicant. As the respondents argue, the proposed amended statement of claim fails to plead that the first respondent took adverse action in breach of s.340 of the Fair Work Act against the applicant because he exercised, or proposed to exercise a workplace right.
Indeed, the pleading in its present form suffers from the same difficulty and thereby fails to plead a cause of action. The absence of such a plea is critical: e.g. CFMEU v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at 132-136.
The present pleading is critically flawed for the reasons I have just outlined. The proposed amendments do not cure that critical flaw.
Coercion
The second cause of action pursued by the applicant is coercion. In an employment setting, coercion is proscribed by s.343 of the Fair Work Act which provides:
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
The phrase intent to coerce is accepted as requiring proof of two elements. First that it was intended that pressure be exerted which, in a practical sense, will negate choice and secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable: Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378 at 388 [41]; Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; State of Victoria v CFMEU [2013] FCAFC 160, (2013) 218 FCR 172 at [70]‑[71] and Esso Australia Pty Ltd v AWU (2016) 245 FCR 39 at [174]
To succeed on an application that alleges a contravention of s.343 of the Fair Work Act, an applicant must plead (where there are pleadings in the case) and prove:
a)the facts constituting the action the respondent took to organise or take, or threaten to organise or take as the case may be, against the applicant;
b)the facts the applicant alleges proves that the first respondent intended that those actions would exert pressure on the applicant and, in a practical sense, negate choice;
c)the facts that the applicant alleges proves that the action said to be coercive was unlawful, illegitimate or unconscionable; and
d)the action was taken to coerce the applicant to exercise or not exercise, or propose to exercise or not exercise, a workplace right; or to exercise, or propose to exercise, a workplace right in a particular way, whatever the case might be.
The applicant pleads at paragraph 39N that:
By the conduct engaged in, by act and/or omission by the First to Fourth Respondents as described in paragraphs 31 to 35 herein, the First to Fourth Respondents intended to secure the resignation of Mr Pietrobon or terminate his employment at the First Respondents own initiative in order to coerce Mr Pietrobon from exercising the third to sixth workplace rights, and to coerce him and to terminate his employment.
The third, fourth, fifth and sixth workplace rights to which the applicant refers are pleaded as follows:
a)the applicant was entitled to have any performance issue and/or disciplinary issue dealt with in accordance with the Performance Management Manual and Disciplinary Guidelines (the third workplace right) (paragraph 39C of the proposed amended pleading);
b)the applicant’s proposal to respond to the Show Cause Notice was a workplace right within the meaning of s.340 and 341(1)(c)(ii) (the fourth workplace right) (paragraph 39K of the proposed amended pleading);
c)the applicant was not provided with an opportunity to participate in any such investigation (the fifth workplace right) (paragraph 39M(b) of the proposed amended pleading); and
d)the applicant was not given an opportunity to be heard as to his version of the matters the subjects of the meeting on 11 February 2016 described in paragraphs 29 to 35 inclusive of the proposed amended statement of claim (the sixth workplace right) (paragraph 39M(c) of the proposed amended pleading).
The applicant’s proposed pleading of the coercion action is problematical for a number of reasons. The principal (but not the only) reason is that what he alleges to be workplace rights are not workplace rights for the purposes of the Fair Work Act. The third, fourth, fifth and sixth workplace rights identified by the applicant spring from the Performance Management Manual and Disciplinary Guidelines that form part of his employment contract.
But rights accruing to an employee pursuant to a contract of employment are not workplace rights for the purposes of the Fair Work Act. Unless the right sought to be exercised springs from a workplace law, workplace instrument or order made by an industrial body or the employee’s conduct can be properly characterised as a complaint or inquiry in relation to their employment, the right sought to be exercised by the employee is not a workplace right.
Coercion is unlawful by reason of s.343 of the Fair Work Act only if the relevant conduct relates to an employee’s workplace right.
The proposed second amended statement of claim does not plead a cause of action in coercion.
Even if that be wrong, the proposed pleading is nonetheless deficient because the applicant does not plead:
a)the facts he alleges to prove that the first respondent intended that the relevant actions (whatever they are) would exert pressure on the applicant and, in a practical sense, negate choice;
b)the facts he alleges to prove that the relevant actions (whatever they are) were unlawful, illegitimate or unconscionable; and
c)that the action was taken to coerce him to exercise or not exercise, a workplace right; or to exercise a workplace right in a particular way.
Accessorial Liability
The applicant claims that pursuant to s.550(1) of the Fair Work Act, the second, third and fourth respondents are liable for the first respondent’s contraventions of s.340 and s.343 of the Act.
The proposed statutory causes of action concerning adverse action and coercion have been discussed above. Even if the applicant succeeds in establishing each of the facts for which he contends, he cannot make out those causes of action. It follows that there can be no accessorial liability on the part of the second, third and fourth respondents.
Leaving that aside, to succeed on the accessorial liability claims, the applicant must plead and prove that the respondents had knowledge of each of the facts that go to make up the contravention, although he need not plead nor prove that they knew that the conduct was a contravention of the Act.
The applicant has pleaded and particularised the second, third and fourth respondents’ knowledge of each of what the applicant must contend are the relevant facts as follows:
42. In the premises, prior to the termination of Mr Pietrobon’s employment with the First Respondent, Mr Cafaro, Mr Marcos, Mr Thomas, and Mr Brindley:
(a) knew that Mr Pietrobon had taken sick leave on Monday 1 February 2016;
(b) knew that just prior to the meeting which was held at or about 8am on Thursday 11 February 2016, Mr Pietrobon had presented a medical certificate which certified that Mr Pietrobon was unfit for work for two weeks from 10 February 2016 to 24 February 2016 and that the nature of Mr Pietrobon’s illness was severe depression and severe anxiety;
(c) in the case of Mr Marcos, who in addition to his employed role was also a Director and a controlling mind of the First Respondent, he alleged that Mr Pietrobon had taken sick leave on Monday 1 February 2016 when he was not genuinely ill, and in that way took sick leave lo which he was not entitled;
(d) in the premises, Mr Cafaro, Mr Thomas, and Mr Brindley by their silence, and by not expressing any opinion contrary to that of Mr Marcos, described in subparagraph (c), above, implicitly agreed with Mr Marcos;
(e) were present in person in the meeting at the First Respondent’s office on 11 February 2016 when Mr Pietrobon’s employment was terminated; and
(f) participated in the termination of Mr Pietrobon’s employment.
Further, at paragraph 43 of the proposed amendments the applicant pleads that:
43. In the premises, Mr Cafaro, Mr Marcos, and Mr Thomas and Mr Brindley are liable to pay compensation and a pecuniary penalty as accessories under section 550(2)(a), (b), (c) and (d) of the Fair Work Act in the contraventions by the First Respondent of sections 340 and 343 of Part 3-1 of the Fair Work Act because they:
(a) had knowledge of the essential facts constituting the contravention;
(b) were knowingly concerned in the contravention; and
(c) were intentional participants in the contraventions based upon their actual knowledge of the essential facts constituting the contraventions.
The respondents submit that paragraphs 42(a), (b) and (d) are expressed as conclusions and do not plead any material facts in support of the applicant’s contentions. I accept that submission. The use of the phrase “In the premises” at the commencement of the paragraph suggests that the pleading is intended to be one which draws together material facts pleaded elsewhere and which, if proved, would lead to the pleaded conclusions. But the only pleading that the second, third or fourth respondents knew any relevant matters appears in paragraph 42 of the proposed pleading. That paragraph does not plead knowledge of the essential facts of the contravention alleged against the first respondent.
Breach of Contract
To establish the applicant’s contract claim, he must plead (where there are pleadings in the case) and prove:
a)that a contract of employment existed between the applicant and the first respondent;
b)the relevant terms of the contract;
c)the facts alleged by the applicant to constitute the first respondent’s breach of the identified terms of the contract; and
d)that the breach of those terms caused the applicant to suffer loss or damage.
As previously mentioned, the applicant pleads and particularises the circumstances of his employment with the first respondent. The existence of an employment contract is not in dispute.
The applicant pleads at paragraph 40B of his proposed amendments that the first respondent is in breach of the employment agreement and that the particulars of the alleged breaches are contained within paragraphs 39B to 39I and paragraphs 39L to 39M of the pleading.
The respondents submit that there are two aspects to the breach of contract claim, namely the show cause notice and the termination meeting. In my view, it is appropriate to deal with each aspect separately.
Show Cause Notice
Paragraphs 39B to 39I of the proposed amendments appear as follows:
39B Pursuant to clauses 14(a) and 15(b)(i) of the Employment Agreement between Mr Pietrobon and the First Respondent signed in or about 2012 inter alia the First Respondent’s Performance Management Manual (“PMM”) and Disciplinary Guidelines (“DG”) were incorporated by reference into the Employment Agreement.
39C Mr Pietrobon was entitled to have any performance issue and/or any disciplinary issue dealt with in accordance with the PMM and DG (the third workplace right).
39D The First Respondent through the Second Respondent issued Mr Pietrobon with a Show Cause Notice on or about 10 February 2016.
39E The Show Cause Notice included performance management issues in that it raises 7 work performance issues.
39F The Show Cause Notice also included matters of a disciplinary nature. The final paragraph of the Show Cause Notice dated 9 February 2016 but given to Mr Pietrobon on 10 February 2016 includes the words “You should appreciate that failure to provide a reasonable explanation for your performance to date may result in the termination of your employment. A copy of this letter will be placed on your file.”
39G The First Respondent’s DG and the First Respondent’s PMM both applied to the allegations made in the Show Cause Notice.
39H As to the DG the Respondents failed to apply the guidelines with respect to the Show Cause Notice given to Mr Pietrobon. The Respondents did not apply or did not substantially apply clause 1 Steps 1 - 4 of the DG.
39I As to the PMM the Respondents did not apply or substantially apply clauses 6.1 sub clauses 6.1.1 to 6.1.8.
The applicant, while claiming that he was entitled to have any performance issue and/or any disciplinary issue dealt with in accordance with the Performance Management Manual and Disciplinary Guidelines, does not plead the source of that right by reference to any clause in any of the documents to which he refers.
The applicant has also failed to particularise the way in which he alleges the respondents failed to apply clause 1 of the Disciplinary Guidelines or clauses 6.1 sub clauses 6.1.1 to 6.1.8 of the Performance Management Manual.
The applicant has pleaded at paragraph 40C that as a result of the termination of his employment he has suffered loss or damage and has set out the particulars in the attached schedule of damages.
Termination Meeting
Paragraphs 39L to 39M of the proposed amendments appear as follows:
39L Clause 1. 1 of the First Respondent’s DG provides as follows:
“Dismissal Without Warning
An employee will be similarly dismissed without notice if it is established after investigation and hearing the employee’s version of the matter, that there has been an act of gross misconduct, major breach of duty or conduct that brings the company into disrepute. Such behaviours include ...”
39M As to clause 1. 1 of the First Respondent’s DG:
(a) Mr Pietrobon was not advised that any conduct in which he was alleged to have engaged was the subject of any investigation;
(b) Mr Pietrobon was not provided with an opportunity to participate in any such investigation (the fifth workplace right);
(c) Mr Pietrobon was not given an opportunity to be heard as to his version of the matters the subjects of the meeting on 11 February 2016 described in paragraphs 29 to 35 inclusive herein (the sixth workplace right);
(d) Mr Pietrobon had not engaged in:
(i) an act of gross misconduct;
(ii) a major breach of duty; or
(iii) conduct which brought the First Respondent into disrepute.
in the manner described in the inclusive definition of such conduct in clause 1. 1 of the DG or otherwise.
The respondents submit that paragraphs 39M(a), (b) and (c) do not relate to any pleaded contractual duty and therefore, cannot amount to a breach of contract. They submit that merely reciting clause 1.1 of the Disciplinary Guidelines is not sufficient in establishing the respondents’ contractual obligations.
The respondents further submit that paragraph 39M(d) is a conclusion in respect of which no material facts are pleaded.
In my view, clause 1.1 of the Disciplinary Guidelines provides at least for an implication that the employee will be provided with the opportunity to be heard in respect of any allegations against them of gross misconduct, major breach of duty or conduct that brings the company into disrepute. It would follow that the employee would be given some notification of the alleged conduct prior to that opportunity.
But to the extent that the applicant’s case relies upon the implication of such a term, it should be properly pleaded. There is no such pleading and some speculation is required to properly formulate the applicant’s case as it is proposed to be pleaded.
Moreover, I agree with the respondents’ submission that paragraph 39M(d) is irrelevant to an action in breach of contract.
In my view, the proposed amendments do not establish a properly formulated claim for breach of contract.
Conclusion
The proposed amendments to the applicant’s current pleading do not cure the defects in that pleading. The proposed amended pleading does not plead any reasonable cause of action. That is sufficient reason to refuse leave to amend.
It is nonetheless appropriate to permit the applicant a further opportunity to properly formulate his claims. I will hear the parties further as to what orders ought to be made as a consequence of this ruling.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 July, 2017.
Date: 27 July 2017
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