Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and; Miller v Construction, Forestry, Mining and Energy Union NSW Branch
[2017] FCCA 81
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUIRK v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH and MILLER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH | [2017] FCCA 81 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case for summary dismissal – whether there are reasonable prospects of success – there are reasonable prospects of success. |
| Legislation: Fair Work Act 2009, ss.340, 342, 347, 351, 352, 545, 546, 570, Federal Circuit Court of Australia Act (Cth), s.17A |
| Cases cited: Mylan v Health Services Union NSW [2013] FCA 190 C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81 |
| Applicant: | ANDREW QUIRK |
| Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1521 of 2015 |
| Applicant: | BRIAN MILLER |
| Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1522 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Counsel for the Applicant in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Mr Seck |
| Solicitors for the Applicant in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | McArdle Legal |
| Counsel for the Respondent in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Mr Docking |
| Solicitors for the Respondent in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Taylor & Scott Lawyers |
ORDERS
IN PROCEEDINGS SYG 1521 of 2015
The Application in a Case made on 17 December 2015 is dismissed.
IN PROCEEDINGS SYG 1522 of 2015
The Application in a Case made on 17 December 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1521 of 2015
| ANDREW QUIRK |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
SYG 1522 of 2015
| BRIAN MILLER |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
REASONS FOR JUDGMENT
These proceedings concern two Applications in a Case (“AICs”) made by the Construction, Forestry Mining and Energy Union (“CFMEU”) NSW Branch under s.17A the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and pursuant to rr.13.07 and 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 17 December 2015, seeking summary dismissal of the substantive proceedings instigated by Mr Andrew Quirk and Mr Brian Miller either in whole or in part.
I will refer to the CFMEU NSW Branch as “the respondent” as per the substantive proceedings and I will refer to both Mr Quirk and Mr Miller as “the applicants” unless there are divergent factual circumstances.
The Substantive Applications to the Court
The applicants filed originating applications and “Form 4” Claim Forms with the Court on 4 June 2015 in their respective proceedings. The parties first appeared before the Court on 8 July 2015 represented by counsel. At the first Court event, the parties stated that the matters of Mr Quirk and Mr Miller should be heard together as the “main issue” in both proceedings was whether there was, or was not, a “termination” of the applicants’ employment.
Therefore, pursuant to Court orders made by consent on 8 July 2015, the applicants filed amended applications and “Form 2” Claim Forms in both proceedings on 21 July 2015. I should note that Part G “Contravention(s) alleged” in both Mr Quirk’s and Mr Miller’s “Form 2” Claim Forms are identical in terms.
In their substantive applications to the Court, the applicants seek orders for compensation pursuant to s.545, and pecuniary penalties pursuant to s.546, of the Fair Work Act 2009 (Cth) (“the FWA”) as a result of “adverse action” taken against them in contravention of certain general protections contained in Part 3-1 of the FWA.
The “adverse action” alleged to have been taken against the applicants by the respondent, is, relevantly, dismissal from employment (within the meaning of tabulated item 1(a) in s.342 of the FWA) in breach of the general protections contained in ss.340, 347, 351 and 352 of the FWA (see [1](f) of Part G of the applicants’ “Form 2” Claim Forms).
In particular, [9](a) – [9](d) of the applicants “Form 2” Claim Forms contain alleged “breaches” of each of these general protections, the relevant paragraphs are as follows:
“Breaches
[9] In breach of the Fair Work Act Chapter 3, Part 3-1, Divisions 3, 4 and 5, the Respondent engaged in the following conduct:
a) Refused to accept medical evidence provided by the Applicant, and summoned him to meetings he was prevented by disability from attending.
b) Dismissed the Applicant by letter in part due to his non-attendance at a meeting called by the Respondent, due to temporary illness or injury, in breach of Section 352.
Particulars
i. Medical evidence provided by the Applicant to the Respondent.
i. Stated refusal in writing by officers of the Respondent to accept the evidence.
ii. Termination of the employment of the Applicant by the Respondent in writing.
c) In the course of the employment, after the Applicant had complained about his treatment, and exercised his right under the Work Health and Safety Act 2011 (NSW):
·purported to “investigate” the Applicant for, and “charge” him with “misconduct”.
·Permitted employees and officers of the Respondent to harass and intimidate the Applicant by leaving anonymous messages and symbols in his work place.
·Took no action to prevent, or protect the Applicant from, intimidation and harassment of the Applicant, by persons whose influence upon the Respondent the Applicant had been warning against.
d) In response to the Applicant engaging in industrial activity, purported to deem this activity, “misconduct”, to engage in a sham “investigation” of the Applicant, and to dismiss the Applicant from his employment. In addition, took the actions, and perpetrated the omissions in “c” above.”
[Errors in original.]
At the hearing of the AICs on 6 May 2016 (and as outlined in the applicants’ written submissions filed in their respective proceedings on 31 March 2016 (“AS”) at [36] and the respondent’s first written submissions filed in both proceedings on 17 March 2016 (“RS1”) at [15]), the applicants’ counsel confirmed that [9](b) of the applicants’ “Form 2” Claim Forms were not pressed in relation to the AICs or in either of the substantive proceedings.
Evidence
The evidence relied upon by the respondent for the purposes of the AICs is as follows:
(1)The affidavit of Timothy McAuley, legal practitioner, affirmed 17 December 2015.
(2)The affidavit of Frank O’Grady, union official, affirmed 11 December 2015.
(3)The affidavit of Kylie Wray, general manager, affirmed 18 February 2016.
(4)The affidavit of Frank O’Grady, union official, affirmed 19 February 2016.
(5)Annexure C of the affidavit of Brian Miller, union officer, [undated] (“RE1”) was tendered separately by the CFMEU as the applicants did not seek to read this affidavit.
(6)CFMEU Enterprise Agreement expiring 30 September 2017 (“RE2”), tendered by the respondent in response to issues raised about this document by the applicants in their submissions dated 31 March 2016.
(7)The Construction, Forestry, Mining and Energy Union (New South Wales Branch) Rules as at 28 April 2010 (“RE3”).
(8)The Construction, Forestry, Mining and Energy Union (New South Wales Branch) Construction and General Division Rules as at 12 June 2012 (“RE4”).
No objection was made by the applicants to the reading of the above affidavits or to the tender of the exhibits for the purposes of the AICs, save for a submission as to relevance regarding the affidavit of Frank O’Grady, affirmed 19 February 2016, of which I took note.
The evidence upon which the applicants rely for the purposes of the AICs is as follows:
(1)The affidavit of Andrew Quirk, [no occupation], affirmed 1 February 2016. Paragraphs [7] (and consequently annexure A), [10], and [12] (from the words in parentheses to the end of the sentence) were not read due to objection from the respondent for the purposes of the AICs.
(2)The affidavit of Brian Miller, unemployed, affirmed 2 February 2016. Paragraphs [5] (second, third and fourth sentences), [6], [7], [14] (from the first comma to the end of the first sentence and the second sentence), [15], [16] and [17] were not read due to objection from the respondent for the purposes of the AICs.
(3)CFMEU Enterprise Agreement expiring 30 September 2014 tendered by the applicant (“AE1”), there was no objection from the respondent, save for a submission as to relevance of which I took note.
The Applications in a Case
The respondent’s AICs were filed in both proceedings on 17 December 2015 pursuant to Court orders made on 9 December 2015, and subsequently set down for hearing on 6 May 2016.
In its primary submission, the respondent seeks summary dismissal in relation to the applicants’ substantive proceedings either in whole, or in part. That is, in relation to the claimed “Breaches” identified at
[9](a) – [9](d) of the applicants’ “Form 2” Claim Forms (see above at [7]). Relevantly, the orders sought by the respondent pursuant to the AICs are as follows:
“[1] That the application and ‘Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection – Filed by order Court made on 8 July 2015’ be dismissed.
[2] In the alternative to order (1) above, that:
a. the application and ‘Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection – Filed by order of Court made on 8 July 2015’ be dismissed in respect of paragraphs 9(b) and 9(d) of the Form 2 claim to the extent those paragraphs plead that the applicant was ‘dismissed’; and
b. the application and ‘Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection – Filed by order of Court made on 8 July 2015’ be dismissed in respect of paragraphs 9(a), 9(c) and 9(d) of the Form 2 claim.
[3] In addition and in the alternative to orders (1) and (2) above, that the application and ‘Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection – Filed by order of Court made on 8 July 2015’ be dismissed in respect of paragraph 9(b).
[4] Such other orders as the Court thinks appropriate.”
In the event that the primary submission is not accepted, and the respondent’s secondary submission is accepted by the Court (see further below) the respondent provides the Court with further “options” for “appropriate” relief as follows ([52] of RS1):
“In the meantime, appropriate options might be:
a. Finding that the Form 2’s are so defective that the CFMEU is unable to identify the facts relied upon by Mr Quirk and Mr Miller nor a question of law, meaning there is no reasonable prospects of success (cf Christie at [80],[81]).
b. Ordering Mr Quirk and Mr Miller to file a Statement of Claim.
c. Ordering or directing that Mr Quirk and Mr Miller provide further and better particulars to the questions outlined at [41], [43] and [44] and in doing so identify what is relied on in their affidavits for each answer (noting that this is a jurisdiction which favours affidavits over pleadings).
d. Ordering or directing that Mr Quirk and Mr Miller identify the issues that he wants resolved, the elements of the contraventions he alleges and the material facts he relies on, like referred to in Christie at [43] – [46].”
Respondent’s Submissions
The respondent’s AICs can be said to be brought on two grounds. The first, and primary submission, is that neither applicant “was or is an employee dismissed by an employer within the meaning of row 1(a) of the table in s 342(1)” of the FWA ([23] of RS1). That is, there was removal of an “officer” from office under Rule 11 of the CFMEU Construction and General Division and Construction and General Divisional Branches Rules (“the Union Rules” - see Annexure “FO-2” of the affidavit of Frank O’Grady, affirmed 11 December 2015), but there was no relevant act of dismissal of an employee by an employer within meaning of s.342 of the FWA.
Second, the respondent submits that it has not been accorded procedural fairness, as many of the claims in the “Form 2” Claim Forms are “inadequate and legally embarrassing” ([2] of RS1).
Primary Submission
In support of the primary submission, the respondent adopts the particulars specified in its “Defence” filed with the Court in both matters on 12 August 2015 ([21] of RS1). The respondent submits that the applicants were “members” of the respondent who were subsequently elected as “Organiser[s]” in accordance with the Union Rules. The respondent contends that the applicants were thus “official[s]” within the meaning of s.12 of the FWA.
The respondent submits that the applicants were then removed from “office” by a decision of the Divisional Executive (of the Construction and General Division of the CFMEU) pursuant to the Union Rules, due to a finding of guilt to a charge of “gross misbehaviour” ([1](b) and [2] of the respondent’s Defence). Accordingly, the respondent submits that on a “proper interpretation and application” of the Union Rules, the following is established in relation to both applicants ([1](d) of the respondent’s Defence):
“i. The applicant was only employed full time in the service of the Divisional Branch of the respondent whilst the applicant remained in or held the position of a full time paid officer.
ii. The employment of the applicant was co-extensive with holding office in the respondent and depended upon that circumstance.
iii. When the applicant ceased to hold office in the respondent by operation of the rules, the circumstances upon which employment depended no longer existed and employment was at an end.”
The respondent relies on the decision of Justice Buchanan in Mylan v Health Services Union NSW [2013] FCA 190 (“Mylan”) in support of the primary submission. In particular, at [26] of His Honour’s judgment as follows:
“Although I generally accept the submission of the union about the implication of terms and frustration, the position in my view is reasonably straightforward. I have no doubt that any employment which Mr Mylan may have held with the union was co-extensive with holding office in the union and depended upon that circumstance. When he ceased to hold office in the union by operation of the union rules, the position was no different than if he had been displaced at an election. The circumstance upon which any employment depended no longer existed. Any employment was at an end without any necessity for action by the union. In any event, Mr Mylan’s office (and any employment) was lost by operation of law as a result of the Orders.”
The respondent also relies on C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81 (“C v Commonwealth”) per Tracey, Buchanan and Katzmann JJ, where their Honours stated (at [59]):
“The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act. In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person’s application for relief can have no reasonable prospects of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial.”
The respondent does not deny that the applicants were both employed by it at the relevant time, but the respondent does submit that the applicants’ employment was dependent on their holding of “office”, and their holding of “office” ceased by virtue of the Union Rules, and as such, “there was no relevant act of dismissal of an employee by an employer, a critical element of the case … is absent. The claims cannot succeed” ([24] of RS1).
Further, the respondent submits that the applicants have no reasonable prospects of successfully challenging the decision to remove them from “office” made by the Divisional Executive of the Construction and General Division of the CFMEU, as they were removed due to a finding of guilt to a charge of “gross misbehaviour”, the meaning of which is “determined from its context” (Clark v Honourable Amanda Vanstone [2004] FCA 105).
The respondent also submits that the “Employment Separation Certificates” (ESCs) relied upon by the applicants can have no reasonable prospects of showing that they were terminated from their employment as the relevant decision-makers were the nine executive members, the ESCs post-date the relevant decision of the Divisional Executive and the persons involved in completing the ESCs were not any of the relevant decision-makers, and Mr Frank O’Grady was not consulted about the completion of the certificates.
Accordingly, the respondent contends that this is an appropriate case in which to grant the relief that the respondent seeks as the applicants do not have the necessary standing to prosecute the proceedings and therefore the applications can have no reasonable prospects of success ([26] at RS1).
Procedural Fairness
As a secondary submission, and in support of the orders sought for further options for relief (see above at [14]), the respondent contends that it is entitled to procedural fairness, because as it stands, the respondent “simply cannot understand or follow what case is being pursued in respect of sub-paragraphs (a), (c) and (d) in the paragraph 9 alleged contravention(s)” ([35] of RS1). The respondent submits that the applicants’ claims are “pleaded at too great a level of generality” and are legally “embarrassing” (see [23](d), [25](c) and [26](c) of the respondent’s Defence, and noting that 9(b) of the “Form 2” Claim forms are no longer pressed in either matter).
The respondent submits that for each of the paragraph 9 alleged contraventions, “the [respondent] does not know what is alleged against it and should not have to speculate” ([41], [43] and [44] of RS1) and that “the [respondent] is entitled to know, as a matter of procedural fairness, what Mr Quirk and Mr Miller rely on” ([49] of RS1). A number of authorities are referred to by the respondent in this regard (see George v Fletcher (Trustee) [2010] FCAFC 53, Cherubino v Britten [2011] FMCA 117 and Christie v Woolworths Limited [2015] FCCA 2211 ([46] – [49] of RS1)).
Applicant’s Submissions
The applicants submit that they do have reasonable prospects of successfully showing that their employment was not co-extensive with their holding of office in the respondent, and therefore, that the respondent engaged in “adverse action” against them, by dismissing them from their employment with the respondent.
The applicants rely on the decision of the High Court of Australia in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”), in which the High Court considered the meaning of “no reasonable prospects of success” in the context of the equivalent provision to s.17A of the FCCA, that is, s.31A of the Federal Court of Australia Act 1977 (Cth) (“FCA Act”). The applicants submit that the threshold for summary dismissal is “exceptionally high” as distilled from the decision in Spencer ([43] of AS).
The applicants claim that they were employed by the respondent as “full-time organisers” and were subsequently elected to the office of “Divisional Branch Organisers” of the CFMEU Construction and General Division, NSW Divisional Branch under the Union Rules
([4] - [5] of AS). The applicants contend that under the Union Rules, the respondent engages all organisers, whether elected or not, as employees of the respondent, and not the CFMEU Construction and General NSW Divisional Branch (see r.48(1) of the Union Rules).
In further support of this claim, the applicants submit that the relevant Enterprise Agreement (“AE1”) also treats elected and non-elected “organisers” as the respondent’s employees: cl 2, definition of “Officers”. The applicants submit that the “[the respondent’s] engagement of organisers as employees is independent to their elected office of the CFMEU [Construction and General] NSW Divisional Branch” (AS at [51]).
On a proper interpretation of the Union Rules, the applicants’ submit that their election as “officers” only served to confer additional rights upon them, namely, the right to participate in the democratic institutions of the respondent, but otherwise, their pre-existing employment was not affected (AS at [52]).
The applicants seek to distinguish Mylan on the basis that it was the Federal Court in that case that took the “effective action” by vacating all offices of the Health Services Union (“HSU”) East Branch after the HSU East Branch had ceased to function effectively. The applicants highlight the distinction that Justice Buchanan made between the operation of the Court’s orders and the actions of the HSU (at [23]):
“Counsel for Mr Mylan was at pains to emphasise the separate legal character of any contract of employment and distinguish it from holding office. The argument was that any employment had been brought to an end by the union independently of loss of office. On this approach, employment survived loss of office and any employment did not terminate simply with loss of elected office pursuant to the Orders. The argument has some pitfalls and counsel was careful to try and avoid them. The Fair Work claims assume termination of employment and so it was necessary to assert for the purpose of the argument that employment was brought to an end by the union, but it was not possible to identify a date or act of termination which could reasonably be attributed to the union, except notionally. In my view, it is undeniable that any employment was brought to an end, directly or indirectly, as a result of the Orders and not through any independent conduct of the union.”
The applicants submit that the respondent’s conduct in removing the applicants as officers “had the probable effect or result of bringing their employment to an end”, in that the respondent could have continued their employment following their removal from office, but decided not to do so (see Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154 (“Rheinberger”) and Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 262 IR 200 (“Mozahab”)) ([58] - [59] of AS).
With regards to the respondent’s secondary submission, the applicants submit that the matter has proceeded by way of applications, and claims, using the prescribed forms and in such a manner that the matter can progress. The applicants further indicate that the respondent has not requested any further and better particulars from them previously, nor has it requested that the applications proceed by way of formal pleadings ([70] and [39] of AS). The applicants submit that they are content to have the matter progress by way of pleadings and particulars in the event that they are successful in opposing the AICs.
Accordingly, the applicants submit that the respondent has not met the statutory threshold within the meaning of s.17A of the FCCA Act, and as such, the applicants do have reasonable prospects of success and the matter should proceed to a final hearing.
Consideration
The respondent’s primary position in relation to each of the substantive applications brought by Mr Quirk and Mr Miller is that their applications have no reasonable prospect of success as that concept should be properly understood with reference to such authorities as
C v Commonwealth.
The applicants no longer press the breach alleged at [9](b) of each of the “Part G” – “Contravention(s) alleged” of the “Form 2” Claim Forms. That is, the applicants no longer press any allegation of the breach of s.352 of the FWA in this regard.
For the remainder, much was said in the respondent’s submissions in support of the AIC. However, care must be taken to distinguish between those parts of the argument directed towards the proposition of “no reasonable prospect of successfully prosecuting the proceeding or claim” (r.13.10(a) of the FCC Rules), and those which appear directed to the ultimate final disposition of the substantive applications.
In this context, I have understood the respondent’s reference to each of its “Defences” to the substantive applications, as being put by way of background or context rather than complete arguments in support of the AIC’s.
In this light, the High Court’s consideration of the term “no reasonable prospect of success” as it was found in s.31A of the FCA Act has, in my respectful view, equal application to s.17A of the FCCA Act and r.13.10(a) of the FCC Rules on which the respondent now relies.
In essence, the applicants’ allegations are that the respondent engaged in “adverse action” against them based on discrimination grounds ([9](a) of the “Form 2” Claim Forms with reference to s.351 of the FWA), took “adverse action” against the applicants because they had a “workplace right” ([9](c) of the “Form 2” Claim Forms with reference to s.340 of the FWA) and took “adverse action” against the applicants because they engaged in “industrial activity” ([9](d) of the “Form 2” Claim Forms with reference to s.347 of the FWA).
The respondent’s argument is that it did not take “adverse action” against either of the applicants because there was “no relevant act of dismissal of an employee by an employer” under the FWA. The basis for this proposition is that the applicants held “office” as “organisers” under the Union Rules. Their “election” to this office was coextensive with their employment, and once they were “removed” from office under the Union Rules, their employment ceased by operation of law (being reliant on the Union Rules).
Therefore, the respondent submits there was no termination of their employment by the respondent such as to engage the provisions of the FWA. Nor, under these circumstances, was any such conduct necessary. The circumstances on which the applicants’ employment depended were no longer in existence.
There is no dispute between the parties that the applicants, at the relevant times, held the “office” of “organiser” under the Union Rules, and as such, were employed by the respondent.
The dispute between the parties arises with the proposition that the applicants’ election to the “office” of “organiser” under the Union Rules was coextensive with their employment (for purposes of the FWA) as “organisers”.
The respondent says there is no arguable case that the applicants’ election to “office” was not co-extensive with their employment. The respondent urges the application to the current circumstances, of the Federal Court’s reasoning in Mylan.
The relief sought in the AICs should not be granted. Having said that, it is trite, but in light of the submissions necessary to say, that this does not mean that the applicants should take this as any indication of ultimate success. I am of the view, however, that in a number of respects, the applicants’ cases are at least arguable in terms of factual disputes, such that it cannot be said there is no real question to be tried.
The parties differ in relation to the proposition that the applicants’ election to the “office” of “organisers” was coextensive with their employment as “organisers”.
I should note that there was considerable submission by the applicants on the distinction between the respondent and its State-registered counterpart, and the applicants’ relevant employment. Ultimately it was not clear that this was of assistance to the applicants. In any event, the applicants accepted the contention that an employee of one entity is also an employee of the other, and further, that there was no need for joinder of the State-registered Union.
However the applicants did refer to the Union Rules to argue that while there is some distinction between elected and non-elected “organisers” the relevant Enterprise Agreement (“AE1”) “treats” elected and
non-elected “organisers” as employees of the respondent which the applicants submit provides a basis to argue that the respondent’s employment of “organisers” as employees is independent to their elected status.
It must be said the respondent’s argument against this, on its face, appears to have strength particularly when regard is had to the relevant evidence filed by the respondent.
However, for current purposes, it is not whether on balance the respondent can successfully overcome the applicants’ argument, but whether the applicants’ arguments are, at least, arguable. Given that both rely on either the terms of an EA or, “untested” evidence of witnesses, it cannot be said, at this time, without a hearing of these matters, that the applicants’ cases are without merit.
A similar situation exists with the dispute about the claimed meaning, interpretation, and application of the Union Rules. Further, the respondent’s submission that the “proposition” it has taken from Mylan applies in the current circumstances, depends in the current case, on the testing of the relevant evidence and findings of fact reflecting the circumstances in Mylan.
The applicants also rely, in part, on what they assert to be the circumstances of their employment as “organisers” at times predating their election as “organisers”. The respondent disputes the applicants’ assertion of what they say was the relevant practice in this regard. This matter can also be tested at a hearing. For current purposes, it is at least arguable.
At the heart of the respondent’s AICs is the proposition derived from Mylan that the applicants’ “employment” came to an end by operation of law, and not at the initiative of the respondent.
I note, as a preliminary point, that some care must be taken with the applicants’ submission that appears, on its face, to seek to dispute the reasoning in Mylan, given that that was a judgement of a superior Court.
However, the applicants’ are on stronger ground with their assertion that the current circumstances are distinguishable from those in Mylan. The applicants’ various arguments, for example, that the critical action was taken by the Court in ordering the vacation of offices of the HSU East Branch in Mylan, and their reliance on a number of authorities as to what constitutes “dismissal from employment at the initiative of the employer” (see Rheinberger and Mozahab) is at least arguable. In saying this however, it must also be noted that the respondent’s secondary submission as to how the applicants have drafted their allegations in this regard also has strength.
In all therefore, the respondent’s primary position in relation to the AICs is not successful. The applicants’ substantive applications should not be summarily dismissed.
The focus now must be on how to effectively, and efficiently, progress these matters to a final hearing and disposition.
The respondent claims that it has been denied procedural fairness by the applicants, given what is said to be the “inadequate” expression of the claims in the “Form 2” Claim Forms.
It is, as the applicants submit, that their applications to date have proceeded, consistent with the practice in this Court, initially by way of prescribed forms and not pleadings. Nor in the circumstances, do I agree with the respondent that what the applicants have set out in their “Form 2” Claim Forms are so defective that it is not reasonably possible to discern the facts the applicants seek to rely upon.
Having said that however, given the nature of the evolution of these cases, and the applicants’ apparent consent (see [72] of AS), the applicants should each file a Statement of Claim setting out, with particularity, the matters relied upon.
Further, the Statements of Claim should, as far as relevant, and within the bounds of reasonableness, address the matters raised in the respondent’s submission of 17 March 2016 at [41], [43] and [44]. The applicants should also file and serve written Contentions as to Facts and Law, which should include comprehensive reference to the evidence to be relied upon. The respondent should then file a written Response to these contentions. The parties should agree to an appropriate timetable to give effect to this, and orders will be made accordingly.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 January 2017
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