Rizk v PVH Brands Australia Pty Ltd
[2020] FCCA 2976
•5 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIZK v PVH BRANDS AUSTRALIA PTY LTD | [2020] FCCA 2976 |
| Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application by respondent for summary dismissal – whether the applicant does not have reasonable prospects of successfully prosecuting the proceeding for relief under the Fair Work Act 2009 (Cth) because she did not file the correct prescribed form in which to state her claims – whether the applicant does not have reasonable prospects of prosecuting the proceeding for relief in relation to the claims the applicant makes in the form she has filed – some of the claims ordered to be struck out. |
| Legislation: Fair Work Act 2009 (Cth), ss. 62(1), 340, 341(1)(c)(ii), 365, 368, 385, 387, 390, 539, 545, 546, 566, 567, 570, 772(1) Federal Circuit Court of Australia Act 1999 (Cth), ss.8(1), 8(3), 10(1), 10A(1), 10A(3), 17A(2) |
| Cases cited: Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 |
| Applicant: | CHRISTEN RIZK |
| Respondent: | PVH BRANDS AUSTRALIA PTY LTD |
| File Number: | SYG 503 of 2020 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 June 2020 |
| Date of Last Submission: | 10 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2020 |
REPRESENTATION
| Applicant in person, by telephone |
| Counsel for the Respondent: | Mr B Fogarty, by telephone |
| Solicitors for the Respondent: | The Workplace Employment Lawyers |
ORDERS
Paragraphs 10, 11, 12, and 13 of the document titled “Part G - Contravention(s) alleged” which forms part of the Form 3 the applicant filed be struck out.
The application in a case filed by the respondent on 8 May 2020 is otherwise dismissed.
By 19 November 2020 the applicant file and serve any further affidavits on which the applicant intends to rely.
By 17 December 2020 the respondent file and serve the affidavits on which the respondent intends to rely.
By 11 January 2021 the applicant file and serve affidavits in reply, if any, on which the applicant intends to rely.
The matter is listed for directions at 9:30 am on 2 February 2021.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 503 of 2020
| CHRISTEN RIZK |
Applicant
And
| PVH BRANDS AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent applies for an order under s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the proceeding be dismissed because the applicant has no reasonable prospects of successfully prosecuting the proceeding.
To be in a position to determine this application, it will be necessary to set out the factual background and procedural history of the matter, and the form in which the applicant, who is not legally represented, has presented her claims.
Background
On 24 June 2019 the applicant commenced employment with the respondent (PVH) in the position of Commercial Analyst. The applicant’s terms of employment are contained in a signed employment agreement dated 7 June 2019 (Employment Contract). The Employment Contract provided for a six-month probationary period. The Employment Contract also described the key responsibilities attached to the position of Commercial Analyst, and the “key measurement criteria” associated with that position.
By letter dated 14 November 2019 PVH informed the applicant that during the probationary period the applicant’s “suitability for the role of Commercial Analysist, and performance and progress in the role, was assessed”; and PVH “has therefore decided to terminate” the applicant’s employment. The letter stated that PVH’s decision to terminate the applicant’s employment “has been made on the basis that various aspects of your performance and suitability for the role are unsatisfactory”. The letter was signed by Ms Mackey, “Human Resources Advisor”.
On 29 November 2019 the applicant filed a “Form F8 – General protections application involving dismissal” with the Fair Work Commission (FWC). That application was made under s.365 of the Fair Work Act 2009 (Cth) (FW Act). It is apparent from the “Form F8A” to which I refer in the following paragraph that the applicant made two claims. The first is that PVH failed to pay the applicant for overtime; and the second is that PVH dismissed the applicant from her employment because she had made complaints in relation to her employment.
In response to the “Form F8” the applicant filed, PVH filed a document headed “Form F8A – Response to general protections application” (Form F8A). In Schedule A to that document PVH denied there was any underpayment of wages. PVH also provided a statement of the reasons for which it dismissed the applicant:
Contrary to the Applicant’s assertions, she was informed as to the reason for her dismissal, being that the decision to terminate her employment was made on the basis that various aspects of her performance and suitability for the role of Commercial Analyst were unsatisfactory.
The Form F8A then set out a number of matters under the heading “Performance Issues”. One of the matters was that the applicant’s manager’s “proposed decision to terminate the Applicant’s employment was made well in advance of the Applicant’s actual termination date, in October, and so the Applicant’s claims of being dismissed due to her making a complaint in November 2019 is not sustainable”.
On 17 February 2020 the FWC conducted a mediation to deal with the dispute, but the dispute was not resolved. On that day the FWC issued a certificate under s.368 of the FW Act certifying the FWC was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
On 2 March 2020 the applicant filed an application in the Fair Work Division of this Court. The applicant did so by filing a form of application approved for the purposes of r.45.04, r.45.06, r.45.07, r.45.08, or r.45.12 of the FCC Rules. The application was accompanied by a completed “Form 3” headed “Claim under the Fair Work Act 2009 alleging unlawful termination of employment”. Form 3 is the form approved for the purposes of r.45.07(b) of the FCC Rules, which provides that an “application for an order in relation to an alleged unlawful termination of an employee’s employment . . . must be in accordance with the approved form”. The expression “application for an order in relation to an alleged unlawful termination of an employee’s employment” is a reference to an application that may be brought in this Court under item 35 of the table in s.539(2) of the FW Act in relation to a contravention of s.772(1) of the FW Act. That subsection prohibits an employer from terminating an employee’s employment for one of more of the reasons set out in that subsection.
Part G of Form 3 required the applicant to state the grounds on which she relies for claiming that her employment was unlawfully terminated. The applicant did so in a document titled “Part G - Contravention(s) alleged” (Part G claims), which she annexed to the Form 3. In the Part G claims the applicant claims as follows:
a)On 25 June 2019 PVH hired the applicant as a Commercial Analyst.
b)PVH did not provide the applicant with a proper induction or training plan to follow until 7 November 2019.
c)During her employment with PVH the applicant had sent three emails to her manager, Ms Haksever, but the applicant received no response. The first email related to the applicant’s assistant, Mr X. The applicant complained Mr X displayed aggressive behaviour, and told her that it was the applicant’s duty to escalate the matter to the applicant’s manager.
d)The applicant sent a second email on 11 October 2019. This related to what the applicant claimed was the “inhumane treatment” she received during her employment with PVH. The applicant asserted this consisted in working an extra 200 hours for which the applicant was not paid, but instead was given two days leave; the applicant’s being given unrealistic time frames within which to complete tasks that had been assigned to her; requiring the applicant to work almost 16 hours per day, and also to work on weekends; and in addition to performing her own roles, the applicant performed Ms Haksever’s duties when she was absent from work. The applicant expressed her disappointment in the way she had been treated, and the applicant hoped to resolve all of these matters when she returned from holidays.
e)The applicant sent the second email the day before she went on leave. The applicant read a response to her complaint prepared by the head of PVH’s Human Resources which stated that the applicant’s manager, Ms Haksever, had already planned to end the Employment Contract in October 2019 which was after the applicant sent her first complaint.
f)The applicant returned to work on 4 November 2019. Given she had received no response from Ms Haksever to her second email, the applicant requested a meeting with Ms Haksever on 8 November 2019 to discuss the ongoing situation about “inhumane work conditions”. The applicant met Ms Haksever on 8 November 2019. The applicant discussed her job duties, and said she would like to meet monthly with Ms Haksever to discuss the agreed plan for improved work conditions. Ms Haksever “threatened” the applicant by stating the applicant was “still on preparation [sic] period”, and she needed to make a decision. Ms Haksever said nothing about the applicant’s performance.
g)Ms Haksever agreed to meet the applicant again on 13 November 2019, but she did not invite the applicant to any meeting. The applicant sent Ms Haksever a third email on 13 November 2019 in which she made complaints.
h)After the applicant sent her email on 13 November 2019 the applicant received an email inviting her to attend a formal meeting on 14 November 2018. Ms Mackey, however, was also invited. At the meeting Ms Mackey said: “as you know you’re on your preparation [sic] period and your contract is terminated”. The applicant said: “I’m being fired without giving me any valid reasons”. The applicant asked why she was being fired. Ms Mackey said it was an “executive decision”.
i)PVH’s termination of the applicant’s employment was a breach of the “general protection law”, because it constituted adverse action PVH had taken because the applicant had exercised her workplace right.
j)The applicant refers to matters identified in s.387 of the FW Act which relates to unfair dismissals.
The applicant also claims in the Part G claims an amount for “Reasonable overtime”. The applicant refers to the National Employment Standards (NES). The applicant claims the NES applies to employees covered by the national workplace relations system, regardless of any award, agreement, or contract.
At the hearing before me on 10 June 2020 the applicant said she used the Form 3 because before the FWC PVH claimed it dismissed the applicant because of issues relating to her performance. The applicant wished to claim that if, as PVH claimed, PVH dismissed the applicant because of performance issues, it was required to bring those matters to the applicant’s attention before it decided to dismiss the applicant. It is apparent from the Part G claims that the applicant claims that, in those circumstances, PVH’s termination of her employment was an unfair termination within the meaning of s.385 of the FW Act.
The matter came before me for a first court date on 24 March 2020. The applicant appeared (by telephone) without legal representation, and the respondent appeared by counsel (also by telephone). Counsel for PVH submitted that the Form 3 the applicant filed was the incorrect form, and that Form 4 was the correct form. Counsel proposed that I order the applicant have leave to file a Form 4, and also to file points of claim. I enquired of the applicant whether the Part G claims contained a statement of the claims the applicant wished to make in the proceeding. The applicant confirmed it did. I then explored with counsel for PVH whether the claims, as stated in the Part G claims, were sufficiently clear to indicate the nature of the claims the applicant made to enable PVH to file a responsive document. I adjourned the matter to 25 March 2020 to provide the parties with an opportunity to consider what directions should be made.
At the directions hearing on 25 March 2020 counsel for PVH submitted I should direct the applicant to recast her claim in a Form 4. The applicant confirmed that her case was that PVH had terminated the Employment Contract because she had made complaints about her employment, and that she was seeking compensation for the loss she suffered. The applicant also said she is claiming compensation for the extra hours she worked, and for unfair dismissal. I directed the applicant to file and serve by 8 April 2020 an affidavit setting out all the testimony, and annexing all of the documents, on which the applicant intends to rely in support of her claims for relief, and I set the matter down for further directions at 9:30 am on 24 April 2020. The purpose behind these directions was to require the applicant to file the evidentiary material on which she intended to rely to give PVH an opportunity to determine whether the material raises an arguable case for relief.
On about 8 April 2020 the applicant sent by express post to the Court Registry an affidavit made on 8 April 2020 (Affidavit). I will set out its contents later in these reasons. The applicant provided a copy of the Affidavit to the lawyers for PVH. That is apparent from the letter dated 20 April 2020 PVH’s lawyers sent to the applicant. In that letter PVH’s lawyers state that the application and Affidavit on which the applicant intends to rely “include various defects and deficiencies (summarised below) and that as a result, you have no reasonable prospect of successfully prosecuting your Application”. The letter attached a draft of the orders PVH intended to ask the Court to make at the directions hearing on 24 April 2020.
The letter identified two “defects and deficiencies”. The first is the applicant incorrectly stated her case in a Form 3 rather than in a Form 2. The letter stated that the consequence of this is that the Court “does not have jurisdiction to deal with your claim under that form” and, for that reason, the application “has no reasonable prospects of success and must fail”. The second of the “defects and deficiencies” identified in the letter is that the application and Affidavit “contain material that is not relevant to, and cannot support, a Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection in relation to alleged contraventions of ss 340 and/or 351 of the FW Act”. The basis of that contention was stated to be that the application and Affidavit contained material “that is arguably relevant to an unfair dismissal claim, an underpayment claim and/or an unlawful termination claim”, yet none of these claims are before the Court. The letter also stated that the application and Affidavit are “ambiguous and confusing”, with the result that PVH “does not understand what case it is they are to meet”. The letter “strongly encourage[d]” the applicant “to consider the matters set out above and to seek appropriate legal advice in respect of your Application and Affidavit prior to the next court date”.
At the directions hearing on 24 April 2020 counsel for PVH indicated PVH intended to apply for an order to dismiss the application. I made directions for the filing of an application in a case, and the filing of affidavits, and I set down for hearing that application for dismissal on 10 June 2020.
Dismissal on the basis of incorrect form
The first ground on which PVH relies is that the application is “incompetent” because the applicant has used a Form 3, which is not the form prescribed in relation to general protections applications.[1] By submitting the application is “incompetent” I understand PVH to submit the application is of no effect.
[1] Respondent’s Outline of Submissions in its Application in a Case, [25]
In its written submissions PVH details why the Form 3 is not the correct form; and I accept Form 3 is not the correct form. But PVH does not explain why it submits the applicant’s use of an incorrect form renders “incompetent” her application to this Court. Whether the use of an incorrect form has this effect requires me to consider the nature of the jurisdiction of the Federal Circuit Court (FC Court) under the FW Act, the rules that have been made in relation to the exercise by the FC Court of its jurisdiction under the FW Act, the power pursuant to which forms may be prescribed for use in proceedings in the FC Court, and the forms that have been prescribed in connection with the exercise of the FC Court’s jurisdiction under the FCC Rules.
I begin with jurisdiction. The FC Court was created as the Federal Magistrates Court by s.8(1) of the Federal Magistrates Act 1999 (Cth). Under s.8(1) of the FCC Act, as amended with effect from 1 July 2013, the “federal court known immediately before the commencement day as the Federal Magistrates Court is continued in existence as the Federal Circuit Court of Australia”. Subsection 8(3) of the FCC Act provides that the FC Court is a court of record and is a court of law and equity. Under s.10(1) of the FCC Act the FC Court has such original jurisdiction as is vested in it by express laws made by the Parliament by, among other things, “express provision”.
Parliament has by express provision granted the FC Court jurisdiction in relation to the FW Act. The central provision is s.566 of the FW Act which provides that jurisdiction “is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act”. More specific provisions regulate this broad conferral of jurisdiction. For example, s.539 of the FW Act identifies the civil remedy provisions of the FW Act in relation to which an application may be made to the FC Court for relief; and s.545 and s.546 of the FW Act confer power on the FC Court to make particular orders for contraventions of civil remedy provisions.
Section 567 of the FW Act provides that jurisdiction conferred on the FC Court under s.566 is to be exercised in the Fair Work Division of the FC Court in relation to an application made under the FW Act, or in relation to other applications specified in s.567 in relation to a matter arising under the FW Act. Apart from s.567, the FW Act does not regulate the manner in which the FC Court is to exercise the jurisdiction and the powers the FW Act confers on the FC Court. Section 567 of the FW Act is given effect by s.10A(1) of the FCC Act, which provides that, for the purpose of the organisation and conduct of the business of the FC Court, the FC Court comprises two divisions, one of which is the Fair Work Division. Subsection 10A(3) of the FCC Act identifies the jurisdiction that is to be exercised in the Fair Work Division, being the jurisdiction the FC Court is required to exercise in the FW Division by any other Act, or which is incidental to such jurisdiction.
Next, it is necessary to turn to provisions that regulate the exercise of the FC Court’s jurisdiction under or in relation to the FW Act. There are two classes of provisions. The first are general provisions that, with some exceptions, apply generally to proceedings before the Court. These are contained in Part 6 of the FCC Act, and in Chapter 1 of the FCC Rules. The second class of provisions are those that apply specifically to proceedings under or in relation to the FW Act. The principal provisions are contained in Part 45 of the FCC Rules. Subrule 45.03(1) of the FCC Rules provides that Part 45 applies to a proceeding in the FC Court to which, among other things, the FW Act applies. Subrule 45.03(2) of the FCC Rules provides that Chapters 1 and 3 apply to the extent they are relevant and not inconsistent with Chapter 7, to a proceeding in the FC Court under, among other things, the FW Act.
There are three rules in Chapter 1 of the FCC Rules that are relevant to a proceeding under Chapter 7. The first is r.2.04(1A) of the FCC Rules, which provides that the Chief Judge may approve a form for a provision of the FCC Rules. The second is r.2.04(1) of the FCC Rules, which provides that, unless the FC Court “otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient”. The third rule is r.1.06(1) of the FCC Rules which provides that the FC Court “may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time”.
Forms 2, 3, and 4 are forms the Chief Judge has approved for the purpose of each of r.45.06(b)(ii) of the FCC Rules (which applies to applications for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act), r.45.07(b)(ii) of the FCC Rules (which applies to an application for an order in relation to an alleged unlawful termination of an employee's employment that occurred on or after 1 July 2009), and r.45.08(b) of the FCC Rules (which applies to an application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the FW Act other than that mentioned in r.45.06). Unless the Court otherwise orders, strict compliance with these forms is not required; substantial compliance is sufficient. Even where there has not been substantial compliance, the FC Court has power under r.1.06(1) of the FCC Rules to dispense with the requirements of r.45.06(b)(ii), r.45.07(b)(ii), and r.45.08(b) of the FCC Rules that the applications referred to in those rules be in the approved form if the FC Court is satisfied it is in the interests of justice to dispense with those requirements. In these circumstances, the requirements prescribed by r.45.06(b)(ii), r.45.07(b)(ii), and r.45.08(b) of the FCC Rules are not jurisdictional in nature; and the applicant’s incorrectly using Form 3 is incapable by itself of supporting a finding that an applicant does not have reasonable prospects of successfully succeeding on her claims.
Although PVH correctly submits that Form 3 is not the correct form for making an application based on contraventions of general protection provisions, PVH does not submit that the manner in which the applicant has completed Form 3 does not substantially comply with how Form 2 or Form 4 would have been completed, had the applicant completed one of those forms; and PVH does not submit that, because the applicant has used Form 3, rather than Form 2 or Form 4, PVH has been misled about the nature of the claims the applicant proposed to make. PVH has not been misled because its submission that the applicant has used the incorrect form is based on its having correctly understood that the applicant does not claim PVH has contravened s.772(1) of the FW Act, but instead claims PVH has contravened a general protection provision mentioned in Part 3-1 of the FW Act.
Further, the only substantial differences between Forms 2, 3, and 4 is the information Part G of each form requires an applicant to provide. The applicant, however, set out the information Part G of the form she completed required her to complete in the Part G claims. In paragraph 8 of that document the applicant states:
Based on all of that, it is a breach of the GENERAL PROTECTION LAW, as it states on the fair work commission website:
A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
· dismissing them
· not giving them their legal entitlements
· changing their job to their disadvantage
· treating them differently than others
It is clear from this passage that the applicant is making a claim based on adverse action under the general protection provisions of the FW Act. In those circumstances, the manner in which the applicant completed Form 3, to the extent it relies on a claim that PVH dismissed the applicant because she complained, substantially complies with the manner in which the applicant would have completed Form 2 in relation to the same claim. To that extent, therefore, the applicant has substantially complied with r.45.06(b)(ii) of the FW Act.
If I am wrong in so concluding, I would have made an order under r.1.06(1) of the FCC Rules dispensing with compliance with the requirements of r.45.06(b)(ii) of the FCC Rules; and that is because nothing would be gained by requiring the applicant to complete a Form 2 that attaches as part of Part G of that form the Part G claims that are already attached to the Form 3 the applicant completed.
For these reasons, I am not satisfied the applicant has no reasonable prospects of successfully prosecuting the proceeding because she stated her claims in a document that forms part of Form 3.
No reasonable prospects of success?
The second ground on which PVH applies for an order dismissing the application is that “the Applicant’s Affidavit [of 8 April 2020] is defective in that it fails to comply with FC Rules 16.02(1)(a)-(e), 16.02(2)(a)-(e) and 16.06 and may, in addition to FCC Rule 13.10, be struck out per FC Rule 16.21”.[2] PVH further submits that “the defects in the Applicant’s Affidavit, even acknowledging that she is self-represented, are so significant that they are unable to be cured by an order for particulars pursuant to FC Rule 16.45 or by way of an order for amendment per Part 7 of the FCC Rules (noting no such order can be made in respect of a filed affidavit)”.
[2] Respondent’s Outline of Submissions in its Application in a Case, [28]
It is apparent that PVH is treating the applicant’s Affidavit as a pleading; and PVH submits that the Affidavit is to be assessed by reference to the rules of pleading contained in the Federal Court Rules 2011 (Cth). It is not clear why PVH has taken this approach. The Affidavit purports to be an affidavit; and to the extent there is a document that could function as a pleading, that document is the Part G claims. PVH does not address the claims made in that document.
Perhaps PVH misunderstood the purpose for which on 25 March 2020 I directed the applicant to file an affidavit. That purpose was for the applicant to disclose the evidence on which she intends to rely, and to give PVH an opportunity to determine whether, on that evidence, it should apply for an order that the proceeding be dismissed because the applicant does not have reasonable prospects of successfully prosecuting it or whether, instead, PVH would file a responsive document to the Part G claims, and its evidence. I will therefore approach this part of PVH’s application on the basis that PVH submits that, for the reasons set out in its written submissions, the applicant has no reasonable prospects of successfully prosecuting the proceeding.
Before I identify the grounds on which PVH relies, it will be necessary to set out the material contained in the Affidavit.
The Affidavit
The Affidavit contains 12 short paragraphs. Each paragraph refers to a document or documents. The first paragraph states the applicant began her employment with PVH on 25 June 2019. The applicant attaches the Employment Contract. The second paragraph refers to an attached document with a list of the applicant’s qualifications. The third paragraph refers to an email from the applicant’s former employer.
In paragraph 4 of the Affidavit the applicant states: “My First e-mail in regards to my assistant [Mr X] and His aggressive behaviour (Please find attached e-mail) Note: Never received a response back from my Manager (Nilufer Haksever)”. Under a sheet headed “Fact 4” there is an email the applicant sent to Ms Haksever on 16 September 2019. It is headed: “Fwd: Complain [sic] regarding [Mr X’s] behaviour for the last two months”. This appears to be the first of the three emails referred to in the Part G claims. In her email the applicant said she needs “a clear understanding of my position at PVH as I need everything to be done officially please”. After stating some matters relevant to that topic, the applicant said: “I have been facing issues with [Mr X’s] behaviour since 2nd of August, below are all the events and dates for his unprofessional behaviour”. The email then detailed incidents the applicant stated occurred on 2, 12, 26, and 27 August, and on 10 and 13 September 2019. The applicant concluded her email as follows:
This is so far what had happened in the last two months since [Mr X] moved from Melbourne to Sydney.
I cannot tolerate this behaviour any longer and I trust you that you will take the necessary action against [Mr X’s] behaviour.
Paragraph 5 of the Affidavit states: “10th of October meeting discussion, that was initiated by myself (Please find the detailed conversation attached)”. There is a document headed “Fact 5”. It purports to set out matters discussed at a meeting the applicant had with Ms Haksever on 10 October 2019. After noting the attendees, the document identifies the “task[s] that was assigned to me during Nilufer’s absents [sic]”. The document then sets out in direct speech a conversation between the applicant and Ms Haksever. The conversation relates to work the applicant had carried out. Ms Haksever criticised the applicant for not having completed a particular piece of work, even though she had three weeks in which to do it, and that the applicant had made a mistake in a formula. Ms Haksever said that was the second time the applicant made a mistake, and she was not happy about that. The applicant said she had been working late hours and, although that is no excuse, she is human; but since she has been at PVH the applicant had only made two mistakes.
Paragraph 6 of the Affidavit states: “2nd e-mail in regards to the inhumane treatment I have had during my employment (was sent on the 11st [sic] of October 2020 at 4am) Please find the e-mail attached”. That appears to be a reference to the second email referred to in the Part G claims. Behind a sheet headed “Fact 6” there is an email the applicant sent to Ms Haksever on 11 October 2019 in which the applicant said she had a “couple of things that I would like to point out”. These were:
a)The applicant had worked late hours and on weekends, but all Ms Haksever had given the applicant was “2 days in lieu”. The applicant said the “total extra hours I worked here is 100% more than the 2 days in lieu”. The applicant said she was expecting fair treatment, but she did not see that, which “is kind of a disappointment”.
b)The applicant had been given tasks in a very unrealistic timeframe to finish, and was requested to complete the tasks over the weekend “or like now I had to stay to 4AM to finish . . . report”.
c)Although the applicant has come from a retail background, which is her strength, and she had been with PVH only since 25 June 2019 and, for the most part, has enjoyed her time there, the applicant did not appreciate “[Ms Haksever] putting me down” which the applicant noticed “[Ms Haksever] have just done that with me yesterday and I truly don’t appreciate”.
d)Due to Ms Haksever’s absence the applicant had worked on a couple of projects “which we have discussed … today”, but then the applicant lists an additional seven matters on which she had worked but had forgotten to tell Ms Haksever.
The applicant ended her email as follows:
I’m beyond disappointed from your reaction today and maybe when I came [sic] back we can discuss it further.
Paragraph 7 of the Affidavit states: “8th of November Meeting discussion (please find Detailed discussion attached)”. That refers to a document headed “Fact 7”. That refers to the applicant having gone on 3 weeks holiday, and returning on 5 November 2019. The document then sets out a conversation the applicant says she had with Ms Haksever on 8 November 2019. According to the applicant Ms Haksever said she was having the meeting to discuss what the applicant had written in her email of 11 October 2019, but she did not know what the applicant expected her to do when Ms Haksever saw her email knowing the applicant would not be “here for three weeks”. The applicant said she thought that would give Ms Haksever enough time to think about the workload and “how can we have a better life balance” because the applicant was already exhausted, and it was affecting her health. The applicant also said that the last time they met Ms Haksever’s comments were negative about the applicant’s work. Ms Haksever said she hired a senior commercial analyst for a reason, because she was “expecting this late extra hours”; and that this “kind of position required this amount of hours and you should know that already”. The applicant said she did not mind working the extra hours, but she said Ms Haksever had to be fair in return by giving time in lieu. The applicant said Ms Haksever had only given two days in lieu after five months of late nights and weekend work. Ms Haksever said “[y]ou get rewarded when [you] grow in your career”, and that Ms Haksever is “career driven” and was “expecting” the applicant “will be the same but I guess we are different”. Ms Haksever then asked the applicant whether she knew she was “on a preparation [sic] period and I may need to think about your work and also to take the write [sic] decision”. The applicant said she did not appreciate that; she thought they were there to find a solution, and she hoped Ms Haksever would be fair. After Ms Haksever asked the applicant what she meant by “fair”, and the applicant explaining what she meant, the meeting concluded by Ms Haksever suggesting they catch up “next week and we will see what can we [sic] do”.
Paragraph 8 of the Affidavit states: “Final e-mail complaint that was sent on 13th of November (Please find the e-mail attached)”. Behind a sheet headed “Fact 8” there is an email the applicant sent to Ms Haksever at 12:45 pm on 13 November 2019. The applicant asked Ms Haksever to “read the attached documents prior to our meeting tomorrow”. Attached to the email is a document titled “Friday 8th of November Meeting minutes”. It is then stated that at that meeting “we have discussed my e-mail that I have sent on 11th of October at 4am”. The document then sets out information under four headings: the “points that we have discussed”; actions “you have taken post our meeting”; the applicant’s comments regarding her duties since she started at PVH; and “actions that needs [sic] to be taken to resolve all the issues above”.
Paragraph 9 of the Affidavit states: “14th of November, termination meeting with Nilufer Haksever and Maggie Mackey (Please find detailed discussion attached)”. There is a document headed “Fact 9” which sets out a conversation the applicant says occurred at a meeting between the applicant, Ms Mackey, and Ms Haksever on 14 November 2019. According to that document, the applicant said she had sent an email to Ms Haksever, and she hoped Ms Mackey got the chance to read it. Ms Mackey said she did read it “and as you are on your preparation [sic] period, we have decided to terminate your contract today”. The conversation continued as follows:
Applicant:May I know the reason please.
Ms Mackey:It was an executive decision
Applicant:But I need to know the reason please
Ms Mackey:The decision has been mad[e] already and your contract is terminated.
The note records that Ms Mackey asked the applicant to collect her items from the applicant’s desk and leave immediately; and that Ms Haksever did not say anything during the meeting.
Paragraph 10 of the Affidavit states: “The unpaid overtime extra hours, worked during the 5 months of employment. (Please find the details attached)”. Behind a sheet headed “Fact 10” there is a table which sets out what the applicant claims are the extra hours she worked (279 hours) and the amount the applicant claims she ought to be compensated for those hours ($27,251).
Paragraph 11 of the Affidavit states (errors in original): “PVH Australia official response to Fair work commission complaint (the reason why i applied for unlawful termination at the Federal Circuit Court Of Australia) Please find attached”. Behind a sheet headed “Fact 11” there is a copy of the Form F8A with some annotations.
Paragraph 12 of the Affidavit states: “Fair work [sic] Commission mediation session . . . . Please find detailed conversation attached”. There is a document titled “Fact 12” which purports to record a conversation at a mediation session. PVH has objected to that note being admitted into evidence on the ground that it represents communications made in the course of attempting to settle the applicant’s claims. I agree the note is not admissible.
There is, however, a document apparently prepared by the applicant titled “Compensation” in which the applicant claims the following damages:
a)$26,614 for extra hours worked.
b)$20,000 for loss of income. The applicant says it took her two months to find a new job, and the $20,000 represents two months’ salary.
c)Compensation for $60,000 for “unfair dismissal”.
d)“Two months’ notice pay” of $20,000. This is claimed on the ground that PVH terminated the Employment Contract before the six month probation period expired.
e)$419 per month, which represents the difference between the salary the applicant received when an employee of PVH and the salary she received on obtaining employment two months after her contract was terminated.
Grounds on which PVH relies
PVH has set out in a document titled “Respondent’s Outline of Submissions in its Application in a Case” the grounds on which it relies for submitting the applicant does not have reasonable prospects of successfully prosecuting her claims. The applicant has responded in detail to these submissions in two affidavits, each she made on 20 May 2020. I propose to identify and consider each of the grounds on which PVH relies.
First, PVH submits it is not apparent what the applicant alleges is the adverse action PVH had taken against the applicant, or who took the adverse action, or what workplace rights the applicant alleges she exercised, or how any adverse action was taken because of the workplace rights.[3] I do not accept this submission. It is clear from the Part G claims, and from the material that forms part of the Affidavit, that the applicant claims PVH dismissed her from her employment because she complained about Mr X, and about her being required to work additional hours without being given any more than two days in lieu. That is what the applicant states in the Part G claims; she says “they terminated the contract because I complained and used my work right and they did it before I finished the 6 months preparation [sic] period so they wouldn’t pay my entitlements of 2 months salary”. It is also clear that the workplace right the applicant claims she had and which she exercised was her ability as an employee to make a complaint or inquiry in relation to her employment. The applicant repeats this in her submissions:[4] “The adverse action that was taken against me, is simply firing me (terminating my contract) because I complained to my manager for all the extra hours that I was requested to work that endangered my life”.
[3] Respondent’s Outline of Submissions in its Application in a Case, [39]
[4] Affidavit of applicant 20.05.2020 (Applicant’s Longer Affidavit), page 5
Second, PVH submits it is unclear how the claim for unpaid extra overtime hours “could be relief that the FW Act permits in a purported general protections claim under Part 3-1”.[5] This submission is premised on the view that the applicant relies on her not being paid overtime as a ground for claiming a contravention of a general protection provision contained in Part 3-1 of the FW Act. That premise is incorrect. It is clear from the Part G claims that the applicant claims PVH required the applicant to work unreasonable overtime hours, and that this was contrary to the NES.
[5] Respondent’s Outline of Submissions in its Application in a Case, [42]
Third, PVH submits the application “is not an ‘underpayment’ matter seeking to enliven provisions in Part 2-1 of the FW Act, alleging, for example, contraventions of the National Employment Standards”.[6] PVH does not explain why it submits the application does not seek to enliven the provisions of Part 2-1. As I have already observed, in the Part G claims the applicant claims PVH required her to work unreasonable overtime hours, and that this was contrary to the NES. Perhaps the point PVH intends to make is that, having used a Form 3, the applicant cannot seek relief in relation to alleged contraventions of other civil remedy provisions outside Part 3-1 of the FW Act. If that is what PVH intends to submit, that would be a matter relating to procedure, not to whether the applicant has no reasonable prospects of succeeding on a claim based on her being required to work unreasonable overtime hours.
[6] Respondent’s Outline of Submissions in its Application in a Case, [45]
Fourth, PVH submits the application is not an unfair dismissal claim.[7] By that I understand PVH to submit this Court does not have jurisdiction to entertain a claim for “unfair dismissal”. That is correct. Whether or not an employee has been “unfairly dismissed” within the meaning of s.385 of the FW Act is for the FWC to determine in the exercise of jurisdiction conferred on it by s.390 of the FW Act. Paragraphs 10, 11, 12, and 13 of the document titled “Part G - Contravention(s) alleged”, being paragraphs that rely on s.387 of the FW Act, should therefore be struck out, and I propose to so order.
[7] Respondent’s Outline of Submissions in its Application in a Case, [45]
Fifth, PVH submits there is “no clear or coherent basis as to how the content” of the applicant’s email of 16 September 2019 “could be accepted by this Court as a material fact relevant to any aspect of any purported cause of action in this proceeding”, and that is because the email contains “opinion and conclusions”.[8] This submission misapprehends the apparent intended relevance of the email. The applicant does not appear to rely on it as evidence of the truth of the matters asserted in the email; the applicant appears to rely on it as evidence of her making a complaint or inquiry in relation to her employment. That would be a material fact to a cause of action based on an alleged contravention of s.340 of the FW Act where it is alleged that adverse action has been taken against an employee because an employee has made a complaint or inquiry in relation to his or her employment.
[8] Respondent’s Outline of Submissions in its Application in a Case, [50]-[52]
Sixth, PVH submits that that part of the document headed “Fact 5” that appears under the words “Below are the list of task[s] that was assigned to me during Nilufer’s absence”, “are not fact at all, but contain hearsay, opinion and conclusion”.[9] This appears to be an objection to the admissibility of the matters stated in “Fact 5” as evidence of the truth of the matters stated. I am not satisfied there is no reasonable prospect that at the hearing the applicant would not be permitted to give evidence in the form set out in “Fact 5” of the work she was assigned or, if the Court were to rule the applicant could not give evidence in that form, the applicant would have no reasonable prospects of not being permitted to attempt to give evidence of those matters in an admissible form. Nor am I satisfied the applicant would have no reasonable prospects of successfully resisting an objection that would be made at the hearing that this part of “Fact 5” is hearsay or inadmissible opinion.
[9] Respondent’s Outline of Submissions in its Application in a Case, [53]
Seventh, PVH submits there is nothing in the conversation set out in “Fact 5” to suggest the account was recorded on or about 10 October 2019; the account of the conversation records “no material (objective) facts”, and the “pages do not disclose any cause of action and should be struck out”.[10] I do not accept these submissions. The conversation represents a conversation the applicant says occurred on 10 October 2019. It is evidence that may or may not be accepted at the hearing. The conversation may or may not be a material fact; but I am not satisfied the applicant would not have reasonable prospects of persuading the Court at the hearing that the conversation, if accepted, is relevant to the facts on which the applicant relies for claiming that she had made complaints to PVH in relation to her employment.
[10] Respondent’s Outline of Submissions in its Application in a Case, [53]
Eighth, PVH submits the email the applicant sent on 11 October 2019 to Ms Haksever “contain opinion and conclusions, rather than material (objective) facts”.[11] This submission misapprehends the apparent intended relevance of the email the applicant sent on 11 October 2019. The applicant appears to rely on the email as evidence of her making a complaint or inquiry in relation to her employment.
[11] Respondent’s Outline of Submissions in its Application in a Case, [55]
Ninth, PVH submits there is nothing in the conversation set out in “Fact 7” to suggest the account was recorded on or about 8 November 2019; the contents of the conversation “are not fact at all, but contain hearsay, opinion and conclusion”, and the conversation “does not disclose any cause of action and should be struck out”.[12] I do not accept these submissions. The conversation represents a conversation the applicant says occurred on 8 November 2019. It is evidence that may or may not be accepted at the hearing. The conversation may or may not be a material fact; but I am not satisfied the applicant would have no reasonable prospects of persuading the Court at the hearing that the conversation, if accepted, is relevant to the facts on which the applicant relies for claiming that she had made complaints or inquiries in relation to her employment.
[12] Respondent’s Outline of Submissions in its Application in a Case, [57]
Tenth, PVH submits there is no “clear or coherent basis as to how the content of this page”, being the email the applicant sent on 13 November 2019 to Ms Haksever “could be accepted by this Court as a material fact relevant to any aspect of any purported cause of action in this proceeding”.[13] This submission misapprehends the apparent intended relevance of the email the applicant sent on 13 November 2019. The applicant appears to rely on the email as evidence of her making a complaint or inquiry in relation to her employment.
[13] Respondent’s Outline of Submissions in its Application in a Case, [59]
Eleventh, PVH submits that the attachments to the email the applicant sent on 13 November 2019 to Ms Haksever, which purport to refer to a meeting on 8 November 2019, “contain no alleged material (objective) facts at all, but contain hearsay, opinion and conclusion”; there is nothing to suggest the record of the meeting was made on 8 November 2019, and the pages did not disclose any cause of action.[14] One difficulty with this submission is that it is premised on the view that a particular item of evidence must disclose a cause of action. That is not correct. The question is whether there is no reasonable prospect that the documents attached to the email the applicant sent to Ms Haksever on 13 November 2019 will be relevant at the hearing to the claims the applicant makes. I am not so satisfied. Ms Haksever’s and Ms Mackey’s having received the email on 13 November 2019 may be relevant to assessing evidence Ms Haksever or Ms Mackey may give at the hearing about the reason or reasons PVH dismissed the applicant.
[14] Respondent’s Outline of Submissions in its Application in a Case, [60], [61]
Twelfth, PVH submits the contents of the document headed “Fact 9”, “are not fact at all, but are opinion and conclusion”.[15] “Fact 9” sets out the conversation the applicant says occurred at her meeting with Ms Mackey and Ms Haksever on 14 November 2019 when she was dismissed from her employment. Assuming it can be said it was given under oath, it would constitute evidence of a fact, namely, that the applicant, Ms Mackey, and Ms Haksever, participated in a conversation to the effect set out in “Fact 9”. If the applicant’s evidence is accepted, there will be a finding of fact to that effect. I am not satisfied the applicant has no reasonable prospects of showing at the hearing of her claims that a finding of fact to the effect set out in “Fact 5” would be relevant to her claims. On the contrary, the applicant’s evidence, if accepted, that she asked why PVH decided to dismiss her employment, but PVH did not provide any reason, may be relevant to assessing any evidence Ms Haksever or Ms Mackey may give about the reasons or reason for which PVH decided to dismiss the applicant. There is nothing about “Fact 9”, therefore, that would indicate the applicant does not have reasonable prospects of successfully prosecuting the proceeding.
[15] Respondent’s Outline of Submissions in its Application in a Case, [62]
Thirteenth, PVH submits that the document behind “Fact 10”, being a document that purports to record the overtime the applicant claims she was requested to work, is hearsay, and fails to disclose a cause of action. PVH also submits it is unclear how, in a general protection claim, the applicant claims compensation for performing overtime work, given that this is not a “matter seeking to enliven provisions in Part 2-1 of the FW Act, alleging, for example, contraventions of the” NES.[16]
[16] Respondent’s Outline of Submissions in its Application in a Case, [64]
As I have already noted, it is clear from the Part G claims that the applicant claims PVH unreasonably required the applicant to work overtime hours, and that this was contrary to the NES. The hours recorded in “Fact 10” are the overtime hours the applicant claims PVH unreasonably requested the applicant to perform, in breach of the NES. I accept, however, that “Fact 10”, although constituting particulars of the hours the applicant claims she worked, is not evidence of the hours the applicant worked. That, however, is not a reason for concluding the applicant will have no reasonable prospects of adducing evidence that shows the requests she claims PVH made for her to work overtime, and the overtime she in fact worked. There is nothing about “Fact 10”, therefore, that would indicate the applicant does not have reasonable prospects of successfully prosecuting the proceeding.
Fifteenth, PVH submits the applicant’s annotations to the Form F8A constitute opinion and conclusions. That is correct. That, however, does not add weight to PVH’s claim that the applicant does not have reasonable prospects of successfully prosecuting the proceeding.
Finally, PVH submits that the document headed “Fact 12” records confidential communications made in a mediation before the FWC. I have already found those communications are inadmissible, and the applicant cannot rely on them. That, however, does not add weight to PVH’s claim that the applicant does not have reasonable prospects of successfully prosecuting the proceeding.
Conclusion
PVH’s submissions do not engage with the claims the applicant makes in the Part G claims, and how the material contained in the Affidavit relates to the claims the applicant makes in that document. PVH in its submissions treats the Affidavit – a species of evidence – as a statement of the applicant’s case rather than treating it as evidence on which the applicant intends to rely in support of the claims she makes in the Part G claims; and in that document the applicant makes three claims.
The first is that PVH dismissed the applicant from her employment because she complained about the overtime she was required to do, and also about the conduct of Mr X. I am not satisfied the applicant has no reasonable prospects of succeeding in establishing at the trial of this claim that the applicant was an employee of PVH; that she had a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act, namely, an ability to make a complaint or inquiry in relation to her employment; that by sending the emails of 16 September, 11 October and 13 November 2019, and by making statements in the conversations she says she had with Ms Haksever at the meetings of 10 October and 8 November 2019, the applicant made a complaint or inquiry in relation to her treatment by Mr X, and the additional hours she was required to work; that these complaints or inquiries related to her employment; the applicant claims PVH dismissed the applicant from her employment on 14 November 2019 because she made these complaints or inquiries; and that, by dismissing the applicant, PVH took adverse action against her. I am also not satisfied that at the hearing of this claim the applicant has no reasonable prospects of the Court not accepting that PVH dismissed the applicant for the reason or for reasons that included as a substantial factor the applicant’s having made the complaints or the inquiries she claims she made in relation to her employment.
The second claim the applicant makes in the Part G claims appears to be premised on her accepting that PVH dismissed her because PVH was not satisfied with the applicant’s performance. The applicant appears to claim that she was dismissed unfairly within the meaning of s.385 of the FW Act. The applicant does not have reasonable prospects of prosecuting this part of the proceeding because this Court does not have jurisdiction to determine whether the applicant was unfairly dismissed.
The third claim the applicant makes in the Part G claims is that PVH requested the applicant work additional hours beyond the 38 hours prescribed by the NES that were unreasonable. I am not satisfied that if the applicant were to adduce evidence that is capable of proving that (a) she worked hours beyond the 38 hours provided for by s.62(1) of the FW Act; (b) the amount of additional work PVH requested the applicant to work was unreasonable; and (c) the applicant did work the additional hours PVH requested her to work; the applicant would have no reasonable prospects of succeeding in a claim that PVH contravened s.62(1) of the FW Act, and that she suffered loss in the form of having undertaken additional work for which she is entitled to be paid compensation.
Costs
PVH applies for an order for costs under s.570 of the FW Act. Given PVH has substantially failed on its application for dismissal, I do not propose to make any order for costs against the applicant.
Disposition and further progress
I propose to make the following orders:
a)Paragraphs 10, 11, 12, and 13 of the Part G claims be struck out.
b)PVH’s application in a case be otherwise dismissed.
c)By 19 November 2020 the applicant file and serve any further orders on which the applicant intends to rely.
d)By 17 December 2020 the respondent file and serve the affidavits on which the respondent intends to rely.
e)By 11 January 2021 the applicant file and serve affidavits in reply, if any, on which the applicant intends to rely.
f)The matter be listed for directions at 9:30 am on 2 February 2021.
I have decided to allow the applicant an opportunity to file further evidence for two reasons. First, although the Affidavit gives particulars of the additional work the applicant says she performed at the request of PVH, the Affidavit does not contain evidence of who on behalf of PVH requested the applicant to perform work, when and how such request was made, and the work the applicant says she performed in response to the requests. Further, although the applicant says she was not employed for two months after PVH dismissed her, and that she had found employment for a wage that is less than the wage PVH paid her, there is no evidence of her employment contract with the applicant’s new employer, or of the amount the applicant is paid under such contract. These are matters the applicant will need to prove by evidence if she intends to rely on them.
I have made the observations in the previous paragraph having regard to the decision in Uszok v Henley Properties (NSW) Pty Limited.[17]
[17] Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31, at [147]-[160]
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 5 November 2020
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