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: |
| 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…
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- Case
- [2020] FCCA 2976
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant's use of Form 3, instead of the prescribed form for general protections applications, rendered her application incompetent and without reasonable prospects of success. Additionally, the court had to consider whether the claims made by the applicant in her filed documents were sufficiently clear and properly brought before the court, or if certain claims should be struck out.
Judge Manousaridis found that while Form 3 was not the correct form for a general protections application, this did not render the application incompetent or deprive the court of jurisdiction. However, the court determined that paragraphs 10, 11, 12, and 13 of the applicant's "Part G - Contravention(s) alleged" document, which purported to claim overtime, unfair dismissal, and unlawful termination, were not properly before the court in the context of a general protections claim. These paragraphs were struck out.
The respondent's application for summary dismissal was otherwise dismissed, and directions were made for the filing of further affidavits and the listing of the matter for directions.
Orders
Orders of the court
1.
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.
2.
The application in a case filed by the respondent on 8 May 2020 is otherwise dismissed.
3.
By 19 November 2020 the applicant file and serve any further affidavits on which the applicant intends to rely.
4.
By 17 December 2020 the respondent file and serve the affidavits on which the respondent intends to rely.
5.
By 11 January 2021 the applicant file and serve affidavits in reply, if any, on which the applicant intends to rely.
6.
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
1.
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.
2.
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
3.
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.
4.
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”.
5.
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.
6.
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.
7.
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”.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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”.
17.
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
18.
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.
19.
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.
20.
I begin with jurisdiction. The FC Court was created as the Federal Magistrates Court by s.8(1) of the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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