Rust v Office of the Commissioner for Public Employment
[2023] FedCFamC2G 64
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rust v Office of the Commissioner for Public Employment [2023] FedCFamC2G 64
File number: DNG 19 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 25 January 2023 Catchwords: FAIR WORK - application for a stay in proceedings - where there are two or more separate proceedings relating to the same subject matter - where there is some overlap between the two claims made by the Applicant - where the two claims are conceptually and factually distinct -where factual findings in one set of proceedings may give rise to issue estoppels in the other set of proceedings - where a stay would lead to unnecessary delay - where the Court is satisfied there is no significant overlap - application for a stay refused Legislation: Fair Work Act 2009 (Cth) s 341
Public Sector Employment Management Act (PSEMA) 1993(NT)
Return to Work Act 1986 (NT)
Cases cited: Burrup Fertilisers Proprietary Limited (Receivers and Managers Appointed) v Oswald [2011] FCA 424
Sterling Pharmaceuticals & Boots Company Australia Pty Ltd (1992) 34 FCR 287
Division: Division 2 General Federal Law Place: Darwin Number of paragraphs: 14 Date of hearing: 25 January 2023 Counsel for the Applicant: Ms Doust Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Ms Preston Solicitor for the Respondent: Hunt & Hunt ORDERS
DNG 19 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIA RUST
Applicant
AND: OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
25 JANUARY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent on 14 December 2022 for a stay order is refused and dismissed.
2.The Respondent file and serve a Defence by close of business on 8 March 2023.
3.The Applicant file and serve any Reply by close of business on 29 March 2023.
4.The proceedings be listed for further directions on 20 July 2023 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Young
This is an application for a stay of a proceeding under the Fair Work Act 2009 (Cth) in this Court made by the respondent employer. The general background of the matter is as follows. The applicant, Ms Rust, was employed by the respondent, Northern Territory Public Service, from 2008. In June 2021 she was employed as a program manager in the Department of Infrastructure, Planning and Logistics (DIPL). She worked closely with a Mr Grumelart. It appears that rumours began circulating in the department that Ms Rust and Mr Grumelart had a romantic relationship.
On 30 July 2021 the CEO of the Department, Mr Kirkman, spoke to Ms Rust. There is some dispute about what happened, but in general terms, there was a discussion between Mr Kirkman and Ms Rust about the nature of her relationship, if any, with Mr Grumelart. It seems that Mr Kirkman decided that Ms Rust ought not work in physical proximity to Mr Grumelart, and it was proposed to transfer her to another position. Ms Rust, it is not in contention, took umbrage with this proposal and she denied any improper relationship with Mr Grumelart. She began, according to the statement of claim filed in this Court for the purpose of the general protections claim she makes, to exercise a series of workplace rights: essentially, rights of complaint or grievance about what was proposed and, indeed, what was done in relation to her position
Without going into the detail, it appears that shortly before this event her position had been upgraded, so to speak, and there was a decision made, supported by Mr Grumelart apparently, to exempt this position from a piece of Territory legislation or perhaps public service practice - I am not sure of the exact basis - which meant that if there was a suitable Indigenous applicant that they should be preferred for a particular position. Ms Rust’s position was initially made exempt from that requirement. However, later, after the meeting on 30 July 2021, that exemption was apparently removed from her position. She asserts that she complained about that and other matters of her treatment in the department.
She says that she lodged a grievance, under, I imagine, the Public Sector Employment Management Act (PSEMA). She alleges that she made complaints to various senior officers or executives within DIPL. She alleges that she made a complaint to the Anti‑Discrimination Commission, a complaint of sexual harassment and/or victimisation, and I note that in this proceeding she also makes a complaint of sex discrimination against the respondent, essentially, on the basis that had she not been a woman she would not have been treated in the way she was by being transferred to another position. She makes complaints that she was the subject of adverse action of various kinds as a result of the exercise of those workplace rights, and according to her lengthy statement of claim those adverse actions took place over many months, approximately nine months after the meeting on 30 July, ultimately resulting in the termination of her employment.
She also alleges that as a result of the meeting with Mr Kirkman on 30 July 2021 that such was his conduct and behaviour that she suffered a psychological injury which has subsequently led to incapacity for employment. On 26 August 2021 Ms Rust lodged an application under the Return to Work Act, in other words a workers’ compensation claim. That workers’ compensation claim is a relatively brief document, some eight paragraphs or thereabouts, and the primary allegation is, as I have described, that at the meeting on 30 July 2021 with the CEO of DIPL, the CEO acted in such a way as to cause her a workplace injury, that injury being a psychological injury which has subsequently incapacitated her for employment, for which she claims compensation.
It can be seen, I think, that while there is a substantial overlap in the issues between the two claims, the two claims are, at least conceptually and, to a significant degree, factually, quite distinct. The legal claim arising under the Return to Work Act consists of a claim that Ms Rust suffered an injury in or in the course of her employment and that injury incapacitates her for work. The injury, she says, was a psychological injury flowing from the meeting with the CEO on 30 July 2021. The proceedings, under the Fair Work Act in this Court cover, in my view, a more extensive area. She alleges, under the general protection provisions of the Act at section 341 and thereabouts, that because she exercised a workplace right or rights - and, in particular, the rights she complains of are rights to due process under the Public Sector Employment and Management Act and Regulations (PSEMA) and a right to complain or to lodge a grievance or to lodge a workers compensation claim, that adverse action was taken against her.
That adverse action was multifarious according to her amended statement of claim, including the employer’s failure to act on what she says were, in effect, bullying claims by failing to address rumours, by transferring her position, by removing the special exemption measures as they had previously applied to her position and by various other factors, as I say, stretching over some months leading or culminating in the termination of her employment.
The respondent makes an application relying on the principles set out in Sterling Pharmaceuticals & Boots Company Australia Pty Ltd (1992) 34 FCR 287, a decision of Lockhart J, as to the discretionary considerations applying where there are two or more separate proceedings in relation to the same subject matter and whether one of those proceedings ought to be stayed by the Court.
The criteria are helpfully repeated in a decision of McKerracher J, in Burrup Fertilisers Proprietary Limited (Receivers and Managers Appointed) v Oswald [2011] FCA 424. It is said that the relevant considerations in that particular case were:
•Which proceeding was commenced first.
•Whether the termination of one proceeding is likely to have a material effect on the other.
•The public interest.
•The undesirability of two courts competing to see which of them determines common facts first.
•Consideration of circumstances relating to witnesses.
•Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
•The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
•How far advanced the proceedings are in each court.
•The law should strive against permitting multiplicity of proceedings in relation to similar issues.
•Generally balancing the advantages and disadvantages to each party.
The applicant for the stay says that the issues are so intimately connected and overlapping that the outcome of the Return to Work Act proceedings, which are by common agreement, I think, further advanced, is likely to determine or have a substantial effect on the proceedings under the Fair Work Act. It is said that there are likely to be issue estoppels arising and that there is also a danger of inconsistent findings. Any trial in this Court is unlikely to take place before the second half of the year at the very earliest and probably, realistically, towards the end of this year. The Return to Work Act proceedings are due for a trial in June.
That trial is due to start on 2 June in the Local Court in Darwin. In my view, while the subject matter of the two proceedings is substantially related, there are also, in my view, for the reasons that I have explained, I think significant factual differences. I think it is unlikely that the factual findings in the Return to Work Act proceedings will give rise to issue estoppels on all of the major issues in the Fair Work Act proceedings. I think while there is likely or may well be an issue estoppel in relation to the factual matters arising out of the meeting on 30 July 2021, I am far less convinced that issue estoppels will arise on any of the other matters alleged in the Fair Work Act proceedings in this Court.
It appears to me that while the resolution of the Return to Work Act proceedings may have a substantial practical effect on the approach the parties take to proceedings in this Court, I think that that practical effect will fall well short of extensive issue estoppels. The real effect of the proceedings in the Local Court on the proceedings in this Court I think is hard to accurately gauge, and there is a degree of speculation. The respondent, the applicant for the stay, effectively said that it should not have to file a defence to the applicant’s statement of claim in the Fair Work Act proceedings. It was said that that may well become unnecessary, or there may be different factors to be taken into account, for example, issue estoppels once the Return to Work Act proceedings are resolved.
I think there is perhaps some truth in that but not as much truth as counsel for the respondent submitted. I think another factor that is important is this: in my view, the proceedings in this Court ought not be unduly delayed, and I am satisfied that a stay order that, effectively, stopped everything until perhaps July is likely to lead to unnecessary delay. I think that is likely to be prejudicial to the individual litigant, Ms Rust, who, according to an affidavit filed by her solicitor, is currently unemployed. I think there is desirability in avoiding unnecessary delay. It appears to me that while there is clearly a significant amount of work to be done by the respondent in filing a defence, it seems to be very familiar with the factual issues in dispute in the case, and it should be possible for the respondent to file a defence.
I think that ought to be done and it ought to be done so as to avoid delay. The question of any issue estoppels that arise I think can and should be dealt with at a later time, and I propose to make an order for a directions hearing some time in July when an assessment can be made of what has happened with the Return to Work Act proceedings, whether there is a reserved judgment or whatever, and a decision can then be made about the further steps required, for example, the filing of affidavits of evidence-in-chief and so on. Having regard to each of the matters listed by McKerracher J in Burrup, I refuse the application for a stay, but I am also satisfied that it is appropriate to reconsider the next steps once the Return to Work Act proceedings are completed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 8 February 2023
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