SANKARARAMALINGAM v Infotech PROFESSIONALS Pty Ltd
[2016] FCCA 2729
•4 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANKARARAMALINGAM v INFOTECH PROFESSIONALS PTY LTD | [2016] FCCA 2729 |
| Catchwords: INDUSTRIAL LAW – Application under the Fair Work Act 2009 (Cth) – Alleged underpayment of wages – claims made against respondent contrary to the Fair Work Act 2009 (Cth) – application for summary dismissal – whether the applicant’s claims are not reasonably arguable – certain claims made by the applicant struck out – application for summary dismissal otherwise dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.90(1), 96(1), 117, 330 Fair Work Regulations 2009 (Cth), reg.3.46 |
| Cases cited: Cavar v Nursing Australia [2012] FCA 338 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZWBH v Minister for Immigration & Border Protection (2015) 229 FCR 317; [2015] FCAFC 88 |
| Applicant: | VALLIGOMATHY SANKARARAMALINGAM |
| Respondent: | INFOTECH PROFESSIONALS PTY LIMITED |
| File Number: | SYG 2116 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 19 October 2016 |
| Date of Last Submission: | 19 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Mr I. Latham |
| Solicitors for the Respondent: | Sachi Legal |
ORDERS
The following claims made by the applicant be struck out:
(a)that the base salary was unlawfully reduced by the respondent on some payslips;
(b)that the applicant was not paid as a trainer during the period 15 May 2014 to 14 November 2014 despite the designation in the Service Certificate provided by the respondent; and
(c)that the respondent did not pay the applicant the correct statutory entitlements for the period between October 2010 and November 2011.
The application for summary dismissal is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2116 of 2016
| VALLIGOMATHY SANKARARAMALINGAM |
Applicant
And
| INFOTECH PROFESSIONALS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings seeks compensation from the respondent, (“Infotech”) who is her former employer. Infotech seeks an order summarily dismissing the application on the basis that the applicant’s claims are not reasonably arguable.
Application for summary dismissal
The Court may summarily dismiss proceedings, or any claim for relief, if it is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim: r.13.10 of the Federal Circuit Court Rules2001 (Cth). Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides:
Summary judgment
…
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
The High Court considered an equivalent provision in the Federal Court of Australia Act 1976 (Cth) in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28. French CJ and Gummow J said, at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
(Citations omitted)
In SZWBH v Minister for Immigration & Border Protection (2015) 229 FCR 317; [2015] FCAFC 88, the Full Court of the Federal Court said the following about these powers:
[24]It may readily be accepted that the criterion for the exercise of the power is less onerous than that which previously obtained at common law: see for example Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] (Mansfield J). That said, the power must be exercised cautiously: cf Spencer at 131. The Court should not act to prevent an applicant prosecuting his or her case in the normal way unless the need for summary judgment is clear: see Hicks v Ruddock (2007) 156 FCR 574 at 582 (Tamberlin J). It will, ordinarily, not be appropriate to grant summary judgment in a case in which there is a real dispute between the parties as to issues of fact: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] (Besanko J).
Proceedings in this Court
The applicant is unrepresented. In light of that, the respondent’s application was not based on any narrow view of the application and other material relied on by the applicant. The respondent submitted that the correct approach for the Court to take was similar to that which was described by Flick J in Cavar v Nursing Australia [2012] FCA 338:
[12]The manner in which the Federal Magistrate approached her task, given the fact that Ms Cavar was unrepresented, was manifestly appropriate. The Federal Magistrate, for example, extended to Ms Cavar an opportunity to file an amended application ([2011] FMCA 929 at [6] to [7]) and considered the form of a proposed amended application which was belatedly filed ([2011] FMCA 929 at [25]). The opportunity was also extended to Ms Cavar “to file post-hearing written submissions” ([2011] FMCA 929 at [25]). By doing so, the Federal Magistrate clearly allowed Ms Cavar every opportunity to advance her claims in such manner as she saw fit.
[13]The Federal Magistrate, moreover, did not confine her consideration of the claims sought to be advanced merely by reference to the form of any application or amended application or points of claim that were before the Court. She also considered the evidence that had been filed with an obvious view to discerning whether any claim for relief could be formulated – albeit not in the manner advanced by Ms Cavar: (see, eg, [2011] FMCA 929 at [34], [40]).
[14]Before exercising the discretion to dismiss Ms Cavar’s Application, the Federal Magistrate also considered each of the relevant statutory provisions to which Ms Cavar referred in her Application. The relevance of those statutory provisions, and the manner in which Ms Cavar sought to obtain the benefit of those provisions, was not apparent from any of the documents filed by her. Notwithstanding that difficulty, the Federal Magistrate dealt with those provisions and such evidence as was potentially relevant to any claim that could possibly be formulated.
(Emphasis in original)
While there is no doubting the correctness of this approach, it has the capacity to impose a significant burden on the Court. The extent of that burden may, in my view, be sufficient in an appropriate case to refuse to grant summary relief even though there may be no reasonable prospects of success. Here, there are over 330 pages of material (being annexures to the applicant’s affidavit) that would have to be examined in order to determine whether the low threshold of arguability has been met.
It became apparent at the hearing of the application for summary dismissal that the respondent had not had this extensive material when making and preparing for the application. The absence of this material explains two things about its written submissions: first, the material was not referred to; and secondly, that the extent of the submission on the prospects of success of the applicant’s case was at [4]:
… At best this is a case about wage underpayment. Such a case (by itself) could never lead to a general protections case in the absence of adverse action being taken over a claim for such payments. No such action is alleged.
Applicant’s claims
There are nine contentions in the material in the applicant’s affidavit filed on 5 August 2016. Some of these are not simply about underpayment of wages. For example, the applicant claims that contrary to the Fair Work Act 2009 (Cth) (“FW Act”):
a)The respondent unilaterally reduced the applicant’s salary: s.330 of the FW Act;
b)she was not paid for work done by her as a co-ordinator;
c)she was not paid holiday pay and personal/carer’s leave: ss.90(1) and 96(1) of the FW Act;
d)the payslips provided by the respondent did not include information that was required: reg.3.46 of the Fair Work Regulations 2009 (Cth);
e)she was not paid redundancy pay: s.117 of the FW Act; and
f)she was not given notice of termination of her employment as required by cl.11 of the Educational Services (Post-Secondary Education) Award 2010.
It may be that, after a thorough examination of the material, these grounds will fail. However, I do not propose to undertake such an examination. First, the material was only partially addressed by the respondent and then only at a very high level; secondly, that would, in effect, simply be undertaking a final analysis of the material without affording the applicant any opportunity to further support or refine her claims; and thirdly, because it would involve an unnecessary amount of the Court’s resources.
That said, in the course of the hearing of the application for summary dismissal, it appeared that three parts of the applicant’s claims were readily understandable and had no prospects of success.
Claim 1 – Second ground in annexure A to applicant’s affidavit
The first of these claims was the second ground in the annexure to the applicant’s affidavit. The contention there is that the respondent unlawfully reduced the applicant’s base salary. The applicant relevantly relied on the payslips for the periods commencing 22 April 2012 and 6 May 2012[1]. The first payslip shows a base salary of $2,640.38 whereas the second shows a base salary of only $2,431.93. The difference is $208.45. That amount however, was paid to the applicant in the second pay period, not as part of her base salary but in respect of 6 hours of personal/carer’s leave. For that reason, there was no actual reduction in base salary, only a reduction in the number of hours the applicant worked normal hours. Thus, the premise of the ground is incorrect and there is no prospect of it succeeding.
[1] pp.56 and 57 of the annexure respectively.
Claim 2 – Sixth ground in annexure A to applicant’s affidavit
The second claim is the sixth ground in annexure A. This claim relates to the period from May 2014 to November 2014 during which the applicant worked as a co-ordinator but not as a trainer. In spite of this, the reference[2] provided to the applicant by the respondent in a letter dated 25 May 2015 indicated that she had been employed as a trainer and academic co-ordinator until 17 November 2014. The applicant argues that, because the certificate says that she was employed as a trainer then she should have been paid for work as a trainer. The argument is bound to fail on the applicant’s own admission that she was not in fact employed as a trainer and did not work as one in the relevant period.
[2] p.147 of the annexure.
Claim 3- employment with IIBIT in annexure A to applicant’s affidavit
The third claim that has no reasonable prospect of success involves the period prior to the applicant’s employment by the respondent. The applicant claims that she was employed at an institution called International Institute of Business and Information Technology (IIBIT). From 2010 to October 2011, the applicant says she was employed by Campus Solutions Pty Ltd but that company went into liquidation. Subsequently, the applicant was employed by the respondent from January 2011 until November 2014. In those circumstances, there is nothing to support any claim against the respondent as an employer for the period prior to January 2011.
Conclusion
For the above reasons, those three claims will be struck out. The application for summary dismissal will be otherwise dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 4 November 2016
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