Seers v Australian Postal Corporation - [2014] FCCA 377

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEERS v AUSTRALIAN POSTAL CORPORATION

[2014] FCCA 377

Catchwords:
INDUSTRIAL LAW – Contravention of general protection provisions.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – no reasonable prospect of success.

Legislation:

Fair Work Act 2009, part 3.1. ss.340, 341(1)(c), 342, 351, 360, 365, 368(3)(a), 371, 570(2)
Federal Circuit Court Rules 2001, r.13.10
Australian Human Rights Commission Act 1986, s.46PO
Disability Discrimination Act 1992, s.5

Seers v Australia Post [2011] FMCA 659
Seers v Australia Postal Corporation [2011] FCA 116
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75

Lancet & Lancet [2008] FMCAfam 525

Spallav St George Motor Finance Ltd [2004] FCA 1699
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423
Purvis v New South Wales [2003] 217 CLR 92
Cugura v Frankston City Council (No.1) [2012] FMCA 340
Khiani v Australian Bureau of Statistics[2011] FCAFC 109

Applicant:

SHARON LEE SEERS

Respondent:

AUSTRALIAN POSTAL CORPORATION

File Number:

MLG 1785 of 2013

Judgment of:

Judge Jones

Hearing date:

18 February 2014

Date of Last Submission:

18 February 2014

Delivered at:

Melbourne

Delivered on:

7 March 2014

REPRESENTATION

Applicant Appearing In Person

Counsel for the Respondent:

Ms Nelson

Solicitors for the Respondent:

Australian Postal Corporation

ORDERS

The application filed on 23 October 2013 be dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1785 of 2013

SHARON LEE SEERS

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR JUDGMENT

Introduction

On 23 October 2013 Sharon Lee Seers (“the applicant”) filed an application and Claim (Form 4) alleging contravention of general protections under Part 3.1 of the Fair Work Act 2009 (“the Act”).
In essence her claim is that the respondent contravened ss.340 and 351 of the Act. She specified at point 19 of her claim the adverse action by the respondent as:
“Fraud, bullying, harassment further injury due to negligence”
She specified her workplace right pursuant to s.340 of the Act as:
“To be granted an investigation when a request is made”
She specified the “attribute” under s.351(1) of the Act as:
“Discriminated against (past injuries) aggravation of depression due to the negligent actions of Australia Post”
It is relevant to note that on 28 August 2013 the applicant made an application for the Fair Work Commission to deal with a general protection dispute (Form 9). In the Form 9, at point 3.1, in response to the question, “Did the alleged contravention involve the dismissal of the Applicant…”, the Applicant responded, “No”.
On 31 November 2013 the respondent filed an application in a case seeking orders that the proceedings be dismissed generally in accordance with r.13.10 of the Federal Circuit Court Rules 2001 (“the Rules”) and that the applicant pay the respondents costs in accordance with s.570(2) of the Act. In support of its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 377
Decision Date: 7 March 2014

CaseChat Overview and Summary

In *Seers v Australian Postal Corporation*, heard before Judge Jones, the applicant, Mr Seers, alleged that the respondent, Australian Postal Corporation, had contravened the general protections provisions of the *Fair Work Act 2009* (Cth). The dispute arose from actions taken by the respondent concerning Mr Seers' employment.

The central legal issue before the Court was whether Mr Seers' application should be summarily dismissed on the grounds that it constituted an abuse of process and lacked any reasonable prospect of success. This required the Court to consider the substantive merits of the general protections claim in light of the evidence presented.

Judge Jones reasoned that for a general protections claim to proceed, there must be a factual basis demonstrating a contravention of the relevant provisions. In this instance, the Court found that the material before it did not establish a prima facie case of contravention. Consequently, the Court concluded that the application was an abuse of process and had no reasonable prospect of success, applying the principles governing summary dismissal in such circumstances.

The Court ordered that the application be dismissed.

Orders