Shannon v Gungalayna Sports and Social Club Inc
[2019] FCCA 1524
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHANNON v GUNGALAYNA SPORTS AND SOCIAL CLUB INC | [2019] FCCA 1524 |
| Catchwords: INDUSTRIAL LAW – Application to reinstate proceedings dismissed for non-attendance of the applicant – considerable delay between unification of the dismissal and the applicant’s application – delay not satisfactorily explained – concession of no prejudice to the applicant – applicant’s claims difficult to construe and not suggesting exercise of any workplace right – only real issue being possible non-payment of final pay – matter adjourned to address this. |
| Legislation: Federal Circuit Court Rules 2001, r.13.03C(1)(c) Fair Work Act 2009 (Cth) |
| Cases cited: Jones v Official Receiver & Anor (No.5) [2017] FCCA 2170 Wint v Medimobile Pty Limited [2016] FCCA 102 Zabik v Zabik (No.2) [2017] FCCA 684 |
| Applicant: | RODNEY SHANNON |
| Respondent: | GUNBALAYNA SPORTS AND SOCIAL CLUB INC |
| File Number: | MLG 2674 of 2017 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 13 March 2019 |
| Date of Last Submission: | 13 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Advocate for the Respondent: | Mr Grove |
| Solicitors for the Respondent: | Ward Keller Lawyers |
ORDERS
That the matter be adjourned to this Court for mention before Judge Burchardt on 5 July 2019 at 9.30am
That the Respondent to either:
(a)Pay the Applicant his final pay of $2,233.90; or
(b)File an affidavit proving that the said sum has been paid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 2674 of 2017
| RODNEY SHANNON |
Applicant
And
| GUNBALAYNA SPORTS AND SOCIAL CLUB INC |
Respondent
REASONS FOR JUDGMENT
The matter before the court is, in substance, an application made by the applicant to reinstate his proceeding pursuant to rule 16.05 of the Federal Circuit Court Rules. The instrument that has actually led to this hearing is an application in a case filed by Mr Shannon on 17 August 2018. The application does not raise rule 16.05 in terms, but has been treated by the court and, indeed, by the respondent, as an application pursuant to rule 16.05.
In order to understand why I propose to dismiss the application, it is appropriate to traverse the material filed from time to time and the orders made by the court.
The applicant filed his application in the Fair Work Division on 7 December 2017. He indicated that the grounds of the application were set out in the claim filed contemporaneously.
The Form 3 claim filed on 7 December 2017 notes the details of the applicant and respondent. It denotes a period of employment from April 2015 until 8 August 2017. It denotes a written notice of termination, a copy of which is attached.
The grounds of the claim set out in Part G tick the box marked “Other”. Grounds not ticked included temporary absence from work because of illness or injury of a kind prescribed by the regulations, the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities and marital status.
The details of the claim of unlawful termination of employment are:
· Over a period of time I have been subjected to such behaviour that include bullying, harassment, threatened with violence, belittled in front of other workers, unfairly treated and unfairly dismissed.
· Upon returning from my approved leave on 3/8/2017, the external locks to my house had been changed and the electricity supply on the outside of the house had been turned off, resulting in freezer damage and $1000 food spoilage.
· Ellie Wood and I walked over to discuss commencing back to work with the current manager, Syd Laker, and John Hansman. The conversation quickly went south when we were advised that both Syd Laker and John Hansman advised that I resigned on behalf of Ellie Wood and I also resigned from my position. Under no circumstances did I ever resign on behalf of Ellie Wood or myself.
At paragraph [7] and following of the recitation, the applicant denoted:
· During a BBQ held by Gunbalayna Sports & Social Club Inc (which was held during working hours) Syd in front of all the employees, that I was to report to him if I was leaving the club. Syd also informed me this was due to receiving a letter from Fair Work with regards to a claim Ellie had made against Gunbalayna Sports and Social Club Inc. Again, Syd Laker has belittled me and has again intimidated me in front of the other employees.
· The same morning after reporting to Syd of my movements, Syd made the comment, “Your bringing this on yourself” (he was refereeing to the current claim that Ellie Wood has made against Gunbalayna Sports & Social Club Inc. This treatment I am receiving was a rule only applied to me and no one else. Syd Laker was starting his bullying behaviour towards me.
The points of claim go on to assert at paragraphs [10]-[13]:
· Syd Laker has micromanaged me for unknown reasons. There was never any mention of me underperforming in my role or not being competent. Syd even started bullying me about the way the fridge was being stacked.
· Again, in front of another worker, Syd started discussing my personal working situation and even reduced my hours without any warning to me or even a formal notification in writing. This bullying and intimidating behaviour from Syd has continued till the day I got my dismissal letter.
· Discriminating behaviour from Syd was that he allowed other employees to use the work vehicle to go to Darwin for personal reasons but refused to allow me. Syd advised me if I wanted to go to Darwin I would have to hire a vehicle. Since I arrived to work for Gunbalayna Sports & Social Club in April 2015 I had always had access to a work vehicle and was not sure why this was now changed or why I was not allowed now.
· After asking permission to do a tip run, Syd told me I had to sign a piece of paper with my finishing dates on it, and under no circumstances was I going to sign it. He then told me that “he didn’t want to receive another letter like Ellie Wood’s”. After I told Syd that I would not be signing any letter, he became very aggressive towards me and started yelling at me in front of 2 other employees.
At paragraph [15], the claim asserts:
· Since I returned from holidays there have been several issues with my pay. These have been addressed with Syd on numerous occasions. When I was talking to Syd about it, he made a threatening comment, “you gunna get knocked out soon.” I replied, give it a go.” After this comment, Syd handed me a letter to advise me of my dismissal.
The points of claim concluded “The following will be relied upon from the Fai (sic) Work Act: Division 3 – Workplace Rights – Section 340 Protection, section 344 Undue influence or pressure; Division 5 – Other Protections – section 352 Temporary absence”.
Appended to the application is a certificate signed by Commissioner McKinnon dated 23 November 2017 which shows that there had been a conciliation conference consequent upon a section 365 application made by Mr Shannon which had not resolved the matter.
Additionally, there is a letter dated 9 September 2017 from the respondent to Mr Shannon. This relevantly asserts:
· We refer to your reemployment with GSSC.
· We confirm that GSSC considers that you resigned your employment with us as Yardman/Security, before you went on your recent leave, with an effective last day or work being no later than the end of September, i.e., 30 September 2017.
· We note that you have recently indicated that you intend to continue with your employment. To the extent that this constitutes a retraction of your resignation, GSSC does not accept it.
· GSSC does not now require you to work out the remainder of your employment with GSSC.
· GSSC does not intend this to be a period of leave. Accordingly, you last day of work will be close of business today. … As to the accommodation, we expect vacant possession on or before 1 October 2017.
· We will continue to pay your salary and accrue any leave entitlements and superannuation until 30 September 2017, at which time GSSC will issue a final payslip.
A payslip dated in May 2017 is appended.
The matter was listed for hearing on 26 February 2018 for directions. Neither party appeared and the application was dismissed pursuant to rule 13.03C(1)(c) of the court’s rules for the non-appearance of the applicant.
The next material development was the filing of the applicant’s affidavit on 24 October 2018 together with his application in a case. The affidavit is affirmed on 17 August 2018 and relevantly asserts:
· I have not been notified to attend any specified date. I have not received any phone calls, emails, letters of a specified date.
As indicated, the application in a case seeks compensation from the respondent, final pay, holiday pay, separation certificate and group certificate.
The respondent was apparently served and filed a notice of address for service on 29 November 2018.
On 5 December 2018 the matter was before the court, both the applicant and Mr Grove, the respondent’s solicitor, appearing by telephone. I timetabled the filing of further affidavits in support of the application in a case and listed the matter for hearing on 13 March 2018. On 18 December 2018 the applicant filed an affidavit by his partner, Ellie Wood, which relevantly asserts:
· Before Rodney Shannon and I left to go on holidays Rodney’s working and personal relationship with Syd Laker, John Hansman was great.
· When he arrived back, the relationship both professional and personal had changed.
· I witnessed the treatment that Rodney endured day to day whilst working and outside of working from both Syd Laker and John Hansman upon his return from holidays.
· This treatment affected Rodney and put strain on our relationship.
· At no time did Rodney hand in his resignation before he left for holidays or upon his arrival.
· Rodney tried several methods including the phone and email to contact Gunbalayna Sports & Social Club, Syd Laker and John Hansman whilst he was on holidays.
The applicant also filed an affidavit on 17 December 2018. He asserted relevantly:
· That Gunbalayna Sports & Social Club (GSSC) had approved my leave from the period of 10/08/2017 to 8/08/2017.
· This leave was written on the whiteboard in the office so all employees were aware I was going to be away for this period.
· A scanned copy of the photograph shows the whiteboard with my leave dates and shows other employees’ approved leave dates.
· The whiteboard is where all approved leave dates are written.
· I emailed Syd Laker and John Hansman requesting the rest of Ellie Wood’s holidays and an extra 50 hours of my holidays.
· In the email it shows that I advised Syd Laker and John Hansman that I would be returning shortly. …
· After we returned Ellie Wood was dismissed and subsequently I was then dismissed on 9/09/2017. In the dismissal letter it states they believed that I resigned and that the 9/09/2017 was my last day of employment.
· I had not provided any resignation letter advising that I resigned from my position prior to going on holidays.
· Whilst on extended approved leave I attempted several times to contact Syd Laker, John Hansman and the club about accessing more of my annual leave.
Relevantly, the affidavit also says:
· On several occasions over a period, I had to have discussions with both Syd Laker and John Hansman about discrepancies with my pay. I find these discrepancies a workplace right violation. Whilst these issues were addressed and rectified, both Syd Laker and John Hansman subjected me to threatening and intimidating behaviour.
I note that the affidavit also asserts that despite having received a final payslip, he had not actually received this pay. The affidavit also asserts that the applicant had lodged a WorkCover claim but it was not accepted due to insufficient documentation.
The affidavit concludes:
· The following will be relied upon from the Fair Work Act: Division 3 – Workplace Rights – Section 340 Protection, Section 344 Undue influence or pressure; Division 5 – Other Protections – section 351 Temporary Absence.
When the matter was before the court, and because in the meantime the applicant had sent messages to my associate that suggested he might not fully understand the nature of the proceeding, I commenced by explaining to Mr Shannon that his application was, in fact, presently dismissed and that what was before the court was his application to reinstate it. I indicated to him that there were three areas he would particularly need to address. First, he would need to provide an explanation for his original non-attendance. Secondly, he would need to address any prejudice caused by the delay to the respondent. Third, he would have to show that he had a reasonable chance of prosecuting his case.
While not exactly in accordance with how these matters have sometimes been expressed, I think what I put was sufficiently close to what other judges have recorded to have been an appropriate introduction. In Wint v Medimobile Pty Limited [2016] FCCA 102, Judge Jarrett observed at [5] to [7]:
· The court has power to set aside an order made in the absence of a party: r.16.05(2)(a) of the Federal Circuit Court Rules 2001. To set aside an order made in the absence of a party is a discretionary exercise. The discretion is unfettered, but nonetheless is to be exercised judicially and bearing in mind the public interest in there being an end to litigation. There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FCCR 16.05(2)(a), namely:
a.a reasonable explanation for the applicant's absence at the trial or hearing;
b. material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
c. no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the court.
· Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
a. whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
b. delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it; and
c. the conduct of the applicant since the judgment or order sought to be set aside was made.
I respectfully agree with those observations which have been followed by a number of other judges of the court (see Zabik v Zabik (No. 2) [2017] FCCA 684, per Judge Young; Verdura v Cooper Real Estate Pty Limited [2016] FCCA 1239, per Judge O’Sullivan; and Jones v Official Receiver & Anor (No. 5) [2017] FCCA 2170, per Judge Smith, by way of example only).
The applicant read a prepared address. He said his working relationship before his holiday was good and he was liked by the community. There was no resignation letter. He was dismissed and told he resigned. He had no warnings. He returned from leave and was locked out. There had been discrepancies in his wage. Ellie Wood (his partner) had been dismissed and made a successful unfair dismissal claim. He was dismissed six days after this. He was seeking medical advice before he was dismissed.
Mr Shannon went on to talk about service but that issue is no longer relevant.
Mr Shannon said he had spoken to a registrar because he was considering moving to Queensland and had been guided by them. He was told he would be notified. He was relocating. He had overlooked the documents. It was a big mistake. He was seeking that the court accept his application and the engrossed orders he had previously forwarded. The last two months were hard. He relocated to Queensland. His mental health is improving and he has a new job. He was dismissed because he queried his rates of pay and his WorkCover claim and because of the claim made by Ellie Wood. His last pay had not been paid despite the receipt of a payslip.
Mr Grove, solicitor, who appeared for the respondent confirmed that the respondent is an incorporated entity. He heard the explanation for the non-attendance only at this hearing. He noted that even after February 2018, it took until 17 August 2018 before the applicant prepared an affidavit and his application in a case and, indeed, the application was not filed till 24 October 2018.
Mr Grove, entirely fairly and properly, said he could not point to any particular prejudice to the respondent should the application be granted. There was a time limit involved. He submitted that looking at the applicant’s claim in the Form 3, it was simply not possible to identify any workplace right that the applicant said he had sought to exercise. It was submitted that the claim was simply unarguable. His general protections claim was out of time so far as it dealt with dismissal.
In reply Mr Shannon said he had been to a doctor before 8 September 2017. He got a certificate back to the day after his dismissal, namely, 9 September 2017. He confirmed in response to questions from me that he had not notified his employer of his proposed compensation claim at the time of his dismissal. The information about Ms Wood was known before he was dismissed. Laker had said that his wife had made a claim to the commission but that was all he had said. His claim about discrepancies and wages was before the dismissal. He was paid annual leave instead of dismissal.
The first matter the court has to consider is the delay in the application. Despite his earlier affidavit material saying he never received notification, I understood Mr Shannon, very candidly and properly, to concede that he had received documentation but had overlooked it in the context of his relocation to Queensland and possibly, although this was not entirely clear, some mental health difficulties at the time.
There is certainly no medical evidence before the court that Mr Shannon was sufficiently unwell to attend to his affairs in the period from February 2018 to September 2018 when he swore his affidavit, and indeed until 24 October 2018 when the application in a case was actually filed. The delay of some eight months between the time the orders were made and posted to Mr Shannon (and there is nothing to suggest he did not receive the orders dismissing his claim) is significant.
Pursuant to section 370 of the Fair Work Act 2009 (Cth) where a person has made an application under section 365, as it is clear from Commissioner McKinnon’s certificate that he did, the applicant has 14 days after the day the certificate is issued, or such additional period as the court allows on applications made during or after those 14 days, to make an application for general protection. A certificate was issued on 23 November 2017 and the application was filed on 7 December 2017. It was therefore made on the last day available for Mr Shannon to apply.
In circumstances where there is a time limit of this rigidity and speed, where the application is to be filed within 14 days of the certificate, a delay of some one year almost thereafter to the application in a case is obviously of considerable significance.
I note again that the respondent does not point to any prejudice. I am obviously bound to accept that concession and do so.
This brings us to the question of the merits of the proposed application.
This issue is undoubtedly complicated by the applicant’s self-representation. Although he has plainly informed himself as to the potentially relevant sections of the Act, he has not in truth articulated his claim with any kind of clarity. This is not a criticism given his lack of legal representation and understanding, but it does make the court’s task more difficult.
Doing the best I can, it is nonetheless difficult to distrain from the Form 3 what workplace right Mr Shannon is asserting, whether he had exercised a particular workplace right or proposed to do or had been prevented from exercising such a right (see section 340 Fair Work Act).
I note that at paragraph 7 there is reference to the action taken by Ms Wood. This, of course, was a workplace right exercised by her and not by the applicant, Mr Shannon.
There is a suggestion at paragraph 8 that Syd (Mr Laker) had said to the applicant, “You’re bringing this on yourself,” in the context of the claim made by Ms Wood and that this gave rise to treatment that applied to him and no one else. It appears to be suggested that Mr Laker was bullying the applicant and no one else. Once again, however, the cause of this conduct, if it occurred, was simply the right exercised by Ms Wood.
At paragraph 13 Mr Shannon asserts that Mr Laker told him he did not want to receive another letter like Ellie Wood’s in the context of asking the applicant to sign a piece of paper with his finishing days on it.
The difficulty here was that the applicant had not, as I understand his case, proposed to exercise a workplace right such as making an application to a relevant authority.
The complaints set out in paragraph 15 of the application are made in such general terms that it is not readily possible to work out what the complaint is.
When before the court, Mr Shannon confirmed that his WorkCover claim was, at most, under consideration at the time of his termination of employment. His complaints about the query of his pay rates is once again put in such general terms it is all but impossible to understand it.
The one area of Mr Shannon’s complaint that is easy to understand and clearly articulated is his claim that he has never received the pay recorded in the payslip annexed to his most recent affidavit.
That suggests he should have been paid some $2,223.90 for a pay period from 29 September 2017 to 4 October 2017.
Failure to pay this sum would plainly involve a contravention of any applicable industrial instrument and in the absence of same the National Employment Standard.
As earlier indicated, the setting aside of a judgment entered in default of appearance does not follow automatically. It is a discretionary power to be exercised judicially.
Here, despite the fact that Mr Grove did not pay particular emphasis to it, the fact is that the delay from February 2018 when Mr Shannon must have received the orders until October when he actually filed his application is, in my view, very significant. General protection contraventions are, given the 14 day time limit for them to be filed, urgent in their nature. This is a matter to which I give considerable weight.
I note that there is no prejudice to the respondent if the matter is reinstated.
So far as the merits of the claim are concerned, the matter is bedevilled by the incapacity of Mr Shannon properly to articulate his claims. From the remarks he made in his reply it appears that his complaint about pay was more to do with the fact that he continued to be paid annual leave during the final effluxion of time up till the end of his employment. It was not easy to follow exactly what he was saying.
While it would appear that the application made by Ms Wood may have led to discriminatory treatment, this is a matter which would be pursuable to the laws relating to discrimination on the grounds of marital status. It does not, however, appear to be litigable as a workplace right.
In the circumstances I think that the proper exercise of my discretion is to adjourn the matter for a month, during which time I will direct that the respondent either forward the unpaid final pay to the applicant or file an affidavit proving that the moneys have indeed been paid. Upon compliance with that condition, in my view, the overarching merits of the applicant’s claim are insufficiently clearly made out. Bearing in mind the lengthy and unexplained delay, there being no medical evidence whatsoever as I repeat in relation to Mr Shannon’s health in 2018 (although he clearly had medical difficulties in 2017), it is otherwise inappropriate to make the order reinstating the proceeding.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 7 June 2019
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