Sheikholeslami v University of New South Wales

[2005] FCA 1547

FEDERAL COURT OF AUSTRALIA

Sheikholeslami v University of New South Wales [2005] FCA 1547

PRACTICE AND PROCEDURE – motion to dismiss or stay parts of a proceeding – motion dismissed

Workplace Relations Act 1996 (Cth), ss 170CE(1)(a), 170CFA(4), 170CFA(5), 170CK, 170CK(2)(e)

ROYA SHEIKHOLESLAMI v UNIVERSITY OF NEW SOUTH WALES
NSD 486 OF 2005

GYLES J

21 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 486 OF 2005

BETWEEN:	ROYA SHEIKHOLESLAMI APPLICANT
AND:	UNIVERSITY OF NEW SOUTH WALES RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	21 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1           The motion be dismissed.

2           There be no order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 486 OF 2005

BETWEEN:	ROYA SHEIKHOLESLAMI APPLICANT
AND:	UNIVERSITY OF NEW SOUTH WALES RESPONDENT

JUDGE:	GYLES J
DATE:	21 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to dismiss or, alternatively, to stay parts of a proceeding.  I will not deal with the history of the matter any more than is necessary to indicate the substance of my reasoning on the points at issue, which are two in number as matters have been refined. 

2. The first point concerns the relief which is sought in the proceeding, or perhaps more particularly, the basis for relief.  In the amended Form 5 Application, the following words appear. 

   ‘In addition to being "unlawful", the termination of employment was unjust, unfair, harsh and inhumane.’

3. It has been submitted for the respondent, the University of New South Wales (UNSW), that this appears to be a reference to the ground referred to in s 170CE(1)(a) of the Workplace Relations Act 1996 (Cth) (the Act), which, because of the procedural history of the matter, is simply not available in relation to a proceeding in this Court. That is plainly correct. The applicant says that she has always intended to proceed pursuant to s 170CFA(5) and s 170CFA(4) of the Act and that she has never intended to pursue a claim in this Court based upon s 170CE(1)(a). To the extent that the words are included in the application, I am prepared to accept that they are simply a lay person's statement which was not intended to be a separate ground for relief.

4. That seems to make clear the situation so far as the first matter is concerned.  I should say that the applicant says that her position was made clear in correspondence prior to the proceeding being commenced but the matter is certainly clouded by the inclusion of those words in the pleading.  To the extent necessary, what I have said will suffice but, effectively, those words are now struck out of the proceedings. 

5. The second issue is somewhat more controversial. One of the grounds for relief stated in the amended application is that the termination of the applicant’s employment by the UNSW was a breach of s 170CK of the Act and she has particularised a breach of s 170CK(2)(e) as being the foundation of her claim.

6. It is argued on behalf of the respondent to the proceeding that no complaint has been identified which answers the description in s 170CK(2)(e). The only complaint to which reference was made in the evidence was the following quote from par [5] of the affidavit of 17 October 2005:

   ‘On 21 October 2004, the Applicant filed a complaint to the Human Rights and Equal Opportunity Commission (HREOC) against a staff member of the Respondent for alleged discriminatory and unlawful acts during the employment.’

   And then the following paragraph, in part:

   ‘On 8 November 2004, the Respondent had a meeting with the Applicant and requested the Applicant to resign.  The Applicant refused to resign and again advised the Respondent that she had recourse to competent administrative authorities and the court of law.  She again indicated that a staff member of the Respondent had treated her unlawfully and that she had filed a complaint and would pursue the alleged unlawful activities and violations of laws and regulations with the competent administrative authorities and courts.’

7. The allegation is that, by a communication of 8 November 2004 but received the following day, the applicant’s services were terminated.  The respondent initially took the point that the evidence did not disclose any claim or complaint against it.  However, when the actual complaint to the Human Rights and Equal Opportunity Commission is observed, in answer to the question ‘Who are you complaining about – name/organisation?’ the applicant wrote ‘Michael Brungs/University of New South Wales’.  It is now conceded that the complaint could be viewed as being against the employer for relevant purposes, or at least arguably against an employer for present purposes.

8. The second point taken in relation to this issue is that there is no evidence that the applicant in the proceeding had informed the respondent of that claim against it, or that it had otherwise received notice of any claim against it at the time of the termination.  It is true that the precise evidence given in par [6] of the affidavit indicates that a staff member had treated her unlawfully and that she had filed a complaint.  However, the affidavit does not say that she filed a complaint against that person only and the applicant has referred to the fact that there may be vicarious liability of an employer for the actions of a staff member of the kind involved.  That is certainly an arguable proposition.

9. In my opinion the question as to whether or not what took place on 8 November 2004 did draw the attention of the employer to the complaint is a question of fact to be determined at the hearing. I do not think there is any doubt about the principle referred to on behalf of the UNSW that the employer must know about the complaint in order for there to be a factual basis for the conclusion to be drawn that there was a breach of s 170CK. It seems to me that the precise content of that communication of 8 November 2004 and what people took from it is a factual issue to be tried.

10. Therefore, for the reasons I have given, I decline to make the orders sought in the motion.  I therefore dismiss the motion.  There is no case for an order for costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            2 November 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	A Gotting
Solicitor for the Respondent:	Corrs Chambers Westgarth
Date of Hearing:	21 October 2005
Date of Judgment:	21 October 2005