Sibic v Salisbury
[2008] FMCA 715
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIBIC v SALISBURY & ANOR | [2008] FMCA 715 |
| INDUSTRIAL LAW – PRACTICE & PROCEDURE – Summary dismissal of proceedings – unlawful termination claim. |
| Workplace Relations Act 1996 (Cth) ss.650, 650(2), 659, 659(2)(a), 659(2)(e), 660, 663(5) Federal Magistrates Court Rules 2001 (Cth) r.13.10 |
| Matthews v Australian Postal Corporation [2007] FMCA 1174 Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145 Ettridge v Transadelaide [1998] FCA 275 Bahonko v Sterjov [2007] FCA 1244 Sperandio v Lynch [2006] FCA 1648 |
| Applicant: | MILES SIBIC |
| Respondent: | TIMOTHY J & BRONWYN M SALISBURY T/AS AAA PACKAGING SUPPLIES |
| File number: | MLG 413 of 2008 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 23 May 2008 |
| Date of last submission: | 23 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gardner |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr Donaghey |
| Solicitors for the Respondent: | Cornwall Stoddart |
ORDERS
The respondent’s interim application filed 9 May 2008 be dismissed and the issue of the costs thereof be reserved.
The first name of the applicant and the title of these proceedings be amended to Milutin Sibic.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 413 of 2008
| MILES SIBIC |
Applicant
And
| TIMOTHY J & BRONWYN M SALISBURY T/AS AAA PACKAGING SUPPLIES |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 9 April 2008 Miles Sibic (“the applicant”) alleged his employment with Timothy J & Bronwyn M Salisbury t/as AAA Packaging Supplies (“the respondent) had been terminated in contravention of section 659 of the Workplace Relations Act 1996 (“the WR Act”).
By response filed 28 April 2008 the respondent denied the allegations contained in that application. The respondent’s position was the applicant was terminated due inter alia to his performance, conduct and alleged threats or acts of violence.
The application was listed for directions on 2 May 2008 at which time orders were made to deal with an interim application sought by the respondent.
At the conclusion of the hearing the Court reserved its decision.
For reasons set out below the interim application should be dismissed.In the response filed 28 April 2008, which was accompanied by a notice of defence, the respondent denied it had terminated the applicant’s employment unlawfully. The respondent’s notice of defence also made plain its position that the applicant’s claim alleging a breach of section 659(2)(a) of the WR Act was not (on the respondent’s case) subject to conciliation in the Australian Industrial Relations Commission (“AIRC”) or set out in the notice of election.
Accordingly, the respondent’s position was that the application to the Court, in so far as it relied on section 659(2)(a), was beyond jurisdiction or incompetent.
Given this, and as set out above, whilst directions were made for the further conduct of the matter on 2 May 2008 there were also orders made to deal with the claim made by the respondent at an interim hearing.
The hearing of the respondent’s interim application occurred on
23 May 2008. Mr Donaghey appeared for the respondent and Mr Gardner appeared for the applicant.
Interim Application
In accordance with the directions made on 2 May 2008 the respondent filed an interim application on 9 May 2008 which sought the following orders:
“1.That the Applicant’s application filed on 8 April 2008 be struck out.
2.Alternatively to order 1, that
(a)reference to any relief sought under section 659(2)(a) of the Workplace Relations Act 1996 be struck out of the Applicant’s statement of claim dated 9 April 2008; and
(b)the Applicant be given leave to re-plead.
3.Any other orders as the Court may consider appropriate.”
The respondent relied on the affidavits of Mr Salisbury sworn 8 May 2008 and Mr Rochfort sworn 7 May 2008.
The applicant opposed the orders sought in the interim application and relied on his affidavit sworn 15 May 2008 and an affidavit from Mr Matson sworn on 16 May 2008.
At the commencement of the hearing on 23 May 2008 both parties provided helpful outlines of submissions which were marked “R1” and “A1” respectively.
Background
The following background facts are taken from the affidavit material filed by the parties.
a)on or about 14 September 2007, the applicant was employed by the respondent as a supervisor. The respondent’s business includes operations in a warehouse, at its Tullamarine work site in Victoria.
b)on 9 November 2007, the applicant claimed to have suffered a workplace injury;
c)on 31 January 2008, the respondent forwarded to the applicant an email note terminating his employment;
d)on 18 February 2008, the applicant issued an application for relief in the AIRC in Form R27 under the AIRC’s Rules;
e)on 7 March 2008, a conciliation before a member of the AIRC was held. The member of the AIRC was satisfied that the conciliation was not successful, and a certificate issued pursuant to section 650;
f)on 29 March 2008, the Applicant filed a notice of election.
The application filed in this Court on 9 April 2008 was accompanied by a statement of claim that alleged inter alia:
“8.The Applicant was absent from work for 3 days from
30 January 2008to 1 February 2008 inclusive.
9.Medical certificates were obtained by the Applicant in respect of this absence and subsequently provided to the Respondent.
10.On 31 January the respondent issues a notice of termination of employment by email to the Applicant at the Applicant’s “hotmail” address.
11.The Applicant received the notice of termination when he checked his “hotmail” account on Monday 4 February 2008.
12.The termination letter issued by the Respondent states:
‘As you are aware you have had several extra days off over recent weeks. You have long since used all your holidays and personal leave days that are due. We made a fresh approach to all staff at the end of last year to advise of the fact that the business can no longer be held up by personal (sic) that are unreliable. You will therefore understand that your performance fits into this category. Reports of personal suggestive violence is also noted. Due to this your employment with us is no longer valid. I wish you all the best in the future.’
13.The absences to which the letter refers were temporary absences because of illness or injury within the meaning of the Workplace Relations Regulations 2006.
Particulars
(a)The total absences did not exceed three months in total.
(b)The applicant provided medical certificates in respect of each absence.
(c)Further, and in the alternative, the Applicant complied with the terms of industrial instrument binding the parties in respect of his employment.
14.The Applicant’s employment was terminated while he was absent due to illness.
15.In the premises, the termination was unlawful pursuant to s.659 of the Act.
16.The Applicant is entitled to the relief sought in the Application in respect of the unlawful termination.”
Accompanying the application was:
a)a copy of the notice of termination referred to at paragraph [14] above.
b)the certificate issued by the AIRC on 7 March 2008 by Senior Deputy President Lacy referred to at paragraph [13] above which provided:
“An application for relief in respect of termination of employment has been lodged on the following ground or grounds:
an alleged contravention of s.659 of the Act
Pursuant to s.650(2)(a) of the Workplace Relations Act 1996, the Commission certifies that all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful in respect of the following ground or grounds:
an alleged contravention of s.659 of the Act.”
Also accompanying the application was a notice of election made by the applicant pursuant to section 651. That notice had been completed by the applicant identifying an election to begin proceedings for a contravention of section 659 and provided:
“Under section 651 of the Act and further to the certificate issued by the Commission under subsection 650(2) on [date of certificate], the Applicant elects as follows:
…
B.The Applicant elects to begin proceedings in the Federal court of Australia or the Federal Magistrates Court for an order under section 665 of the Act in respect of the contraventions of section 659 of the Act (Discrimination etc.) or section 660 of the Act (failure to notify Centrelink) alleged in the application.
…”
Application for summary dismissal
Whilst expressed somewhat differently (at paragraph [9] above) it was not in dispute at the hearing on 23 May 2008 that the respondent’s interim application ought be dealt with in accordance with Rule 13.10 of the Federal Magistrates Court Rules 2001 (“the FMC Rules”).
Rule 13.10 of the FMC Rules provides:
Disposal by summary dismissal
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting thew proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceedings or claim for relief is an abuse of the process of the Court.”
In Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145 Lucev FM reviewed the approach to Rule 13.10 of the FMC Rules. His Honour’s decision was drawn to the attention of both parties and there was no submission that approach should not be adopted in this case. I adopt paragraphs 15-32 of His Honour’s decision as a correct statement of the approach to this interim application.
“15. Rule 13.10 of the FMC Rules provides as follows:
“The Court may order that a proceeding by stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or”
16 . The gist of r.13. 10(a) is that there is
“no reasonable prospect of successfully prosecuting the proceeding or claim”.
17.In a summary judgment context similar provisions appear in s.17A(1)(b) and (2)(b) of the Federal Magistrates Act 1999 (“FM Act”) and s.31A(1)(b) and (2)(b) of the Federal Court of Australia Act 1976 (“FCA Act”).
18.The summary dismissal provisions in s.17A of the FM Act were specifically considered (and rule 13.10(a) of the FMC Rules also mentioned) in MG Distributions Pty Ltd & Ors v Khan & Anor (2006) 230 ALR 352; [2006] FMCA 666 (“MG Distribution”). In MG Distribution McInnis FM held that s.17A of the FM Act appears to lower the satisfaction threshold entitling this Court to dismiss a claim, but did not necessarily detract from well settled principles concerning summary dismissal. Thus, it was still appropriate to consider those principles in relation to the question of the no reasonable prospect of success test under s.17A of the FM Act, if there is a real question of fact or law to be determined upon which the rights of the parties depended. See MG Distribution, ALR at 360-361 and 361-262 per McInnis FM; FMCA at paras 37-39 and 42-44. The Court went on to observe that:
“summary dismissal … remains a matter for careful consideration. There is a primary obligation on courts to permit parties to be heard even though there may appear to be strong arguments which have the potential to effectively defeat a claim or a defence.” ALR at 363 per McInnis FM; FMCA at para 45 per McInnis FM.
19.Similarly, and having regard to the nature of this Court, its rules (albeit preceding r.13.10(a) of the FMC Rules in its current form), functions and “philosophy”, Lander J has observed that this Court ought be cautious, and not summarily dismiss a claim unless the matter be “clear, beyond any doubt”: Rana v University of South Australia (2004) 136 FCR 344 at 355; [2004] FCA 559 at para 75 (“Rana”).
20.In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd: (2006) 70 IPR 146; [2006] FCA 1352 (“Boston Commercial”) Rares J gave detailed consideration to the phrase “no reasonable prospect of successfully prosecuting the proceeding” (in that case for the purposes of s.31A of the FCA Act). Rares J noted that conceptually the test had “some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff.”: Boston Commercial IPR at 156 per Rares J; FCA at para 43 per Rares J. Reference was made to the decision of the Judicial Committee of the Privy Council: Hocking v Bell (1947) 75 CLR 125 at 130-131 per Viscount Simon and Lords Porter, Uthwatt, De Pareq and Oaksey; approving of Latham CJ’s dissenting statement in the High Court in Hocking v Bell (1945) 71 CLR 430 at 441-42 per Latham CJ (“Hocking (HC)”), where Latham CJ said:
“But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law.” Hocking (HC) at 441-442 per Latham CJ.
21. Rares J went on to say that in s.31A cases:
“where there is a real issue of fact to be decided in the sense identified in the above principle, (that is by Latham CJ in Hocking HC at 441-442) and, possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.”: Boston Commercial IPR at 157 per Rares J; FCA at para 44 per Rares J.
22.In Boston Commercial Rares J said that if there was, “contested evidence [which] might reasonably be believed one way or the other so as to enable one side or the other to succeed” then “the Court must be very cautious not to do a party an injustice by summarily dismissing”: IPR at 158 per Rares J, FCA at para 45 per Rares J. The purpose of the enactment was said by Rares J to be “to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J. Thus the discretion to summarily dispose of the proceedings was not enlivened “[u]nless only one conclusion can be said to be reasonable”: Boston Commercial IPR at 157 per Rares J; FCA at para 45 per Rares J.
23.In Boston Commercial Rares J also discussed a court’s ultimate aim as being the attainment of justice: Boston Commercial IPR at 158 per Rares J; FCA at para 46 per Rares J; citing Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 per Dawson, Gaudron and McHugh JJ, and “a key feature of the judicial power under Ch III of the Constitution” being that “the Court be in a position to, and in fact does, quell a controversy”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
24.The summary dismissal of proceedings power might defeat, not advance, the attainment of justice, if used to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
25.In Australian and International Pilots Association v Qantas Airways [2006] FCA 1441 (“Pilots Association”) Tracey J in the Federal Court considered Boston Commercial, and summarised Rares J’s conclusion as being that section 31A of the FC Act had lowered the barrier somewhat but that: “it nonetheless constituted a difficult obstacle for a respondent to surmount”: Pilots Association at para 23 per Tracey J. Tracey J specifically agreed with the principles set out by Rares J in Boston Commercial, and determined to act consistently with those principles in the application of section 31A: Pilots Association at para 23 per Tracey J.
26.In Pilots Association Tracey J found that the applicant had no reasonable prospect of success and indicated that ordinarily that would justify the dismissal of the proceedings: Pilots Association at para 34 per Tracey J. However, because it was the first time the pleadings had been “subjected to curial scrutiny” Tracey J determined that the “preferable course” was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J.
27.In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30:
“The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31]-[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:
In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.”
28.In Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; [2006] FCA 458 (“Duncan”) Heerey J in the Federal Court said:
“a fundamental change to the standard to be applied in strikeout applications has been introduced by s. 31A [of the FCA Act]”: Duncan IR at 473 per Heerey J; FCA at para 5 per Heerey J.
29. Heerey J went on to say:
“Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court’s decision in Dey v Victorian Railways Commissioners (1949 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, namely that the allegations are “so clearly untenable that [they] cannot possibly succeed)”: Duncan IR at 473 per Heerey J; FCA at para 6 per Heerey J.
30.Heerey J went on to speak of the “former strikeout standard” and to describe s.31A of the FCA Act as “a clear, and different command” in the course of ordering that various paragraphs of the statement of claim be struck out.
31.In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 (“Fortron (No. 2)”) French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No. 2) at para 21 French J said:
“Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Sections 31A allows for “judgment” or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of the Court.”
32.This Court respectfully agrees with the views of French J cited above, and adopts them as applicable to summary dismissal applications under r.13.10(a) of the FMC Rules. This judgment or nothing approach must of course be appropriately exercised having regard to the principles established in Boston Commercial Services, and in the manner prescribed in MG Distribution and Rana.”
Submissions
The respondent’s position was that the claim of alleged contravention of section 659(2) made pursuant to section 663 must be of some element or subsection of section 659(2) of the WR Act.
The respondent contended that:
·section 663(5) operated as a “handbrake” limiting what applications could be made to the Court;
·section 663(5) made clear such a claim may not be made unless the requirements of the section were met;
·section 663(5) required that the claim of unlawful termination could, absent a claim being amended in the AIRC, only be about the claim that had been before the AIRC; and
·the applicant’s claim to the AIRC did not identify or particularise section 659(2)(a) as the ground on which the claim had been made to the AIRC.
Accordingly, the respondent contended that:
a)firstly, absent inclusion in the initiating application in the AIRC or amendment whilst there a particular ground of unlawful termination cannot, after election be the subject of proceeding in this Court under section 659(2); or
b)alternatively, any further ground (not contained in that application) must be identified in the certificate pursuant to section 650.
As I understood the respondent’s position, in not applying to the AIRC under section 659(2)(a) and where it was not clear the AIRC conciliated (from the certificate) by referring expressly to that subsection the applicant is precluded from now applying to the Court for unlawful termination on that ground.
The applicant’s position was:
·the statutory pre-requisites of a certificate (pursuant to section 650) and a notice of election had been satisfied in this case and no basis exists upon which the respondents interim application could be granted;
·it is not part of the scheme of the WR Act for the Court to embark on a review of the AIRC’s role in or determination of the view that further conciliation is likely to be unsuccessful in relation to a claim of unlawful termination and the certification to that effect;
·the respondent’s argument in support of the interim application conflated “grounds” with “reasons” and as a matter of statutory construction an application under section 663 need only be made on one ground being an alleged contravention of section 659;
·the respondent’s contentions “elevate form over substance” and the presence of the certificate pursuant to section 650 was the “beginning of the end of the matter” [ie: the respondent’s interim application];
·in this case on the face of the application to the AIRC and the evidence at its most favourable to the applicant (which is the approach to be adopted in interim applications of this sort) it must be taken to show the ground in section 659(2)(a) was raised at conciliation and before the AIRC;
·as the test to be applied for the purpose of the interim application was the Court need only be satisfied the applicant’s claim was not hopeless; and
·the respondent’s interim application must be dismissed.
Consideration
An employee has the right to file an application in this Court under s.663 of the WR Act following the termination of their employment if it is alleged to have involved a contravention of s.659, s.660 or s.661 of the WR Act.
The WR Act allows for applications to be made to the AIRC under s.643 for “unfair dismissal”, under s.659, s.660 or s.661 for “unlawful termination” or a combination of the two. Applications for breaches of section 659, 660 or 661 are required to go to conciliation in the AIRC before being brought to this Court.
The election to pursue unfair dismissal or unlawful termination in an application to the AIRC is significant in relation to whether the applicant can subsequently pursue remedies in this Court. An applicant is entitled to elect to proceed to arbitration in the AIRC but has no right to pursue a remedy in this Court if only unfair dismissal has been alleged. However, if the original application includes a claim of unlawful termination, then the applicant can proceed to arbitration in the AIRC or apply to this Court under s.663.
Section 663 permits an employee to apply, inter alia, with respect to an alleged breach of section 659 as the applicant has purported to do. However, that right is expressly made subject to section 663(5) which reads:
“(5)An application under subjection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant:
(a)has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and
(b)has elected under section 651 to begin proceedings in that court for an order under section 665 in respect of the alleged contravention.” [emphasis added]
A certificate under s.650(2) of the WR Act is required from the AIRC to invoke this Court’s jurisdiction. A s.650 certificate was issued by Senior Deputy President Lacy on 7 March 2008.
Here there was no dispute that a certificate was given to the applicant which referred to a claim of unlawful termination. It was also not disputed that there was an election filed by the applicant to commence proceedings in the Court for unlawful termination pursuant to section 659.
In Matthews v Australian Postal Corporation [2007] FMCA 1174 (“Matthews”) Smith FM dealt with an application for summary dismissal of an unlawful termination claim.
At paragraph [18]-[22] in Matthews His Honour considered the issue of the application filed with the AIRC, the issues raised at conciliation and the certificate (pursuant to section 650) issued as a result:
“18.In the applicant’s formal application for relief submitted to the Commission, item 18 required him to tick boxes indicating “grounds upon which this application is based”, so as to identify the ground or grounds under s.643(1) of the Workplace Relations Act upon which the application was based. It thus invited the applicant to specify whether unfair termination, or unlawful termination, or a combination of these, was being alleged. I accept the respondent’s affidavit evidence that the application actually submitted to the Commission ticked only a box indicating that it was made “(a) on the ground that the termination was harsh, unjust or unreasonable;” and that boxes raising contentions of unlawful termination were not ticked.
19.It may be that the applicant’s statement obliquely alleging racial discrimination was also presented to the Commission. However, if it is a matter for this Court to characterise the application to the Commission, I would not characterise the applicant’s application as having been made on any ground of unlawful termination. In my opinion, the manner of completion of the form of application showed a clear intention to the contrary, which was not modified by the contents of the applicant’s statement of evidence.
20.According to evidence presented by the respondent, the application to the Commission was listed on 30 March 2007 for a compulsory conciliation conference, at which the applicant was assisted by an official of his union.
An affidavit read by the respondent states:
6.During the conciliation conference, at a time when the parties had been separated into different rooms, Commissioner Redmond advised me that the Applicant was seeking to amend the Commission Application to add to the ground that his termination of employment was unlawful. Commissioner Redmond advised me that he had refused to amend, or allow the amendment of, the Commission Application.
21.The conciliation conference was unsuccessful, and a certificate was then issued which is in evidence before me. It certifies only that:
An application for relief in respect of termination of employment has been lodged on the following ground or grounds:
·the ground referred to in s.643(1)(a), that the termination was harsh, unjust or unreasonable
The certificate certifies that reasonable attempts to settle the matter have been unsuccessful:
… in respect of the following ground or grounds:
·the ground referred to in s.643(1)(a), that the termination was harsh, unjust or unreasonable
There is no evidence before me that any certificate has been issued identifying conciliation of an application made “wholly or partly on the ground” of a contravention of ss.659, 660 or 661.
22.I am therefore satisfied on the evidence before me that this Court does not have jurisdiction. I am so satisfied, whether the true construction of s.663(5)(a) requires or allows the Court itself to determine the character of the application which was addressed by the Commission’s certificate, or whether the certificate is conclusive in that respect.”
The issue the respondent seeks to take in this interim application is somewhat different to that in Matthews. Here the respondents case is that in this case the application to the AIRC referred to in section 663(5)(a) did not explicitly refer to section 659(2)(a), there was no amendment to that application in the AIRC and accordingly that ground could not now be raised in this Court.
The provisions of section 663 have been in the same terms for some considerable time (see s.170CP of the WR Act before 27 March 2006) The respondent could not point to any authority in support of its submission as to the interpretation to be placed on section 663(5)(a).
This is a different case to that considered by Van Doussa J in Ettridge v Transadeliade [1998] FCA 275 where His Honour considered a Judicial Registrar had, correctly, refused to allow an applicant to add a claim for a breach of what is now section 661.
Section 659 identifies a range of grounds upon which an employees employment must not be terminated. Section 663 establishes that an application may be made to the Court in relation to an alleged breach of section 659. The Court must then decide if an employer has breached section 659 of the WR Act.
The case advanced by the applicant was that the respondent contravened s. 659(2)(a) of the WR Act which provides:
“ (2) Except as provided by subsection (3) and (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury within the meaning of the regulations;
…”
In Sperandio v Lynch [2006] FCA 1648 at [91] it was said of the predecessor provision to that presently under consideration:
“91.Turning to s.170CK(2) of the Act, the “reason” to which that provision refers is, I consider, the temporary absence from work. For an employer to act in breach of the provision, there must be an awareness that the absence was because of illness or injury, and the absence must be the reason for the termination. Or, to put it defensively, an employer will succeed in avoiding an adverse finding under the provision upon proving either that he or she did not know the reason for the absence or that he or she did not terminate the employment by reason of the absence. In the present case the respondents have not proved either: indeed, I find the contrary in each case.”
The form used to complete the application filed with the AIRC from the applicant (which was exhibited to the affidavit of Mr Rochfort) identified that the application was made to the AIRC on the ground of unlawful termination. Mr Matson deposes that a “slip or error” occurred and the wrong “temporary absence” was “inadvertently” referenced (i.e. s.659(2)(i) instead of s.659(2)(a)). I am mindful that the applicant’s case has always included a claim of unlawful termination and this was known to the respondent.
Given the evidence before the Court to the extent it would have been necessary to do so I would have been satisfied the claim was before the AIRC. In any event I am not convinced the applicant’s contention on the construction of section 663 is bound to fail.
There is evidence, which taken at its highest shows:
a)the notice of termination refers to the applicant’s absence;
b)the original application in the AIRC referred to absence (albeit not to section 659(2)(a) explicitly);
c)the original application to the AIRC “inadvertently” omitted explicit reference to section 659(2)(a);
d)the issue of the applicant’s absence was referred to in proceedings before the AIRC;
e)there is a certificate issued by the AIRC under section 650 which refers to the application being in relation to unlawful termination (again albeit not explicitly to section 659(2)(a)).
The difficulties facing the respondent’s submission are as the applicant submitted on the facts or the law the applicant’s claim is not hopeless.
Conclusion
I am mindful that for the purposes of an application alleging a breach of section 659(2) of the WR Act the applicant must establish in this Court, that:
a)their employment was terminated; and
b)the facts sufficient to prove as an objective fact the proscribed reason in that subsection
before the onus shifts, pursuant to section 664, to the respondent to prove that the applicant’s employment was not terminated for a reason or for reasons including that proscribed reason (see Bahonko v Sterjov [2007] FCA 1244 at 100).
However on what is before me I cannot be convinced the applicant’s claim is fanciful or hopeless or that only one outcome is reasonable.
For the reasons set out above the respondent’s interim application filed 9 May 2008 should be dismissed as the discretion to summarily dismiss is not enlivened.
There were no submissions made in relation to costs. In the circumstances given the provisions of section 666 of the WR Act and that this is an interim application I will reserve the question of costs.
Finally, at the interim hearing, it was agreed in the event it was necessary there should be an order for the applicant’s name to be amended to reflect his correct first name and I will order accordingly.
For the reasons set out above I will make orders as set out at the beginning of these reasons for judgment.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: R. Lombardo
Date: 30 May 2008
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