Sng v Canvas Australia Solutions Pty Ltd
[2019] FCCA 1155
•3 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SNG v CANVAS AUSTRALIA SOLUTIONS PTY LTD | [2019] FCCA 1155 |
| Catchwords: INDUSTRIAL LAW – Overseas employment – operation of Fair Work Act 2009 (Cth) – National Employment Standards – redundancy pay – duties outside Australia – whether Fair Work Act applicable to worker engaged in employment outside Australian territory by Australian company. |
| Legislation: Fair Work Act 2009 (Cth) ss.14(1), ss.35, 44, 61, 119, 365, 389. |
| Cases cited: Cohen v iSOFT Group Pty Limited [2013] FCAFC 49; (2013) 298 ALR 516; (2013) 234 IR 386 Doyle v Emperor Energy Limited (No 2) [2017] FCCA 3088 Woodsford v Range International Limited [2018] FCA 1007 |
| Applicant: | BOON HUA MARTIN SNG |
| Respondent: | CANVAS AUSTRALIA SOLUTIONS PTY LTD ACN 161 452 731 |
| File Number: | SYG 2399 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 28 March 2019 |
| Date of Last Submission: | 5 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2019 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Mr G. Baldwin, Stacks Champion |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Ms P. Costigan, Petrine Costigan Lawyers |
ORDERS
The application be dismissed.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2399 of 2018
| BOON HUA MARTIN SNG |
Applicant
And
| CANVAS AUSTRALIA SOLUTIONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The central issue in this case is whether the Applicant, Mr Martin Boon Hua Sng, was, in respect of his employment as channel manager (APAC) with the Respondent, Canvas Solutions Australia Pty Limited, an Australian–based employee within the meaning of s.35(2) of the Fair Work Act 2009 (Cth) or whether he is, by reason of s.35(3) of the Act, a person to whom s.35(2), and thus the Act, does not apply. If the Act does apply, Mr Sng claims to be entitled to a redundancy payment in accordance with s.119(2) of the Act.
Background
Mr Sng is a resident of, and located in, Singapore. On 1 November 2016, he was employed by Canvas under a written agreement headed “Employment Agreement for Channel and Partnership Manager (APAC)”.
The facts are largely not in dispute. Canvas has its registered office in Macquarie Street, Sydney, and is a national system employer within the meaning of s.14 of the Act. Mr Sng was employed under the Agreement. He was located in Singapore. His employment was terminated by letter dated 13 June 2018 (13 June letter) on the grounds that his role was to be made redundant. He was provided with one months’ notice. Mr Sng says he is entitled to redundancy pay from Canvas as provided by s.119 of the Act. He says he is an Australian–based employee within the meaning of s.35 of the Act. Canvas submits that he is not. Mr Sng asserts he should have been paid six weeks pay, and, based on his contracted gross salary of A$150,000, he says he is entitled to payment of A$18,750.
Following termination of his employment, Mr Sng made an application to the Fair Work Commission pursuant to s.365 of the Act, alleging he was dismissed by Canvas in contravention of pt.3–1 of the Act. The Commission conducted a conciliation conference on 7 August 2018, but did not resolve the dispute. The Commission issued a certificate under s.368 of the Act, stating that it was satisfied all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.
By application dated 22 August 2018, Mr Sng applied to this Court claiming to be entitled to be paid by Canvas redundancy pay in accordance with s.119(2) of the Act, and an order to that effect.
In this Court Mr Sng does not challenge Canvas’ decision to make him redundant on about 15 July 2018. Thus there is, for present purposes, no issue that the termination was a genuine redundancy within the meaning of s.389 of the Act, if the Act applies.
Relevant Statutory Provisions
Whether the Applicant was an Australian–based employee, and thus offered the protection of the Act and the Standards is determined by s.35 of the Act. Section 35 of the Act is as follows:
35Meanings of Australian employer and Australian–based employee
(1)An Australian employer is an employer that:
(a)is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b)is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(c)is the Commonwealth; or
(d)is a Commonwealth authority; or
(e)is a body corporate incorporated in a Territory; or
(f)carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or
(g)is prescribed by the regulations.
(2)An Australian–based employee is an employee:
(a)whose primary place of work is in Australia; or
(b)who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or
(c) who is prescribed by the regulations.
(3)However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.
Canvas admits or does not dispute it is a constitutional corporation, and thus a national system employer, within the meaning of s.14(1) of the Act, and additionally, a trading corporation formed within the limits of the Commonwealth, and thus an Australian employer, within the meaning of s.35(1) of the Act.
Mr Sng asserts that, although located in Singapore, he was at all times an Australian–based employee within the definition in s.35(2)(b) of the Act, and not excluded from so being by the operation of s.35(3) of the Act.
He argues that his terms and conditions were subject to the Act, and in particular, the National Employment Standards under the Act, and that by reason of s.61 of the Act, the entitlement to redundancy pay under s.119 is part of the Standards, and Mr Sng was, at the material time, entitled to the benefit of those provisions in the event of termination of his employment by reason of genuine redundancy within the meaning of s.389 of the Act. Mr Sng says that the Agreement did not purport to and did not exclude his rights under s.119 of the Act.
The Evidence
Mr Baldwin, solicitor representing Mr Sng, relies on two affidavits made by Mr Sng, the first affirmed 21 August 2018, and the second, in reply, affirmed 7 January 2019. Representing Canvas, Ms Costigan, solicitor, relies on an affidavit of Mr Stuart Kelly, VP of Strategic Alliances of Canvas, affirmed 13 December 2018. Neither deponent was required for cross examination.
Mr Sng asserts that he was employed by “Canvas Singapore PTE Limited” on about 1 November 2016 as channel and partnership manager (APAC). He also asserts that, on the same date, he was employed by Canvas under the Agreement.
In Mr Sng’s application to the Commission, which is annexed to his first affidavit, he describes his employment with Canvas as commencing as follows:
“…with AU entity, 1 Nov 2016, but with US Canvas entity since 1 July 2016 (owing to original plan of setting up Singaporean entity, which did not materialise), hence resulting in me being hired by AU Canvas entity on work visa 357.”
Mr Sng annexes a copy of the Agreement, a copy of the 13 June letter, and a copy of his application to and certificate from the Commission.
The Agreement
The Agreement is described as an employment agreement “for full time channel manager (APAC)”. It recites, by way of background:
A.The Company has agreed to employ the Channel Manager (APAC) on the terms and conditions set out in this Employment Agreement and the Channel Manager (APAC) has agreed to be employed by the Company on these terms and conditions.
B.In this Agreement a reference to “the Act” means the Fair Work Act 2009 (Cth).
Clause 1 of the Agreement provides for Mr Sng’s engagement as channel manager (APAC) as follows:
1.1The Channel Manager (APAC) is employed by the Company. The Channel Manager (APAC)’s employment commences on 1 November 2016.
1.2The Channel Manager (APAC) must report to the Managing Director.
1.3In addition to the Duties set out in Schedule 1 of this Agreement, the Channel Manager (APAC)’s Duties in this position include all those that would normally attach to that type of position. The Company may change these Duties during the course of the Channel Manager (APAC)’s employment after consultation with the Channel Manager (APAC).
In relation to the position’s obligations, clause 3 provided that, the channel manager was obliged to punctually attend each work day at the designated place of work at the time stipulated by the company, co–operate and assist the managing director as and when required, carry out all of his/her Duties carefully, responsibly and competently, and comply with all occupational health and safety/workplace health and safety laws policies and procedures.
The Agreement contains specific reference to matters having a nexus with Australia in recital B, where the reference to “the Act” is defined as meaning the Fair Work Act2009 (Cth), in clause 6, which, by reference to the Act, provides that the channel manager is entitled to a paid day off on a public holiday, but notes that the company may, however, require that the channel manger APAC work on a particular public holiday, in clause 6.2, which lists Australian public holidays (e.g. “Anzac Day”, “Queen’s Birthday”), and, otherwise, those days declared by or under the law of a State or Territory as a public holiday other than as declared in substitution, or “any other day excluded by the Workplace Relations Regulations 2006 (Cth), as amended from time to time.”
Further, the provisions of annual leave under clause 7 are stated to be in accordance with the Act, as is personal leave, pursuant to clause 8, and parental leave entitlements in accordance with the Paid Parental Leave Act 2010 (Cth), and unpaid parental leave in accordance with the Act (both in clause 9). Further references to Australian laws in the Agreement include references to the Occupational Health and Safety Workplace Health and Safety laws (clause 14), and that Canvas takes seriously its obligations under the Privacy Act 1988 (Cth) (clause 15.4). Pursuant to clause 19, the Agreement is asserted and acknowledged to be the whole agreement between the parties.
Mr Sng’s duties are set out in schedule 1 to the Agreement. They are stated to be as follows:
The Channel Manager (APAC)'s Duties include:
•Define and execute effective channel enablement strategy to drive sales volume through strategic partners in region.
•Build ‘Launch Play Book’ for the effective on boarding of new partners and drive the internal adoption of Canvas within partner organization.
•Build creative programs to help Partners market our offering.
•Work with partners to structure Growth Initiatives and gain their commitment to implement and share equitably in the marketing cost.
•Work with other teams across Canvas to ensure that maximum conversion rates from trial to paid plan are achieved.
•Perform sales training through webinars and onsite efforts. Identify best in breed from partner in region and share with other channel enablement teams to exploit in other supported markets.
•Create channel sales best practices, processes, and effective communication plans. Partner event support and promotion internal, external, industry related.
•Manage channel sales forecast and performance.
Mr Sng’s remuneration was set out in schedule 2 to the Agreement. It comprised a yearly salary and superannuation, such superannuation contributions to be pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth).
The 13 June letter
The 13 June letter from Canvas provided for Mr Sng’s redundancy termination to take effect on 15 July 2018. The 13 June letter was addressed to him at a Singapore address, with delivery by email to a hotmail.com account. It stated as follows:
We refer to our letter of yesterday’s date and our notification that your role of Channel and Partnership Manager (APAC), is to be made redundant.
Our recent review of our business requirements has identified that your role as Channel & Partnership Manager (APAC) is no longer required.
Given our small operations in Australia, there are no other comparable or alternate roles available for you.
Accordingly, your role is being made redundant on one month’s notice. As a result of your redundancy, you will not be required to attend at work for the notice period, that is until July 15, 2018. During the notice period you are still an employee of Canvas Solutions Australia Pty Ltd (Canvas Solutions). During that time you are not to speak to any clients or prospective clients of Canvas Solutions.
We thank you for your contribution to Canvas Solutions, and wish you all the best with your future career.
Canvas
The address of Canvas set out at the bottom of the 13 June letter is an address in Clarence Street, Sydney.
Canvas is, according to Mr Kelly, the Vice President of Strategic Alliances of Canvas, the Australian subsidiary of ‘GoCanvas’, a technology company based in the United States of America. Canvas has a “comparatively small presence in Australia”. Its total staff is approximately 14.
The Applicant’s Duties
Mr Kelly in his affidavit in answer provides some content to Mr Sng’s employment by Canvas, which is accepted by Mr Sng, save as I indicate. Mr Kelly says (summarising his affidavit evidence):
(a)at all times during his employment by Canvas, Mr Sng “was domiciled in, and is a resident of, Singapore. He received and executed [the Agreement] whilst in Singapore”;
(b)Mr Sng’s duties concerned “the development of prospective reseller partnerships, and assisting in the cultivation of existing GoCanvas reseller partnerships in the Asia Pacific Region”;
(c)the countries “falling primarily within the remit of [Mr Sng’s] responsibilities, as detailed, were the Philippines, Singapore and Hong Kong. To a lesser extent, [Mr Sng] had some responsibilities for relationships in Indonesia, Malaysia and Thailand. [Mr Sng] had no duties to perform with respect to the Australian market”;
(d)to the best of Mr Kelly’s recollection, Mr Sng made only two or three visits to Australia during the course of his employment. He says these visits were not for the purpose of conducting any of Mr Sng’s duties as an employee. Mr Kelly recalls that on one occasion, Mr Sng visited Australia for the purpose of discussing with the Australian Taxation Office the process of paying tax in Singapore rather than Australia. Mr Kelly recalls that “on another occasion, the purpose of Mr Sng’s visit was to address requirements relating to his visa to enter Australia”;
(e)Mr Sng received a salary of Australian $150,000 per annum. He was paid in Australian dollars for the duration of his employment into a nominated Singaporean bank account. Tax was not withheld from Mr Sng. “This was due to [Mr Sng’s] residence in Singapore and payment of tax to the relevant Singaporean taxation authority”;
(f)“In the course of Mr Sng’s employment, a number of structural changes caused the nature of his responsibilities to change, such that he [sic] role was no longer required. None of these changes necessitated any of [Mr Sng’s] responsibilities to extend to Australia”;
(g)in response to the need to make these ongoing structural changes and the market conditions, Canvas undertook a future review to determine the best course of action for the business. An analysis of this review resulted in the decision being made that the role of Mr Sng’s was no longer required and he “were to be made redundant”;
(h)Mr Kelly says that, “Given the small scope of Canvas Australia’s operations, there was no comparable role in which to redeploy [Mr Sng]”.
Mr Kelly accepts that Mr Sng was employed by “our Australian company”, namely, Canvas, but says that he did not perform work in Australia, nor (as I have stated above) did he pay tax in Australia, and that the contract he entered into (that is the Agreement) was the “generic contract provided to our employees”.
In his affidavit in reply, Mr Sng accepts much of what Mr Kelly says, but says further that he was “engaged under an agreement which is entirely referenced to Australia and the Australian Fair Work Act down to the detail that the public holidays I was entitled to take were public holidays in Australia, not Singapore”. Mr Sng says he was part of the Australian team, and had responsibilities within that team. He does not, however, specify or, indeed, reference any such responsibilities.
Mr Sng says his visits to Australia were limited precisely because of the presence of other team members in Australia, but asserts that he, nonetheless, had responsibilities within the Australian team. In relation to his travel to Australia, Mr Sng says Canvas went to some trouble, including making visa arrangements “in recognition of the potential need for me to visit Australia, although … there was no need for me to be physically present in order to discharge my responsibilities in Australia”. Mr Sng disputes Mr Kelly’s characterisation of his visits to Australia, submitting that he travelled at the company’s expense, although he does not provide any documentation substantiating that statement. He says, “Discussions about personal matters (e.g. with tax authorities) were conducted for convenience during those visits”.
During the hearing, Mr Baldwin handed up to Court a document which Mr Baldwin, it appears, or his firm, intended to file in response to Canvas’ response filed according to the Rules. That document, whilst not filed or tendered in evidence, stands as a reply to the response filed by Canvas. I propose to treat it as such. In this reply, Mr Sng admits that the geographic scope of his responsibilities generally was as Ms Kelly states (that is in the Asia Pacific region, outside Australia), but reiterates he was part of a team based in Australia.
It is apparent from the evidence that the duties for which Mr Sng was engaged to perform are of a marketing or a marketing relationship nature. They are otherwise described in abstract terms. It is a feature of Mr Sng’s case that there is an absence of detail and no supporting documentary material to ground in concrete terms what it is that Mr Sng was employed to do, where he was to do it, or how he was to perform his duties. Thus, on the part of Mr Sng the contest between the parties is reduced to the following indicia:
(a)the terms of the Agreement, specifically the reference in the Agreement to the Act and to Australian laws, remuneration in Australia dollars and superannuation, as provided, pursuant to Australian law;
(b)that Canvas is an “Australian employer”;
(c)that Mr Sng visited Australia, including visiting the Australian Tax Office, on two or three occasions during his employment (noting that he accepts these were about personal matters, see above at [28]);
(d)that Canvas went to some effort to make visa arrangements for Mr Sng“in recognition of the potential need for [him] to visit Australia”; and lastly
(e)the statements made in the 13 June letter, as set out above, and particularly [3], “Given our very small operations in Australia, there are no other comparable or alternate roles available for you”.
It is not in dispute that Mr Sng was paid his salary in Australian dollars into a Singaporean bank account, and that he did not pay tax in Australia, but, rather, paid tax in Singapore, which he was lawfully entitled to do as long as he was a resident in Singapore for at least 180 days in any tax year. Mr Sng argues that he received superannuation contributions into a superannuation fund he nominated, and that, to the best of his knowledge, they were paid in accordance with Australian law.
Parties’ Submissions
Mr Baldwin submits that Mr Sng does not fall within the s.35(3) exclusion because he was part of an Australian team and had “non trivial responsibilities in Australia”. Alternatively, he says that Canvas went out of its way, through the terms of the Agreement and otherwise, to hold out to him that his terms and conditions of employment were those applying to an Australian–based employee, and that Canvas cannot now be heard to deny this, and cannot deny him redundancy pay.
Mr Baldwin acknowledges that Mr Sng was, at all material times, a resident of Singapore, and that he was engaged in Singapore. He also concedes that the majority of Mr Sng’s responsibilities were in Southeast Asian countries other than Australia. Mr Baldwin says that it can be inferred that if Mr Sng did not have duties in Australia, that Canvas would not have paid for travel accommodation expenses for the times that Mr Sng came to Australia, even though it might be he took these opportunities to fulfil taxation and similar obligations.
Mr Baldwin argues that the Agreement is “shot through” with references to the Act, and that if Canvas had intended to exclude the operation of the Act, it could have done so.
Mr Baldwin relies in particular, on the interlocutory decision of Perram J in Woodsford v Range International Limited [2018] FCA 1007, acknowledging that decision was interlocutory. In Woodsford, Perram J, dismissing an application for hearing and determination of separate questions in advance of trial as to whether the applicant’s claims against those respondents “are sufficiently within the geographical scope of the Act to allow her claims made under that Act to be maintained”. His Honour observed, at [8], that “it is not in doubt that that Applicant’s claims under the FW Act will be unavailable if it appears that she was engaged outside Australia to perform duties outside Australia,” referring to s.34(3)(a) of the Act and reg.1.15F(4) of the Fair Work Regulations.
In Woodsford, his Honour referred to paragraphs of the statement of claim which contained particulars of duties said to include managing sales teams in Australia, reporting to the CEO and board, that she may be required to travel frequently within Australia; that the agreement was governed by the State of New South Wales, and the parties submitted to the exclusive jurisdiction of the Courts of that State; and that the primary duties included strategies in relation to the Commonwealth of Australia.
His Honour declined the application for a separate question, observing, at [10], that “the question of whether the Applicant was engaged to perform duties outside Australia is a fact rich inquiry inapt for resolution by means of a separate question.”
The short point from Woodsford relied on by Mr Baldwin is that an inquiry into the scope of an applicant’s work in Australia is a complex undertaking, requiring factual determinations. That may be undeniably so. The problem for Mr Sng in the present case, however, is that, apart from the references to Australian law in the Agreement, and the 13 June letter, Mr Sng has not given any evidence about what he was employed to do, where or how he was to perform his duties.
Ms Costigan, for Canvas, identifies that there are two issues for determination before me: firstly, whether as a matter of contract, and secondly, whether pursuant to s.119 of the Act, Mr Sng is entitled to payment of redundancy.
Consideration
No Contractual Entitlement
As to the contract, Ms Costigan submits, and I accept, that the Agreement imports specific provisions of the Act, and not the provisions of the Act as a whole. The Agreement does not make any express reference to redundancy. There is no term providing for redundancy. There is nothing in the terms of the Agreement which would warrant, or provide any grounds to imply, a contractual term entitlement to redundancy.
To the extent that Mr Sng contends that Canvas went out of its way, through the terms of the Agreement and otherwise, to hold out to Mr Sng that his terms and conditions of employment were those applying to an Australian–based employee, there is no such suggestion in the material in evidence on which such an allegation can be made good. Within the terms of the Agreement, I note that clause 19 of the Agreement, as an entire agreement clause, specifically states:
[19]Any prior representations by the company or any person on its behalf are not relied on by the channel manager.
There is, however, no evidence that any representations were made.
Excluded by s.35(3) of the Act
Turning to the Act, as I have foreshadowed above, the question arises whether Mr Sng was “engaged outside Australia … to perform duties outside Australia …”. As to “engaged”, the Macquarie Dictionary defines “engage” by references to employment as being:
To secure for aid, employ, use, etcetera; hire: to engage a worker; to engage a room.
In the statutory context of s.35(3), I consider that the term “engaged” refers to the entering into a contract for the purposes of an employment relationship. In the present case, the entering into the contract – the Agreement – occurred outside Australia by Mr Sng, then in Singapore. The question then arises whether his contract of employment was for Mr Sng to perform duties outside of Australia.
The critical question to be determined by the Court is whether Mr Sng was engaged “to perform duties outside Australia and the external Territories”. Mr Baldwin’s submissions, however, do not identify with any clarity or particularity any concrete instance of Mr Sng undertaking any work or duties which do not fall within the description of the terms “to perform duties outside Australia and the External Territories”. The assertion that Mr Sng is “part of an Australian team” is not borne out. There is a paucity of concrete facts from which this Court could conclude that Mr Sng is not excluded by s.35(3) from being an Australian–based employee within the meaning of s.35(2), and particularly s.35(2)(b), of the Act.
The factual matrix of the Agreement, the parties’ location and Mr Sng and Mr Kelly’s evidence establishes that Mr Sng’s duties were to be performed outside Australia. Mr Kelly’s evidence is that Mr Sng’s duties were primarily within the Asia Pacific region, and exclusive of Australia. Mr Sng does not point to any duties to be performed by him in Australia, in contrast to any duties to be performed outside Australia.
On balance, the evidence shows that Mr Sng was engaged to perform duties in countries in Asia, and that were outside Australia. Mr Kelly’s evidence is not contradicted by Mr Sng’s evidence of his visits to Australia, his assertion that Canvas met his travel expenses, or that Mr Sng’s salary was paid in Australian dollars. That the Agreement references the Act, that his pay was paid in Australian dollars, and that he was paid superannuation pursuant to Australian law, that Canvas paid for trips to Australia, or met his travel expenses, does not gainsay Mr Kelly’s evidence, which I accept, that his engagement was to perform duties outside Australia. The facts of this matter distinguish it from the circumstances in Woodsford.
In Cohen v iSOFT Group Pty Limited [2013] FCAFC 49; 298 ALR 516; 234 IR 386, the Full Federal Court observed at [54]:
[54]The primary judge’s conclusion was correct that Dr Cohen was not an Australian–based employee within the meaning of the Fair Work Act. That was because he was excluded from the operation of that Act by s 35(3). Dr Cohen argued that he had had some duties to perform from time to time in Australia, and so he fell outside that exclusion. On the material in evidence, those duties, whatever they were, were not sufficiently significant to displace the ordinary and natural construction of s 35(3), that excludes from the operation of the Act overseas based employees who might perform no more than an insubstantial part of their duties in Australia.
To the extent that there are any duties that Mr Sng may have been engaged to perform in Australia, which such duties are not identified in evidence, I find that they were insubstantial, if existent.
Mr Baldwin’s focus on the references to the Act in the Agreement does not address whether or not Mr Sng was engaged to perform duties outside Australia. The question is not whether there are references to the Act in the Agreement, but whether there are any duties identified in the Agreement, expressly or by necessary implication, to be performed within Australia, or other than outside Australia. There are none.
It appears that Mr Baldwin’s argument in relation to the references to the Act in the Agreement maybe, although not expressly stated, a submission that the other provisions of the Act are incorporated into the agreement, and, specifically, the statutory provisions providing for redundancy. As I have said in short form above, for the reasons submitted by Ms Costigan, namely, that there is no express term relating to redundancy at all, let alone to redundancy under the Act, whilst there are other terms in the Agreement that do reference and incorporate entitlements under the Act, there is no such incorporation or implication in respect of redundancy.
Mr Baldwin submitted that the 13 June letter is the most striking instance evidencing that Mr Sng was a member of Canvas Australia’s team. The letter referred to the company’s “very small operations in Australia”, the impracticality of redeployment and made no mention of Australia. I do not consider that the 13 June letter assists Mr Sng’s case. The letter, to the contrary, makes clear that Mr Sng cannot be re-deployed in Australia. It does not support any case that Mr Sng was employed under the Agreement to perform duties in Australia, or, to put it another way, other than outside Australia.
Conclusion
Thus, I conclude that Mr Sng is an employee of Canvas who was engaged outside Australia to perform duties outside Australia and, as such, he is excepted by s.35(3) of the Act from being an Australian–based employee within the provisions of s.35(2) of the Act.
It follows that the application must be dismissed.
Costs
As to the question of costs, generally under this Act, except in exceptional circumstances, this is not a costs based jurisdiction. Ms Costigan seeks her client’s costs under s.570(2)(a) of the Act.
The parties filed post-hearing submissions on costs. Ms Costigan submits that there was no reasonable basis for the proceeding to be initiated. She says that Mr Sng (through his solicitor) commenced his claim as a General Protections claim, and that formed the basis for the application to this Court. There has not been, however, any submission to the Court in relation to the general protections claim, its basis, or its merit.
As to Mr Sng’s claim under s.44 of the Act, for the payment of redundancy under s.119 of the Act, Ms Costigan submits that there was no reasonable basis to make the claim. Further focusing her submissions made at hearing she submits:
(a)an alleged contractual right cannot create a statutory right, thus there was no reasonable basis to contend that the Agreement created a contractual right;
(b)there was no reference in the Agreement to s.119 of the Act, nor to the Standards;
(c)Mr Sng brought no evidence to support his contention that he meaningfully performed work inside Australia and was therefore not excluded from the statutory rights under the Act.
Ms Costigan makes the further submission that costs should be awarded against Mr Sng’s solicitors personally, and jointly and severally with Mr Sng. She says they ought to have known that the matter had no reasonable basis. Ms Costigan relies on Ryan v Primesafe [2015] FCA 8 and Doyle v Emperor Energy Limited (No 2) [2017] FCCA 3088.
Ms Costigan submits that Canvas and its senior officers, including Mr Kelly were forced to spend time and financial resources defending a spurious claim.
Mr Baldwin disputes that the proceeding was based on General Protections involving dismissal jurisdiction. He points to the fact that no application to the Commission was attached to the initiating process. Whilst conceding that it would have been preferable that the grounds of the application had been expressed as ‘Statement of Claim’, and expressly addressed the basis the application was brought, he says that the nature of the claim was sufficiently made clear.
Mr Baldwin submits that, despite any deficiency in the pleadings, the nature of the Mr Sng’s claim, with its assertion that he was an Australian–based employee, and with its reference to Canvas’ refusal to make payment in accordance with s.119 of the Act, made inescapably clear that it entailed an alleged breach of s.44, and, that being the case, that the Court’s jurisdiction was engaged by virtue of s.539, whether or not that fact was expressly pleaded.
Mr Baldwin submits that Canvas while opposing Mr Sng’s claim on the basis that he was not in fact an Australian–based employee, understood fully and clearly the nature of the Mr Sng’s claim. At no time prior to hearing, either orally or in writing, did Canvas’ solicitor make any request for further and better particulars, or for clarification, or express any doubt as to her understanding of Mr Sng’s claim.
Mr Baldwin says he did not assert that Mr Sng’s contract of employment created a statutory right, or that the contract expressly imported the operation of the Act (I observe, however, that I understood his oral arguments to be to the contrary). He says, and I accept, that the general thrust of Mr Sng’s case was that, in examining the question of whether Mr Sng was an “Australian–based employee”, the Court should look to all incidents of the relationship between the Applicant and the Respondent.
I do not consider that the Applicant’s solicitor’s behaviour is of the same nature as in the cases in which Ms Costigan relies. I do not accept that either Ryan or Doyle support the opposite conclusion. In Ryan, the applicant joined the legal adviser as a respondent party; in Doyle, the claim was brought after entry into a deed of release. Further, the facts in Ryan are distinguishable.
I have some sympathy for Ms Costigan’s submissions, however, I do not consider that the Applicant’s case is brought so egregiously so as to be vexatious. Merely that a party has instituted a proceeding that does not succeed does not mean that it was instituted vexatiously or without reasonable cause: see generally Morris v McConaghy Australia Pty Ltd [2018] FCA 2099.
I decline to make any order as to costs. The present circumstances are not so exceptional that s.570(2)(a) is enlivened.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 3 May 2019
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