Sumontha v Action Workforce Australia Pty Ltd
[2014] FCCA 725
•29 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUMONTHA v ACTION WORKFORCE AUSTRALIA PTY LTD | [2014] FCCA 725 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case by respondent for summary dismissal – application dismissed. |
| Legislation: Fair Work Act 2009, ss.370, 365, 366, 368, 340, 341, 342, 343, 372, 324(1) Federal Court of Australia Act 1976, s.31A |
| Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 George v Fletcher (Trustee) [2010] FCAFC 53 |
| Applicant: | CHRISTINE PATTARAPON SUMONTHA |
| Respondent: | ACTION WORKFORCE AUSTRALIA PTY LTD |
| File Number: | MLG 0205 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | By written submissions |
| Date of Last Submission: | 4 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 April 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Taylor Preston Lawyers |
| Solicitors for the Respondent: | Mark Diamond & Associates |
ORDERS
The application in a case filed by the respondent on 24 March 2014 be dismissed.
The matter be listed for a directions hearing on 21 May 2014 at 9.30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 0205 of 2014
| CHRISTINE PATTARAPON SUMONTHA |
Applicant
And
| ACTION WORKFORCE AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 February 2014 the applicant filed an application together with a Form 4, “Claim under the Fair Work Act 2009 alleging contravention of a general protection”. In Part G of the Form 4, the applicant specified the adverse action against the applicant as, “Refusal to give work”.
The applicant stated relevantly for the purpose of these proceedings:
“[5]On or about the 12 and 17 September 2013 the Applicant made a formal complaint to both the Applicant’s host employer and the Applicant’s labour hire employer, the Respondent, regarding bullying and sexual harassment. The complaint concerned bullying and harassment by the Applicant’s supervisor and sexual harassment by a co-worker.
[6]On 25 September 2013 the Applicant returned to work, but was called to attend the Respondent’s office to discuss her complaints. At the meeting the Applicant was forced into mediation face to face and offered an apology from the Applicant’s supervisor, which the Applicant did not accept. The Applicant informed the Employer that she would seek legal advice.
[7]On 26 September 2013 the Applicant informed the Respondent that she would like to return to work on 27 September 2013, but was told not to do so unless she brought a written statement from a solicitor assuring that no legal action will be brought against the employer.
[8]As a result of the continuing Respondent’s position, the Applicant has been effectively dismissed.
[9]An adverse action is defined in s 342(1) of Fair Work Act 2009 and includes where the employer dismisses the employee.
[10]The Respondent has made the conditions of work so oppressive or repugnant to the Applicant, and the employment relationship, so bears down on the volition of the employee, that non-continuance of employment was a reasonable probable response to the circumstances the employee faced at the time.”
On 6 February 2014 the respondent filed an application in a case seeking:
“1.An order pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 that the proceedings be dismissed.
2.An order pursuant to section 79 of the Federal Circuit Court of Australia Act 199 (Cth) and/or section 570 of the Fair Work Act 2009 (Cth) that the Respondent pay the Applicant’s costs of the proceeding as agreed or assessed.”
The respondent claims that the jurisdictional pre-requisites necessary for the applicant’s claim to be dealt with by the Court have not been met.
By agreement between the parties the respondent’s application in a case is being dealt with on the papers, both parties having filed written submissions in accordance with the Court’s directions.
Issue to determine
The issue to determine is whether the Court has jurisdiction to deal with the applicant’s application having regard to provision of s.370 of the Fair Work Act 2009 (“the Act”). Section 370 of the Act provides:
“Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)both of the following apply:
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.
Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2:For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
Legislation
Section 365 of the Act provides:
“Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 of the Act provides:
“Time for application
(1)An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2)The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Section 368 of the Act provides:
“Dealing with a dismissal dispute (other than by arbitration)
(1)If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.
(2)Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3)If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4)A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.”
Applicant’s claim in the Fair Work Commission (“FWC”)
It is appropriate to set out the proceedings in the FWC.
On 3 December 2013, the applicant filed a Form F8, “Application to deal with a General Protection Dispute” in which the applicant alleged breaches of ss.340, 341, 342 and 343 of the Act. At point 3.1 of the Form F8, in response to the question, “Did the alleged contravention involve the dismissal of the Applicant,” the applicant responded, “No”.
Consequently, the application was dealt with by the FWC pursuant to s.372 of the Act. Section 372 provides:
“Application for the FWC to deal with a non-dismissal dispute
If:
(a)a person alleges a contravention of this Part; and
(b)the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;
the person may apply to the FWC under this section for the FWC to deal with the dispute.”
Summary dismissal
Rule 13.10 of the Federal Circuit Court Rules 2001 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 the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.”
The respondent submits that the applicant has no reasonable prospect of successfully prosecuting her claim and consequently the proceedings should be dismissed generally.
For the summary dismissal application to succeed the court must be satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60, Finkelstein J at [23] said of s.31A of the Federal Court of Australia Act 1976, which is in equivalent terms:
“In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial. On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done – see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.”
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Rares J at [45] said of the same section:
“I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened ‘... the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases’.”
Lindgren J, in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511, summarised the principles as follows:
“[53] The “no reasonable prospects of success” formula of s.31A is that which was adopted in r.24.2 of the United Kingdom’s Civil Procedure Rules (“CPRs”) following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, 1996), ch 12, ss.31-36. The same test has been adopted in rr.292(2) and 293(2) of Queensland’s Uniform Civil Procedure Rules 1999.
[54]Under s.31A I must be satisfied that the applicants have no reasonable prospect of success, but as s.31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s.31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92 …”
The statements of Lindgren J were endorsed by the majority in George v Fletcher (Trustee) [2010] FCAFC 53 at [75], where they stated:
“…
These remarks have since frequently been cited with approval by various judges of this court. They offer valuable guidance in relation to the background to the enactment, purpose and meaning of s.31A and its equivalent, s.17A. The suggestion made by Lindgren J (at [54]), with which we agree, that the intention of the legislature in enacting s.31A was to “lower the bar for obtaining summary judgment” does not carry with it the additional proposition that the intention was to remove the bar completely. True it is that s.31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s.31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s.31A(3) (and s.17A(3)).”
Respondent’s Submissions
Relevant extracts of the respondents submissions are set out below:
“[4]Section 365 of Subdivision A provides that a person who has been dismissed may apply to the Fair Work Commission (FWC) under that section for the FWC to deal with the dispute. Section 366 requires that such an application must be made within 21 days after the dismissal took effect or within such further period as the FWC may allow. Section 368(3)(a) provides that where the FWC is satisfied all reasonable attempts have been made to resolve the dispute other than by arbitration, it must issue a certificate to that effect.
[5]Section 370 prescribes the circumstances in which a dismissed employee may apply to the Federal Court or Federal Circuit Court. It provides that a person who is entitled to apply under s365 must not make an application to the Court unless the FWC has issued a certificate under s368(3)(a), or the application to the Court seeks an interim injunction.
[6]In other words, setting aside cases of interlocutory injunctive relief, a person who has been dismissed must apply to the Commission under section 365 within the time limit established by section 366 and must obtain a Certificate of Attempted Conciliation. It is only on compliance with those steps that the person is entitled to apply to the Court.
[7]The Claim filed in the present case indicates that the applicant has been dismissed: see paragraph 8 of the Claim. The applicant is therefore on her own account of the facts bound by the section 370 requirements.
[8]No certificate under s368(3)(a) issued in relation to the present dispute: see first affidavit of Selig at [8]. The certificate did not issue because the applicant’s application to the FWC did not allege dismissal.
[9]It follows that the proceedings are, on the applicant’s own account, barred by s370. There is no capacity to waive or avoid the s370 requirement. The proceedings are incompetent.
[10]Although it is not strictly necessary to do so, it may be observed that the application to the FWC was made more than 21 days after the applicant’s last day of work for the respondent. It is presumably for that reason that the application to the FWC did not allege dismissal1. It is that sidestepping of the time limit in the Commission which brings the Applicant undone in this Court.
[18]Finally it may be noted that the section 370 requirement extends to any application where the applicant has been dismissed, regardless of the character of the adverse action pleaded. The fact that the application pleads adverse action in the form of coercion as well as adverse action in the form of dismissal does not affect the position. On the applicant’s account, no part of the proceeding is competent. Applicants Submissions.”
Relevant extracts of the applicant’s submissions are set out below:
“[2]That the action was brought under s372 (Subdivision B) as an application to deal with a non-dismissal dispute. Therefore, contraventions involving dismissal (Subdivision A) do not apply in this case.
a.That s 366 of the Act specifying that the application be made within 21 days does not apply.
b.That there is no requirement for the Fair Work Commission to issue a certificate per s368(3)(a). Thus, no certificate was issued by the Fair Work Commission following the Conference.
c.That the Respondent admitted there was no actual dismissal during proceedings in the FWC.
[3]That the Applicant was not terminated, but ceased to receive work from the Respondent from 26 September 2013 following non-submission of the requested written statement from her solicitors assuring the Respondent that no legal action would be brought.
[4]That the Applicant has not received a termination notice from the Respondent despite their refusal to give her work. That there is no clear date of termination, if any.
[5]That the Applicant did not accede to the Respondent’s demands that she provide a letter from her solicitors on the basis that such demands were unreasonable and unlawful.
[6]That the Applicant would be unable to seek recourse from the Respondent if she was barred from bringing an action under s372 (Subdivision B). The Respondent had not at any point provided clear information on the date of termination, if any. Consequently, the Applicant was prevented from bringing an action under s365 (Subdivision A) as there was no clear indication of dismissal.
[7]That the Respondent seeks to enforce s 366 and s368(3)(a) of the Act despite not providing any notice of termination. 8. In Federal Circuit Court Rules (2001), Reg 45.06 provides that an application for an order in relation to dismissal from employment in contravention of a general protection must be made in accordance with the approved form. Similarly, Reg 45.08 provides that an Application in relation to other alleged contravention of the Act be made in accordance with the approved form.
a.That on 6 February 2014 the Applicant filed the correct, approved form (Form 4) for a non-dismissal claim in accordance to Reg 45.08.
[9]In the Form 4 of 6 February 2014, paragraph 8, the reference to the Applicant being effectively dismissed was not intended to suggest that a formal or definite act of dismissal had occurred. It was merely to indicate that at some point the Applicant’s work has ceased due to the non-provision of work. Any reasonable reading of the application would conclude that there was no actual or formal dismissal.
[10]That the dismissal is immaterial as the Applicant’s substantive claim revolves around the Respondent’s adverse action.
[11]The Applicant seeks to rely on s342(1) as a whole.
[12]That should His Honour find that the reference to dismissal at paragraph 9 confuses or is inconsistent with the Form 4 application of 6 February 2014, the Applicant seeks leave to amend Form 4 to remove the reference to dismissal.
a.To amend Paragraph 8 from “As a result of the continuing Respondent’s position, the Applicant has been effectively dismissed” to “As a result of the continuing Respondent’s position, the Respondent has taken adverse action against the Applicant.”
b.To amend Paragraph 9 from “An adverse action is defined in s 342(1) of the Fair Work Act (2009) and includes where the employer dismisses the employee” to “An adverse action is defined in s 342(1) of the Fair Work Act (2009), where the employer injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice.”
[13]That a summary dismissal of the Applicants Form 4 Application would prolong proceedings as a substantive claim exists. That allowing the amended Form 4 would abridge proceedings by not requiring the Applicant to file for adverse action again.”
The applicant submits that she has a meritorious and serious claim for adverse action against the respondent and she should be allowed to have her claim dealt with by way of final hearing.
Consideration
In circumstances where an applicant has been dismissed the Court’s jurisdiction to deal with an application alleging contraventions of Part 3-1-General Protections of the Act is only enlivened where the applicant has obtained a certificate under s.368(3).
The respondent’s application in a case, not unreasonably, is based on the pleading drawn up on behalf of the applicant and contained in the Form 4. Taking paragraphs [8] and [9] of the grounds specified in Part G of the Form 4, it is a reasonable inference that the applicant is alleging that she has been dismissed. True, it is the pleadings state at [8] she has been, “effectively dismissed.” However, at [9] the pleadings state adverse action includes, “where the employer dismisses the employee.” The applicant’s legal representative, on behalf of the applicant, says that the applicant was not dismissed and that the reference in [8] of Part G of the Form 4, “was not intended to suggest that a formal or definite act of dismissal had occurred.” It seems to me, as I have said, that a reasonable inference to be drawn by those pleadings is that, on their face, the applicant is alleging she was dismissed and this is to be treated as adverse action pursuant to s.324(1) of the Act. However, if the Court is to have regard to the proceedings as a whole, it is clear that in her claim (Form 4) to the FWC on 3 December 2013 the applicant stated clearly that the alleged contravention of the General Protection provisions of the Act did not involve the dismissal of the applicant.
The applicant’s legal representative says in their written submissions made on behalf of the applicant that if there was any confusion created by the relevant paragraphs of Part G of the Form 4, then the applicant seeks leave to amend the Form 4 to remove the reference to dismissal. The proposed amendments to the Form 4 are set out in paragraph [12] of the applicant’s written submissions (see [20] above).
Section 3 of the Federal Circuit Court of Australia Act 1999 (“the FCC Act”) provides:
“Objects
(1)The main object of this Act is to continue in existence the Federal Magistrates Court created under Chapter III of the Constitution as the Federal Circuit Court of Australia.
(2)The other objects of this Act are:
(a)to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
(b)to enable the Federal Circuit Court of Australia to use streamlined procedures; and
(c)to encourage the use of a range of appropriate dispute resolution processes.”
Having regard to the objects of the FCC Act, the Court is prepared to grant leave to the applicant to amend her Form 4. I note that there may well, nevertheless, be a dispute between the parties as to whether the applicant was in fact dismissed. However, that would be a dispute which would require the testing of evidence and findings of fact and law by the Court. This is not an exercise the Court can embark on having regard to the papers presently before it and in the context of an application for dismissal judgment.
Having regard to the applicant’s claim and taking her claims at their highest, the applicant, in essence claims that she exercised a workplace right under s.340(1) of the Act by proposing to obtain legal advice in relation to her claims of bullying and sexual harassment. She claims she was the subject of adverse action by the employer pursuant to s.342(1) of the Act by reason that the respondent ceased providing her work which action lead to loss of remuneration, vocation, training and development opportunities. Where the applicant satisfies the Court that she exercised a workplace right in the terms alleged and that the respondent engaged in the conduct, alleged and that this conduct constitutes adverse action, then the onus shifts to the respondent, pursuant to s.361(1) of the Act to satisfy the Court that a reason or reasons for the adverse action did not include the exercise of a workplace right. The applicant also alleges that the respondent breached s.343(1) of the Act by attempting to coercively prevent the applicant from exercising her workplace right of seeking independent legal advice and/or reserving the right to litigate matters on sexual harassment and bullying. Of course, the matters alleged by the applicant would require the testing of evidence at a final hearing, however, the Court, taking the applicant’s case on its highest, cannot satisfy itself that the applicant has no reasonable prospects of success.
Consequently, the Court is not satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceedings or a part of the proceedings. Consequently the application in a case made by the respondent is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 29 April 2014
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