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 |
| 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…
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- AGLC
- Sumontha v Action Workforce Australia Pty Ltd [2014] FCCA 725
- Case
- [2014] FCCA 725
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicant's claim had a reasonable prospect of success, thereby justifying its dismissal under Rule 13.10 of the *Federal Circuit Court Rules 2001*. This rule permits the Court to dismiss a proceeding if satisfied that the prosecuting party has no reasonable prospect of success, or if the proceeding is frivolous, vexatious, or an abuse of process. The Court was required to consider the implications of the applicant's initial representation to the FWC that her dispute did not involve a dismissal, and how this impacted the potential for her to succeed in the current court proceedings.
The Court's reasoning focused on the applicant's own characterisation of her dispute in the FWC application. By stating that the alleged contravention did not involve dismissal, the applicant effectively directed the FWC to deal with the matter under section 372, rather than the provisions relating to dismissal disputes. Section 368 of the Act outlines the FWC's process for dealing with dismissal disputes, including the possibility of issuing a certificate if resolution attempts are unsuccessful and advising parties on the prospects of arbitration or general protections court applications. The applicant's assertion that her dispute was not a dismissal dispute meant that the FWC did not proceed under section 368, and therefore did not make the types of recommendations or assessments contemplated by that section. The respondent argued that this initial characterisation meant the applicant could not now pursue a claim that implicitly relied on a dismissal, or at least that her prospects of success were significantly diminished.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.” 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 disputeIf:(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.” Rule 13.10 of the Federal Circuit Court Rules 2001 provides:“Disposal by summary dismissalThe 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.