Sun v EP2 Management Pty Ltd
[2016] FCCA 1381
•10 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUN v EP2 MANAGEMENT PTY LTD | [2016] FCCA 1381 |
| Catchwords: INDUSTRIAL LAW – Application for summary judgment – whether the application has no reasonable prospect of success – applicant claims dismissal for reason of race, health and age – applicant resigned – proceedings dismissed under s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth). |
| Legislation: Fair Work Act 2009, ss.12, 342, 351, 386 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Cook v CFP Management Pty Ltd (2006) 152 IR 358; [2006] QCA 215 Mohazab v Dick Smith Electronics Pty Ltd [No. 2] (1995) 62 IR 200 RailPro Services Pty Ltd v Flavel [2015] FCA 504 Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 Spencer v Dowling& Anor [1997] 2 VR 127 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 |
| Applicant: | XIA ER (JACK) SUN |
| Respondent: | EP2 MANAGEMENT PTY LIMITED |
| File Number: | SYG 1869 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 18 March 2016 |
| Date of Last Submission: | 18 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2016 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms P. Thew of Counsel |
| Solicitors for the Respondent: | Australian Hotels Association |
ORDERS
The name of the respondent be amended to EP2 Management Pty Limited.
The proceedings be dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1869 of 2015
| XIA ER (JACK) SUN |
Applicant
And
| EP2 MANAGEMENT PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
The applicant was employed by the respondent and its predecessors as a shift engineer from 8 March 1999 until 16 April 2015. In the applicant’s application, the respondent was identified as “Four Points Hotel by Sheraton trading as Four Points Hotel by Sheraton Sydney”; however, the correct respondent is EP2 Management Pty Limited.
The applicant claims that he was forced to resign because of his age, race and ill-health. He alleges that the respondent contravened s.351 of the Fair Work Act 2009 (Cth) (“FW Act”) and seeks, amongst other things, compensation for lost wages.
The respondent says that the application has no reasonable prospect of success or is frivolous and has sought that the matter be summarily dismissed under either s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) or rr.13.10(a) or (b) of the Federal Circuit Court Rules 2001 (Cth) (“Rules”).
Before turning to the parties’ contentions it is necessary to examine the power of the Court to dismiss proceedings before a final hearing.
Section 17A of the FCCA Act provides:
17A Summary judgment
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
This, and analogous provisions in the Federal Court of Australia Act 1999 (Cth) (s.31A) and Judiciary Act 1903 (Cth) (s.25A) were introduced in response to what was perceived as an increase in unmeritorious litigation in Federal Courts, particularly migration cases. Nevertheless, they are of general application: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”) at 129, [18] (French CJ and Gummow J).
Rule 13.10 of the Rules provides:
13.10 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.
It is important to bear in mind that the power to dismiss an action summarily is not to be exercised lightly: Spencer at 141, [60] (Hayne, Crennan, Kiefel and Bell JJ).
The relevant principles were summarised by Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] (a decision prior to Spencer but which has often been cited, with approval, after that decision):
…
· In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
· In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).
· The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
· As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
The respondent argued that the purpose of the powers of summary dismissal is to reduce costs and delay. That much may be accepted; however, it is often the case (as it was in Spencer) that an application for summary dismissal achieves precisely the opposite: increased costs and further delay. In this matter, for example, the matter could readily have been finally determined in the same amount of time and with the same amount of effort as this application. That said, the application has been made and must be determined. In order to do so, it is necessary to identify the basis upon which the proceedings have been brought and the issues that arise for determination before assessing the strengths of the applicant’s claims.
The applicant is unrepresented in the proceedings and has not expressed his claims with the greatest clarity. In spite of that, the respondent accepts that the applicant alleges that the respondent contravened s.351 of the FW Act.
Section 351 provides:
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
…
(2)However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed-taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3)Each of the following is an anti-discrimination law:
(aa)the Age Discrimination Act 2004;
(ab)the Disability Discrimination Act 1992;
(ac)the Racial Discrimination Act 1975;
(ad)the Sex Discrimination Act 1984;
(a)the Anti-Discrimination Act 1977 of New South Wales;
(b)the Equal Opportunity Act 2010 of Victoria;
(c)the Anti-Discrimination Act 1991 of Queensland;
(d)the Equal Opportunity Act 1984 of Western Australia;
(e)the Equal Opportunity Act 1984 of South Australia;
(f)the Anti-Discrimination Act 1998 of Tasmania;
(g)the Discrimination Act 1991 of the Australian Capital Territory;
(h)the Anti-Discrimination Act of the Northern Territory.
(Emphasis in original)
The respondent submitted, and I accept, that the applicant must establish three things in order to succeed:
a)That he was an employee with the particular protected attributes, namely, age, race, and/or physical or mental disability;
b)The respondent took adverse action against him; and
c)The adverse action was taken “because of” the applicant’s protected attributes.
There is no dispute that the applicant satisfies the first of these, at least insofar as he is of Chinese ethnicity. The respondent contends that the applicant does not have a reasonably arguable case in respect of the second and third matters.
It is convenient to deal with the third matter first.
Applicant’s protected attributes
In respect of the third matter, the respondent’s summary judgment application is considerably hindered by the rebuttable presumption created by s.361 of the FW Act, namely, that the adverse action was taken for a particular reason unless proven otherwise.
The respondent argued that, in light of s.351(2), the applicant must also prove that the conduct of which he complained constituted a contravention of one of the state or federal anti-discrimination laws. In particular, it argued, he had to show that there was less favourable treatment by reference to a real or hypothetical comparator. That submission is misconceived. As Perry J explained in RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [112]:
… if the dismissal was “because of” Mr Flavel’s mental disability, s 351(1) is breached unless the dismissal falls with one of the “carve-outs” in s 351(2)(a), (b) or (c). Save therefore where the adverse action is that defined in column 2, para (d) of item 1 of the table in s 342(1) (i.e. that the employer “discriminates between the employee and other employees of the employer”), s 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s): Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 at [35] (Gray and Bromberg JJ (overruled on appeal but not on this point)); Stephens v Australian Postal Corp [2011] FMCA 448; (2011) 207 IR 405 (Stephens v APC) at 439 [83]-[84] (Smith FM).
…
The applicant’s claim is not based on discrimination between him and other employees of the respondent. For that reason, there is no need for the applicant to establish the complex matters required by the anti-discrimination laws. The case relied on by the respondent, Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27, was a case involving discrimination between the applicant and other employees of the respondent. It is distinguishable from this case for that reason.
The applicant claims that he was the subject of racial abuse by a number of engineering managers of another ethnic background. It was two co-workers, one being a shift engineer and another employed as a handyperson, who complained about his conduct and which ultimately led to a meeting at which, the applicant says, he was effectively forced to resign. There is a dispute about a number of the facts asserted by the applicant in this respect. That much suggests that it is not appropriate to summarily dismiss the proceedings.
As I have noted, one fact that was not in dispute is the applicant’s Chinese ethnicity, or race. Given, then, that the applicant has alleged that he was dismissed because of his race, there is a statutory presumption that that was the reason for the dismissal (assuming for the moment that there was a dismissal). In light of that presumption, it cannot be said that the applicant has no reasonable prospect of establishing the first two elements of his claim.
Adverse action
The remaining issue is whether the respondent took adverse action against the applicant.
“Adverse action” is taken by an employer who dismisses an employee: s.342. In light of the definition of “dismissed” in s.12 of the FW Act (which refers to s.386), an employee can be dismissed where either his or her employment is terminated “on the employer’s own initiative” or if he or she is “forced” to resign because of the employer’s conduct or course of conduct. This requires some action on the part of the employer which is either intended to bring the employment to an end or has that probable result: Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 at [189]; see also Mohazab v Dick Smith Electronics Pty Ltd [No. 2] (1995) 62 IR 200.
In Spencer v Dowling & Anor [1997] 2 VR 127, the appellant had resigned after receiving cards and a letter from her employer professing his love for her. One of the issues was whether she was dismissed. Hayne JA (as his Honour then was) said, at 159:
…
Of course, that is not the form of what happened; the complainant tendered her resignation. But the point is not [to] be determined according to the form of what occurred. Was the substance of it that the respondent dismissed the complainant?
In Cook v CFP Management Pty Ltd (2006) 152 IR 358; [2006] QCA 215, Williams JA referred to that passage from Spencer v Dowling at [19] and said:
…
That, to my mind, is the correct approach in law. One does not look merely to the form which the termination took, but rather one looks for what was the substantial cause of the termination. If by conduct the employer had repudiated the contract of employment without giving a formal notice evidencing that the employment was terminated, the employee is entitled to give a notice in effect electing to accept the employer's repudiation.
It is then necessary to examine the material concerning the way in which the applicant’s employment came to an end.
In the applicant’s written submissions, attached to his affidavit affirmed 8 February 2016, the applicant states that he resigned under duress, the process of finalising his employment was unfair and that “suspension from employment prior to proper investigations, meeting was unfair, unreasonable and oppressive.” He states that there was “no alternative that was reasonably open” to him. Those submissions only hint at the relevant events. Importantly, while the submissions deny the respondent’s evidence about other matters, they do not directly take issue with the respondent’s evidence about the circumstances immediately surrounding the end of his employment.
In his affidavit, the applicant sets out the facts that he relies on in the proceedings. First, he recounts an incident that occurred on 14 January 2015. The applicant says that he was forced to take a job normally handled by three different employees and started to experience severe dizziness. He continued to work and began to experience pins and needles as well as a severe headache. The applicant was taken by an employee from human resources to the emergency department and was told that he was experiencing dangerously high blood pressure that was life-threatening. He said that from that incident, management of the engineering department had plotted to get rid of him as they felt he was a liability to them.
Next, the applicant states that on 26 February 2015 he was attending to duties when “they fabricated a story that I did not attend to my duties when called upon and that they told Human Resources”, who gave him a final warning which he refused to sign because it was a false allegation.
Thirdly, the applicant says that on 3 March 2015 his wife spoke with Cathy Sinden, the human resources manager at that time, to inform her that the applicant was sick and unable to go to work. Ms Sinden is said to have commented that “I don’t want to see Jack die in front of me”. His wife also complained to Ms Sinden about the conduct of some of the people in the engineering department. In spite of that, no response was given to the applicant about that complaint and no changes were made at the applicant’s workplace. However, the applicant claims, from then on the treatment towards him by engineering managers of a different race became worse and resented him further for making the complaints against them. He said that they wanted to get their revenge on him by fabricating stories to have his employment terminated and that the bullying towards him noticeably increased and further attempts to get rid of him were underway.
Finally, on 15 April 2015 the applicant had been undertaking certain work and went to put his tools away in a pantry room. He said that the;
Allegations made towards me by Ramon and Joshua (both of Filipino origin) regarding me sleeping in the pantry room during working time, was grossly exaggerated and completely false. I cannot sleep on the concrete floor. Firstly, the pantry room is too small to lie down, and secondly I was sitting on one of the boxes that stored pillows as I was taking a rest during my morning tea break. Josh Manila did not even enter the pantry room, so he falsely made the statement that I was sleeping and colluded with Ramon on the same story.
The applicant says that before finishing his shift on the same day, Human Resources gave him a letter stating that his job had been suspended and he was escorted out of the building. He felt that to be a form of constructive dismissal because he felt he was given no other choice but to resign. He said:
Due to the suspension, I was in fear of losing my statutory entitlements and therefore I decided resigning to be the best course of action so that I could still get paid out my holiday pay etc. This would affect my income and I can not support my family and my own medical expenses. This is when I realised I needed to seek help in the court of law.
The letter referred to by the applicant is annexed to his affidavit. Omitting formalities, it states:
As discussed, you are directed to attend a meeting that will be held on Thursday 16th April 2015 at 3:00pm in Human Resources to discuss the allegations of failing to follow the hotel emergency response procedure for the position of Shift Engineer.
On Wednesday 15th April 2015 you were found asleep on the floor with a pillow under your head in the Pantry on Level 5 during a fire alarm
As you are aware it is your responsibility as shift engineer on duty to respond in line with the emergency procedures of the hotel on every occasion. Once again it is apparent that you have failed to meet the expectations of your position and as per previous discussions this pattern of behaviour is not acceptable.
You are invited to bring with you a support person this meeting hotel if you wish (it is your responsibility to make these arrangements)
Please contact Cathy Sinden if you are unable to attend this meeting on [number].
Given the preliminary findings of our investigation and the serious and repeated nature of your conduct, which if substantiated would constitute a most serious breach of your obligations under work health and safety legislation, at this meeting you will be asked to show cause as to why your employment should not be terminated.
Your employment is suspended pending the outcome of this meeting.
The respondent relied upon an affidavit affirmed by Cathy Sinden on 17 December 2015, the Human Resources Manager at the relevant time. In her affidavit Ms Sinden describes a number of printed previous warnings given to the applicant on 9 May 2014 and 24 December 2013. Importantly, she also gives evidence about what occurred at the meeting with the applicant on 16 April 2015. She says that, at the commencement of the meeting, and before she had said anything the following was said:
Applicant: It’s ok we don’t need to do this I’m resigning. I’m nearly 60; I don’t need to do this anymore, I’m resigning.
Ms Sinden:That’s not what this meeting is about, it’s about working out what happened when the fire alarm went off yesterday.
Applicant: I’m resigning.
Ms Sinden:I just want to talk about what happened the other day.
Applicant: There’s no need , I’m resigning.
Ms Sinden:Jack please just sit and talk about this, that’s all we’re here to do.
Ms Sinden then says that, at the conclusion of the meeting there was the following exchange:
Ms Sinden: You’ll need to put that in writing if that’s what you want to do.
Applicant: OK, give me a pen and paper.
The applicant then was given a piece of paper and a pen and he wrote the following words on the piece of paper and handed it to Ms Sinden (without amendment):
Resigne
Jack Sun from Engineering resinge
from today. Four weeks notes.
(signed and dated 16 April 2015)
As I have noted, this evidence was not contested by the applicant. This evidence gives context to the applicant’s written submission referred to at [26] above. It appears that the applicant relies on the following to assert that he was dismissed: efforts made by management in the Engineering Department to get rid of him because he was ill; the notice of meeting dated 15 April 2015, and in particular, the statement that his employment was suspended pending the outcome of the proposed meeting; and thirdly, the fact that the suspension was made, according to the applicant, without proper investigation.
I am not satisfied that the applicant’s claim in this respect is bound to fail or is hopeless. It may well be that other facts will emerge in the course of a final hearing that will support what is in effect a conspiracy theory. However, on the basis of the material before me and the fact that the applicant has had several opportunities to provide further details of his claims and evidence in support of them, I am satisfied that there is no reasonable prospect that the applicant will establish that he was dismissed on 16 April 2015. What, in substance, occurred was that serious allegations involving occupational health and safety were made against the applicant and, on the face of the notice of the meeting the applicant was to be given an opportunity to address those allegations. That is so regardless of the truth of the allegations made leading to the notice of meeting. There was no threat to terminate the applicant’s employment if he did not resign. There was no conduct by the relevant manager, Ms Sinden, that constituted a repudiation of the employment agreement and there was no other conduct revealed in the material before me that could amount to a dismissal of the applicant. In substance, the applicant resigned.
In those circumstances, there is power to summarily dismiss the proceedings under section s.17A of the FCCA Act. In the circumstances of this case that power ought to be exercised.
While I have borne in mind the difficulties facing an unrepresented litigant, I am satisfied that the applicant in this case has had a reasonable opportunity to properly express the basis upon which the proceedings are brought. First, on 23 October 2015 I ordered the applicant to file and serve points of claim detailing full particulars of the claim together with any affidavits upon which he intended to rely by 13 November 2015. Secondly, the applicant did not do that. The respondent then filed an application in a case seeking summary dismissal on 18 December 2015. Thirdly, on 18 December 2015 I made orders for the preparation of that application which included the filing of affidavits and submissions by the applicant. The affidavit filed by the applicant in accordance with those directions is the affidavit which I have referred to above. Finally, while the applicant referred to the possibility of obtaining certain further evidence from other witnesses about his work practice, he did not suggest that there were any other relevant facts surrounding the notice of meeting on 15 April 2015 or the events at the meeting on 16 April 2015 at which he tendered his resignation.
While, as I have said, the time and expense spent on this application might have been better used for a final hearing, I have concluded that in light of my view about the applicant’s resignation, it would not be in the interests of the administration of justice for the matter to proceed to such a final hearing.
For those reasons the proceedings will be dismissed pursuant to s.17A of the FCCA Act. It is unnecessary to consider the alternative argument that the proceedings should be dismissed pursuant to r.13.10 of the FCCA Rules.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 10 June 2016
1
11
6