Tamu v World Vision Australia
[2020] FCCA 3465
•17 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAMU v WORLD VISION AUSTRALIA | [2020] FCCA 3465 |
| Catchwords: FAIR WORK – The Fair Work Act – Form 2 application – bullying and workplace harassment – allegation of dismissal in contravention of a general protection – applications in a case dismissed – adjourned to further date. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 343, 344, 351, 352, 365, 368, 772(1), 776(3)(a), 778, 789FC |
| Cases cited: Adachi v Qantas Airways [2019] FCCA 1107 |
| Applicant: | LUKE TAMU |
| Respondent: | WORLD VISION AUSTRALIA |
| File Number: | BRG 317 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 November 2020 |
| Date of Last Submission: | 13 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr McKechnie |
| Solicitors for the Respondent: | Kingston Reid |
ORDERS
The Form 2 application filed 3 June,, 2020 be struck out.
The applicant may file and serve an amended Form 2 application by no later than 19 January, 2021.
The application in a case filed 31 August,, 2020 be dismissed.
The application in a case filed 18 September,, 2020 be dismissed.
The application is adjourned to 8 February, 2021 at 9:30am for directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 317 of 2020
| LUKE TAMU |
Applicant
And
| WORLD VISION AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
This is an application by the respondent for an order that a Form 2 application filed by the applicant on 3 June, 2020 and an amended Form 2 application filed by him on 19 August, 2020 be struck out in their entirety.
Since the filing of that application, the applicant filed a further amended application on 10 November, 2020 and that was the subject of argument before me. The filing of that document followed an order that I made on 4 September, 2020 asking the applicant to file an amended application in Form 2 that set out in the final form his claim that he wished to make against the respondent.
That order and the application now before me was made against the background that when the applicant commenced these proceedings on 3 June, 2020 he commenced a claim under the Fair Work Act2009 (Cth) alleging dismissal in contravention of a general protection. In the initiating document, he sought relief, namely an injunction, compensation, reinstatement, a pecuniary penalty and orders to stop bullying and harassment which commenced on 24 December, 2018. He also claimed to be victim of workplace bullying.
In Part G of that Form is presented what are the grounds for the claim that he was dismissed in contravention of general protection. He said (faithfully reproduced):
Prohibited grounds. The allegations were unfounded. Even if they had been true, other employees that have done worse than the applicant. some that have been in the company for 5 or 8 years have not been disciplined or terminated for the same reasons.
Attached to that application was a certificate under s.368 of the Fair Work Act whereby a Deputy President of the Fair Work Commission certified that an application pursuant to s.365 of the Act was made by the applicant alleging he was dismissed by the respondent in contravention of Part 3-1 of the Act. There was a conference to deal with the dispute on 20 May. Pursuant to s.368(3)(a) of the Act, the Commission certified that it was satisfied that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful.
The issue of that certificate, as subsequent material has revealed, was the subject of an application by the applicant to the Full Bench of the Fair Work Commission. He sought to appeal the issue of that certificate, but that appeal was unsuccessful.
Together with his application, he filed a Form 2 on 3 June which set out a little more in relation to his claim. In Part G of that document, there appears some paragraphs, but the document is not particularly elucidating.
On 19 August, 2020 the applicant filed an amended Form 2. In Part G of that form, he set out a number of paragraphs which on their face do not allege a contravention of a general protection, but, rather, an assertion that his termination from employment with the respondent was unlawful. Indeed, at the bottom of page 5 of that form, there is a heading – well, what appears to me, perhaps, to be a heading, “The Applicant Disputes Termination”, and then, thereafter, follows a number of submissions.
Significantly, on page 6, the applicant says this (faithfully reproduced):
The applicant does not seek reinstatement or monetary damages in this application, or issues relating to termination dealt with at this point, that will be dealt with at a later date and time because by bringing this proceeding, of different substance matters it has an impact on a future proceeding to deal with specifically matters that were set out in the original application that are now repeled in this one. He will indeed seek reinstatement at a later date and the applicant requests this to be noted to avoid the likelihood of the respondent saying to other Tribunals at a later date that the court has already dealt with his dismissal claims.
In Part H of the form, “Remedies Sought”, there seems to be abandonment of the claim for an injunction, the claim for compensation, and the claim for reinstatement. The claim for the imposition of a pecuniary penalty remains. And then under “Other”, appears the following:
Seeking appropriate compensation as stated in the law for victimisation and an intimidation to be paid to the relevant agency.
$10.5 million as per the relevant law
Please note, the applicant is not seeking to be paid the amounts, but the amounts to be paid by respondent to the relevant government agency.
The claim for relief is very curious indeed.
Attached to the document is a decision of the Fair Work Commission that was given on 20 May, 2020 and after that there are some other documents that seem to have been issued by the Fair Work Commission, and, in particular, a decision in relation to application made by the applicant for a stop bullying order under s.789FC of the Fair Work Act.
In the most recent document, the applicant – I am not sure whether this is intentional or not – seems to have changed his claim. This is the document filed on 10 November, 2020. It purports to be a Form 2, but it is headed “Claim Under the Fair Work Act 2009 Alleging Unlawful Termination of Employment”. In Part G of that form, “Grounds of the Claim of Unlawful Termination”, there appear a number of options with some check boxes beside them, and one of them has a cross beside it. It is the box that says:
the filing of a complaint, or the participation in proceedings, against an employer involving an alleged violation of laws or regulations or recourse to competent administrative authorities.
So that part of the form tends to suggest that the claim is one for unlawful termination on the basis that the termination of the applicant’s employment was because he filed a complaint or participated in proceedings against his employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
Thereafter, in Part G, in paragraph 25 where the applicant is asked to set out details of the claim of unlawful termination of employment, appears a number of paragraphs that go for a little over two pages which are aptly, in my view, summarised by the submissions for the respondent in this case as being nothing more than a stream of consciousness. The paragraphs are a discursive statement by the applicant of the complaints that he has against his employer. It asserts that whilst his employer purported to terminate his employment, the employment was unlawful and ineffective. It focuses on or fixes upon an assertion made by the employer to the Fair Work Commission, in its employer’s response form in that forum, that the employer was not aware that the applicant had complained about various matters until after he was terminated. The applicant takes significant issue with that proposition.
Thereafter appears a number of statements or paragraphs by the applicant which, perhaps, are intended to demonstrate that he had, in fact, made complaints to his employer or others employed by the employer, before his employment was terminated.
And then, finally, this part of the form concludes with this paragraph:
As per FWC, my termination is also pursuant to s.365 of the Fair Work Act. S.340, s.343, 344, 351, and 352, has also been contravened in addition to the Whistleblower Act under the whistleblower regime.
In this form, the applicant seeks an injunction, namely, “Restatement of Monthly payments”, but no other relief.
The respondent’s complaint is that it does not know the case it has to answer. The complaint is well made.
The applicant’s initial proceedings seem to be a general protections application, although, the basis upon which he was asserting that the respondent had taken adverse action against him was not clear. And what was less clear was whether the reason for which adverse action had been taken against him was a proscribed reason under the Fair Work Act.
The second version of the document added nothing to the first and in fact, detracted from it. The applicant’s claim was less clear. The third version seems to have changed the case considerably, and there are difficulties with that. Some might call them technical difficulties; others might simply say it is the law that the applicant has not complied with.
To the extent that the third version represents or is intended to be a claim for unlawful termination, the provisions of Division 2, Part 6-4 of the Fair Work Act, do not seem to have been complied with at all. s.772(1) of the Fair Work Act proscribes the termination of an employee’s employment on certain grounds or for certain reasons and a person who says that those proscriptions have been breached might bring an application to the Fair Work Commission to deal with a dispute about that. The Commission, once it has attempted conciliation must issue a certificate, much in the same way as a s.368 certificate, to certify that the matter cannot be resolved. The existence of a certificate is a precondition to taking an unlawful termination court application to Court, see s.778 of the Fair Work Act. There is no evidence before me, in any event, of any certificate issued by the Fair Work Commission under s.776(3)(a) in relation to this dispute. So, the applicant is prevented from taking the dispute to this Court if it, indeed, be an unlawful termination court application because he cannot meet the conditions of s.778 of the Act.
To the extent that the application is a general protections application, it is woefully inadequate. I immediately recognise that the applicant is a self-represented litigant and he has indicated to me more than once that he wishes time to engage legal representation. But these proceedings were commenced in June, and it is now November, and there is nothing to suggest that the applicant has or will get legal representation.
As the respondent’s written submissions make clear, the respondent is entitled to know the case it is intended to meet. Those written submissions refer to some passages from the judgment of Judge Barnes in Adachi v Qantas Airways [2019] FCCA 1107 at [23] to [26]. I adopt with gratitude her Honour’s words there set out. Similarly, as her Honour pointed out in McAllister v Yarra Australia Proprietary Limited [2017] FCCA 332 at [84], the fact that the applicant seeks in these proceedings, I think, the imposition of a pecuniary penalty makes it critical that the particular contraventions of the Fair Work Act that are being prosecuted by the applicant be identified with precision so that the respondent can deal with them, in turn, with precision. No precision is apparent from the applicant’s proceedings.
The throwaway line at the conclusion of his most recent document, that he is also bringing a claim pursuant to s.365 of the Fair Work Act, under sections 340, 343, 344, 351, and 352, is insufficient to put the respondent on notice of the case that it has to meet.
The relief sought by the applicant in its application in a case as modified in the oral submissions before me and the written submissions made by the respondent, that relief is entirely appropriate.
Each of the applicant’s pleadings in this matter, comprising: his application; dismissal from employment and contravention of general protection Form 2 filed 3 June 2020; his amended Form 2 filed 19 August 2020; and the further amended Form 2, or what purports to be a further amended Form 2, filed on 10 November, 2020 are all struck out. They are struck out on the basis that they are:
a)embarrassing in the legal sense;
b)do not disclose a reasonable cause of action; and
c)are likely to delay and further costs in the proceedings.
The respondent concedes that the applicant should have the opportunity to re-plead his case in a proper manner. The concession is appropriate, and so I will extend to the applicant a further opportunity to re-plead his case in a proper way.
Taking into account his requests that he be permitted time to secure legal representation, I propose to give the applicant until 29 January 2021 to file and serve an amended Form 2 which pleads his case in a proper manner. That should allow him to secure the legal representation that he says he was able to secure, or might be able to secure, and for there to be a proper attempt at his pleading. Ultimately, it might be that his case is very simple and able to be pleaded in a very simple fashion. Other than that, I intend to adjourn the application to a date after 29 January, so that the matter can be further considered. And for that purpose, the application will be adjourned to 8 February, 2021 at half past 9.
There are a number of applications in a case that have been filed by the applicant since these proceedings were commenced. It is as well, I think, to deal with those now. Although I immediately observe I have not heard any argument on them, in my view it is not necessary to do so.
The first application in a case was filed on 31 August, and it simply sought an adjournment of the matter listed on 4 September. To the extent that it is not already implicit in the orders that were made on 4 September, that application in a case should be dismissed.
The second application is one filed by the applicant on 18 September, 2020. In that application, the applicant seeks these orders:
(1)Save for communicating with the applicant regarding reinstatement, the respondent to cc all documents to this Honourable Court.
(2)The respondent be ordered to produce all documents requested in writing from June 2019 to date and has outlined in emails dated 7 and 12 May, 2020 respectively, which were also copied to [email protected] and [email protected]. The matter number C2020/468 originating application to assist the applicant to file material in this court as so ordered by his Honour, Judge Jarrett, on 4 September, 2020 in a timely manner.
(3)The respondent be ordered not to continue victimisation via emails on the applicant and cease threatened or any harmful actions against the applicant pending the outcome of proceedings.
(4)Any other orders the court can issue as it deems fit in relation to documents. The respondent has obstinately refused even with the reasonable requests to attach a copy of the employment contract duly signed Ms Jules Docker and the applicant, as the applicant won’t accept any other document as valid unless it bears both signatures.
I decline to make all of those orders. In respect of the first order, the Court has no interest in the respondent “cc-ing” all documents to the Court. The Court does not undertake a watching brief, other than in the sense that the matter is reviewed by the Court when the matter is in Court. The incessant sending to the Registry, or to my chambers for that matter, of documents in cases is unhelpful.
As to order 2, to the extent that that represents a request by the respondent for discovery or particular discovery, it is not appropriate at this point in time to order discovery or particular discovery because at this point in time, the applicant’s claim is still not formalised. It is not until his claim has been property formulated, and the Court can understand the nature and extent of the issues with which it has to deal, that the Court can make a determination about whether discovery is appropriate.
The Court has no power to make the orders set out in paragraph 3. On that point, I note that in a number of the affidavits that the applicant has filed, he has complained that the respondent’s solicitors or legal counsel have sent letters that are bullying in nature, intimidating, and contain threats. Indeed, he contends that the lawyer he did have acting for him was scared off by the respondent lawyer’s letters. None of the correspondence is in evidence before me, and I decline to accept the applicant’s characterisation of the correspondence without it being in evidence. Having said that, even if it was in evidence, I do not have the power to make the order set out in paragraph 3 of the application in a case.
Paragraph 4 requires no comment. That application in a case filed on 18 September, 2020 will be dismissed.
It was brought to my attention by my associate via the Registry that the applicant has sought to file another application in a case. It has not been filed, and given that it has not been filed, I do not intend to consider it.
So for all of those reasons, the pleadings to which I have earlier referred will be struck out. The applicant has the opportunity to re-plead his case by 29 January 2021, and he must file and serve his amended pleading by 4pm on that day. The matter will be adjourned to the date I have given you so that it can be reviewed, and a decision can be made about how we might move this case forward.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November 2020.
Associate:
Date: 21 December 2020
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