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Thorpe v Vetis Consulting Services Pty Ltd

Thorpe v Vetis Consulting Services Pty Ltd

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Case Copied 27 August 2019 51 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

THORPE v VETIS CONSULTING SERVICES PTY LTD & ANOR

[2019] FCCA 2375

Catchwords:
INDUSTRIAL LAW – Dismissal – whether contravention of general protection – workplace right – complaint.

PRACTICE AND PROCEDURE – Application for summary dismissal – application to strike out – workplace right – complaint – whether Court form a pleading.

Legislation:

Fair Work Act 2009 (Cth), Pt.3.1, ss.125, 336, 340, 341, 351, 361, 536, 550, 570

Fair Work Bill 2008 (Cth), Explanatory Memorandum
Federal Circuit Court of Australia Act1999 (Cth), ss.17A, 75
Federal Circuit Court Rules 2001 (Cth), rr.1.05, 2.04, 3.05, 13.10, 45.06
Federal Court and Federal Circuit Court Regulations 2012 (Cth.), sch.1, pt.2, it.204
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), Pt.16, sch.1, rr.16.21, 16.43, 21.02, 26.01
Federal Magistrates Court Rules 2001 (Cth)
Workplace Relations Act 1996 (Cth), ss.659, 793

Cases cited:

ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486
Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Bartolo v Doutta Galla Aged Services Ltd (No 2) [2015] FCCA 345
Board of Bendigo Regional Institute of Technical & Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) AILR 101-659
Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferris & Ors (No 2) [2017] FCCA 1713
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120
Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287
Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114
Fox v Stowe Australia Pty Ltd [2012] FMCA 976; (2012) 271 FLR 372; (2012) AILR 101-760
General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
George v Fletcher (Trustee) [2010] FCAFC 53
Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 273 FLR 190;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2375
Decision Date: 27 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

In *Thorpe v Vetis Consulting Services Pty Ltd*, the applicant, Mr Thorpe, alleged that his employer, Vetis Consulting Services Pty Ltd, contravened general protections provisions of the *Fair Work Act 2009* (Cth) by dismissing him. Vetis Consulting Services sought summary dismissal of Mr Thorpe's application, arguing that it disclosed no reasonable cause of action and was an abuse of process. The matter came before Judge Antoni Lucev in the Federal Court of Australia.

The central legal issue before the Court was whether Mr Thorpe's application, as pleaded, established a contravention of the general protections provisions, specifically concerning the exercise of a workplace right. The Court was required to determine if the allegations, taken at their highest, could support a finding that Mr Thorpe had been dismissed for exercising a workplace right, or for making a complaint or inquiry in relation to his employment.

Judge Lucev considered the pleadings and the relevant provisions of the *Fair Work Act*. His Honour found that the application, as drafted, failed to adequately particularise the alleged contravention. Specifically, the Court determined that the pleading did not sufficiently identify the specific workplace right that Mr Thorpe had exercised, nor did it clearly articulate how the dismissal was linked to the exercise of such a right or the making of a complaint. The Court applied the principles that a pleading must provide sufficient detail to enable the respondent to understand the case it has to meet and to allow the Court to determine the issues.

Consequently, the Court ordered that Mr Thorpe's application be struck out, with leave granted to amend the application within a specified timeframe to remedy the deficiencies identified.

Orders