Thorpe v Vetis Consulting Services Pty Ltd
[2019] FCCA 2375
•27 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THORPE v VETIS CONSULTING SERVICES PTY LTD & ANOR | [2019] FCCA 2375 |
| Catchwords: 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 |
| Cases cited: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 |
| Applicant: | MARK THORPE |
| First Respondent: | VETIS CONSULTING SERVICES PTY LTD |
| Second Respondent: | BRONWYN BLENCOWE |
| File Number: | PEG 405 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 January 2018 |
| Date of Last Submission: | 18 January 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr N Marouchak |
| Solicitors for the Applicant: | MKI Legal |
| Counsel for the Respondents: | Mr A Talbert |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That pursuant to r.3.05(1) of the Federal Circuit Court Rules 2001 (Cth) the time for filing of the respondents’ application in a case pursuant to the Court’s order of 27 October 2017 be extended to 24 November 2017.
That the respondents’ application in a case filed 24 November 2017 be dismissed.
That the proceedings be adjourned to a directions hearing before a Judge of this Court on a date and at a time to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 405 of 2017
| MARK THORPE |
Applicant
And
| VETIS CONSULTING SERVICES PTY LTD |
First Respondent
| BRONWYN BLENCOWE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent, Vetis Consulting Services Pty Ltd (“Vetis Consulting”), and second respondent, Bronwyn Blencowe (“Ms Blencowe”) (together the “Respondents”), have filed an application in a case (“Application in a Case”) seeking:
a)the proceedings against each of the Respondents alleging a breach of s.340 of the Fair Work Act 2009 (Cth) (“FW Act”) be summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”); or
b)in the alternative, the pleadings against each of the Respondents alleging a breach of s.340 of the FW Act be struck out pursuant to r.16.21 of the Federal Court Rules 2011 (Cth) (“FC Rules”).
Substantive application
The substantive application to which the Application in a Case relates was filed on 25 July 2017 (“Originating Application”). The Originating Application was filed together with a Form 2 – “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Form 2”) in which it was alleged that the applicant, Mr Mark Thorpe (“Mr Thorpe”), had his employment terminated by the Respondents in contravention of a general protection in breach of s.340 of the FW Act.
It is necessary to provide a brief overview of the factual background to the matter before addressing the Application in a Case. The background to the Originating Application is as follows:
a)Mr Thorpe commenced employment at Vetis Consulting on 19 July 2016. Ms Blencowe was the director and owner of Vetis Consulting, and consequently his superior;
b)during the course of his employment Mr Thorpe made complaints and inquiries to other employees about the ineffectiveness of, and his dissatisfaction with, management and the alleged bullying of employees by Ms Blencowe;
c)on one occasion Mr Thorpe, and some colleagues, used Vetis Consulting’s Outlook Instant Messaging conversation tool and Skype program during work hours to converse (“Online Exchanges”), about employment conditions, a matter admitted by Mr Thorpe, but Mr Thorpe denies making denigrating remarks or using abusive and insulting language toward other staff;
d)the Respondents became aware of these Online Exchanges and alleged Mr Thorpe and the other employees had used insulting and offensive language to talk about management, denigrated other staff and therefore bought Vetis Consulting into disrepute;
e)Mr Thorpe was suspended with full pay on 16 March 2017 pending disciplinary investigations by Vetis Consulting, which included a disciplinary meeting attended by Mr Thorpe and an invitation to provide further material. Mr Thorpe was not, however, given access to the transcripts or files of the Online Exchanges; and
f)on 28 March 2017 Mr Thorpe’s employment with Vetis Consulting was terminated.
The Originating Application claims the Respondents took adverse action against Mr Thorpe, in dismissing him from employment as a result of his exercising a workplace right to make a complaint or inquiry about his employment. A Response filed by the Respondents opposed the orders sought by Mr Thorpe, and asserted a “complaint” ought to be directed toward the employer, and in any event none of the grounds of dismissal were because Mr Thorpe exercised a workplace right.
At Part G of the Form 2 Mr Thorpe sets out the facts relied upon, and certain contentions in relation to the provisions of s.341(1)(c)(ii) of the FW Act, as follows:
a)in a series of online conversations with colleagues at Vetis Consulting Mr Thorpe, and his colleagues, expressed frustration and discontent with the working environment at, and their treatment by the management of, Vetis Consulting, and in so doing made a series of complaints which resulted in termination of Mr Thorpe’s employment once Vetis Consulting became aware of those complaints: Form 2 at [12]-[13];
b)the majority of the complaints said to have been made by Mr Thorpe and his colleagues related to the alleged bullying behaviour of Ms Blencowe, particularly as it related to the allocation of schools to the consultants, of whom Mr Thorpe was one, and threats allegedly made by Ms Blencowe that the consultants would lose their jobs if certain documents or work was not provided to her by a particular date, which caused Mr Thorpe and his colleagues to discuss these matters online and to express their dissatisfaction with management practices;
c)Mr Thorpe and his colleagues also discussed online the ineffectiveness as they perceived it of Vetis Consulting’s management, and their dissatisfaction in particular with the constant threats of termination of their employment if work was not completed on time, and alleged that these were not complaints that could be raised with management as Mr Thorpe and his colleagues feared being terminated from their employment, alleging that other employees had previously been terminated when they had made complaints to Ms Blencowe: Form 2 at [18]-[19];
d)Mr Thorpe asserts that he repeated his complaints regarding the dissatisfaction with management at a meeting on 17 March 2017 held for the purpose of inviting him to respond to allegations against him that the online conversations with his colleagues had brought Vetis Consulting into disrepute: Form 2 at [6], [9] and [22];
e)the complaints made are complaints for the purposes of s.341(1)(c)(ii) of the FW Act which does not expressly provide that a complaint or inquiry must be made to the employer, and that it can be made, as here, to other employees, and further that s.341(1)(c) of the FW Act does not limit the class of persons to whom a complaint or inquiry may be made: Form 2 at [28]-[33]; and
f)Mr Thorpe had workplace rights arising from other provisions of s.341 of the FW Act including:
i)being able to lodge an application with the Fair Work Commission to obtain an order to stop the bullying; and
ii)making a complaint to WorkSafe about the unsafe workplace arising from, amongst other things, the alleged bullying: Form 2 at [34].
The Court notes that there are also claims in relation to:
a)alleged breach of s.125 of the FW Act by reason of Vetis Consulting allegedly failing to provide a Fair Work Information Statement to Mr Thorpe : Form 2 at [35]; and
b)a breach of s.536 of the FW Act by reason of Vetis Consulting failing to provide a final payslip to Mr Thorpe within one working day of paying Mr Thorpe his final pay: Form 2 at [36].
The Application in a Case
The Court made an order on 27 October 2017 that:
1. The respondents file and serve any Application in a case and supporting affidavit to strike out the application by 17 November 2017.
Although the Application in a Case is dated 16 November 2017, it was not filed until 24 November 2017. The affidavit of Alistair Russell Talbert in support of the Application in a Case was filed on 16 November 2017 (“Talbert’s Affidavit”), within the time set by the Court.
The Respondents have not complied with the Court’s order, and having filed the Application in a Case out of time must obtain an extension of time for the filing of the Application in a Case pursuant to r.3.05(1) of the FCC Rules. The Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J, set out factors which might warrant an extension of time in which to bring an application, including:
a)the extent of the delay;
b)the reasons for the delay;
c)whether there is any prejudice to the other party; and
d)whether there is any arguable merit in the application.
On 16 November 2017 a letter addressed to the attention of a Registrar of this Court from the Respondents referred to three related matters brought by other employees of Vetis Consulting, and sought a fee waiver for filing the same application in a case in the same terms as the Application in a Case each of those other proceedings. A reply was sent from the Registry of the Court on 23 November 2017 advising that in accordance with the Federal Court and Federal Circuit Court Regulations 2012 (Cth) sch.1 pt.2 it.204 a fee must be paid upon the filing of each document. It appears the reason for the delay in the Application in a Case being filed was that the Respondents were awaiting a response from the Court.
The Court will grant leave and make an order for the Application in a Case to be filed out of time for the following reasons:
a)the extent of the delay is short, being just seven days;
b)the reason for the delay was that the Respondents were awaiting a response from a Registrar of the Court before determining what course of action to take, that being a justifiable course in the circumstances;
c)both parties filed an outline of submissions and presented to the Court ready to argue the matter from which it can be implied that Mr Thorpe would suffer no prejudice if the Court were to grant leave to file the Application in a Case out of time; and
d)it is plain from the outlines of submissions that there is a case which might be reasonably arguable on the Application in a Case, and when determining whether the merits of the Application in a Case are arguable or have reasonable prospects of success, it is not necessary for the Respondents to positively establish that the Application in a Case will succeed when heard: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J. The issue is not whether there will be a successful ultimate outcome on the Application in a Case, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the arguments reveals that one or more of them might be arguable, reasonably arguable, or have a reasonable prospect of success when fully examined: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. It will, however, rarely be in the interests of the administration of justice to extend time where there is little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
Evidence
For the purposes of the Application in a Case the Respondents relied upon the Talbert Affidavit.
Talbert’s Affidavit annexed the letter sent to Mr Thorpe on Tuesday, 28 March 2017 confirming termination of his employment (“Termination Letter”): Talbert’s Affidavit, Annexure A (the Termination Letter was also filed by Mr Thorpe with the Originating Application). The Termination Letter referred to Mr Thorpe’s employment being terminated as he had engaged in “serious misconduct”. While the Termination Letter refers to the use of the online messaging tools and the content of the Online Exchanges, the reason for termination was stated as having been a breach of the Internet Policy of the Respondents. Further, this was not the sole ground for termination: two other reasons were also given.
The Termination Letter provides as follows:
This letter is to confirm that your employment with VETiS Consulting Services is terminated.
On 16th March you were issued a letter confirming that you had been suspended on pay pending the investigation into allegations of serious misconduct occurring between 9th December 2016 and 15th March 2017. The allegations pertained to:
1. Disparaging remarks about management and bringing the company into disrepute.
2. Sexual Harassment.
3. Disparaging remarks about VCS staff, harassment.
The misconduct that the company investigated is:
1. Using the company IM Conversation tool and Skype to persistently denigrate members of management including Bronwyn Blencowe and Brad Malagas to other employees during work hours, in breach of the company IT policy;
2. Refusal to carry out lawful and reasonable instructions demonstrated by your comment on 9th of February 2017, "I wonder who is taking calls" and further by engaging in conversation to "Bypass the RM";
3. Failing to follow company policy and procedure including the IT policy and sexual harassment policy
4. Using sexual and lewd language in IM conversations between yourself and Tessa Christie; and sexual harassment of the MD and her husband in the IM conversation in Outlook on 9th March 2017.
In a meeting on 17th March 2017, attended by you, Kim Hayman, Bronwyn Blencowe and myself (David Donovan), you were provided with an opportunity to respond to the allegations of serious misconduct. By email dated 23th March you were further invited to provide any other information that you wished the company to consider.
After considering all available evidence including your responses to the allegations put to you in the meeting of 17th March 2017, we consider the above misconduct occurred and is therefore proven. The above conduct constitutes a breach of your obligations as an employee including a breach of the Principal Duties in your employment contract.
We deem that collectively; these actions constitute serious misconduct warranting dismissal. Clause 19 provides that your employment can be terminated without notice or payment in lieu of notice for prescribed reasons. Although we have determined that your behavior falls within such prescribed conduct, the company has decided to pay you two weeks in lieu of notice in accordance with item 19.3 of your contract of employment. You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment.
Summary dismissal – legislative provisions
Section 17A(2)-(3) of the FCCA Act reads:
(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.
Rule 13.10 of the FCC Rules provides that:
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.
In the present circumstances the Respondents have brought these proceedings claiming Mr Thorpe has no reasonable prospect of success in his claim under s.340(1) of the FW Act, as he has not exercised a workplace right under s.341(1) of the FW Act.
The relevant provisions of the FW Act read as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Respondents’ submissions
The Respondents submitted that Mr Thorpe’s case as stated in the Form 2 filed with the Originating Application appeared to be as follows:
a)he complained privately to his co-workers about the ineffective management and allocation of work by the Respondents, but such complaints were not communicated to anyone outside of the Respondents; and
b)he was terminated as a result of the complaints.
The Respondents bear the onus of persuading the Court to exercise its discretion to make an order for summary dismissal: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 (“Cassimatis”) at [46] per Reeves J.
The Respondents submitted:
a)in the context of summary dismissal in an adverse action claim, the case of Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114 at [63] per Judge Brown observed that the Court, to determine whether an applicant has no reasonable prospects of pursing their claim for infringement of any general protection arising under either ss.341 or 351 of the FW Act, must focus on the evidence available relating to the following broad issues:
(a) Did the Applicant suffer adverse action within the meaning of s 342(1) item 1 of the FW Act;
(b) Did the Applicant have or exercise a relevant workplace right within the meaning of section 341 of the FWA;
(c) Was the alleged adverse action taken because the Applicant had or exercised a relevant workplace right or because of any of the attributes, relevant to the Applicant, described in section 351;
(d) What is alleged to be the nexus between the alleged workplace right and the alleged adverse action; and
(e) What is alleged to be the nexus between the alleged discrimination against the Applicant and the alleged adverse action;
b)as no evidence has been filed as yet and that the Court is therefore obliged to consider the matter on the basis of the Mr Thorpe’s pleadings only;
c)the Respondents admit Mr Thorpe has suffered an adverse action, by way of termination though deny the adverse action was a result of the exercise of a workplace right;
d)Mr Thorpe pleads that the relevant workplace right was a right to make complaints or enquiries to his co-workers and that complaining to co-workers is akin to complaining to the Australian Competition and Consumer Commission;
e)in Shea v Truenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346 (“Shea No 6”) at [29] per Dodds-Streeton J the Federal Court stated:
d) The proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
f)complaints to co-workers amount to a grievance or accusation for an extraneous purpose unrelated to the complaint’s notification, investigation or redress, and in the present case this is supported by Mr Thorpe repeatedly referring to the “private” nature of the Online Exchanges, not intended to be brought to the attention of the Respondents and prima facie evidence of Mr Thorpe’s lack of intention to have his employer receive, investigate or redress his alleged complaints;
g)complaints regarding management ineffectiveness and allocation of schools, even when made to a person in authority, do not constitute complaints in relation to an employee’s employment: Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 273 FLR 190; (2013) 230 IR 452; (2013) 65 AILR 101-866 (“Harrison”) per Burnett FM at [119];
h)Mr Thorpe’s pleadings do not disclose the exercise or purported exercise of workplace right and as such they are bound to fail and must be dismissed;
i)the Statement of Claim broadly states that the Mr Thorpe had a workplace right to make a complaint or inquiry and that he was terminated for exercising this, but it does not draw a nexus between how the alleged complaints constitute a workplace right other than to say it is so: Cassimatis; and
j)there was a failure to disclose that the allegations put to him in the meeting on 17 March 2017 and forming part of the reason for his termination included sexual harassment behaviour in breach of the Vetis Consulting IT Policy.
At hearing the following oral submissions were made:
a)a key element of the Mr Thorpe’s general protections claim that the court will need to determine is whether in engaging in conversations and making comments to fellow colleagues in the online group messaging forum as Mr Thorpe and his colleagues did over a period of approximately three months, understood to be private conversations, amount to a complaint for the purposes of s.341(1)(c)(ii) of the FW Act;
b)as it was the Respondents’ computer system and in accordance with its IT policy it had the right to access those Online Conversations, but it was alerted to those Online Conversations by its internet provider and it is not disputed the Respondents had knowledge of and had seen the content of these messages prior to the termination of the Mr Thorpe and his colleagues; and
c)the complaint has to be for a proper purpose, and that indicates there must be an intent for it to be raised by the employee with a body, or a person who is in a position to take some action in regards to it, and that is not a matter of evidence.
The Respondents finally submitted Mr Thorpe has no reasonable prospects of successfully prosecuting his claim under s.340 of the FW Act as he will be unable to demonstrate that he was exercising a workplace right when he was using the Vetis Consulting IT systems during working hours to make sexually harassing remarks, denigrating comments and complain about the business to his co-workers.
Mr Thorpe’s submissions
The following complaints were submitted as having been made by Mr Thorpe to other employees:
a)the alleged bullying behaviour of Ms Blencowe;
b)the allocation of schools for the other colleagues;
c)the humiliating and embarrassing treatment that Ms Blencowe directed towards Mr Thorpe; and
d)the ineffectiveness of the management which directly related to the Mr Thorpe’s employment, such as the dissatisfaction with the constant threats of termination of employment by Ms Blencowe directed to Mr Thorpe, and required meetings with Mr Thorpe not being scheduled.
In response to the submissions of the Respondents the following was stated:
a)Mr Thorpe exercised a workplace right by making a number of complaints in respect to Mr Thorpe’s employment to other employees;
b)in accordance with Shea (No 6):
i)the complaints convey a grievance and a finding of fault;
ii)the finding of fault was genuinely held by Mr Thorpe and evidenced by the fact of simply making the complaints to other employees;
iii)Mr Thorpe made the complaints to other employees to notify them of the grievances and dissatisfaction he was experiencing in the workplace;
iv)the making of the complaints was for an appropriate purpose, and such purpose was the notification of the grievance and fault so it at least may be received by the other fellow employees ; and
v)the principles do not make it a requirement that the complaint also be made for the purpose of it being investigated or redressed;
c)the Respondents in their submissions are merely speculating about the complaint not being for a proper purpose;
d)a complaint about the management and direction of the business, as specified in Harrison, is vastly different to the complaints made by Mr Thorpe and should be distinguished;
e)it is clear that s.341(1)(c)(ii) of the FW Act does not expressly state that the complaint has to be made to the employer rather states that the complaint has to relate to the employee’s employment;
f)although the complaints were not made directly to the Respondents, Ms Blencowe had knowledge of the complaints and had read the complaints and Mr Thorpe’s employment was terminated shortly after these complaints were discovered therefore, there is a connection between the making of the complaints and the termination of the Mr Thorpe’s employment; and
g)what is important in this case is not to whom the complaints were made but the following:
i)that complaints relating to the Mr Thorpe’s employment were made; and
ii)the reason for the dismissal was because the complaints were made.
At hearing it was put that:
a)the reason for the complaint to be made to colleagues was because of circumstances in the work environment where there was a fear that if they did make the complaint, then the employee would be terminated, and that is not to say that there was never an intention in the future not to make that complaint to the employer;
b)the FW Act does not expressly require that there needs to be an intention to bring the grievance to the employer’s attention: s.341 of the FW Act says that there needs to be a complaint and the complaint needs to relate to the complainant’s employment;
c)whether the intention is there or not the complaint still falls within the ambit of ss.340 and 341 of the FW Act on a plain reading of the words, and to determine intention is a matter for evidence; and
d)all four colleagues were complaining to each other about dissatisfaction at work and on that factor implicitly they had wanted the difficult work environment to be fixed, therefore there is an argument that they wanted to bring it to the attention of the employer by the mere fact that they raised it because one does not make a complaint regarding bullying and embarrassing behaviour to other colleagues without there being a need for that negative behaviour to stop.
Consideration – summary dismissal
The law
In relation to summary dismissal the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ have been applied by this Court when faced with the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules: Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 (“Jackson”) at [13] per Judge Lucev. The following principles can be taken from Spencer:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasize that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In the Federal Court the equivalent provisions to s.17A of the FCCA Act and r.13.10 of the FCC Rules, namely s.31A of the Federal Court of Australia Act 1976 (Cth) and r.26.01 of the FC Rules have been considered in relation to the phrase “no reasonable prospect of success”, and, in summary, the following principles adopted: Jackson at [15] per Judge Lucev:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298; (2007) 66 ATR 306; (2007) 240 ALR 792 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (“Dandaven”) at [6] per Gilmour J.
Adverse action
It was not disputed the Respondents had taken adverse action against Mr Thorpe by dismissing him from his employment with Vetis Consulting.
Was a workplace right exercised?
The law clearly recognises a workplace right to complain: FW Act, s.341(c). Yet to be settled, however, is the definition, or a set of principles, as to what constitutes a “complaint”: Mikulic v Ecolab Pty Ltd [2017] FCCA 146 at [228] per Judge Cameron.
Under the previous and current workplace legislation a complaint or inquiry made to a competent administrative authority was a protected workplace right: Workplace Relations Act 1996 (Cth) (“WR Act”), s.793(1)(j), see now s.341(1)(c)(i) of the FW Act. A complaint or inquiry directly made to the employee’s employer is a recognised protected workplace right under s.341(1)(c)(ii) of the FW Act. There was no predecessor to s.341(1)(c)(ii) of the FW Act, and unlike s.659(2)(e) of the WR Act, a complaint no longer need be directed to an administrative authority. The Parliament made this expressly clear in the Fair Work Bill 2008 (Cth), Explanatory Memorandum (“Explanatory Memorandum”) at [1370] as follows:
… Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a prerequisite for the protection to apply that the employee has ‘recourse to a competent administrative authority’. It would include situations where an employee makes an inquiry or complaint to his or her employer.
It is relevant to observe that the extract from the Explanatory Memorandum set out above indicates that an inquiry or complaint would “include” inquiries or complaints made by an employee to their employer, but does not appear to foreclose or limit the situations in which a complaint or inquiry may exist or to whom it may be made.
This Court extensively analysed the divergent approaches to the interpretation of s.341(1)(c)(ii) of the FW Act in Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 at [15]-[66] per Judge Lucev, where it was held that it was at least arguable the ability to complain need not arise from a statutory, regulatory or contractual provision: at [61] per Judge Lucev adopting the wide reading of s.341(1)(c) of the FW Act as enunciated in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 (“Murrihy”) at [141]-[142] per Jessup J.
Both parties referred to Shea (No 6), In Shea (No 6) at [29] per Streeton-Dodds J the Federal Court stated that:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
The Respondents sought to emphasise Shea (No 6) at [29(d)] per Dodds-Streeton J when asserting that none of the Online Exchanges and “complaints” Mr Thorpe apparently made to his colleagues were a “complaint” within the meaning of s.341(1)(c)(ii) of the FW Act.
Shea (No 6) was appealed to the Full Court of the Federal Court in Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159; (2014) 66 AILR 102-303 where at [12] per Rares, Flick and Jagot JJ the Full Court of the Federal Court cautioned as follows:
…To too readily imply into the language of ss.340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint…
In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) AILR 101-659 at [60]-[64] per Katzmann J, the Federal Court in directly considering the phrase “in relation to”, found that an employee who complained on behalf of another employee was still caught by the protection, as the complaint related to conditions which also impacted on the employment of the said employee. This interpretation was accepted by Tracey J in Trevana v Thiess Pty Ltd [2016] FCA 468, whereby it was noted that “Nothing turns on the fact that it was made on his behalf by his brother”, where it was argued the applicant had not made a “complaint”, but rather his brother had made it on his behalf.
In Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285 (“Greater Metropolitan Cemeteries Trust (No 2)”) [at [41] and [42]] per Bromberg J the Federal Court stated:
[41] The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; 314 ALR 346; [2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.
[42] Where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara at [69].
In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914 at [44] per Gray J, it was recognised where a complaint concerning management practices where allegations of bullying and intimidation were made, that such a complaint was a complaint in relation to employment.
In Bartolo v Doutta Galla Aged Services Ltd (No 2) [2015] FCCA 345 at [104] per Judge Whelan this Court stated:
Any discussion of the provision appears mainly to have been in the context of s 341(1)(c)(i) of the Act and in relation to the question of to whom a complaint or inquiry could be made in order to attract the provision. Section 341(1)(c)(ii) of the Act is not restricted by any requirement as to whom the complaint or inquiry is made, but only by the requirement that the complaint or inquiry be in relation to the employee’s employment.
The distinguishing element of the facts in the present case is that the “complaint” was not initially made to Vetis Consulting, the employer, but rather to other colleagues expressing disagreement and dissatisfaction with their employment conditions, perhaps with some degree of mutuality in relation thereto. The Court must determine if a “complaint” extends to colleagues expressing dissatisfaction with one another. It appears from the authorities a complaint or inquiry must at minimum be made to a person of authority working for the employer in order to invite the protections of s.341(1)(c)(ii) of the FW Act: Hodgkinson v The Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 at [131] per Cameron FM. In Harrison, Burnett FM expressly rejected an argument that a complaint or inquiry does not need to be directed to a specific person in order to attract the protection of s.341(1)(c)(ii) of the FW Act: Harrison at [70]-[71] per Burnett FM.
It is arguable from the content of the Form 2 that the content of the Online Exhanges was not intended to be seen or accessed by Vetis Consulting. Mr Thorpe submitted the purpose of the complaint was to notify his colleagues of his grievances and the dissatisfaction he was experiencing in the workplace so it at least may be received by his fellow employees. The nature of the communication as a “complaint”, be it by words or conduct, must be clearly made: Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 at [115]-[117] per Riley FM. In McGowan v Direct Mail & Marketing Pty Ltd [2016] FCCA 2227; (2016) 262 IR 311; (2016) 313 FLR 370 (“McGowan”) what an applicant characterised as a “catch-up” with a HR consultant where he expressed his concerns about his managing director were found to be “not in the nature of a complaint but was in the nature of effectively a consultation or a discussion”: McGowan at [34] per Judge McNab.
The Court does not consider the Respondents have adequately established there is “no reasonable prospect of success” on the grounds that a complaint amongst colleagues is not within the scope of s.341(1)(c)(ii) of the FW Act.
Having regard to the Explanatory Memorandum, and to the authorities set out above, it is the Court’s view that the law as to:
a)what constitutes a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act;
b)who may make a complaint to an employer “in relation to” an employee’s employment; and
c)to whom a complaint or inquiry might need to be directed or made,
are all matters which are either not settled or not substantially free from doubt. A strike-out application ought not to be used as a means of stifling the development of the law: Hospitals Contributions Fund of Australia v Hunt (1982) 44 ALR 365 at 573-374 per Allen M; Middleton v State of Western Australia (1992) 8 WAR 256 at 264 per Hawkins AM. In circumstances where any or all of the above matters are in the Court’s view arguable, and where the relevant factual circumstances upon which the Court must ultimately make a judgment are not presently, or sufficiently, before the Court, and where evidence of the factual circumstances may give colour and content to the claims made: Dandaven at [6(c)] per Gilmour J, the Court does not consider it necessary or appropriate to summarily dismiss Mr Thorpe’s allegations of a contravention of s.340 of the FW Act on the basis that the complaint is not one for the purposes of s.341(1)(c)(ii) of the FW Act, or because it was not directly made to the management of Vetis Consulting. That said, the latter proposition as a basis for the summary dismissal application must be in doubt. Vetis Consulting were aware of the complaints made by Mr Thorpe prior to his dismissal from employment. As was correctly observed on Mr Thorpe’s behalf, in those circumstances, the issue becomes whether the substantial and operative reason for the dismissal was because complaints in relation to Mr Thorpe’s employment were made: see [52] below, and no longer to whom the complaints were made. Thus, because Vetis Consulting were aware of the complaints prior to Mr Thorpe’s dismissal from employment, it leaves open the possibility of finding that the substantial and operative reason for Mr Thorpe’s dismissal was because the complaints were made, albeit that they were complaints about which Vetis Consulting became aware sometime after they had been first made.
Was adverse action taken because of the workplace right?
The second contention raised by the Respondents was the application had no reasonable prospect of success as there was no evidence the adverse action had been taken because Mr Thorpe had made a “complaint” to his colleagues. Relevantly, the written submissions of Mr Thorpe suggested the Respondents were merely speculating the complaint was not for a proper purpose, stating that:
(b) Once the second respondent had read the complaints made, the applicant says the applicant’s employment was terminated shortly after these complaints were discovered by the respondents.
(c) Therefore, in the applicant’s view, there is a connection between the making of the complaints and the termination of the applicant’s employment.
While s.361 of the FW Act creates a reverse onus, and the Respondents are assumed to have taken the adverse action for a prohibited purpose unless establishing otherwise, in Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241 at [10] per Collier J the Federal Court found that it was necessary for an applicant to provide objective facts to evidence an assertion that a general protection had been contravened, and it is not sufficient to merely assert an exercise of a workplace right and dismissal shortly thereafter. Those observations were made, however, not on an interlocutory application, but in relation to an 11 day final hearing.
The Respondents acknowledge they were aware of the Online Exchanges as a result investigative procedures undertaken to determine if Mr Thorpe had breached his contract of employment and company policy and guidelines. Mr Thorpe was suspended, with pay, during this period: Talbert Affidavit, Annexure A. An excerpt from the termination letter is as follows:
…allegations of serious misconduct occurring between 9th December 2016 and 15th March 2017. The allegations pertained to:
1. Disparaging remarks about management and bringing the company into disrepute.
2. Sexual Harassment.
3. Disparaging remarks about VCS staff, harassment.
The misconduct that the company investigated is:
1. Using the company IM Conversation tool and Skype to persistently denigrate members of management including Bronwyn Blencowe and Brad Malagas to other employees during work hours, in breach of the company IT policy;
2. Refusal to carry out lawful and reasonable instructions demonstrated by your comment on 9th of February 2017, “I wonder who is taking calls” and further by engaging in conversation to “Bypass the RM”;
3. Failing to follow company policy and procedure including the IT policy and sexual harassment policy
4. Using sexual and lewd language in IM conversations between yourself and Tessa Christie; and sexual harassment of the MD and her husband in the IM conversation in Outlook on 9th March 2017.
…
After considering all available evidence including your responses to the allegations put to you in the meeting of 17th March 2017, we consider the above misconduct occurred and is therefore proven. The above conduct constitutes a breach of your obligations as an employee including a breach of the Principal Duties in your employment contract.
We deem that collectively; these actions constitute serious misconduct warranting dismissal.
It is clear the Online Exchanges between Mr Thorpe and his colleagues were a factor in the adverse action taken as a result of the investigation which found Mr Thorpe had engaged in misconduct. The causation element of s.340 of the FW Act requires that the substantial and operative reason for Mr Thorpe’s dismissal be because of his exercising a right to complain to his colleagues: 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 (“Barclay”) at [129] per Gummow and Hayne JJ. In 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 (“BHP Coal”), the High Court confirmed the test in Barclay, and in that case found the prime reason given for the dismissal of an employee was a breach of the workplace conduct policy, and as the reason for dismissal was not a prohibited ground under s.340 of the FW Act, no contravention had occurred.
The reverse onus is created by operation of s.361(1) of the FW Act which provides as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The principles, in determining whether an employer has proven otherwise were established in Barclay, and can be summarised as follows:
a)the central question to be determined: “why was the adverse action taken?” is one of fact;
b)the central question is to be answered having regard to all the facts established in the proceeding;
c)the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;
d)it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;
e)even if the decision-maker gives evidence that they acted solely for non-proscribed reasons, other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and
f)if, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s.361 of the FW Act.
See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
In Barclay the High Court also said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person is regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: BHP Coal at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.
Conclusion on summary dismissal
In the Court’s view the Respondents’ application for summary dismissal must be dismissed in circumstances where:
a)the law is sufficiently uncertain in relation to its application to the facts of this matter (which are themselves uncertain at this stage, even on the basis set out in the Form 2) to warrant summary dismissal, and, in particular, if the Court were to adopt a broad view of what constitutes a complaint, and whether or not the complaint were in relation to employment, consistent with views expressed in Murrihy and Greater Metropolitan Cemeteries Trust (No 2), and the outline of that broader view in Trilab at [19]-[22] and [37]-[38] per Judge Lucev, then Mr Thorpe’s application has some prospect of success, and is not necessarily weak as a matter of law (or at least the law as it relates to what constitutes the complaint, and whether or not the complaint is in relation to employment);
b)in any event, the issue of what constitutes a complaint, and whether or not it is in relation to employment, and to whom a complaint must be made, are all matters which have not yet been fully developed in relation to the application of s.341(1)(c) of the FW Act, and to summarily dismiss this application might have the effect of stifling the law, which is not the intention of s.17A of the FCCA Act or r.13.10 of the FCC Rules;
c)further, this is a case in respect of which much of its colour and content might be derived from the facts, and in circumstances where there is presently no evidentiary material by way of affidavit or otherwise before the Court, and where questions of fact and degree may be important to the resolution of the legal issues which, for reasons set out above, are themselves uncertain, the Court ought not summarily dismiss the proceeding where there is still considerable uncertainty as to what the facts might be, and what real issues or inferences the facts might give rise to; and
d)in the above circumstances, the Court is not satisfied that the Originating Application (incorporating the Form 2) does not give rise to a genuine litigious dispute in which Mr Thorpe may have some prospects of success, and which ought not therefore be summarily truncated.
In any event, and for reasons set out at [65]-[68] below, it is plain that the Form 2 is not a pleading, and the Court is of the view that it would be inappropriate to summarily dismiss other than the most obviously futile case in circumstances where a party has not yet formally pleaded its case.
For all of the above reasons, the Respondents’ application to summarily dismiss Mr Thorpe’s application must be dismissed.
Strike out
The Respondents have alternatively sought that the “pleadings” against each of the Respondents alleging a breach of s.340 of the FW Act be struck out pursuant to r.16.21 of the FC Rules. Rule 16.21(1) of the FC Rules, applicable by reason of r.1.05(2) of the FCC Rules, reads as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
A “pleading” is defined in sch.1 of the FC Rules as:
pleading means:
(a) a statement of claim; or
(b) a statement of cross claim; or
(c) a defence; or
(d) a reply; or
(e) any pleading after a reply;
but does not include:
(f) an originating application; or
(g) an interlocutory application
(h) a notice of any kind; or
(i) an affidavit.
Rule 45.06 of the FCC Rules reads:
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Respondents’ submissions
The Court notes where the Respondents have referred to “Statement of Claim” they are referring to the Form 2. The Respondents submitted that:
a)Mr Thorpe has merely stated a conclusion that his dismissal from employment was by reason of his complaints to his colleagues about the Respondents’ ineffective management and allocation of work;
b)the Statement of Claim does not contain any material facts relied upon by Mr Thorpe, specifically there are no particulars pertaining to:
i)what the bullying behaviour entailed, when it occurred, which specific complaints related to this alleged behaviour and on what basis it is alleged he was subject to adverse action because of this;
ii)when Ms Blencowe had the alleged outbursts of anger or behaved in a bullying manner, and when, and in what circumstances, and to whom Mr Donovan, the Respondents Chief of Staff, reportedly apologised for Ms Blencowe’s behaviour;
iii)examples of instances when Mr Thorpe was “frequently threatened with the termination of … employment,”
iv)when Mr Thorpe was threatened with termination, why and how the management of Vetis Consulting were perceived to be ineffective and how complaints about ineffective management of Vetis Consulting’s business is a workplace right in relation to Mr Thorpe’s employment;
v)what basis it is stated that employees that have ceased employment with the Vetis Consulting were “all” as a result of making complaints, what these complaints are asserted to have been, and by whom they were made;
vi)which complaints Mr Thorpe asserted repeatedly, how a complaint regarding dissatisfaction with management is purported to be an exercise of a workplace right, and any response he purportedly received;
vii)claims for travel expenses, when he was questioned over his travel expenses, and when complaints were made by the Mr Thorpe with regards to this purported issue; and
viii)how it is alleged that the Respondents had knowledge of the complaints or inquiries, which specific complaints and inquiries it is alleged the Mr Thorpe was terminated for making, the basis upon which the complaints or enquiries relied upon amount to an exercise of a workplace right and the basis for the assertion that Mr Thorpe was terminated because of this;
c)furthermore, r.16.43 of the FC Rules provides that knowledge must be specifically pleaded, including the facts and circumstances from which the other party ought to have acquired the knowledge;
d)if the Respondents are required to answer such an ambiguous pleading it is likely to result in prejudice, embarrassment or delay in the proceeding as they do not know what case it is they are being asked to meet; and
e)in Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238 (“Andrade”) it was found that whilst this Court is not a court of strict pleading, the power to strike out pleadings should be exercised in clear cases: Andrade at [11] and [18] per Judge Barnes.
It was also specifically noted with regard to the accessorial liability claim against Ms Blencowe that:
a)the Statement of Claim pleads at paragraph 2 that Ms Blencowe “is liable pursuant to s.550 of the FW Act because of … [her] involvement in the contraventions mentioned below”, but provides no factual basis upon which Ms Blencowe could be said to have been an accessory within the meaning of s.550 of the FW Act;
b)the Statement of Claim thus fails to properly plead s.550 of the FW Act, or any facts which may properly raise an allegation based on that provision, and accordingly the pleading fails to disclose a reasonable cause of action against Ms Blencowe, nor does it make clear under which part of s.550(2) of the FW Act Mr Thorpe relies upon; and
c)there is an absence in the Statement of Claim of any allegations that Ms Blencowe had the requisite knowledge in relation to the relevant workplace rights that Mr Thorpe purports to rely upon, and the mere assertion that Ms Blencowe “is involved in the contraventions” is an insufficient pleading.
Mr Thorpe’s submissions
Mr Thorpe submitted as follows:
a)Form 2 is not a pleading and therefore the strike-out provisions do not apply to striking out a Form 2 because those provisions only apply to pleadings;
b)the Respondents’ criticisms of Form 2, which are denied, are more akin to a request for further and better particulars, and an application for further and better particulars has not been made in this case;
c)section 3(2)(a) of the FCCA Act specifies that the Court is to operate as informally as possible, and the formalities proposed by the Respondents are in stark contradiction to this section;
d)the detail in the Form 2 is sufficient for the Respondents to understand the case against them;
e)if this matter does not resolve by mediation, it is usual for the Court to order witness statements or affidavits to be filed before hearing, at which point Mr Thorpe will be required to expand on his case by providing more detail and particulars; and
f)Mr Thorpe does not have copies of the instant messaging messages that were sent, and should the matter not resolve at mediation Mr Thorpe will be making an application for discovery of all these instant messages so they can be properly particularised.
Consideration - strike out
Mr Thorpe’s claims were made in a document titled “Form 2: Claim Under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Form 2”). Under r.2.04(1A) of the FCC Rules, “the Chief Judge may approve a form for a provision of these Rules”, and Form 2 is such an approved form for the purposes of r.45.06 of the FCC Rules. Mr Thorpe’s claim is set out at Part G of the Form 2 in 32 paragraphs, and it is these paragraphs the Respondents are seeking to have the Court strike out.
In Fox v Stowe Australia Pty Ltd [2012] FMCA 976; (2012) 271 FLR 372; (2012) AILR 101-760 (“Fox”) at [7] per Cameron FM it was stated:
Form 2 and Form 4 claim forms are no more than documents designed with a view to assisting the management of the Court's work and to providing guidance to litigants. As many litigants in this Court, particularly in its small claims jurisdiction, are unrepresented, the Court has chosen to use forms rather than affidavits or pleadings as the procedure by which most industrial proceedings are commenced. …
The conclusion in Fox is entirely consistent with the approach to similar forms used in the federal courts in relation to human rights applications (albeit that those forms do not require any formal setting out of what is alleged, unlike Part G of the Form 2). In relation to the equivalent form for the making of human rights applications in the Federal Court it has been said that it is one which is unlikely to have utility in defining or resolving the controversy raised, and has been held not to be an originating process, a pleading, or particulars of a pleading: Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [17] and [24] per Rares J, referred to in Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 at [6] per Lucev FM, and is one which cannot therefore be “struck out”.
The Respondents variously referred to the claims made in Part G of Form 2 as a “Statement of Claim” or “Pleadings.” The Form 2 is however an “approved form”: FCC Rules, r.45.06, which accompanies the Originating Application made in relation to the claim of dismissal in contravention of a general protection under Pt.3.1 of the FW Act: FCC Rules, r.45.06(a) and (b)(i). It is effectively an annexure to the Originating Application. As an annexure to the Originating Application it is not a “pleading”: FC Rules sch.1, and it is therefore not something which a party can apply to have struck out: FC Rules, r.16.21(1). It follows that the strike out application in the Respondents’ Application in a Case must be dismissed.
Conclusion and orders
For the reasons set out above the Court has concluded that the Application in a Case must be dismissed. Otherwise, the matter is to be adjourned to a directions hearing before a Judge of the Court at a date and a time to be fixed. There will be an order accordingly.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferris & Ors (No 2) [2017] FCCA 1713). If, however, Advantage Panel and Paint considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the FCC Rules.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 August 2019
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