Tomvald v Toll Transport Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Tomvald v Toll Transport Pty Ltd [2018] FCA 969

File number: NSD 2266 of 2017
Judge: BROMWICH J
Date of judgment: 29 June 2018
Catchwords: INDUSTRIAL LAW – interlocutory application to strike out pleadings or, alternatively, dismiss the proceedings – whether this proceeding seeks to litigate matters that were or should have been determined in related prior proceeding – whether this proceeding gives rise to res judicata, issue estoppel or abuse of process – where applicant alleges breaches of enterprise agreement and adverse action by employer in substantive proceeding, alleged to be based on facts subsequent in time to determination of prior proceeding – meaning of “like for like” in conversion from casual employment to permanent full-time employment – held: application to strike out pleadings granted in relation to one aspect of claim for seeking to litigate previously determined matter, denied in relation to three remaining aspects of claim
Legislation:

Fair Work Act 2009 (Cth) ss 50, 340, 361, 570

Federal Court Rules 2011 (Cth) rr 16.21(1)(d), (f), 26.01(1)(d)

Cases cited: Tomvald v Toll Transport Pty Ltd [2017] FCA 1208
Date of hearing: 20 April 2018
Date of last submissions: 11 May 2018
Registry: New South Wales
Division: Fair Work
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 72
Counsel for the Applicant: Mr O Fagir
Solicitor for the Applicant: Workplace Advisory Group
Counsel for the Respondents: Mr S Prince with Mr B Rauf
Solicitor for the First Respondent: Fabiana Rodriguez
Solicitor for the Second Respondent: Thrive Workplace Consulting & Legal

ORDERS

NSD 2266 of 2017
BETWEEN:

JOSHUA WAYNE TOMVALD
Applicant
AND:

TOLL TRANSPORT PTY LTD
First Respondent

GUY BARNARD
Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

29 JUNE 2018

THE COURT ORDERS THAT:

1.Within 14 days:

(a)counsel for the parties confer for the purposes of considering whether mediation of the balance of the proceedings by a judicial registrar of the Court is viable, noting that this will be raised by the Court at the next case management hearing; and

(b)the parties furnish agreed or competing draft orders by email to the associate to Justice Bromwich to give effect to these reasons.

2.Within 21 days, the parties furnish agreed or competing draft orders for the future conduct of the proceedings by email to the associate to Justice Bromwich.

3.The matter be listed for a case management hearing at 9.00 am on 27 July 2018, unless procedural orders can be made in chambers before that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMWICH J:

  1. The applicant, Mr Joshua Tomvald, is a freight handler employed by the first respondent, Toll Transport Pty Ltd.  The second respondent, Mr Guy Barnard, is one of Toll’s operations managers. 

  2. This is the second proceeding brought by Mr Tomvald arising out of his employment by Toll.  The first proceeding was heard over seven hearing days between November 2016 and March…

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Details
Case
[2018] FCA 969
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Joshua Wayne Tomvald has filed a proceeding against Toll Transport Pty Ltd and Mr Guy Barnard. Mr Tomvald seeks relief on the basis that Toll has allegedly breached an enterprise agreement and taken adverse action against him. The crux of his complaint is that Toll refused to convert his casual employment to permanent employment on a "like-for-like" basis with the hours he worked prior to 18 May 2016 and changed his starting time from 4am to 5am. The legal issues before the court were whether this proceeding seeks to litigate matters that were or should have been determined in a related prior proceeding and whether it gives rise to res judicata, issue estoppel, or abuse of process.

The court found that the proceeding did seek to litigate matters that were or should have been determined in a related prior proceeding. However, the court denied the application in relation to the remaining three claims. The court held that Mr Tomvald was not entitled to seek any relief on the basis of any entitlement, based upon his conversion to permanent full-time employment with Toll, to any particular pattern of hours, let alone any entitlement on that basis to commence work at 4.00 am. The seeking of such relief constituted an attempt, although disavowed by Mr Tomvald, to re-litigate a matter that had been finally and conclusively determined adversely to him.

The court ordered that within 14 days, counsel for the parties confer for the purposes of considering whether mediation of the balance of the proceedings by a judicial registrar of the Court is viable, noting that this will be raised by the Court at the next case management hearing. The parties were also ordered to furnish agreed or competing draft orders by email to the associate to Justice Bromwich to give effect to these reasons. The matter was listed for a case management hearing at 9.00 am on 27 July 2018, unless procedural orders could be made in chambers before that date.

Orders

Orders of the court

1. Within 14 days:

(a) counsel for the parties confer for the purposes of considering whether mediation of the balance of the proceedings by a judicial registrar of the Court is viable, noting that this will be raised by the Court at the next case management hearing; and

(b) the parties furnish agreed or competing draft orders by email to the associate to Justice Bromwich to give effect to these reasons.

2. Within 21 days, the parties furnish agreed or competing draft orders for the future conduct of the proceedings by email to the associate to Justice Bromwich.

3. The matter be listed for a case management hearing at 9.00 am on 27 July 2018, unless procedural orders can be made in chambers before that date.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The pleaded facts relied upon, as set out in Mr Tomvald’s concise statement, are as follows (emphasis in original):A.The important facts giving rise to the claim1.The applicant Mr Joshua Wayne Tomvald is an employee of the first respondent (Toll). Mr Tomvald is employed as a AM freight handler at the Toll depot at Bungaribee.2.The second respondent Mr Guy Barnard is the AM/PM operations manager for the Bungaribee depot.3.The Toll Group - TWU Enterprise Agreement 2013-2017 (the Agreement) is an enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act) which covers and applies to Mr Tomvald and Toll.4.In 2016 Mr Tomvald brought proceedings against Toll alleging, inter alia, breaches of the Agreement and unlawful adverse action.5.Mr Tomvald’s primary complaint was that Toll had refused to convert his casual employment to permanent employment on a “like-for-like” basis with the hours he worked prior to 18 May 2016. Another matter complained about by Mr Tomvald was the change of his starting time from 4am to 5am on around 24 May 2016.6.The proceedings were determined in October 2017 in favour of Mr Tomvald: Tomvald v Toll Transport Pty Ltd [2017] FCA 1208. On 27 October 2017 the Court made orders by consent. The orders included a declaration that:Pursuant to clause 21(e) of the Agreement, the Respondent is obliged to convert [Mr Tomvald]’s employment to permanent full-time employment on a like-for-like basis with his casual employment prior to 18 May 2016.7.The Court made various other orders and imposed pecuniary penalties on Toll.8.In around November 2017 Mr Tomvald’s employment was converted to permanent full­time employment.9.Following the conversion of his employment:(a)Toll has refused to return Mr Tomvald to his start time as it stood prior to 24 May 2016, that is, 4am; and(b)Mr Tomvald has been directed to start work later than the other AM freight handlers at the Bungaribee depot.10.Between around 1 November 2017 and 29 November 2017:(a)each of the permanent full-time AM freight handlers at the Bungaribee depot other than Mr Tomvald began work at 4am or earlier;(b)some of the permanent part-time AM freight handlers at the at the Bungaribee depot begin work at 4am or earlier;(c)Mr Barnard directed that Mr Tomvald begin work at 5am on every day but Monday.11.From 30 November 2017 onward:(a)each of the permanent full-time AM freight handlers at the Bungaribee depot other than Mr Tomvald began work at 3am or earlier;(b)some of the permanent part-time AM freight handlers at the at the Bungaribee depot begin work at 3am or earlier;(c)Mr Barnard directed that Mr Tomvald begin work at 4am on every day.12.The effect of Mr Barnard’s direction has been to minimise Mr Tomvald’s earnings by minimising his working hours and depriving him of an early morning shift allowance.13.On 7 November 2017 Toll responded to Mr Tomvald’s complaint by stating that it had no operational requirement for a freight handler such as Mr Tomvald to commence work from the Bungarribee facility at 4:00am on Tuesdays to Fridays inclusive (the Operational Requirements Representation).14.The Operational Requirements Representation was knowingly false.B.The relief sought15.[Mr Tomvald] seeks the relief set out in the application filed with this Concise Statement.

Evidence

Evidence Before The Court

To the extent that any claim has already been determined or should have been determined by Flick J, it cannot be maintained in the second proceeding. To the extent that any claim is not of that character, there is no pleading basis for striking it out or dismissing it, at least as this interlocutory application was argued. In those circumstances, it is not necessary to have regard to the detailed principles giving rise to the application of res judicata, issue estoppel or abuse of process, as debated by the parties in written submissions, oral submissions and post-hearing supplementary written submissions.The evidence on this strike out/summary dismissal application Toll has placed before the Court the pleadings, judgment and orders from the first proceeding, together with a copy of the Toll Group –TWU Enterprise Agreement 2013-2017. Toll has also tendered and had admitted into evidence certain post-judgment correspondence by which differing interpretations of Flick J’s judgment were conveyed, being:(1)an email sent by Mr Greg Selig, a consultant, on behalf of Mr Tomvald to Toll’s solicitors on 7 November 2017 (Selig email); and(2)a letter in reply to Mr Selig from Toll’s solicitors, dated 7 November 2017 (LBC letter). Part of the LBC letter is alleged by Mr Tomvald to contain knowingly false representations made to him as to Toll’s operational requirements as a justification for the working hours he was being offered. That allegation is the substance of the fourth claim in the second proceeding. Mr Tomvald tendered and had admitted a transcript of day four of the first proceedings before Flick J, dated 1 December 2016.Summary of Toll’s argument Toll characterises the claims made by Mr Tomvald in the second proceeding as “inextricably entwined” with an assertion (it says, incorrectly made) that the first proceeding upholds a legal entitlement for him to commence his shifts at 4.00 am. Toll submits that Mr Tomvald is making a collateral challenge to Flick J’s finding that there were operational reasons for Toll to direct Mr Tomvald to commence work at 5.00 am, and that such a direction given to him was not for a prohibited reason. Toll describes the second proceeding as an attempt by Mr Tomvald to overcome his defeat before Flick J on those two points. Toll, by its written submissions, asserts that the following fundamental problems arise in the way in which the second proceeding is pleaded:(a)The foundational claim of [Mr Tomvald], and upon which his other derivative claims rely, is the assertion that [he] was entitled to a starting time of 4am pursuant to clause 21(e) of the applicable enterprise agreement;(b)In reliance on the above foundational claim, it is again alleged that [Toll] contravened clause 21(e) of the applicable enterprise agreement in its refusal to, during the period 6 to 28 November 2017, to offer to [Mr Tomvald] a starting time of 4am;(c)The alleged unlawful adverse action is also inextricably connected with [Toll’s] refusal to offer to [Mr Tomvald] a starting time of 4am with the consequential adverse outcomes for [him];(d)Each of these fundamental and derivative issues have been determined in the earlier proceedings. The substance of the claims maintain as their foundation the asserted entitlement flowing from, and relating to, [Mr Tomvald’s] employment as a casual employee immediately prior to 24 May 2016. Notwithstanding that, [he] now seeks to address the claims as relating to his capacity as a permanent full time employee and with reference to the circumstances occurring after the earlier proceedings;(e)Further, to the extent that the issues of the entitlement of [Mr Tomvald] under clause 21(e) of the applicable enterprise agreement and the alleged unlawful adverse action are cast in the context of his employment as a permanent full time employee, these are matters which could have properly been pursued, and should have been pursued, as an aspect of [his] alternative claim in the earlier proceedings particularly in circumstances where he alleged in these proceedings that he was, in fact, a permanent employee at the time of the shift changes;(f)The further claims pursued in the present proceedings derive from the above foundational claims and, indeed, absent re-litigating and establishing the foundational claims, such further claims, cannot be independently pursued; and(g)The present proceedings are also an abuse of process of the Court inasmuch as they are a collateral challenge by [Mr Tomvald] to the findings of Flick J relating to the earlier proceedings.Summary of Mr Tomvald’s argument

Decision

Reasons for decision

In light of the foregoing, Toll’s application to have this claim struck out must also fail.Conclusion Toll succeeds in its interlocutory application in relation to the striking out of the first claim in the second proceeding, but not in relation to the remaining three claims. While these reasons provide an indication of the orders that should be made, it is possible that some detail, including as to consequential effect, has been overlooked. The parties are therefore directed to furnish agreed or competing draft orders to give effect to these reasons within 14 days. As this appears to be a case in which a mediated solution is at least possible, counsel for the parties should be directed to confer on that topic and be in a position to explain to the Court why mediation should not be ordered to take place. The matter will be relisted for a case management hearing in 28 days to determine the future course of the proceedings, unless orders to that effect can be made before then. Costs As both parties have had a measure of success on the interlocutory application, it is appropriate that there be no order as to costs, even if such an order was possible in light of the terms of s 570 of the FW Act and the stage at which the interlocutory application was brought.

Ratio Decidendi

Legal Principle Established

In relation to the specific arguments advanced by Toll in support of its IA, Mr Tomvald submits that the assertion that his claim concerning when he should be allowed to start work is an abuse of process depends upon the proposition that the Court previously denied his entitlement to a 4.00 am start time. He submits that that proposition is false, and that it follows that the claim of abuse of process, res judicata or estoppel must fail.Consideration and resolution of first claim of contravention of cl 21(e) Toll’s submissions on this topic should be accepted. While Mr Tomvald did not press for a more precise declaration seeking a right to a particular pattern of hours, and while he amended [53] in his FASOC so as to remove the additional words “working the same number and same pattern of hours he worked in the twelve months prior to 24 May 2016”, it seems plain enough that both aspects were part of what he was seeking as an outcome of the first proceeding. In those circumstances, it is difficult to read declaration 2 as being reflective of anything more than that which was expressly stated by Flick J at [71], reproduced above at [22], especially in the context of the reasoning that followed up to [99], discussed below. His Honour should be understood to have been concluding at [71] that:(1)cl 21(e) of the Enterprise Agreement conferred a right to convert to permanent full-time employment;(2)permanent full-time employment is employment for 38 hours per week;(3)Mr Tomvald sought to exercise his right to obtain employment for 38 hours per week;(4)the offer that was made by Toll offering him 30 hours per week fell short of offering him full-time employment; and(5)Mr Tomvald was therefore wrongfully denied the right to obtain employment for 38 hours per week. Flick J then considered the bases for the conclusions that his Honour reached at [71], namely:(1)the source of the right to convert to full-time employment: [72]-[75];(2)the hours that had in fact been worked by Mr Tomvald: [76]-[79];(3)the meaning and content of the “like for like” entitlement: [80]-[99];(4)the contravention of s 50 of the FW Act: [100]. The discussion of the meaning and content of the “like for like” entitlement at [84] to [98] in particular provides the context for Flick J’s conclusion at [71] that permanent full-time employment “is” employment for 38 hours per week, which, as noted at [97] of his Honour’s reasons, was not met by offering Mr Tomvald four, five or six-hour shifts. Conspicuous for its absence in any part of [80]-[99] is any reference to a start time of 4.00 am, or indeed anything at all on the topic of pattern of hours. That is not to be regarded as some oversight or accidental omission. Rather, pattern of hours is to be regarded as forming no part of Flick J’s conclusion as to Mr Tomvald’s conversion entitlement, or of Toll’s contravention. Once the above interpretation is applied to the second proceeding, it is plain that Mr Tomvald is not now entitled to seek any relief upon the basis of any entitlement, based upon his conversion to permanent full-time employment with Toll, to any particular pattern of hours, let alone any entitlement upon that basis to commence work at 4.00 am. The seeking of such relief constitutes an attempt, although disavowed by Mr Tomvald, to re-litigate a matter that has been finally and conclusively determined adversely to him. It follows that [1(b)] of the originating application, but not the chapeau to [1], in the second proceeding must be struck out. As to the concise statement in the second proceeding, the following parts must be struck out:(1)[9(a)], but not the chapeau;(2)[18];(3)in [32], the “s” at the end of “contraventions” and at the end of “clauses”;(4)in [32], the phrase “and 21(e)”.