INDUSTRIAL LAW – Application for summary dismissal of proceedings or strike out – general protection proceedings – adequacy of pleadings – whether pleading alleges viable causes of action – considerations relating to striking out of pleadings – considerations relating summary dismissal – application dismissed – no order as to costs
Legislation:
Fair Work Act 2009 (Cth) Pts 3-1, 6-4, ss 12, 340, 341, 342, 351, 361, 550, 570, 789FC, 789FD
[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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AGLC
Tulett v Yourtown Pty Ltd [2023] FedCFamC2G 120
Case
[2023] FedCFamC2G 120
Decision Date
CaseChat Overview and Summary
In Tulett v Yourtown Pty Ltd, the Federal Circuit and Family Court of Australia was tasked with determining whether the plaintiff's claims should be struck out as being frivolous, vexatious, or an abuse of process. The plaintiff, Mr Tulett, alleged that he had been subjected to adverse action by his employer, Yourtown, leading to his resignation and subsequent claim for workers' compensation. The court was required to decide whether Mr Tulett's claims were properly framed within the legal framework of general protection provisions under the Fair Work Act 2009 (Cth).
The court found that the plaintiff's claims were convoluted, repetitive, and largely incomprehensible. The court held that general protection provisions under the Fair Work Act are not intended to serve as a broad inquiry into procedural fairness in the workplace, but rather to specifically address instances of adverse action related to protected attributes or activities. The court referenced the decision in Khiani v Australian Bureau of Statistics, which underscored that general protection applications must establish a clear causal relationship between adverse action and the protected factors outlined in the Act.
The court further considered the legal considerations surrounding the striking out of pleadings, noting the importance of facilitating the just resolution of disputes efficiently. It applied the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, which emphasize the need for simplicity, avoidance of undue delay, and consideration of dispute resolution options. Ultimately, the court concluded that Mr Tulett's pleadings did not meet the required standard of clarity and specificity, leading to the decision to strike out his claims.
Orders
Orders of the court
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Background
Background to the litigation
At the same time, the Court has an obligation to ensure any litigant, who has a proper grievance, is given an opportunity to ventilate such grievance so it can be fairly resolved. It is in this context only that I have attempted to read the very many and lengthy documents and annexures, which Mr Tulett has prepared, in order to ascertain what is the general nature of his complaint against yourtown and whether it is amenable to being resolved in the context of a general protection proceeding under the FWA, as Mr Tulett has presently framed it.BACKGROUND In 2009, Mr Tulett took up a position of clinical practice supervisor of the South Australian based operations of Boystown, on a permanent part-time basis. Boystown changed its name to yourtown in 2016. Yourtown is a registered charity, established by the Lasallian Brothers in 1961. Its head office is in Brisbane, where it is incorporated. Mr Tulett’s employment was regulated by an enterprise agreement. Yourtown provides a range of services, on a national basis, to disadvantaged and vulnerable young people, who seek assistance in respect of issues relating to employment, education, training, emotional counselling and welfare services. In South Australia it has premises at Elizabeth, Smithfield, Salisbury, Kilkenny and Enfield, all of which are located in suburban Adelaide. It also has an office at Port Pirie. It operates the Kids Helpline, a free telephone and online counselling service for young people. Mr Tulett resigned his position at yourtown most recently on 2 March 2021. This followed him being absent from the workplace, whilst in receipt of worker’s compensation payments, pursuant to the provisions of the Return to Work Act 2014 (SA). However, he seems to have withdrawn from the workplace somewhat earlier, in or around March of 2018, in the context of significant controversy arising between him and management about his work performance, leading to him suffering some form of severe psychological collapse. Some of the material indicates he may have been stood down at this this stage. Again, as best I can understand it, from the material filed by him, it appears to be Mr Tulett’s assertion that he had been subjected to some form of bullying and harassment, by one particular person at yourtown, the practice manager, Ms Louise Davis. He submitted a medical certificate, at this stage, indicating an incapacity to work. Initially, his claim for worker’s compensation was rejected by the relevant insurer. However, pursuant to an order of the South Australian Employment Tribunal, made on 6 March 2019, Mr Tulett was found to be entitled to receive compensation for a period of 104 weeks following him suffering an injury at work described as an adjustment disorder with anxiety, which injury was said to have occurred on 23 March 2018, leading to an incapacity to work thereafter. There is some suggestion, in the material, as best I can decipher it, that Mr Tulett tendered his resignation at this stage, but I acknowledge I may be in error about this. As I understand it, 104 weeks is the maximum period, available under the relevant legislation, for any person injured at work to receive weekly payments of compensation referable to salary.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For obvious reasons, it is likely to be the case that Mr Tulett on the one hand and members of yourtown’s human relations department on the other, are likely to disagree about many aspects of their involvement with one another in the latter stages of Mr Tulett’s employment. However, in my view, the provision of information to the relevant insurer does not easily fall within the parameters of adverse action, if at all.CONCLUSIONS I accept that I may well not have accurately summarised Mr Tulett’s various complaints arising from his perception that he has been egregiously treated by yourtown. Indeed, it may well be the case that I have missed some nuance or subtly in his complaints. However, in my view, this potential for misconstruction or misinterpretation of the various documents filed by Mr Tulett arises as a consequence of a combination of their prolixity and repetition, which leads to them being generally incomprehensible. The only conclusion, which can be drawn from the documents, is that Mr Tulett feels greatly aggrieved at his perception that he has been unfairly treated by yourtown and various members of its management in the context of a workplace dispute, which ultimately led to an independent HR inquiry and Mr Tulett himself applying for worker’s compensation. Apart from those bare bones, the rest of his case, in my perception, has arisen from my attempts to synthesis what it may be. This synthesis has occurred as a result of my reading the many documents which he has provided. Into this melange, Mr Tulett has inserted reference to the general protection provisions of the FWA, claiming to have been the subject of adverse action. In undertaking this exercise, I do not consider that the affidavits filed by Mr Tulett provide even the most rudimentary aids to the interpretation of what is the nature of his case in the context of the FWA. However, as was pointed out in Sabapathy a pleading should not require an atlas to expose it. As was point out in Khiani a general protection application cannot be utilised as a vehicle for a person to ventilate general grievances held by him or her regarding their perceptions as to the probity of their treatment in the workforce. Given the structure of the applicable provisions, particularly the reverse onus provisions, such matters need to be carefully and specifically pleaded so that those who are the subject of the allegations made against them may fairly respond to them. In my view, the convoluted and legally unintelligible nature of Mr Tulett’s case, as presently framed, does fall within the purview of Part 16 of the Federal Court Rules, which can be applied as a consequence of rule 1.06(2) of the Division 2 Rules. As is axiomatic from these lengthy reasons for judgment, and the fact that many documents have been filed, and the case adjourned on multiple occasions, the manner in which Mr Tulett has proceeded with his case has caused delay. Given the length of the documents filed by Mr Tulett it is apparent to me that his complaints have not been pleaded in anything approaching a simple and succinct matter and, in my assessment, there is a dearth of material facts to support the elements of his case. Rather, the various documents filed by him are filled with general assertions of law.
Ratio Decidendi
Legal Principle Established
It is important to note what a general protection proceeding is not. They are not a broad inquiry as to whether Mr Tulett has been subjected to a procedurally fair or substantially unfair outcome[21] during the course of his employment by yourtown. Essentially, as the Full Court observed in Khiani v Australian Bureau of Statistics (“Khiani”): A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[22][21] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.[22] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.LEGAL CONSIDERATIONS RELATING TO THE STRIKING OUT OF PLEADINGS As a consequence of the inception of Division 2 of the Federal Circuit and Family Court of Australia, the respondents’ application is to be determined by reference to the Federal Circuit & Family Court of Australia Act 2021 (Cth).[23] [23] Hereinafter referred to as “the FCFCOA Act”. Section 174 of the FCFCOA Act authorises the Court to make rules to govern its practice and procedure but in circumstances in which those rules prove to be deficient it may apply the Federal Court Rules 2011 (Cth).[24] The Court is entitled to modify these rules to suit its own idiosyncratic jurisdiction. In this context, section 190 of the FCFCOA Act is germane. [24] Hereinafter referred to as “the FC Rules”. As previously indicated, it provides a directive to the Court to, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the Court’s overarching purpose. The relevant rules of Division 2 of the Court are the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[25]Rule 1.04 delineates the obligation of parties to assist the Court to achieve its objectives delineated in the overarching purpose. Parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.[25] Hereinafter referred to as “the Division 2 Rules”. Rule 1.06 provides that these Rules principally govern general federal law proceedings in Division 2 of the Court. Rule 30.04 stipulates the manner in which an application in respect of a general protection matter is to be commenced. It is to be made with the approved form and a claim. It need not be accompanied by a statement of claim or points of claim. Pursuant to rule 4.04 an affidavit is be filed unless an applicant opts to file a statement of claim.