FEDERAL COURT OF AUSTRALIA

Yang v Best International Group Pty Ltd [2019] FCA 323

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the further amended statement of claim be dismissed.

2.    Parties file submissions as to costs within 7 days of the date of these reasons.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    The applicant seeks for the third time to amend his statement of claim to plead a case against the second respondent (Fujitsu).

2    In my view, he should not be permitted to do so, for the reasons set out below.

3    The first respondent (Best), which is a provider of labour hire services to companies and businesses which contract with it to receive such services, employed the applicant from 16 June 2013 on a casual basis to perform IT technician duties for Fujitsu.

4    The applicant commenced proceeding in the Fair Work Commission against Best, alleging that he was dismissed in contravention of part 3-1 of the Fair Work Act 2009 (Cth). Best denied not only that there was any contravention, but that the applicant had been dismissed at all. The proceeding failed to resolve the dispute between the applicant and Best.

5    Fujitsu was not a party to, nor was it made aware of, the Fair Work Commission proceeding.

6    It is common ground that the fact of the involvement of Fujitsu was the subject of evidence in the Fair Work Commission proceeding.

7    Because Fujitsu was not a party to the proceeding, obviously enough, it was not named in the certificate that was issued by the Commission under s 368(3) of the Fair Work Act consequent upon the failure to resolve the dispute.

8    Counsel for Fujitsu contends that this court, therefore, has no jurisdiction to hear any claim by the applicant against it. It is, however, unnecessary to resolve that issue because, in my view, the proposed further amended statement of claim is irredeemably deficient.

9    Further, in circumstances such as this, where the applicant had an opportunity to articulate a case against Fujitsu at the Fair Work Commission and when the third iteration of a purported claim against Fujitsu is as threadbare as the proposed claim here, it should not be permitted: cf Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [112].

10    For the reasons that appear below, the applicant’s application for leave to file a further amended statement of claim is refused.

11    In his original statement of claim filed on 5 June 2018, the applicant claimed that he had been employed by Best as a field technician, commencing on 16 June 2013. “Further and alternatively”, it was alleged that the applicant was employed by Fujitsu in the same role on the same date.

12    Fujitsu’s lawyers made various complaints in relation to the statement of claim, as a result of which an amended statement of claim was filed. The allegation that the applicant was employed by Fujitsu was deleted, and in its place allegations made that the applicant “was contracted to work for Fujitsu” and “was also employed by Fujitsu” under “an implied agreement”.

13    On 31 October 2018 I ordered that the applicant’s amended statement of claim be struck out and that the applicant have leave to file and serve a further amended statement of claim by 30 November 2018.

14    The claim against Fujitsu in the proposed further amended statement of claim is as follows:

48.     In breach of section 550 of the FW act, Fujitsu has taken adverse action against the Applicant because it has been involved in the contraventions by Best pleaded above at paragraphs 43 to 45.

Particulars

Fujitsu has been directly and centrally involved in the contraventions through the actions of its employees … who have aided, abetted, counselled or procured the contraventions.

49.     Further, and in the alternative, Fujitsu has taken adverse action against the applicant as defined in paragraphs (a) to (e) of column 2 of items 3 of the table in section 342(1) of the FW act on the basis that Fujitsu is a principal which has entered into a contract for services with Best which employs the applicant, because Fujitsu:

a.    decided to cease its engagement of the applicant; and

b.    refused the applicant’s Flexible Work Requests.

50.     In breach of section 340 (1) of the FW act, Fujitsu has taken adverse action against the applicant for the reason, or for reasons including:

a.    that the applicant had one or more of the Workplace Rights;

b.    that the applicant proposed to exercise one or more of the Workplace Rights:

c.    the applicant exercised one or more of the Workplace Rights; and/or

d.    to prevent the applicant from exercising one or more of the Workplace Rights.

15    [43] – [45] of the further amended statement of claim are as follows:

43.    Best has taken adverse action against the Applicant as defined in paragraphs (a) to (d) of column 2 of item 1 of the table in section 342 (1) of the FW Act by:

a.    failing to provide the Applicant with any further work opportunities;

b.    dismissing the Applicant;

c.    not providing the Applicant with his leave entitlements (as pleaded below at paragraphs 51 to 56);

d.    failing to act upon the Cessation of Work Complaint; and

e.    through its agents, refusing the Applicant’s Flexible Work Requests.

44.    In breach of section 340(1) of the FW Act, Best has taken adverse action against the Applicant for the reason, or for reasons including:

a.    that the Applicant had one or more of the Workplace Rights;

b.    that the Applicant proposed to exercise one or more of the Workplace Rights;

c.     that the Applicant exercised one or more of the Workplace Rights; and/or

d.    to prevent the Applicant from exercising one or more of the Workplace Rights.

45.    Further and alternatively, in breach of section 352 of the FW Act, Best has taken adverse action against the Applicant for the reason, or for reasons including, his temporary absences from work due to illness or injury for this cancer treatment pleaded at paragraphs 16, 17 and 21.

16    [22] of the further amended statement of claim is as follows:

22.    In Mid-February 2018, the Applicant raised with Loyal that Fujitsu’s current software was not meeting IT support efficiency standards and he made some recommendations for software upgrades (Software Complaint).

17    [31] – [34] of the further amended statement of claim are as follows:

31.    On 7 March 2018, the Applicant was told by Luke Jesionkowski (Jesionkowski), Best’s HR Support Manager, that his contract was ending and Fujitsu had decided not to renew the contract.

 32.    On 8 March 2018, the Applicant attended a meeting Baggio and Loyal.

33.    The Applicant asked why his contract was not being renewed. Loyal stated that due to low volume, they did not require his services.

34.    On 9 March 2018, the Applicant sent an email to Jesionowski complaining that Fujitsu had unfairly decided not to renew its contract for the Applicant’s services (the Cessation of Work Complaint).

18    Counsel for the applicant conceded that the particulars to [48], which is the aiding and abetting claim, were inadequate. He did not suggest that it was possible to cure those particulars. The particulars, in truth, are not particulars at all. Absent any facts, matters, circumstances or things properly to be pleaded going to the question of aiding and abetting I will not, in circumstances where this is the applicant’s third attempt at pleading a case against Fujitsu, and when no case whatsoever was pressed before the Commission, permit it. Nor will I allow leave to re-plead it.

19    The other claim is founded, it seems, “on the basis that Fujitsu is a principal which has entered into a contract for services with Best which employs the applicant”. The adverse action is said to be comprised of Fujitsu’s having “decided to cease its engagement of the applicant” and “refused the applicant’s Flexible Work Requests”.

20    In my view that claim does not plead a proper cause of action and it should not be allowed.

21    First, although the pleading seeks to characterise the applicant’s “raising” of his view that Fujitsu’s current software was not meeting IT support efficiency standards as a “software complaint”, there is nothing to suggest that the applicant was making any complaint at all. Secondly, and more importantly, neither form of supposedly “adverse action” is capable of constituting adverse action within the meaning of the FW Act.

22    As Dodds-Streeton J explained in Shea v Truenergy Services (No 6) (2014) 242 IR 159 at [615] – [625]:

The apparent object of s 340 is to protect persons from, by prohibiting, adverse action (which, by s 342(1), includes dismissal) because the person has, or has exercised, failed to exercise or proposes either to exercise or not exercise, a workplace right; or in order to prevent a person from exercising a workplace right.

By s 360, any one of multiple reasons for the adverse action will constitute a reason for that action and, by s 361, if an applicant alleges that the respondent took adverse action for a prohibited reason, it will be so presumed unless the respondent proves otherwise.

The workplace right which is protected by the statutory prohibition on adverse action at issue in this case is a complaint which an employee is able to make in relation to his or her employment. The legislation does not define or describe any particular way in which a workplace right must be exercised in order to come within the prohibition. An obvious, and indeed, the only readily apparent means of exercising a workplace right constituted by being able to make a complaint, is to make the complaint, which, of necessity, requires the complaint to be communicated …

…

The protection conferred by the provision is directed at workplace rights. When the relevant workplace right is the employee’s ability to make a complaint in relation to his or her employment, to make a complaint not in order to communicate the stated grievance or accusation so that it may be appropriately considered and redressed, but to achieve some collateral advantage or objective, would not, in my opinion, invoke the statutory protection. No legitimate statutory objective would be achieved.

Accordingly, in my view, the complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation. In the absence of such a belief (which may be difficult, albeit not impossible, to establish in the absence of some reasonable basis) the complaint would not be a genuine grievance or finding of fault.

Further, the grievance or accusation must be communicated for a proper statutory purpose, which would, at least, entail giving the employer notice of the relevant matters or securing information, protection, redress or some other appropriate response.

In my opinion, the requirement that the complaint be one that the employee ‘is able to make’ in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

(Emphasis added).

23    In this case, the applicant is unable to point to any such entitlement or right in respect of the so-called complaint raised in respect of the inefficiency of the software, or the alleged refusal to accept the applicant’s requests for more flexible working hours.

24    For those reasons, the claims sought to be made in the proposed further amended statement of claim are untenable. Leave to amend the form of that document is refused and I decline to permit the applicant to plead any other case against Fujitsu.

25    I will also direct that the parties make any submissions they may wish to make in respect of costs by filing a note within 7 days of the date of these reasons.

Associate:

Dated:    8 March 2019