FEDERAL COURT OF AUSTRALIA
Ansari v Commonwealth Bank of Australia Limited (ACN 123 123 124) [2007] FCA 1908
MARYAM ANSARI v COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124)
VID 1248 OF 2006
RYAN J
6 DECEMBER 2007
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1248 OF 2006 |
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BETWEEN: |
MARYAM ANSARI Applicant
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AND: |
COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124) Respondent
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RYAN J |
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DATE OF ORDER: |
6 DECEMBER 2007 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The applicant’s motion on notice dated 18 May 2007 be refused.
2. The proceedings be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
3. The applicant pay such of the respondent’s costs of the proceedings as have been incurred after 20 August 2007, to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1248 OF 2006 |
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BETWEEN: |
MARYAM ANSARI Applicant
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AND: |
COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124) Respondent
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JUDGE: |
RYAN J |
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DATE: |
6 DECEMBER 2007 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 There is before the Court, a notice of motion by the applicant dated and filed 18 May 2007, seeking the following order;
‘1. I would like to ask for leave to take my case to supreme court ASAP.’
The notice of motion was initially returnable on 27 July 2007. However, by order made on 4 June 2007, the return of the motion was adjourned to 21 September 2007. The notice of motion is accompanied by an unsworn affidavit by the applicant which recites;
‘1. As stated previously by applicant, Respondent lawyers and probono lawyer assigned by federal court to assist me there is no reasonable prospect of success with the current application.
To continue with this application will only result in hardship and injustice for applicant. However This was the only application I was allowed to file by the registry which is improper exercise of the power.
I have been stopped by lodging any other application by the registry. I have been stopped by registrar to lodge an application for order of review of the conduct of decision makers with my case.
I have been threatened by respondent’s lawyers with bank’s legal costs.
I am unable to get any legal assistance.
The proceedings at federal court so far are breach of natural justice in ignoring my application and statement of claim.
The proceedings usually start with mediation but in my case started with direction hearing and ended with mediation ordered by Justice Ryan on 10th May 2007 to take place on 27th July.
I believe there is serious wrongdoing in this matter that needs immediate attention.’
‘1. That the whole of the proceeding be dismissed pursuant to section 31A(2) of the Federal Court Act 1976 on the basis that the Applicant has no reasonable prospect of successfully prosecuting the proceeding and/or pursuant to Order 20 Rule 5(1)(a) of the Federal Court Rules on the basis that the proceeding is frivolous and vexatious.
2. The applicant pay the respondent’s costs of this motion and of the proceeding pursuant to s 824 of the Workplace Relations Act 1996 (Cth).
3. Such further or other orders as the Court considers fit.’
Background to the Motions
3 On 11 August 2006 the applicant was informed by letter dated 11 August 2006 that her employment by the Bank was terminated for reasons of misconduct. During her employment, the applicant had complained, pursuant to the Bank’s Fair Treatment Review Policy, by email dated 1 May 2006 to the Bank’s Chief Executive Officer and by letter dated 12 May 2006 to Ms Joanne Anglim, another officer of the Bank. On 18 July 2006, the applicant informed the Bank by email that she would not be attending work as she believed that she deserved respect and responsibility. The Bank then held meetings with the applicant on 24 and 26 July 2006 at which allegations of her misconduct were discussed. Later, on 31 July 2006, the Bank wrote to the applicant and, by letter dated 8 August 2006 to Peter Griffiths, another officer of the Bank, the applicant responded to the allegations of misconduct which had been made against her.
4 On 1 September 2006, pursuant to s 643 of the Workplace Relations Act 1996 (Cth) (“the Act”) the applicant filed an application in the Australian Industrial Relations Commission (“the Commission”) against the Bank in relation to the termination of her employment. The grounds of the applicant’s application to the Commission were as follows;
‘(a) on the ground that the termination was harsh, unjust or unreasonable; and/or
(b) on the ground of an alleged contravention of section 659 (discrimination or other prohibited reasons); and/or
(c) Filing a complaint, or the participation in proceedings, against an employer involving alleged breaches of law or regulations.’
The reason stated in (c) above is identified in s 659(2)(e) of the Act. In amplifying the grounds of her application the applicant relied on these “material facts”;
‘I have not been given a fair go at work.
I have been treated less favourably at work (training, uniform, targets, limited responsibility, no respect).
I have been demoted and dismissed unlawfully.’
The applicant, by her application to the Commission sought reinstatement, an amount in relation to the remuneration lost, or likely to have been lost, due to the termination and compensation.
5 On 28 September 2006, the applicant and representatives of the Bank attended a conciliation proceeding in the Commission which was unsuccessful. On 29 September 2006, the Commission issued a certificate pursuant to s 650 of the Act, stating that the Commission was satisfied that all reasonable attempts to settle the matter by conciliation had been, and were likely to be, unsuccessful in respect of “the ground referred to in s 643(1)(a), that the termination was harsh, unjust or unreasonable” and “an alleged contravention of s 659 of the Act.” The assessment of merits pursuant to s 650(2)(b) of the Act, which accompanied the certificate indicated in relation to each ground of the application as follows;
‘In relation to the application made under s643(1), the Commission dismisses the application using its powers under s646(1(c).
In relation to the application made under s659, the Commission is satisfied that the Applicant would not be successful with her claim.’
6 On 26 October 2006, the applicant filed in the Commission a notice of election pursuant to s 651 of the Act whereby she elected to begin proceedings in this Court for an order under s 665 of the Act, in respect of the contraventions of s 659 of the Act alleged in her application.
7 By application filed in this Court on 9 November 2006, the applicant seeks compensation from the Bank pursuant to s 663 of the Act for unlawful termination of employment. The application follows forms 5 and 5A in Schedule 1 to the Rules of this Court and is accompanied by a supporting affidavit sworn 9 November 2006.
8 On 5 December 2006, the solicitor for the Bank, Ms Halpin, wrote to the applicant, reserving the Bank’s right to produce the letter to the Court on the issue of costs, and setting out why, in the Bank’s view, the applicant’s claim had no reasonable chance of success. The letter advised the applicant that;
‘… assuming that the Federal Court accepted that your allegations against the Bank were true (which the Bank does not admit), the allegations do not amount to unlawful conduct by the Bank under the Workplace Relations Act 1996 (Cth) (‘Act’).
Your application refers to ‘filing a complaint, or participation in proceedings against an employer involving alleged breaches of law or regulations.’ You should be aware that the Federal Court has decided previously that this ground of unlawful termination under the Act does not apply to a complaint made directly by an employee to an employer (see Zhang v The Royal Chemical Institute Inc [2004] FCA 1392).
If you chose to continue with your application, the Bank will consider making an application for an order:
1. that your application be struck out (so it can no longer proceed) because it has no reasonable prospect of success; and
2. that you pay the Bank’s legal costs.’
9 On 15 December 2006 a directions hearing was held before a Deputy Registrar of this Court, and, the following directions, amongst others were made;
‘1. The applicant be referred for legal assistance pursuant to O 80 of the Federal Court Rules for advice and appropriate assistance in the preparation of a statement of claim.
2. On or before 9 February 2007 the applicant file and serve a statement of claim.
3. On or before 2 March 2007, the respondent file and serve a defence.
4. The applicant file and serve a reply, if any, on or before 23 March 2007.’
10 On 27 December 2006, the applicant wrote to the Deputy Registrar, with a copy to the solicitor for the Bank, stating;
‘The section 636 of work relation act doesn’t cover the injustice that I have experienced but It was the only application that I was allowed to lodge by the federal court registry.
……
In conclusion it seems that I have to agree with the respondent’s lawyers dated 05/12/2006 that my application will not be successful.
To continue with current application will on [sic. sc. only] result in more injustice for me.
As you can see there is more involved than just my employment.’
11 On 17 January 2007, the Bank’s solicitor wrote to Mr Moore of Counsel, who had been appointed to provide pro bono assistance to the applicant pursuant to the order made by Registrar Mussett on 15 December 2006. That letter, which was ‘without prejudice save as to costs’, set out why the Bank believed that the applicant’s claim had no reasonable prospect of success, and offered not to seek an order for costs against her if she agreed to discontinue the proceeding by 5 February 2007.
12 By letter dated 2 February 2007, Mr Moore of Counsel wrote to the Court, confirming that he had not found it appropriate to prepare a statement of claim. (The referral to Mr Moore for pro bono assistance had been limited, in the first instance, to preparation, if thought advisable, of a statement of claim).
13 On 4 April 2007, a further letter to the applicant on behalf of the Bank, again “without prejudice save as to costs”, recited;
‘As we have advised you, in the Bank’s view, your application has no reasonable prospect of success. If you choose to continue with your application, we are now instructed to make an application for an order:
1. that your application be struck out (so it can no longer proceed) because it has no reasonable prospect of success; and
2. that you pay the Bank’s legal costs (including the Bank’s legal costs of having its lawyer attend the directions hearing on 13 April 2007).
However, the Bank is prepared to give you one further opportunity, on a without prejudice basis, such that the Bank will not pursue an application for its legal costs against you if you agree to discontinue this proceeding by close of business on 9 April 2007.’
14 At a directions hearing on 13 April 2007, I ordered that the orders made by the Deputy Registrar on 15 December 2006 be varied, and that the time for the applicant’s filing and serving a statement of claim be extended to 3 May 2007, and, in default of compliance with that order, the application be dismissed.
15 On 3 May 2007 the applicant filed a statement of claim, which recites;
‘My current application of unlawful termination claim concerning alleged discrimination is based on filling a complaint or participation in proceedings against an employer involving alleged breaches of laws or regulation. However I believe the current application is very limited and doesn’t cover the injustice that I have experiences as mentioned to federal court previously back in 2006. I was not allowed to lodge any other application and have been stopped by the registry.
I am not able to get any legal advice and I strongly believe in these circumstances any decision Judge Ryan makes about this case would be unjust let alone the bank coming after me for cost.
- I have been treated less favourably since the beginning of my employment back in 2001 not knowing the reason.
- I have been subject to ongoing harassment, systematic humiliation and putdowns.
- My employment circumstances were altered by employer without my agreement but I was forced to accept the change.
- I believe the bank campaigned to force me out of work by making it impossible for me to continue my job.
- I could not take harassment any more so on 17/07/06 I went to see a lawyer to help me with relationship property in NZ and taking legal action against the bank.
I emailed my line management on 18/07/06 to “please don’t expect me at work. I believe I deserve respect and responsibility. I am planning to take legal action against CBA”
I was dismissed on 11/08/06 without notice. I was told by my employer on 11/08/06 to resign or be dismissed. (Constructive dismissal)
I had to make a decision on the spot to resign or to be dismissed. I told them I need time to think about my options. They said I have only to the end of day to decide. All I could think of was my children. How could I support my children with no job. I sent them a fax by the end of the day that I need more time to think about my options.
I received a letter from Roger Revere that I have been dismissed effective 11/08/06.
Based on employment separation certificate received on 13/10/06 I was dismissed because of misconduct.
The dismissal provision of the Industrial Relations Act 1999 requires that employees are treated fairly in accordance with the principle of natural justice and procedural fairness balanced again the right of employers to dismiss an employee for legitimate reasons. To avoid accusation of unfair dismissal employers should:
Conduct a reasonable investigation to obtain facts. Do not rely on allegations or suspicions only.
Be clear about what the employee has done or failed to do.
Any allegations should be put to the employee.
The employee must be given a fair opportunity to be heard on the allegations.
If the employee is regarded guilty he or she must be given a fair opportunity to be heard.
The employer must take into account matters not directly connected with the alleged offence which might mitigate the penalty.
Dismissal without notice is permissible if the misconduct is of a serious nature of causes serious risk to safety or profitability of the employer’s business.
In terminating an employee without notice for misconduct, an employer again should follow proper procedure so that dismissal would not be seen as harsh, unjust or unreasonable (i.e. the employee must be notified of the real reason for the dismissal and given a warning about or opportunity to respond to allegations about their conduct.
Employers considering dismissal of an employee due to some form of dishonesty should take care that they have conducted a reasonable investigation into the matter and any surrounding circumstances including giving the employee a chance to respond to any allegations. Dismissals must be based on facts gathered not suspicions.
I was not told of the nature of my misconduct. I was not told of any allegations against me and naturally never was given any chance to respond.
Based on the letter dated 31/07/2006 I was dismissed because of absenteeism and using email instead of phone to notify the employer that is if I have understood it correctly.
Act does not find the above reason valid for dismissal. If I had to take any time off work was to deal with my eviction or moving from one motel to the next with two children or communicating with family court in NZ because I was not able to hire a lawyer. I always notified the bank and they were well aware of my family court and eviction situation.
In the case of abandonment of employment the employer needs to contact the employee asking them for a reason for their non-attendance and warning them if there is no reasonable excuse they will be dismissed.
I did have a valid excuse provided to employer in 16 pages which is attached here but was completely ignored.’
16 At a directions hearing on 10 May 2007, the Bank sought, and was granted, leave to move on notice to be filed on or before 14 June 2007 and returnable on 27 July 2007 for summary dismissal of the proceeding. I also ordered that the matter be referred to mediation by a Registrar of this Court, with the outcome of the mediation to be reported to me by 25 July 2007.
17 At the directions hearing on 13 April 2007, the applicant intimated that she had brought the proceeding in this Court because she did not know the Bank’s reason for terminating her employment on 11 August 2006. Ms Halpin, in her affidavit sworn 16 August 2007, deposes to having had a conversation with the applicant after the directions hearing, in which the applicant confirmed that she had received the letter from the Bank dated 11 August 2006. On 4 June 2007, Ms Halpin sent a further letter to the applicant, enclosing a copy of the letter dated 11 August 2006 and the previous letter from the Bank dated 31 July 2006 and again outlined the reasons why the Bank had terminated the applicant’s employment.
18 On 18 May 2007, the applicant filed her notice of motion, which was returnable on 27 July 2007. On 4 June 2007, orders were made, amongst others, extending to 2 August 2007 the time for the report of the result of mediation and to 9 August 2007 the time for the filing of the Bank’s notice of motion for summary dismissal with such notice to be returnable on 21 September 2007. A further order was made on the same day adjourning to 21 September 2007 the applicant’s notice of motion filed 18 May 2007 and returnable on 27 July 2007.
19 On 5 June 2007, the Court listed the proceeding for mediation on 27 July 2007. The applicant failed to attend the mediation on that date and the Bank agreed to the mediation being adjourned to 2 August 2007 when it proceeded but was unsuccessful.
20 By letter dated 13 August 2007, a further offer of settlement was made to the applicant “without prejudice save as to costs”. That offer was not accepted by the applicant.
21 On 9 August 2007, the Bank filed a notice of motion seeking the following orders;
‘1. That the whole of the proceeding be dismissed pursuant to Order 20, rule 2(1)(a) of the Federal Court Rules on the basis the that the proceeding discloses no reasonable cause of action and/or Order 20, rule 2(1)(b) on the basis that the proceeding is frivolous or vexatious.
2. That the applicant pay the respondent’s costs of this motion and of the proceeding pursuant to section 824 of the Workplace Relations Act 1996 (Cth).’
On 18 September 2007, the Bank filed an amended notice of motion seeking the orders set out at [2] of these reasons.
22 On 7 September 2007, the applicant filed an affidavit in response to the Bank’s notice of motion dated 9 August 2007, in which she deposes as follows;
‘I have been dismissed on 11/08/06.
After my dismissal, I received two employment separation certificates from bank. First one said the reason for my dismissal was employee ceasing work voluntarily.
Second one received on 13/10/06 stating that my dismissal was a result of misconduct.
I do not have legal assistance and were not allowed to lodge an appropriate application. Its against natural rule of justice to get penalized and call the proceeding frivolous or vexatious when this was the only application that I was allowed to lodge and worst than that is the respondent coming after me for their legal cost. (Notice of motion dated 09/08/2007)
- I have tried to lodge an application to review the conduct and court procedure on 17/05/07 and 09/08/07 but unable to do so as the registry desk dose not accept my applications.
If we carry on with the current application:
Industrial Relations ACT 1999 requires that employees are treated fairly in accordance with the principle of natural justice and procedural fairness balanced against the right for employers to dismiss an employee for legitimate reasons.
Common Reasons for Dismissal
Misconduct
Constructive Dismissal
Absenteeism
Dishonesty
Intoxication
Incompetence and negligence
Disobedience
Summary Dismissal
Voluntary Redundancy
To avoid accusations of unfair dismissal in relation to conduct the following general principles based on considerations of procedural fairness should be followed:
Conduct a reasonable investigation to obtain facts. Do not rely on allegations or suspicions.
Be clear about what employee has done or failed to do.
Any allegations should be put to the employee.
The employee must be given a fair opportunity to be heard on the allegations.
The employee must be notified of the real reason for dismissal.
Absenteeism
The act provides that in certain circumstances dismissal because of absence from work is either invalid or unlawful (e.g. temporary absence due to illness or injury, parental leave or avoiding obligations to pay for leave). In a situation where an absence lasts for several days with no contact from an employee, the employer is not necessary justified in treating this as resignation by the employee. In such cases of abandonment of employment it is suggested that employers attempt to contact the employee asking them fro a reason for their non attendance and warning them that if there is no reasonable excuse that they will be dismissed. Depending on what reply, if any is received from the employee the employer would then need to consider whether dismissal would be justified and fair.
Misconduct
Dismissal without notice is only permissible if the misconduct is of a serious nature, causing serious risk to safety or profitability of the employer’s business. In terminating an employer without notice for misconduct an employer should still follow proper procedure so that dismissal would not be seen as harsh, unjust or unreasonable, eg the employer must be notified of the reasons for dismissal and opportunity to respond to allegations about their conduct.
Based on the letter dated 31/07/2006 I have been dismissed because of
Notifying absences to management by email rather than by telephone
As responded to management previously I was evicted 12 March 2006 – 18 May 2006. I lived in motels with two children mostly and had to check my emails everyday after dropping my son at the daycare. Email was my only way of contact with family court in NZ. That is why using email was easier than telephone.
Advised the line management on 18/07/06 to please don’t expect me at work and have not reported for work since that date and failed to provide any acceptable explanation
I have been in contact with management since 18/07/06 and attended meetings on 24th and 26th July 2006. I provided 16 pages of explanation which was ignored (filed on 9th Nov 2006 at federal court)
I feel I need to include constructive dismissal as part of my unfair or unlawful dismissal claim. As I was told by Peter Griffiths on more than one occasion to resign or to be dismissed. I can easily show that termination of employment was at the initiative of the employer.
I have been subject to systematic humiliation, putdowns, …
My employment circumstances altered by employer without my agreement. I received warnings that I didn’t agree with.
I have been demoted involving significant reduction of duties.
I never found out about real reason or allegations to be able to respond. The dismissal of my employment without knowing the reason has caused a lot of stress and hardship for me as a single mother responsible for two children which continues even today. We all suffered greatly. There has been many times we had to rely on food bank just to survive.’
23 Both the applicant’s motion on notice dated 18 May 2007 and the Bank’s amended motion on notice dated 18 September 2007 were returnable before this Court on 21 September 2007. At the hearing on 21 September 2007, the applicant requested that her motion on notice be adjourned, so that she might obtain legal advice. The Bank opposed this adjournment. As the applicant was unable to give any reason for the delay in seeking further legal advice and in seeking an adjournment, her application was refused.
24 Mr Felman of Counsel for the Bank, made oral submissions at the hearing of the motions on notice, and relied on his written outline of submissions filed in this Court on 19 September 2007. The Bank submits that, as sought by the amended notice of motion filed on 18 September 2007, the Court ought to exercise its discretion to dismiss the applicant’s application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), as the applicant has no reasonable prospect of success. Alternatively, Mr Felman submitted that the Court should exercise its discretion pursuant to O 20 r 5 of the Rules of this Court, to dismiss the applicant’s proceeding as frivolous or vexatious. It was also contended on behalf of the Bank that the applicant should be ordered, pursuant to s 824 of the Act, to pay the Bank’s costs of its motion on notice dated 18 September 2007 and of the proceeding.
‘In my opinion, that cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the ‘filing of a complaint’ with the words that follow ‘or the participation in proceedings’, namely ‘against an employer involving alleged violation of laws or regulations.’
26 In the Bank’s submission, there is no evidence before the Court that the applicant, before her employment was terminated, had filed any complaint to an external agency, had recourse to an administrative authority or had participated in proceedings against the Bank. The Bank also submits that, although the applicant had filed a complaint whilst employed by the Bank, that had been done pursuant to an internal mechanism for the resolution of disputes. It follows, on the Bank’s argument, that the applicant has not established, and will not be able to establish, that s 659(2)(e) of the Act has any application to the termination of her employment. Further, and alternatively, the Bank contends that the proceeding is frivolous and vexatious.
27 Mr Felman also submitted that, as the applicant has instituted these proceedings vexatiously or without reasonable cause, the Court should order her to pay the Bank’s costs as allowed by s 824(1) of the Act. Alternatively, it is contended, the Court should exercise its discretion under s 824(2) of the Act, because it can be satisfied that the applicant has, by an unreasonable act or omission, caused the Bank to incur costs in connection with the proceeding.
28 Mr Felman argued that several circumstances made the instigation of this proceeding vexatious or without reasonable cause. First, it ought to have been apparent to the applicant that her case was hopeless, as s 659(2)(e) of the Act only applies to complaints to external authorities; see He v Lewin [2004] FCAFC 161; Zhang v Royal Australian Chemical Institute (2005) 144 FCR 347, at [55].
29 Secondly, the applicant had been advised by the Financial Services Union (“the Union”) that her claim did not have merit, and the certificate issued by the Commission ought to have alerted the applicant to the difficulties which she would confront if she were to pursue a remedy in this Court. Thirdly, the applicant has admitted, in a letter to this Court dated 27 December 2006, that her claim was without merit and would not be successful. Moreover, the applicant indicated at the directions hearing on 10 May 2007 that she had instituted the proceeding in order to find out the reason for her termination, which, the Bank submits, was an improper purpose for issuing proceedings. The applicant had received a letter from the Bank dated 11 August 2006 which outlined the reasons for termination, as well as a further explanatory letter from the Bank’s solicitor.
30 Further, and in the alternative, the Bank contends that the applicant has conducted the proceeding in such a manner to cause it to incur costs unreasonably. This contention has been developed by pointing out that the applicant failed to lead any evidence of the filing of a complaint with an external authority. The Bank has previously advised the applicant, by way of letter dated 5 December 2006, that her case did not have merit and that it would seek an order for costs. The applicant has consistently failed to respond to offers to resolve the proceeding made by letters from the Bank’s solicitor dated 17 January 2007, 4 April 2007 and 13 August 2007; cp the reasons of Marshall J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 663, at [16]. Counsel for the Bank also refers to the applicant’s failure to attend the mediation scheduled on 27 July 2007.
Reasons of the Court
(i) Summary dismissal of the proceedings
31 In contending that the whole of the proceeding should be dismissed on the basis that the applicant has no reasonable prospect of successfully prosecuting it, the Bank has invoked s 31A(2) of the Federal Court Act which provides;
‘The Court 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.’
In guiding the Court as to whether it should be satisfied that a party has no reasonable prospect of successfully prosecuting a proceeding, s 31A(3) of the Federal Court Act provides that;
‘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.’
32 The applicant’s application, filed in this Court on 9 November 2006, is made pursuant to s 659 of the Act, and relies upon the reason for termination proscribed by s 659(2)(e), which provides;
‘Except as proved by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
… …
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ’
33 The applicant has sworn in support of her application an affidavit of 9 November 2006, in which she deposes to complaints made to the Bank, as well as to seeking advice from the Union.
34 In He v Lewin [2004] FCAFC 161, a Full Court of this Court, when discussing s 170CK(2)(e) of the Workplace Relations Act 1966, which was the predecessor of s 659(2)(e) of the Act, said, at [44];
‘Section 170CK(2)(e) is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by making complaints directly to the employer alone.’
35 In Zhang v Royal Australian Chemical Institute (2005) 144 FCR 347, a Full Court of this Court also held that s 170CK(2)(e), was limited in its application to the filing of complaints or instigation of proceedings external to the employer itself; At [23]-[25] of his reasons, Lander J, with whom each of Spender and Kenny JJ agreed, observed;
‘Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer…Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer.’
His Honour then went on to make the observations which is reproduced at [25] above.
36 There is evidence that the applicant had complained to the Bank before her employment was terminated. However, there is no suggestion in either of the affidavits sworn by the applicant that she had, before 11 August 2006, filed a complaint against the Bank with any external tribunal or other external entity or had participated in any proceedings against the Bank. Nor is there any allegation of that kind in her statement of claim. In her affidavit sworn 9 November 2006, the applicant deposes to having made a complaint under the Bank’s Fair Treatment Review Policy. That complaint was by letter dated 12 May 2006 to Ms Joanne Anglim, an employee of the Bank. As I understand from Ms Halpin’s affidavit sworn 16 August 2007, the Fair Treatment Policy affords an internal process whereby staff members can pursue complaints. Ms Halpin’s affidavit sworn 16 August 2007 also deposes to a complaint made by the applicant on 1 May 2006 to the Chief Executive Officer of the Bank. In her first affidavit sworn 9 November 2006, the applicant deposed that, on 4 August 2006 she had attended at the office of the Union to seek advice about the response which she should make to a letter dated 31 July 2006 from Peter Griffiths, the Bank’s Manager, Workplace Advice. That letter intimated to the applicant that “your ongoing failure to account for your absence also places your employment in jeopardy.”
37 The effect of the advice which the applicant says she received from two officers of the Union, including one Mary Kost who had earlier visited the applicant at her workplace, was that it was best for her “to resign rather than fight it because I am going to lose and the Bank is going to ask for the cost(s) … it’s not fair but it happens every day and the best thing for me is to let it go and move on.”
38 Notwithstanding that advice, the applicant, by letter dated 8 August 2006 to Mr Griffiths of the Bank, indicated that she was sending to him “some of my issues which resulted in my conduct and made it impossible for me to be at work. I have already mentioned some of them to you on our meeting dated 26/07/06 and [am] frankly disappointed by your lack of response.” Annexed to that letter was a lengthy résumé of incidents which had occurred during the applicant’s employment by the Bank and in the course of her personal life. It concluded with this paragraph;
‘As you can see from the events I have been subject to harassment, bullying, direct and indirect discrimination at workplace. I have been treated differently and less favourably than others, blocked promotion from one job to another. I have been treated with no respect and limited responsibilities and look very much forward to hear from you after reading all these.
Please don’t hesitate to contact me if you need more information about any thing mentioned here.’
40 Further, or in the alternative, the Bank sought that the whole of the proceeding be dismissed as frivolous and vexatious pursuant to O 20 r 5(1)(a) of the Rules of this Court. Order 20 is related to the summary disposal and stay of proceedings, and sub rule 5(1) provides;
‘This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:
(a) the proceeding or claim is frivolous or vexatious;
(b) the proceeding or claim is an abuse of the process of the Court.’
Order 20 r 5(2) empowers the Court to order;
‘… that the proceeding be stayed or dismissed generally or in relation to the claim for relief.’
41 In view of the conclusion which I have reached at [39] of these reasons, it is not strictly necessary for me to consider this alternative ground on which the Bank seeks the summary dismissal of the applicant’s proceedings in this Court. It is sufficient to observe in passing that the discretion to dismiss an action as “frivolous or vexatious” is to be exercised only with very considerable caution; see eg Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 per Deane J, at 243 quoting Cotton LJ in McHenry v Lewis (1882) 22 Ch D 397, at 406. The subjective belief of a plaintiff or applicant that he or she has a serious and just claim is not determinative of the matter. However, an applicant’s bona fides creates an entitlement to have the claim for relief investigated at least to the point of demonstrating that it is not available as a matter of law. As Dixon J observed in Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720;
‘The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed.’ (emphasis added)
That is not to say that an action honestly brought should not be stayed or struck out after “argument, perhaps even of an extensive kind” has, as in this case, demonstrated “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed; General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 per Barwick CJ, at 130. However, I prefer, for the reasons already explained, to base my dismissal of the proceedings on s 31A(2) of the Federal Court Act.
(ii) The Bank’s claim for costs
42 The Bank also seeks an order pursuant to s 824 of the Act that the applicant pay its costs of its motion on notice dated 18 September 2007 and of the proceeding. Section 824 of the Act provides;
‘(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.’
43 In order to overcome the obstacle to an award of costs raised by s 824(1), the Bank must satisfy the Court that the applicant instituted the application vexatiously or without reasonable cause. I am not persuaded that, when she instituted the proceedings in this Court, the applicant was acting vexatiously or without reasonable cause. Sub-section 651(4) of the Act contemplates that, where conciliation is, or is likely to be unsuccessful in respect of a claim of an alleged contravention of s 659 of the Act, the applicant has a right to elect to begin proceedings in this Court for an order under s 665 in respect of the alleged contravention. That was a right exercised by the applicant in the present case. It is true that she made her election in the teeth of a certificate under s 650(4) of the Act that the Commission had concluded that her application had no reasonable prospects of success. However, there is no evidence before the Court of the terms in which the Commission, in accordance with s 650(3), had invited the applicant to provide further information in support of the ground afforded by s 659. Nor is there any evidence that the Commissioner supplied to the applicant any reasons or explanation for his conclusion that her invocation of s 659 had no reasonable prospect of success. In particular, there is nothing to indicate that the applicant should have understood that she could not rely on the reversal of the onus of proof effected by s 664 of the Act. Moreover, it appears that the applicant had no legal advice or representation while the conciliation process was being undertaken in the Commission. I presume that the greater complexity of which reliance on s 659 is capable is the reason for the extended time given by s 651(6)(b) in which an applicant can elect whether to begin proceedings in this Court in respect of an alleged contravention of s 659. That extended time would allow an applicant like the present one to seek legal advice on his or her prospects of success. I also infer that the present applicant did not avail herself of that opportunity but I am unable to conclude, in all the circumstances, that she exercised, vexatiously or without reasonable cause, the right of election which the Act gave her.
44 My inability to conclude affirmatively that the proceedings were instituted vexatiously or without reasonable cause does not entail that at no point while the proceedings have been pending has the applicant unreasonably caused the Bank to incur costs in connection with the proceeding. In my view, such a point was reached after the mediation by a Deputy Registrar of the Court had been unsuccessful and the applicant refused the Bank’s last offer of settlement made on 13 August 2007. By then, the applicant had received the benefit of independent legal advice from pro bono Counsel experienced in industrial law. That advice, and the further exploration of the problems which confronted her which, I infer, occurred during the mediation, should have made it clear to the applicant that it was hopeless to continue her proceedings in this Court. Accordingly, I consider it a proper exercise of the discretion recognised by s 824(2) to order that the applicant pay such of the Bank’s costs of the proceedings as have been incurred after 20 August 2007.
(iii) The applicant’s motion to transfer the proceedings to the Supreme Court.
45 It will be apparent from earlier passages of these reasons that the applicant has solely invoked in these proceedings the statutory cause of action created by ss 651, 659, 663 and 665 of the Act. Jurisdiction to entertain that cause of action is conferred exclusively on this Court and the Federal Magistrates Court; see definition of “Court” in s 642(1) of the Act. There is no power in this Court, even if it had not decided to dismiss the proceedings, to transfer them to the Supreme Court of a State because s 4(1)(3)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) expressly excludes from the federal jurisdiction with which that Act invests State Supreme Courts jurisdiction over “a matter … arising under the Workplace Relations Act 1996.” It follows that the applicant’s motion on notice dated 18 May 2007 must be refused.
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I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 6 December 2007
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The applicant appeared in person |
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Counsel for the Respondent: |
Mr M Felman |
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Solicitor for the Respondent: |
Minter Ellison |
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Date of Hearing: |
21st September 2007 |
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Date of Judgment: |
6 December 2007 |
