FEDERAL COURT OF AUSTRALIA

Cutler v Donric Pty Ltd [2010] FCA 1387

THE COURT ORDERS THAT:

1.    Paragraphs 5 to 9 (inclusive) of the orders made on 17 September 2010 be vacated.

2.    On or before 21 January 2011, the applicant file and serve:

2.1    a list of the witnesses whom he proposes to call at trial;

2.2    a list of the documents that he proposes to rely on at trial.

3.    On or before 4 February 2011, the respondent file and serve:

3.1    a list of the witnesses whom it proposes to call at trial;

3.2    a list of the documents that it proposes to rely on at trial.

4.    On or before 4 March 2011, the respondent file and serve outlines of the evidence to be given by the witnesses that it proposes to call.

5.    On or before 1 April 2011, the applicant file and serve an outline of submissions in support of his case.

6.    On or before 13 April 2011, the respondent file and serve an outline of submissions in reply.

7.    The matter be fixed for hearing on 18, 20 and 21 April 2011, with an estimate of no more than three days.

8.    The motion, notice of which was filed on 12 November 2010, be otherwise dismissed.

9.    There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 12 November 2010, the applicant, Mr Philip Cutler, filed a notice of motion for orders that:

1.    That the disciplinary action inflicted on the Applicant due to his contact with the media was in breach of the Occupational Health and Safety Act 2004 (Vic) (‘the OH & S Act’).

2.    That the Respondent was in breach of Part 3 Division 2, 21(1) of the OH & S Act in disciplining the Applicant due to his media contact.

3.    That the Respondent was in breach of Part 3 Division 2, 21(2) (a)(c) of the OH & S Act in disciplining the Applicant due to his media contact.

4.    That the Respondent was in breach of Part 3 Division 2, 23(1) of the OH & S Act in disciplining the Applicant due to his media contact.

5.    That the Applicant had a lawful right and a lawful obligation under Part 3 Division 4, 25, 1(a)(b) OH & S Act, to contact the media.

6.    That the termination of the Applicant’s employment was in breach of the Respondent’s obligation to supply a Duty of Care to the Applicant, employees of the Respondent and customers and potential customers of the Respondent.

7.    That disciplining the Applicant was in breach of the Respondent’s obligation to supply a Duty of Care to employees, customers, potential customers and visitors to the Respondent’s workplace, that workplace being the Sunbury Bus Terminus and Sunbury Bus Service vehicles.

8.    That the Respondent’s obligations under the OH&S Act and duty of care toward employees and others, takes precedence over s 3.8.6 of the Respondent’s Employee Manual and Handbook.

9.    That my media contact and the reasons for my media contact are not covered by s 3.8.6 of the Respondent’s Employee Manual and Handbook.

10.    That clause s 3.8.6 of the Respondent’s Employee Manual and Handbook is a nonsensical set of words that have no defined meaning, no clear definition, are open to conjecture and as such have no lawful relevance.

11.    That the Respondent had no lawful right to discipline or terminate the employment of the Applicant due to his contact with the media.

12.    That the Respondent’s Employee Manual and Handbook was not a legally binding employment contract between the Applicant and the Respondent.

13.    That the termination of the Applicant’s employment was in breach of s 10 (Disciplinary Procedures) as outlined in the Respondent’s Employee Manual and Handbook.

14.    That the Respondent’s alleged ‘Performance Issues’ as outlined in 11C of the Respondent’s Defence of Amended Claim be deemed inadmissible evidence.

15.    That the termination of the Applicant’s employment was unlawful.

16.    That the court orders WorkSafe to release the entire file from the time of the Applicant’s submission of complaint, which resulted in the visit of WorkSafe’s inspector Les Cameron to the workplace of the Respondent (as mentioned in paragraph 18 and 19 of the Respondent’s Defence to the Amended Statement of Claim) to the current date.

17.    That the orders 5,6,7,8,9 in this matter on 17 September 2010 be vacated until the file is made available and perused by the Applicant.

18.    That this matter be transferred to the Federal Magistrates Court.

2    The motion is supported by an affidavit dated 18 October 2004, in which Mr Cutler states:

An article that I instigated appeared in the local media on the 7 October 2008. The story was written with regard to the continuing disgraceful behaviour of young people at Sunbury Train Station/Bus Terminus and the resultant bashing of colleague Mr Joe Mazzone.

On 24 October 2008 Mr Doug Nyman, General Manager of the Respondent, issued me with a written warning of disciplinary action for contacting the media … Mr Nyman advised me that my action was in breach of my terms of employment and cited s 3.8.6 of the Respondent’s Employee Manual and Handbook …

…

On the 24 October 2008, Mr Nyman issued me with 2 written warnings of disciplinary action at the same time …

I believe that I not only had a right but also an obligation to take whatever steps necessary to improve health and safety in my workplace and to seek the assistance of any person in doing so. I advised Mr Nyman that I contacted the local paper as a citizen of Sunbury, not as a Sunbury Bus Service employee. Mr Nyman stated that I was not permitted to contact the media on any issue whilst in his employ, not as a driver or as a Sunbury resident.

On the 1st May 2009 my employment was terminated, at the time, Mr Nyman explained that the 3 Written Warnings were the reason for my dismissal, these reasons were repeated in the Record of Interview … As these were the only reasons given for dismissal, I believe that these reasons should be the only reasons argued at hearing. The alleged “Performance Issues’ outlined at 11C of the Respondent’s Defence of Amended Claim were never given as a reason for dismissal.

The Respondent’s Employee Manual and Handbook was not mentioned in any way during my employment interview. I became aware of it some weeks after my commencement of employment with the Respondent …

3    The respondent has filed an affidavit of Antonia Sakkas sworn on 7 December 2010. I return to this below.

4    The motion is brought in a proceeding in which Mr Cutler makes claims against his former employer, Donric Pty Ltd, arising out of the termination of his employment as a bus driver. In his amended statement of claim, Mr Cutler alleges (amongst other things):

1.    He was employed by the respondent as a bus driver from about 18 October 2004.

2.    On 3 and 5 October 2008, he contacted the media about an assault on a colleague and the need for greater safety and security at the bus terminal and rail station. A newspaper published an article on 7 October 2008.

3.    On 23 October 2008, he left the bus terminal to purchase a brush to clean his bus.

4.    On 24 October 2008, the employer’s representative, Mr Nyman, gave him two separate warnings for: (a) leaving the bus depot without authorisation; and (b) making comments to the media.

5.    On 17 November 2008, he was elected Deputy Health and Safety Representative (DHSR) but the respondent refused to recognize the result of the ballot.

6.    On 27 November 2008, he contacted WorkSafe with regard to action taken by the respondent.

7.    On 4 and 10 February 2009, a WorkSafe inspector attended and conducted an investigation.

8.    On 12 February 2009 there was an argument between Mr Cutler and the respondent’s representative about a notice that Mr Cutler placed on the drivers’ notice board.

9.    On 10 March 2009, Mr Cutler was the driver of a bus that required a drop-off not far from his home and Mr Cutler took his meal break at his home. On the same day, the respondent purported to terminate his employment.

10.    On 2 April 2009, Mr Cutler refused to allow a prospective passenger entry to the bus he was driving and the respondent’s representative subsequently drew his attention to a complaint from the prospective passenger’s school. Mr Cutler objected to the respondent’s representative’s attitude.

5    In his original statement of claim, Mr Cutler also pleaded that:

22.    The Applicant on or about 29 April 2009 forgot a pick up job as a consequence he was 30 minutes late in arriving at the job.

            PARTICULARS

The Applicant’s omission was not a matter of concern for the passengers that he was to pick up. However the Applicant emailed his Operational manager, Mr Grant Pritchard, indicating his regret and advised him that he has taken steps to ensure that this sort of incident would not happen again.

23.    On or about 1 May 2009, the Respondent in breach of the Workplace Relations Act 1996, summarily dismissed the Applicant.

            PARTICULARS

24.    The dismissal was motivated by the Applicants complaints and the Applicants advocacy in relation to OH & S matters.

25.    The dismissal was said to be based on the warnings that had been issued previously.

            PARTICULARS

The Applicant at the time of the dismissal argued that the earlier two warnings were only to be effected if he spoke to the media again. The Applicant reiterated the discussion that had given him this assurance. However Hyman on behalf of the Respondent refused not hear him out.

26.    The dismissal was a result of the Applicant’s insistence on the proper application of OH & S standards at the workplace and the Applicants advocacy on behalf of his fellow employees in that regard.

PARTICULARS

The Respondent’s General manager Nyman called the Applicant into his office and told him that they were going to terminate the Applicant’s employment based on a third warning for the late pick-up. The Applicant clearly put to the General manager that this was illegitimate given previous assurances to him and that the conduct said to constitute a valid reason for the termination was conduct that was condoned by the respondent when engaged in by other employees.

The Applicant asserted that the dismissal was in relation to the OH & S matters. The Respondents General Manager refused to continue the discussion in relation to the dismissal. The General Manager said that the dismissal was based on performance issues solely and said that the Respondent would rely on the three warnings. The applicant continued to assert that the dismissal was based on his OH & S representations.

6    For present purposes, I proceed on the bases that Mr Cutler has omitted these paragraphs by accident from his amended pleading. When the proceeding began in August 2009, Mr Cutler’s then legal representative filed a Form 5A claim of unlawful termination of employment, relying on s 663 of the Workplace Relations Act 1996 (Cth). Mr Cutler is seeking reinstatement, payment of lost remuneration, and the imposition on the respondent of a penalty.

7    Notwithstanding that orders were made in July this year that were designed to ensure that the matter would be ready for trial by this November, very little progress has been made. The respondent has filed a list of documents. Mr Cutler has not yet done so.

8    Mr Cutler explained today that, so far as he was concerned, the motion raised the matters that were central to his case. These were in substance the critical matters that he wished the Court to determine. Mr Cutler explained that he had hoped that the motion would expedite the determination of the proceeding and prevent further costs being incurred unnecessarily.

9    Counsel for the respondent submitted, in substance, that the motion was fundamentally misconceived and sought costs

10    For the reasons that follow, I would dismiss the motion.

11    I discuss first paragraphs 1 to 7 (inclusive). None of these allegations can properly be determined on the applicant’s motion. First, by each of these paragraphs, Mr Cutler seeks findings, which, if relevant, could only properly be made by the court after a trial, at which the parties had been given the opportunity to present their evidence and make submissions. Secondly, the jurisdiction of the court to make these findings may be doubted, because they are not apparently connected to any claim arising under federal law. Thirdly, the limited evidence before the court would not permit such findings to be made. Finally, at this stage at least, the basis upon which Mr Cutler seeks such findings appears to be fundamentally misconceived. In this claim for unlawful termination of employment, the safety of the respondent’s workplace is not in issue. Further, whilst the OH & S Act and the regulations under it provide for dispute resolution procedures in the event of disagreement over health and safety issues, none of these procedures were invoked in this case. Whether or not Mr Cutler was entitled to contact the newspaper about a matter affecting his employment is not a matter governed by the OH&S Act.

12    Paragraphs 8 to 10 and 12 and 13 concern the status of the Employee Handbook and Manual. Whether or not the manual formed part of Mr Cutler’s contract of employment will depend on various factors, evidence concerning which may be given at trial: see Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193. The issue cannot be determined at this stage of the proceeding in the absence of a trial. The meaning and operation of clause 3.8.6 of the manual will only be relevant if the manual formed part of Mr Cutler’s employment contract.

13    Paragraph 11 of the motion may raise a separate issue. Whether or not the respondent was entitled to issue Mr Cutler with a warning regarding contact with the media may depend on various matters proved at trial, including the terms of his contract of employment. Further, whether or not this issue itself falls for determination at all depends on the court’s findings as to the circumstances of Mr Cutler’s termination. These cannot be ascertained until after a trial, when both parties, including the respondent, have had an opportunity to present evidence.

14    Paragraph 14 seeks an order that a statement in the respondent’s defence is “inadmissible”. The relevance of the statement in the respondent’s defence is clear enough, in so far as the statement alleges that there were various matters raised with Mr Cutler on 24 October 2008 in counselling concerning his performance.

15    Paragraph 15, which seeks an order in the nature of declaratory relief, could only be made after a trial, in which both parties have the opportunity to present evidence and make submissions.

16    The Court is unable to make an order in the terms of paragraph 16 of the motion. In conformity with Order 27 rules 2 and 3 of the Federal Court Rules, Mr Cutler may seek the issue of a subpoena to WorkSafe to produce the relevant file to the Court.

17    Finally, Mr Cutler asks that the court vacate orders 5 to 9 inclusive of orders made on 17 September this year. These orders were:

5.    The parties give discovery by making an oath and serving verified lists of documents by 19 November 2010.

6.    The parties provide inspection of discovered documents by 3 December 2010.

7.    By 4.00 pm on 24 December 2010, the applicant file and serve an outline of witness evidence including evidence he proposes to give personally.

8.    By 4.00 pm on 28 January 2011 the respondent file and serve an outline of witness evidence.

9.    The matter be listed for a five day hearing commencing on or after 11 February 2011.

As indicated already, Mr Cutler has not given discovery, although discovery on his side would probably be limited. There has been no inspection. Neither party has yet filed outlines of evidence. There is a need for further orders. The real question is, what orders should now be made? I return to this question below.

18    Mr Cutler also seeks, in paragraph 18, an order transferring the proceeding to the Federal Magistrates Court.

19    At the directions hearing on 26 March 2010, the court raised the question whether the matter should be transferred to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) and O 86 r 7 of the Federal Court Rules, on the basis that the matter could be more expeditiously dealt with there at less cost. The Federal Magistrates Court would have jurisdiction over the matter under s 847(4) of the Workplace Relations Act, which remains in effect in relation to this matter despite repeal, pursuant to s 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). On that occasion, neither party opposed the transfer. Mr Cutler now raises the question of transfer again.

20    As I said previously, this case could be heard and determined within the resources of the Federal Magistrates Court. Costs would generally be lower in the Federal Magistrates Court. When I last made inquires, however, it appeared that the matter could be heard no earlier in the Federal Magistrates Court than in this Court. Further, as the docket judge, I considered that my familiarity with the matter might assist in the more expeditious (and thus less costly) preparation of the matter for trial. The failure on Mr Cutler’s part to comply with the court’s previous orders means that a fresh view must be taken.

21    Prior to hearing the motion today, I made further inquiries, as a result of which I am informed that the Federal Magistrates Court has very few available dates for a hearing of this length. My inquiries indicate that this Court could hear the matter in April, when both parties should be fully prepared. In this circumstance, I would not transfer the matter.

22    I intend to fix the matter for trial in April 2011 and to make orders to this end. In view of the fact that Mr Cutler is unrepresented and that the respondent is well acquainted with his claims against it, I propose only to require him to provide to the respondent and the court:

1.    a list of the witnesses whom he proposes to call;

2.    a list of the documents that he proposes to rely on.

I would also require the respondent to file and serve these lists, together with outlines of witness evidence.

23    At the hearing, I indicated that Mr Cutler should take immediate steps to apply under O 27 of the Federal Court Rules for the issue of a subpoena to WorkSafe requiring the production to the Court of the WorkSafe file, discussed above. Upon production, he may apply to inspect and copy any documents produced to the Court by WorkSafe. Mr Cutler stated, however, that he may no longer need to secure the Worksafe file as he had obtained it, or part of it, through other means. Whether he proceeds with a subpoena is a matter for him, but he should be aware of the procedure afforded by O 27.

24    The respondent has sought costs against Mr Cutler. It would appear from Ms Sakkas’s 7 December 2010 affidavit that, on 17 November 2010, Mr Eichenbaum, the respondent’s solicitor, wrote to Mr Cutler stating the respondents opposed his application and setting out grounds that in large part have led me to dismiss the motion today. Ms Sakkas’s affidavit also refers to some other irregularities.

25    The respondent’s application for costs is made under s 666 of the Workplace Relations Act, which continues to apply to this action pursuant to s 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). Section 666 provides, in relevant part, as follows:

(1)    Subject to this section, a party to a proceeding under section 663 [which provides Federal Court jurisdiction over actions for unlawful termination under section 657] must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:

(a)    instituted the proceeding vexatiously or without reasonable cause; or

(b)    caused the costs to be incurred by that other party because of an unreasonable act or omission of the first mentioned party in connection with the conduct of the proceeding.

26    In Bahonko v Sterjov (2008) 166 FCR 415 at 417 [6], the Full Court of this Court considered the application to a self-represented litigant of the costs provision of the Workplace Relations Act as it then applied (a provision substantially identical to s 666). The Full Court (Gyles, Stone and Buchanan JJ) observed:

Normally, the Court attempts to ensure that [lack of representation] does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal.

Mr Cutler cannot be unaware of the law in this regard, since it formed part of the basis for an costs order against him on an earlier occasion in this proceeding.

27    On this occasion, I am not, however, persuaded that Mr Cutler has caused the respondents to incur costs “because of an unreasonable act”. I accept, as set out above, that his motion is misconceived. I would not, however, regard its bringing before the court as an unreasonable act. Rather, as Mr Cutler sought to explain, from his perspective, it was a way of expediting the determination of his claim. His conduct in bringing the motion was not unreasonable. Further, Mr Cutler has explained how the circumstances surrounding the motion may have led a number of procedural irregularities, none of which, in the circumstances, prove material.

28    As I have said, Mr Cutler is unrepresented. He clearly lacks the skills that would fit him to run a case in this court. Whilst the respondent’s solicitor’s properly sought to explain the legal difficulties, the fact that Mr Cutler did not accept this explanation was not unreasonable. It is not unreasonable for opposing parties to be cautious in accepting one another’s propositions about the law. Caution can readily become mistrust when one party lacks legal representation.

29    Further, as it happens, there has been relatively little argument on the motion. The hearing has also concerned the fixing of a trial date and orders incidental to that end. This would have had to be done in any event.

30    Accordingly, I would order that:

1.    Paragraphs 5 to 9 (inclusive) of the orders made on 17 September 2010 be vacated.

2.    On or before 21 January 2011, the applicant file and serve:

1.    a list of the witnesses whom he proposes to call at trial;

2.    a list of the documents that he proposes to rely on at trial.

3.    On or before 4 February 2011, the respondent file and serve:

1.    a list of the witnesses whom it proposes to call at trial;

2.    a list of the documents that it proposes to rely on at trial.

4.    On or before 4 March 2011, the respondent file and serve outlines of the evidence to be given by the witnesses that it proposes to call.

5.    On or before 1 April 2011, the applicant file and serve an outline of submissions in support of his case.

6.    On or before 13 April 2011, the respondent file and serve an outline of submissions in reply.

7.    The matter be fixed for hearing on 18, 20 and 21 April 2011, with an estimate of no more than three days.

8.    The motion, notice of which was filed on 12 November 2010, be otherwise dismissed.

9.    There be no order as to costs.

Associate:

Dated:    10 December 2010