FEDERAL COURT OF AUSTRALIA

Sankararamalingam v InfoTech Professionals Pty Ltd [2017] FCA 917

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Appellant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant, Ms Valligomathy Sankararamalingam, was formerly employed by the Respondent, Infotech Professionals Pty Ltd.

2    On 5 August 2016, Ms Sankararamalingam filed an Application in the Fair Work Division of the Federal Circuit Court of Australia seeking relief under the Fair Work Act 2009 (Cth) (the “Fair Work Act”). That Application claimed (inter alia) that “from 2007 to Nov 14, 2014 I was working as a trainer and an academic coordinator”.

3    On 4 November 2016 a Judge of that Court published reasons for a decision striking out some of the claims sought to be advanced by Ms Sankararamalingam but otherwise dismissing an application filed on behalf of the Respondent seeking summary dismissal of the proceeding: Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729. In a subsequent judgment published in March 2017, reasons for decision were given dismissing what remained of the application: Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378. Orders were made on 24 March 2017.

4    On 10 April 2017, Ms Sankararamalingam filed in this Court a Notice of Appeal seeking to appeal from part of the November 2016 judgment and orders and part of the March 2017 judgment.

5    The Chief Justice has determined, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard by this Court constituted by a single Judge rather than a Full Court.

6    The Appellant appeared both before this Court and the Federal Circuit Court unrepresented. Before this Court she presented oral submissions. The Respondent was represented by Counsel.

7    The somewhat unusual course pursued for the purposes of the appeal was to permit the Appellant to make reference to all such documents as she thought supported her arguments, irrespective of whether or not those documents were included in the Appeal Book prepared for the hearing. Those additional documents were added to the Appeal Book with the concurrence of Counsel for the Respondent. Given that the Appellant was unrepresented, the course properly pursued by Counsel for the Respondent was to focus upon the merits of the arguments sought to be advanced on appeal rather than upon any appeal from the November 2016 judgment being out of time.

8    The appeal is to be dismissed.

The grounds of appeal

9    The Notice of Appeal as filed contains a heading “Grounds of appeal”. But what follows thereafter fails, with respect, to identify any appellable error said to have been made by the Federal Circuit Court Judge. The Notice of Appeal merely contends that the materials referred to in the Notice supports, or so it was maintained, the claims advanced before the Federal Circuit Court and (presumably) wrongfully rejected.

10    Notwithstanding the difficulty that a Notice of Appeal so drafted presents, it is understood that the Appellant seeks to appeal from the judgment and orders made on 24 March 2017 and to contend that there has been a failure on the part of the Respondent:

    “to pay for work performed as a Coordinator”;

    “to pay holiday pay and personal/carer’s leave”;

    “to give notice or to pay redundancy”; and

    “to pay for work performed in February 2014”.

In respect to the November 2016 judgment, it is understood that the Appellant seeks to contend (without alteration) that:

    “the base salary was unlawfully reduced by respondent in some payslips; this does not satisfy the Educational Service (post-secondary education) Award 2010”;

    “the respondent did not pay the applicant the correct statutory entitlements for the period (October 2010 and November,2011)”; and

    “there is nothing to support any claim against the respondent as an employer for the period prior to January, 2011”.

11    However construed, no appellable error is discernible in the manner in which the Federal Circuit Court Judge resolved these contentions.

Failure to pay for work as a coordinator

12    The Federal Circuit Court Judge addressed the Appellant’s claimed entitlement to be paid at the rate of a “coordinator” and rejected the claim, concluding that “the applicant has not established any basis for her claimed entitlement to be paid as a coordinator prior to 2014”.

13    The reasons for decision of that Judge stated in part as follows (without alteration):

First ground: failure to pay for work performed as a coordinator

[7]    This ground is based on a letter of reference dated 25 May 2015, given by Infotech to the applicant in respect of her employment with the company. It relevantly states:

This letter is to confirm that Sankararamalingam Valligomathy was employed by InfoTech Professionals Pty Ltd.

Valligomathy was employed in the Position of Trainer and Academic Coordinator from 2007 until 17th November 2014.

[8]    The period referred to in the reference went beyond that during which the applicant was employed by the respondent. That is explicable by the fact that Infotech only acquired the business in 2011 and the applicant had been employed by its predecessor.

[9]    The applicant argues that this letter shows that she was employed as both a trainer and academic coordinator throughout her employment by Infotech; however, her payslips for the period from January 2012 to the end of 2013 only refer to her pay in respect of work performed as a trainer. For example, her payslip for the period from 14 July 2013 to 27 July 2013 relevantly refers only to “Base Salary”. By contrast, the applicant’s payslip for the period from 23 February 2014 to 8 March 2014 refer to “Base Salary” as well as “COORDINATION @ 25.”

[10]    I am not satisfied that the applicant in fact worked as a coordinator throughout her employment with Infotech. First, the applicant herself did not give any evidence to that effect. Rather, she relied solely on a description in a letter of reference which is somewhat ambiguous. The reference does not clearly state that the applicant worked as a coordinator for the whole period referred to therein. Further, there are no underlying records that establish that fact. Importantly, the only direct evidence of the terms of the applicant’s employment related to the period from January 2014 to November 2014.

…

[16]    For that reason, the applicant has not established any basis for her claimed entitlement to be paid as a coordinator prior to 2014 and this ground is rejected.

14    The Notice of Appeal with reference to this claim states as follows:

As my payslip did not show that I worked as a Coordinator my claim has been rejected. My claim is that my payslip issued by the employee [sic] does not have the content of the payslip.

15    The fundamental difficulty confronting the Appellant with respect to this contention is that the conclusion of the Federal Circuit Court Judge is a conclusion founded upon findings of fact. No appellable error has been exposed in any of those findings.

16    Notwithstanding the manner in which the Application as filed in the Federal Circuit Court was drafted and the manner in which the Grounds of Appeal to this Court were drafted, the Appellant’s focus of attention during her oral submissions shifted to the period after February 2014. In order to demonstrate appellable error on the part of the primary Judge with respect to this period, the Appellant before this Court referred to:

    a series of payslips which recorded hours worked, the employment being described as “COORDINATION@25”;

    a calculation the Appellant performed; and

    the letter dated 25 May 2015.

These documents, it would appear, were the same documents to which the primary Judge was taken. Having considered those documents afresh, however, no different conclusion than that reached by the primary Judge is open.

17    If reference is made to other evidence available to the primary Judge and contained within the Appeal Book, it would also appear that the letter relied upon by the Appellant was a letter drafted by her.

18    This claim by the Appellant is thus rejected.

A failure to pay holiday pay and personal/carer’s leave

19    The Federal Circuit Court Judge addressed this part of the Appellant’s claim and again concluded that the claim must fail.

20    In so concluding, the Federal Circuit Court Judge expressed his reasons as follows:

Second ground: failure to pay holiday pay and personal/carer’s leave

[17]    The applicant claimed that she was not paid all of her entitlements to holiday pay in the year ending 30 June 2012. The argument was straightforward. First, the applicant calculated the amount of annual leave to which she was entitled: annual leave is 4 weeks per year; 4 weeks at 38 hours per week is 152 hours. Secondly, she showed from her payslips that she had only been paid for a total of 79.99 hours for annual leave. Thirdly, by deducting 79.99 from 152 she calculated the amount of leave for which she was not paid, namely, 72 (rounded down). Finally, she multiplied 72 by her hourly rate of $34.74 to arrive at the amount of $2,501.28.

[18]    There are two difficulties with the applicant’s argument. The first is that the respondent did not employ the applicant until about January 2012. For that reason, it was not obliged to pay her for annual leave accrued prior to that time.

[19]    Secondly, and more critically, the assumption in the applicant’s argument is that she was employed on a full time basis but there is no evidence to support that assumption. An employee is, relevantly, entitled to 4 weeks of paid annual leave for each year of service with his or her employer: sub-s.87(1)(a) of the Fair Work Act 2009 (Cth) (“Act”). The entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year: s.87(2) of the Act.

[20]    The applicant did not adduce any evidence that she worked 38 ordinary hours of work in the year ending 30 June 2012, or in any period during which she was employed by Infotech. For that reason, this ground must fail.

[21]    In the course of the proceedings, Infotech checked its records concerning the applicant’s holiday pay and discovered that it had failed to pay her leave loading for her annual leave. Having discovered that, Infotech paid the outstanding amount to the applicant and there remains no issue about it.

21    The Notice of Appeal in respect to this contention states in part as follows (without alteration):

Judgment on 24th march , 2017, says that the applicant did not adduce any evidence that she worked 38 ordinary hours of work in the year ending 30 June 2012 or in any period during which she was employed by Infotech professionals .for that reasons, this ground must fail.

The Notice of Appeal goes on to state (again without alteration):

Have submitted the payslips from July, 2010 to June 2014 on 5th August (Evidence- Annexure C-330 documents)

It was this (and other references) to the “Annexure C-330 documents” which occasioned additional documents being added to the Appeal Book during the course of the hearing of the appeal. These documents had not been included in the Appeal Book as filed.

22    In order to demonstrate appellable error on the part of the Federal Circuit Court Judge and with respect to that Judge’s observation that the Appellant had not “adduce[d] any evidence that she worked 38 ordinary hours of work”, the Appellant in this Court placed reliance upon:

    a payslip for the period from 11 August 2013 to 24 August 2013;

    payslips for the period from 9 February 2014 through to 22 March 2014; and

    the letter dated 25 May 2015;

But, in respect to these documents, it may be noted that:

    the payslips did not record any reference to 38 hours per week; and

    the letter made no reference to the Appellant working or having “worked 38 ordinary hours of work”.

Such reference as was made by the Appellant to specific documents on appeal thus tends to support the conclusions of the primary Judge and certainly do not assist the argument now sought to be pursued.

23    Little, if any, reference was made before this Court by the Appellant to any non-payment of “carer’s leave”. Nor did the Federal Circuit Court Judge expressly address any payments for such leave in his reasons for decision – other than in the heading introducing paras [17] to [21] of his reasons for the March 2017 decision. Such payslips to which reference was made during the course of the appeal evidence payments having been made. There is no evidence to support any finding as to non-payment or underpayment.

24    This claim by the Appellant is also rejected.

Failure to give notice or to pay redundancy

25    The Federal Circuit Court Judge addressed this claim made by the Appellant and concluded that the Appellant “was not entitled to either notice of termination or redundancy”.

26    The Judge’s reasons for that conclusion set out the terms of the Fair Work Act which require the giving of notice or payment in lieu (s 117) and an entitlement to redundancy payment (s 119). The Judge then referred to s 123(1)(a) of that Act which provides that the statutory provisions in question do not apply to “an employee employed for a specified period of time, for a specified task, or for the duration of a specified season”. The reasons for decision then continue on to state as follows:

[23]    … In 2014 the applicant was employed for three separate, specified periods of time:

•    28 January 2014 to 4 April 2014

•    28 April 2014 to 13 May 2014

•    15 May 2014 to 14 November 2014.

The applicant’s employment came to an end on 14 November 2014 and, by operation of s.123 of the Act, she was not entitled to either notice of termination or redundancy.

27    The Notice of Appeal in respect to this contention states (without alteration):

My claim is that I did not receive termination notice and redundancy both for the Trainer and Coordinator.

The judgment is for non-extension of contract not for notice of termination and redundancy.

28    Counsel for the Respondent also added to the materials not otherwise included in the Appeal Book an exhibit which was tendered before the Federal Circuit Court. That exhibit contains a series of letters from the Respondent. Some record offers of employment in “the position of Teacher/Tutor/Instructor” or confirming an appointment as a teacher. These letters include a “Summary of Employment” referring to the “Employment Type” as “Sessional Contractor”, “Casual Sessional Contractor” or “Part time Contract”. Another records “changes made to [the Appellant’s] hours of work” and records an allocation of “additional working hours allocated for coordination” measured in “hours per week”. Those documents seem to demonstrate that the Appellant was not employed:

    as a permanent employee but rather for specific periods of time and expressly on a “casual” or “part time” basis; nor

    on a permanent basis for 38 hours per week.

Those documents also seem to demonstrate that the Appellant was:

    “employed for a specified period of time, for a specified task, or for the duration of a specified season” within the meaning of s 123(1)(a).

The Appellant, moreover, also seems to have accepted – at least for some purposes – that her employment was other than permanent. A submission made to the Federal Circuit Court, being a submission addressed to what she then described as a “Statement of Claim for my HOURLY RATE” thus stated in part as follows (without alteration):

4)    My employment type was Sessional employment, it a Full time or Part time or Casual.

29    No appellable error is discernible in either the findings of fact made or in the application of s 123(1)(a) to those facts.

30    Some form of notice, it may nevertheless be further noted, was in any event given to the Appellant that her employment was to come to an end. A letter written by the Respondent to the Appellant and dated 3 October 2014 thus stated (in part and without alteration) as follows:

This has reference to your contract of employment date 15th May 2014, the contract ends on the 14th November 2014 and I regret to inform you that will not be no further extension to your contract. This decision is not a reflection on your performance.

31    This claim by the Appellant is rejected.

Failure to pay for work performed in February 2014

32    The Federal Circuit Court Judge addressed this part of the claim advanced by the Appellant as follows:

Additional ground: failure to pay for work performed in February 2014

[25]    The applicant’s bank records show that she did not receive any pay from Infotech in February 2014 whereas, as noted above, the applicant was employed from the period 28 January 2014 to 4 April 2014. The payslips in respect of other periods reveal that she was ordinarily paid on a fortnightly basis. Prima facie, it appears that the applicant should have been, but was not paid for work performed in February.

[26]    However, on closer examination, the evidence reveals that the applicant was paid partly in advance (on 30 January 2014) and partly in arrears (on 12 March 2014) for the work performed by her in February 2014. The first payment is shown in the applicant’s bank statements for the period. The second payment is shown in her payslips for February.

[27]    There are three payslips for the relevant period: the first for the period 26 January 2014 to 8 February 2014, the second for the period 9 February 2014 to 22 February 2014, and the third for the period 23 February 2014 to 8 March 2014. Each of them shows that payment was made by electronic transfer on 12 March 2014. The second shows that the payment made in January was adjusted. I have inferred that that means that the January payment was made in advance rather than in arrears, as was usually the case.

[28]    As the applicant did not tender any bank records for 12 March 2014, I am satisfied that the payslips accurately record that the applicant was paid for work performed by her in February 2014. For that reason this claim is rejected.

33    The reliance placed by the Appellant in her Notice of Appeal upon having tendered bank statements “from July 2010 to June 2014” fails to provide any reason to question the findings of fact made by the Federal Circuit Court Judge.

34    The findings of the primary Judge were supported, as that Judge correctly noted, by reference to the Appellant’s bank statements. Those bank statements thus record (inter alia):

    a deposit on 14 January 2014 in the sum of $1,213.28 together with a notation “PAY/SALARY FROM INFOTECH PROF PAY FOR 11/01/2014”; and

    a deposit on 30 January 2014 in the sum of $1,876.55 together with a notation “PAY/SALARY FROM INFOTECH PROF PAY FOR 30/01/2014”.

Also of relevance is a payslip for the period from 9 February 2014 through to 22 February 2014 recording a “PAYROLL Adjustment” of -$1,876.55. The latter deposit and its correlation to the payslip was presumably the basis upon which the Federal Circuit Court Judge concluded that there had been a payment in January 2014 in advance for the work performed in February 2014. That was at least the case advanced on appeal by Counsel for the Respondent. No contrary submission was made by the Appellant. The conclusions of the primary Judge were certainly not shown to have been reached in error.

35    Whatever else the bank statements and the pay slips may evidence, those documents do tend to support the finding that for some periods the Appellant was paid in advance and for some periods she was paid in arrears.

36    No appellable error is thus discernible in the findings of the primary Judge. Rather, the findings appear to be firmly founded upon the evidence presented.

37    This further claim by the Appellant is also rejected.

The unlawful reduction of the base salary; statutory entitlements & support for claims

38    As acknowledged by the Appellant during the course of her oral submissions, all of the challenges to the November 2016 judgment of the Federal Circuit Court Judge were directed to the same arguments as were addressed in one or other of her four Grounds of Appeal with respect to the March 2017 judgment. The unlawful reduction in base salary was thus but a different way in which she sought to advance her claim that she had been employed as a coordinator but not paid at the appropriate rate. The “statutory entitlements” was thus a reference to “holiday pay and personal/carer’s leave” and “redundancy” payments.

39    If these claims were made out before the Federal Circuit Court, the Appellant claimed to have experienced “pain and suffering” and was “demanding” the payment of “$1million dollars from [her] previous employer”.

40    The Appellant’s claim that her base salary had been “unlawfully reduced” was dismissed by the Federal Circuit Court Judge as having “no prospect of … succeeding”.

41    So understood, the challenge to the November 2016 decision suffers the same fate as the previous Grounds of Appeal. The “demand” for payment from the Respondent also meets the same fate: it fails.

42    It thus matters not whether the Federal Circuit Court Judge was correct in summarily dismissing those parts of the claim sought to be advanced.

43    To the extent that the Federal Circuit Court Judge did address the merits of the claims dismissed, no appellable error is discernible in the reasons provided. Those reasons address the claim as to an “unlawful” reduction in salary as follows:

[11]    … The contention there is that the respondent unlawfully reduced the applicant’s base salary. The applicant relevantly relied on the payslips for the periods commencing 22 April 2012 and 6 May 2012. The first payslip shows a base salary of $2,640.38 whereas the second shows a base salary of only $2,431.93. The difference is $208.45. That amount however, was paid to the applicant in the second pay period, not as part of her base salary but in respect of 6 hours of personal/carer’s leave. For that reason, there was no actual reduction in base salary, only a reduction in the number of hours the applicant worked normal hours. Thus, the premise of the ground is incorrect and there is no prospect of it succeeding.

No conclusion could be reached other than that the primary Judge carefully considered each of the claims made by the Appellant.

44    This final contention of the Appellant fails.

Costs

45    The Respondent seeks costs upon the basis that the appeal was instituted without reasonable cause. In the Respondent’s submission, the appeal was “hopeless” and there was “no arguable point of law or of fact that might have fallen the way of the appellant”.

46    The discretion to make an order for costs is constrained by s 570 of the Fair Work Act. That section provides as follows:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

“The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause”: Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23 at [7], (2013) 232 FCR 428 at 430 per Dowsett, McKerracher and Katzmann JJ. The section, it is well-recognised, “expresses a general policy against the awarding of costs in proceedings under the Fair Work Act 2009 (Cth), but costs may be awarded in the circumstances contemplated by s 570(2)”: Shamir v Commonwealth (Australian Taxation Office) [2015] FCA 1463 at [2] per Pagone J.

47    The Respondent’s contention, using the language employed by s 570(2)(a), was that the appeal was “instituted … without reasonable cause”.

48    In ordering that an Applicant pay costs, and when considering a provision expressed in similarly terms to the current s 570, Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 to 265 observed:

I do not doubt that, in instituting this proceeding, Mr Kanan was motivated to obtain relief to which he considered himself entitled. There is no reason to believe that he was actuated by a desire to harass the respondent. …

In Standish v University of Tasmania (1989) 28 IR 129 at 139 Lockhart J applied the qualification in ordering costs against an applicant whose case he thought “misconceived”, rather than simply unsuccessful. But, as the Full Court pointed out in Thompson v Hodder (1989) 29 IR 339 at 342, “there may be cases which could not be described properly as ‘misconceived’ but which would nevertheless be held to have been instituted without reasonable cause”.

It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. That is the situation in the present case. The qualification of s 347 applies. The Court has power to order costs against the applicant.

I see no discretionary reason to withhold such an order. It is not a matter of the applicant’s motives but, rather, that he has put the respondent to the expense of resisting a claim which was always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding. I propose to order that the principal proceeding be dismissed with costs.

Costs were also ordered in Shamir v Commonwealth (Australian Taxation Office) [2015] FCA 1463.

49    The same observations may be made in respect to the conduct of the present Appellant. Given the findings made by the Federal Circuit Court Judge, and given the evidence that was adduced before that Court (including the evidence adduced by the Appellant), any appeal from that decision was an appeal which had no “substantial prospects of success”. However genuinely the Appellant may have believed in her case, the fact was that the carefully prepared reasons of the primary Judge exposed the deficiencies in her claims and the basis upon which the Judge thereafter proceeded. Any appeal from that decision, with respect, was doomed to failure.

50    The Respondent’s submission is accepted. The Appellant should be ordered to pay the costs of the appeal.

Conclusions

51    An extremely flexible attitude has been extended to the Appellant in presenting her arguments on appeal in order to provide her with some assurance that her claims have been properly examined.

52    The somewhat unusual course has also been pursued in this judgment in expressly setting forth much of the text of the reasons for decision of the Federal Circuit Court. That course has been pursued to provide at least some further reassurance to the Appellant that both her claims and the reasons for decision of the Federal Circuit Court have again been examined by this Court with some considerable degree of care.

53    Underlying the course pursued by the Appellant, however, was the erroneous assumption that it was open to her in this Court to simply seek a fresh and different decision in respect to her claims without the necessity to first identify some appellable error on the part of the Federal Circuit Court Judge. No appellable error has been discerned. Moreover, it would appear that each of the findings made by that Judge was soundly based upon such evidence as was before him.

54    Any consideration of whether the Notice of Appeal challenging this decision was filed within time or whether time should be extended within which to permit the Notice of Appeal to be filed is left to one side. The arguments advanced have no prospects of success on appeal. The findings upon which the Federal Circuit Court Judge proceeded were findings open to him and expose no appellable error.

55    The proceeding is to be dismissed with costs.

56    An affidavit filed by the Appellant after the hearing and without any indication as to whether it has been served on the Respondent does not affect any of the conclusions reached.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Appellant is to pay the costs of the Respondent.

Associate:

Dated:    11 August 2017