Cavar v Green Gate Management Services Pty Ltd

REASONS FOR JUDGMENT 1 Since about 2014 there has been an ongoing dispute between Ms Celia Cavar and her employer. 2 That dispute has focussed upon (inter alia) allegations that her employer has acted in breach of contract and contravened the Fair Work Act 2009 (Cth) (the "Fair Work Act") and has discriminated against her in contravention of (inter alia) the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth). 3 In 2015 a judge of the Federal Circuit Court of Australia summarily dismissed Ms Cavar's proceedings: Cavar v St Brigid's trading as Green Gate Pty Ltd [2015] FCCA 1993. Leave to appeal from that decision was allowed (in part) and the matter was remitted to the Federal Circuit Court for re-hearing: Cavar v Green Gate Pty Ltd [2015] FCA 1179. The grant of leave to appeal was confined to the claim for relief under the Fair Work Act. 4 The Federal Circuit Court has since re-heard Ms Cavar's claim for relief under the Fair Work Act, together with a further application founded upon alleged discrimination. Again, the Federal Circuit Court summarily dismissed Ms Cavar's proceedings: Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358. 5 Ms Cavar seeks leave to appeal from the decision of the Federal Circuit Court Judge dismissing her fair work claims and discrimination claims. Separate Applications for Leave to Appeal with respect to each claim were filed on 27 January 2017. 6 At a directions hearing held on 9 March 2017, it was agreed that the Applications for Leave to Appeal could be resolved on the basis of written submissions without the necessity for any further oral hearing. Both the Applicant and Respondent took the opportunity to provide written submissions. 7 The Applications for Leave to Appeal are refused.

The workplace right & adverse action 8 It was the absence of an express identification of the "workplace right" in the decision of the Federal Circuit Court and the potential application of the reverse onus of proof provision set forth in s 361 of the Fair Work Act which in large part led to the earlier grant of leave to appeal: [2015] FCA 1179 at [22]. 9 In its second decision, however, the Federal Circuit Court identified in respect to the claims made under the Fair Work Act the: "workplace rights" which Ms Cavar claimed to have exercised; and the "adverse action" which she relied upon in support of her claimed contravention of s 340 of the Fair Work Act, namely her dismissal from employment. 10 In again dismissing Ms Cavar's claims made under the Fair Work Act, the Federal Circuit Court Judge in his second decision expressly identified the "workplace rights" and "adverse action" sought to be invoked by Ms Cavar: [2016] FCCA 3358 at [22] to [26]. That Judge also went on to address the manner in which s 361 of the Fair Work Act operated by reference to the facts presented and the "adverse action" said to have been taken by her employer as follows: [27] However, the third step in the process is of central significance for present purposes because it is necessary to the making out of Ms Cavar's case. That step is proof that the adverse action alleged to have been taken in relation to the exercise of an asserted workplace right was taken for a reason prohibited by s.340 or s.351 of the [Fair Work Act]. [28] The effect of s.361 is that in proceedings under s.340 or s.351, if an allegation of adverse action for a prohibited reason is made, it is presumed that the action was taken for that reason, or with that intent, unless the employer proves to the contrary: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501 [109] per Wilcox and Cooper JJ. But it is necessary for an applicant to identify the particular intent in question: s.361(1)(a); cf. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 559-561 [31]-[37], 566 [54], 574-575 [74]-[75]. In other words, to enliven the reverse onus of proof Ms Cavar had to allege that the adverse action she alleged had been taken for a prohibited reason and she had to particularise what that reason was. However, no assertion of that sort is included in Ms Cavar's [Fair Work Act] allegations or particulars. [29] That being so, s.361 is not engaged and so it is not to be presumed for present purposes that if Greengate Management altered Ms Cavar's position to her prejudice, treated her differently from other staff or dismissed her from her employment it did so for a reason prohibited by the [Fair Work Act]. [30] Moreover, because an allegation that Greengate Management acted for a prohibited reason is an essential element of the cause of action Ms Cavar seeks to make out, the absence of such an allegation from the statement of claim means that Ms Cavar's [Fair Work Act] claim is doomed to fail. An allegation that a respondent's conduct was for a prohibited reason enables that allegation to stand as sufficient proof of the fact unless the respondent proves otherwise but it does not relieve an applicant from ensuring that each of the ingredients of the contravention is made out including, relevantly for present purposes, that Greengate Management took adverse action against Ms Cavar for a prohibited reason… 11 No appellable error which has any real chance of success is discernible in these reasons for decision. 12 Leave to appeal is thus refused.

The human rights proceeding 13 In the second decision, the Federal Circuit Court Judge also summarily dismissed what was referred to as the "human rights proceeding". 14 This proceeding was initially commenced in this Court but transferred to the Federal Circuit Court and was there heard together with the part of the Fair Work claim which had been remitted to that Court. The substance of the claims for relief in the "human rights proceeding" were summarised by the Federal Circuit Court Judge as being allegations made by Ms Cavar that her employer had: terminated her employment; failed to grant her request for flexible working arrangements; failed to provide her with a permanent position from 15 October 2014; and failed on occasion to provide her with any work although providing shifts to other employees. Such action, it was alleged, was taken by reason of her: age; or ethnicity or nationality. The Human Rights Commission, it may be noted, had terminated a complaint made to it by Ms Cavar upon the basis that it raised the same claims as had been made to the Fair Work Commission and under the Fair Work Act in the Federal Circuit Court. 15 In resolving the application seeking summary dismissal of these claims, the Judge accepted a submission that "Ms Cavar has repeated in the human rights proceeding claims which she made in the [Fair Work Act] proceeding": [2016] FCCA 3358 at [50]. 16 That Judge thereafter went on to conclude that "ss.725, 728 and 734 of the [Fair Work Act] therefore apply to the human rights proceeding": [2016] FCCA 3358 at [50]. 17 No appellable error is discernible in the manner in which the Federal Circuit Court Judge proceeded. 18 Section 725 of the Fair Work Act provides as follows: General rule A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. Within that range of sections, s 728 provides as follows: General protections court applications This section applies if: (a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. Section 732 provides in part as follows: Applications and complaints under other laws (1) This section applies if: (a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application or complaint has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. And s 734 provides as follows: General rule (1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if: (a) an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and (b) the application or complaint has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. (2) A person must not make an application or complaint under an anti-discrimination law in relation to conduct that does not involve the dismissal of the person if: (a) a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and (b) the application has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. The phrase "anti-discrimination law" is defined in s 351(3) as relevantly including the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth). 19 In very summary form, these provisions expose a legislative regime whereby a complainant cannot seek substantially to challenge the same conduct pursuant to both the Fair Work Act and an "anti-discrimination law". 20 Sections 725 and 732 have been described as "double-dipping provisions" which have the consequence that unless proceedings in another forum have "failed for want of jurisdiction or … been withdrawn, then there [is] a jurisdictional preclusion for making a fresh application before the Fair Work Commission": Bashour v Victorian Civil and Administrative Tribunal [2016] VSC 527 at [88] per Mukhtar AsJ. In this Court, the legislative regime has been referred to as calling for a claimant to "elect" as to which remedy is to be pursued and calling for a "tactical decision" to be made: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [136], (2015) 238 FCR 273 at 302 to 303 per Rangiah J. 21 Section 725 provides that a person who has been dismissed must not make an application or complaint of a kind referred to in s 732 in relation to the dismissal: RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [119], (2015) 242 FCR 424 at 457 to 458. Perry J there observed in respect to these provisions: [119] … Section 725 provides that a person who has been dismissed must not make an application or complaint of a kind referred to, relevantly, in s 732 in relation to the dismissal. … [120] As is apparent from s 732(3), subs (2) will apply where (among other things) a complaint has been made under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). That Act creates a statutory cause of action for redress for "unlawful discrimination", subject to the jurisdictional precondition that a complaint has been made to the Australian Human Rights Commission (AHRC) and terminated. "Unlawful discrimination" is defined relevantly to mean any acts, omissions or practices that are unlawful under Pt 2 of the Disability Discrimination Act (s 3 of the AHRC Act). [121] The effect of ss 725 and 732 is to ensure that only one application in relation to the dismissal can be entertained, that is, relevantly, an application under the AHRC Act or an application under the FW Act: see by analogy Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). 22 On the facts of the present case, Ms Cavar was impermissibly seeking to separately pursue her "human rights proceeding" claims where her complaint "in relation to the dismissal" fell within ss 725, 728 and 732; her complaints other than in relation to her dismissal fell within s 734. Her complaints to the Human Rights Commission were complaints made "under an anti-discrimination law" and had not been withdrawn or failed for want of jurisdiction but rather terminated; nor had her claims under the Fair Work Act been withdrawn or failed for want of jurisdiction. 23 No argument having any substantial prospects of success emerges from the Federal Circuit Court Judge's reasons for decision expressed at para [50] to dismiss the "human rights proceeding." 24 The application for leave to appeal from this decision of that Judge is also refused.

CONCLUSIONS 25 Leave to appeal from the second decision of the Federal Circuit Court - whereby the Judge again summarily dismissed Ms Cavar's claims made under the Fair Work Act consequent upon that proceeding having been remitted to that Court for further consideration - is refused. 26 Leave to appeal is also refused from the decision of the Federal Circuit Court whereby that Judge dismissed Ms Cavar's "human rights proceeding".

THE ORDERS OF THE COURT ARE:

1. The Applications for Leave to Appeal are refused.
2. The Applicant is to pay the costs of the Respondent. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.