Gao v Citywide Service Solutions Pty Ltd

REASONS FOR JUDGMENT 1 Mr Peng Gao commenced employment with Citywide Service Solutions Pty Ltd ("Citywide") as a meter technician on 12 April 2010. His employment was summarily terminated by Citywide on 27 April 2012. 2 Mr Gao subsequently lodged a complaint with the Fair Work Ombudsman alleging that Citywide had underpaid him his accrued entitlements on termination. His complaints related to amounts paid in respect of annual leave, the annual leave loading, the payment of wages in lieu of notice and what were referred to as "general employee entitlements" and "issues with payslips". The Fair Work Ombudsman conducted an investigation and determined that Citywide had, in fact, paid Mr Gao more than it was required to pay pursuant to the relevant enterprise agreement. 3 On 7 February 2013 Mr Gao filed an originating application for judicial review. It named Citywide, the Fair Work Ombudsman and the Commonwealth Ombudsman as respondents. 4 The application did not identify any decisions by any of the respondents in relation to which review was sought. I subsequently directed that Mr Gao identify with precision the decisions which he wished the Court to review. He filed a document which identified the following decisions: "1. Respondent2 of Tom Parbery's decision dated on 27/07/2012 … 2. Respondent3 of Geoff Bridgland's decision 12/09/2012 … "It is not apparent that his review departed from the legislation and regulations he was required to have regard to" … "I must make it clear to you that our office does not have the power to direct a department or agency to take specific actions, or to make particular decisions" … 3. Respondent3 of Davis Pezzanite, an review officer's outcome given on 04/02/2013 … Details of decision "Mr Bridgland then formed a view that the FWO's review adequately considered the matters you raised and that it made a decision which was in accordance with the relevant legislation and regulations" … "… … Mr Bridgland confirmed that the FWO identified that you were paid for 8.08 hours in excess of your entitlement ,,, ,,," … "Mr Bridgland was of the view that he could not be critical of the FWO''s decision in this case nor could he conclude that further action by this office is likely to produce a different outcome and proceeded to closed the complaint files." … "In this case, I have decided to affirm Mr Geoff Bridgland's decision" … 4. Respondent3 is knowingly ignored that: (a) Respondent3 are knowingly ignored that respondent2 has deliberately taken incorrect formula to calculate applicant's annual accrued hours. … (b) Respondent3 is knowingly ignored that respondent2 had knowingly ignored respondent1 has knowingly not paid applicant's superannuation guarantee charge for period of in lieu of notice. … (c) Respondent3 is knowingly ignored that respondent2 has knowingly ignored respondent 1 has knowingly not issued and failed to serve on applicant's formal pay slips required by the Act, legislations & regulations. … 5. Respondent3 was knowingly delayed about 3 months to give the interview outcome to applicant. …" These passages have been reproduced in their original form. The parties referred to as Respondents 1, 2 and 3 are, respectively, Citywide, the Fair Work Ombudsman and the Commonwealth Ombudsman. 5 The originating application referred to a number of judicial review grounds such as the improper exercise of power, misinterpretation of legislative provisions, 'no evidence' and the impugned decision being "otherwise contrary to question of law or principle of law …". 6 Mr Gao sought orders that Citywide pay his "superannuation guarantee charge for OTE in lieu of notice period", pay his "general interest accrued from the due date of 21/05/2012 to the date of the amount of charge paid", issue all payslips required and "pay his remedy" for breach of ss 44(1), 340, 535, 536 and 772(1) of the Fair Work Act 2009 (Cth) ("the FW Act"). 7 The only orders which Mr Gao sought against the Fair Work Ombudsman and the Commonwealth Ombudsman were orders that they apologise to him for failing to deal with his complaint. 8 Mr Gao subsequently discontinued his proceeding against the Commonwealth Ombudsman. 9 On 5 April 2013, in the course of a directions hearing, Mr Gao advised the Court that he no longer wished to proceed against the Fair Work Ombudsman. I ordered that judgement be entered for the Fair Work Ombudsman. 10 On 23 April 2013 Mr Gao discontinued the proceeding against the remaining respondent Citywide. 11 In the course of a hearing this morning in relation to another proceeding commenced by Mr Gao (VID 1081 of 2012) Mr Gao asked me to provide reasons for the orders I had made on 5 April 2013 in relation to the Fair Work Ombudsman. 12 The reasons may be shortly stated. Mr Gao had intimated that he no longer wished to proceed against the Fair Work Ombudsman. The relief which he was seeking against the Fair Work Ombudsman (an apology) was relief the Court could not have granted to him even if he had been successful in establishing jurisdictional error on the part of the Ombudsman. As a result no purpose would have been served by the matter proceeding to trial. The costs order was made because I regarded the proceeding against the Fair Work Ombudsman to have been brought vexatiously. 13 After I had provided these reasons Mr Gao sought an enlargement of time within which he could apply for leave to appeal from the orders which I made on 5 April 2013. Having regard to the need for these reasons to be transcribed and provided to Mr Gao, I advised him that I would order that the time within which he could make an application for leave to appeal against the orders would be extended to 17 May 2013. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.