Decision to dismiss summarily the proceeding
35 Mr Rangi submitted that the primary judge's decision to dismiss summarily his proceeding is attended with sufficient doubt for the following reasons:
(1) first, it was contended that her Honour had misinterpreted item 1(c) of s 342(1) of the FW Act by holding that "[a]n alleged failure to do something is not an alteration of the position in terms of the section". It was said that her Honour's reliance on Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122 to support the general proposition that inaction by an employer cannot constitute "adverse action" was misguided. In that respect, Mr Rangi contended that Kmart's failure to "promote" him on three occasions altered his position to his prejudice as he "was marginalized, bullied, harassed, discriminated against … [and] he lost his entitlements to get promoted and to earn at a higher level". It was also contended that the failures to promote involved the "withholding of accrued benefits". Mr Rangi cited Rowland v Alfred Health [2014] FCA 2 in aid of his contention that a refusal to promote can constitute a prejudicial alteration of position within the meaning of item 1(c). That case concerned, amongst other things, whether the non-selection of a surgeon, a Mr Rowland, under a restructure at a hospital constituted "adverse action". Relevantly, Marshall ACJ said at [48]:
Counsel for Alfred Health submits that the non-selection of Mr Rowland for a position in the Unit was not adverse action but rather "inaction" in that there was a failure to appoint him. The Court rejects the submission that inaction cannot constitute adverse action. For example, an employee may be denied a promotion notwithstanding that he or she satisfied established criteria while others (who do not) are promoted. The non-selection of Mr Rowland was adverse action …
It was therefore said that the primary judge was wrong to conclude that the "status quo" remained after Kmart's three alleged failures to promote Mr Rangi;
(2) secondly, her Honour erred, it was said, in concluding that the outstanding factual issues in dispute were not material and significant. Two examples were cited in Mr Rangi's written submissions for this purpose: the dispute between the parties as to the authority of the manager of the South Morang Store to make the Promotion Assurance and whether Mr Rangi in fact applied for the MIT Program; and
(3) thirdly, it was submitted that her Honour erroneously denied Mr Rangi the opportunity to amend his pleading so that his claim could be assessed against items 1(b) and 1(d) of s 342(1) of the FW Act. Mr Rangi contended that this was at odds with her Honour's willingness to grant leave to Kmart to amend its defence. He submitted that the defects in his pleading were curable and the non-determination of whether "adverse action" was taken within the meaning of items 1(b) and 1(d) "left open the possibility of the Applicant having an arguable case and reasonable prospects of success". Further, her Honour failed to consider whether the third failure to promote and denial of training under the MIT Program constituted "adverse action" within the meaning of item 1(d).
36 Kmart submitted the following opposing contentions:
(1) first, Mr Rangi had failed to demonstrate that there had been a deterioration in the advantages enjoyed by him prior to the conduct in question for the purposes of item 1(c) of s 342(1) of the FW Act. It was said that her Honour correctly identified Unsworth as authority for the uncontroversial legal proposition that if there is no change to an employee's position on a "before and after test scenario" then there is no alteration of position within the terms of the statute. It followed that because Mr Rangi had not secured a promotion or an entitlement to a promotion, he suffered no prejudice by the alleged failures to promote. In any event, it was said, his purported alteration in position was misconceived as the "concept of entitlement and accrual makes no sense in the context of an application about a failure to promote" and the alleged bullying, harassment or discrimination was "pure speculation". Mr McKenney submitted that Rowland was not of assistance to Mr Rangi as that case is distinguishable; it was said that Marshall ACJ was contemplating a particular hypothetical whereby a duly qualified candidate is denied a promotion in the face of unqualified persons being promoted in his or her stead. Such a situation did not arise in the present case so the principle laid down in Rowland does not apply;
(2) secondly, the function of a Court in determining whether to dismiss summarily a proceeding is not to decide "all the issues in a case or any tangential matters". The non-resolution of some factual disputes is particularly of no moment where Mr Rangi had failed at a more fundamental level to demonstrate an "alteration of position let alone a prejudicial one"; and
(3) thirdly, Mr Rangi's submission that the primary judge failed to make findings regarding the non-engagement of items 1(b) and 1(d) of s 342(1) of the FW Act was said to be "non-sensical" as the Court is only able to deal with and rule on the pleaded rather than the non-pleaded case including as to relief. Further, Mr Rangi did not put forward a proposal as to how his pleading would be amended before the primary judge. To frame a claim pursuant to items 1(b) and 1(d), it was submitted, would not have entailed a straightforward insertion of those section references into the Amended Points of Claim. For example, to allege "adverse action" within the meaning of item 1(d) would have required identification of a comparator, the type of discrimination, the attribute in question etc. - matters which were simply absent on the face of the materials before the Court below. Finally, to the extent item 1(d) was pleaded in respect of the third failure to promote, it was not properly particularised; Mr Rangi made a bare assertion of discrimination without any pleaded facts in support.
37 In view of the above, I do not consider that the primary judge's decision to give summary judgment is attended by sufficient doubt. I respectfully disagree with Mr Rangi's submissions for the following reasons.
38 First, as to whether there was an alteration of Mr Rangi's position to his prejudice by reason of the three alleged failures to promote, in my view, he has not shown that he has a reasonably arguable case that satisfies item 1(c) of s 342(1) of the FW Act. In Blair v Australian Motor Industries Ltd (1982) 3 IR 176, Evatt J considered s 5(1)(e) of the Conciliation and Arbitration Act 1904 (Cth) (which was in comparable terms to s 342(1) of the FW Act) and the proper construction of "alter his position to his prejudice" in the opening sentences of that section. Her Honour adopted and applied the views of Smithers J in Childs v Metropolitan Transport Trust (1982) 29 AILR 24, where his Honour observed that the word "position" should be read to:
… refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of the agreement in relation to the particular employment …
39 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ("Patrick Stevedores Operations"), in considering former s 298K(1)(c) of the Workplace Relations Act 1996 (Cth), the High Court held that "alter the position of an employee to the employee's prejudice" is a "broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question" (at 18 [4]).
40 More recently, as the primary judge recognised, Gyles J in Unsworth at 137 [24] stated that a "before and after" test is usually applied to see whether there has been any prejudicial alteration of position of the employee by reason of any act of the employer.
41 Turning to the factual matrix of the present case, Mr Rangi did not plead that he had entered into a contract of employment to crystallise a promotion. He did not plead that he had a legal entitlement to a promotion. He did not otherwise plead facts which would ground a finding that there was a real or substantial prejudicial alteration to his position.
42 On the pleaded case, Mr Rangi's attributes of employment, including the advantages he enjoyed, were unaltered before and after the purported failures to promote. His contract of employment with Kmart remained the same, his role was the same, his duties were the same, his remuneration was the same and his status was the same. There was no material to suggest that Kmart had acted inconsistently with Mr Rangi's contractual rights in his then position of employment: cf Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; (2006) 157 IR 470 at [32]. One could not therefore say that Mr Rangi was worse off in the relevant sense to engage item 1(c).
43 I accept that Mr Rangi may have had a strong expectation of being promoted based on, amongst other things, the alleged Promotion Assurance. Hence, he may well have felt personally aggrieved when his desired promotion did not come to fruition. However, a departure from those expectations of promotion, strongly held as they may have been on his part, was not sufficient to satisfy the terms of item 1(c). That is not to say that an employee's "position" can only be altered by reference to an alteration of legal rights and entitlements. In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at 250 [32], the Full Court of this Court considered the authorities concerning the reach of the concept of prejudicial alteration. It concluded:
The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical.
44 I thus accept that there may be cases where there is a prejudicial alteration of position within the meaning of item 1(c) by reference to something that falls short of a legal right or entitlement: see, for example, Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 ("Telstra Corporation Ltd"); Patrick Stevedores Operations. But this is not such a case. In that respect, I do not consider that Marshall AJA in Rowland intended to mean that any failure to promote would amount to "adverse action"; indeed his Honour expressed his opinion in the context of a specific example that does not bear resemblance to the present case. In my view, something more is required than just the defeat of a unilaterally held expectation of promotion to qualify as a prejudicial alteration of position. The prejudicial alteration must be "real or substantial, rather than merely possible or hypothetical": Telstra Corporation Ltd at 100 [18].
45 As to the alleged marginalisation, bullying, harassment and discrimination that followed after the alleged failures to promote, these matters were not pleaded nor raised in argument in the Court below as part of the adverse action claim (rather, a separate assertion was made that "hurt, humiliation and distress" formed part of Mr Rangi's loss and damage). The primary judge could thus not have been expected to consider those allegations in appraising the satisfaction of item 1(c).
46 Secondly, I agree with Kmart's contention that a Court is not obliged to resolve every factual dispute before summarily dismissing a proceeding. The two examples of facts in dispute identified by Mr Rangi were not of sufficient significance to bar the giving of summary judgment. The resolution of those factual disputes would not have overcome the more fundamental flaws in the pleading identified by her Honour, including with respect to item 1(c).
47 Thirdly, Mr Rangi conceded that he did not put on a formal application to amend his pleading accompanied by a draft pleading. His "offer" to cure the defects in his pleading was prompted by the flow of oral argument before her Honour. In my view, and with the greatest respect, Mr Rangi was responding to the weaknesses in his pleaded case and sought to bolster his position by spontaneously reaching for other items in the definition of "adverse action". Before the primary judge, he was conjecturing at the bar table as to further avenues that could get him home. In those circumstances, it was not improper for her Honour to consider the case as pleaded and deny Mr Rangi leave to amend his pleading so as to include items 1(b) and 1(d) of s 342(1) of the FW Act.
48 As to the application of item 1(d) with respect to the third failure to promote, I agree with Kmart's submission that Mr Rangi failed to particularise how his former employer discriminated against him vis-à-vis other Kmart employees. Additionally, in [54] of his Amended Points of Claim which is located under the heading "Contraventions of s 340 of the FW Act", there is no mention of discrimination. It reads as follows:
The Third Failure to Promote was done because of the reason, or because of reasons including the reason, that the Applicant:
a. exercised his workplace right to make the MIT Complaint described in paragraph 46 above;
b. had the workplace right to the benefit of clause 27.2 of the 2012 Agreement; and/or
c. exercised his workplace right to the benefit of clause 27.2 of the 2012 Agreement.
49 Before me, Mr Rangi conceded that there was a defect in the pleading. He submitted that the discrimination arose because other people were promoted whilst he was not and "this [was] the common denominator in all promotions". I prompted Mr Rangi to identify what else he would have pleaded beyond those two other employees being promoted. He was unable to identify any discriminatory reason and merely said that he could have asked "some barrister" to draft it for him. In all the circumstances, it is therefore difficult to see how her Honour erred in implicitly dismissing the invocation of item 1(d).
50 Finally, for completeness, I note that Mr Rangi took issue with the primary judge's treatment of particular evidence. As best as I understood it, Mr Rangi argued that her Honour erred in admitting into evidence Kmart's letter dated 5 July 2017. It was said that this was contrary to s 131 of the Evidence Act 1995 (Cth) which prohibits evidence of settlement negotiations to be adduced save in prescribed circumstances. With respect, I found it difficult to discern the relevance of this contention given that her Honour's decision to dismiss summarily Mr Rangi's application did not turn on that letter. Mr Rangi also asserted that the primary judge erred in "[rejecting] the entire affidavit of the Applicant including evidence"; he specifically pointed to [13(a)] of her Honour's judgment (reproduced above) as betraying the error. In that respect, I am not persuaded that her Honour erred in deciding to place little or no weight on matters which Mr Rangi sought to characterise as "evidence" but were in fact submissions.
51 For the foregoing reasons, leave is not granted to appeal the primary judge's decision to award summary judgment in favour of Kmart.