Roebuck v Shopping Centres Australasia Property Group Re Limited

Introduction

1. I have before me this morning an application by the applicant, in substance, for leave to amend his originating process to seek a declaration to the effect that the termination of his employment with the respondent was not a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth). The respondent opposes any amendment to the originating process and seeks an order for the proceedings to be dismissed under r 30.02 of the Federal Court Rules 2011 (Cth) as a consequence of a decision I made earlier in the year on separate questions.
2. The proceeding was commenced by an originating application filed on 13 October 2022. After filing a number of statements of claim, the applicant ultimately filed a substituted statement of claim on 26 May 2023 and, amongst other things, the applicant alleged that he was covered by the Real Estate Industry Award 2020, that Award applied to him, and the respondent had breached that Award by terminating his employment on 29 July 2021.
3. The applicant also alleged that the respondent had engaged in misleading conduct or had made misrepresentations to him because it made representations leading up to the termination of his employment in which the respondent had not disclosed to the applicant that he had a right to be consulted about his termination pursuant to cl 26 of the Award. The applicant alleged breaches of s 45 and s 345 of the Fair Work Act and claimed damages pursuant to s 545, pecuniary penalties pursuant to s 546 and interest pursuant to s 547 of the Fair Work Act.
4. The respondent denied it had breached the Fair Work Act as alleged and asserted the applicant was not 'covered' by the Award or, alternatively, that it did not 'apply to him' because he was a 'high income employee' under s 329 of the Fair Work Act. The questions as to whether the applicant was covered by the Award and, if so, if it applied to him were determined as separate questions. On 15 May 2024 judgment was delivered on those questions by which I determined that the applicant was covered by the Award, but that it did not apply to him. As a consequence of that determination, the claim for breach of s 45 of the Fair Work Act cannot succeed as pleaded in the substituted statement of claim. Also, as the claim for s 345 of the Fair Work Act turns on an allegation of misleading conduct by silence in failing to draw to the applicant's attention a provision of the Award, it also cannot succeed as pleaded. At the time the proceeding was commenced and the separate questions determined, the applicant had legal representation, but he now represents himself and, as a consequence of the separate questions I mentioned earlier, the respondent moves for an order that the proceeding be dismissed under r 30.02 of the Rules. That rule provides that: 30.02 Disposal of proceedings after hearing of separate questions If a decision on a question substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary, a party may apply to the Court for: (a) judgment; or (b) an order dismissing the whole or any part of the proceeding.
5. It follows from what I have already said that, all other things being equal, the respondent is entitled to an order that the proceeding be dismissed on the basis of the outcome of the determination of the separate questions. No doubt, having foreseen that as a possibility, the applicant now wishes, in substance, to amend the originating process to claim a declaration and thereby keep the proceeding alive.
6. The provision that deals with genuine redundancy, s 389 of the Fair Work Act, is in Pt 3-2 of that Act, which deals with unfair dismissal. The Court has no power to grant any remedy for unfair dismissal.
7. Section 382 relevantly provides: 382 When a person is protected from unfair dismissal A person is protected from unfair dismissal at a time if, at that time: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and (b) one or more of the following apply: (i) a modern award covers the person; …
8. Due to the conclusion that the Award covered the applicant, the applicant is a person protected from unfair dismissal because it is not in issue that he was an employee who had completed the minimum period of employment.
9. Section 385 of the Fair Work Act provides that: 382 When a person is protected from unfair dismissal A person has been unfairly dismissed if the [Fair Work Commission] is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.
10. It is important to appreciate that the question of whether a person has been unfairly dismissed turns on the formation of a state of mind on the part of the Fair Work Commission, that is, it must be 'satisfied' of the elements set out in s 385(a)-(d).
11. Section 389(1) of the Fair Work Act provides: (1) A person's dismissal was a case of genuine redundancy if: (a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. Section 389(2) provides: (2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer's enterprise; or (b) the enterprise of an associated entity of the employer.
12. The issue that the applicant wishes to raise in these proceedings is, in effect, that his dismissal was not a case of a genuine redundancy because it would have been reasonable in all the circumstances for the respondent to redeploy him in the manner described in s 389(2) of the Fair Work Act.
13. Rule 8.21(1)(g) of the Rules provides that: 8.21 Amendment generally (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: … (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.
14. The principles applicable to amendment to add new claims are well established and do not need to be restated. In short, the Court has a wide discretion, but the discretion must be exercised judicially and, further, the power must be exercised in view of s 37M of the Federal Court of Australia Act 1976 (Cth).
15. Section 37M of the Federal Court Act relevantly provides that: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. …
16. There are a number of matters which the Court can take into account and, without limiting the generality of section 37M(1), section 37M(2) provides that the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Section 37M(3) also provides importantly that: (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
17. The Rules, including r 8.21, fall within the meaning of civil practice and procedure provisions.
18. The respondent accepts that this Court has power under s 21 of the Federal Court Act to make declarations of right. Further, the Court has original jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in any 'matter arising…under any laws of the [Commonwealth] Parliament'.
19. Separately, s 562 of the Fair Work Act provides that: 562 Conferring jurisdiction on the Federal Court Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.
20. Section 563(c) provides: 563 Exercising jurisdiction in the Fair Work Division of the Federal Court The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if: … (c) a declaration is sought under section 21 of the [Federal Court Act] in relation to a matter arising under this Act; or …
21. Section 564 provides: 564 No limitation on Federal Court's powers To avoid doubt, nothing in this Act limits the Federal Court's powers under section 21, 22 or 23 of the [Federal Court Act].
22. Amongst other things, the applicant relies on a recent decision of the Full Federal Court in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45; 302 FCR 589 to support his application for leave to amend. That case concerned an application by 22 former employees of Helensburgh Coal who were dismissed from their employment. They applied to the Fair Work Commission for unfair dismissal remedies. The principal question concerned whether their redundancies were genuine and, specifically, whether it would have been reasonable in all the circumstances for the employees to have been redeployed. That is, it raised the issue the applicant wishes to raise in this proceeding under s 389(2) of the Fair Work Act.
23. The dispute was allocated to a commissioner of the Fair Work Commission. He resolved to hear the 22 applications together and to decide, as a separate question, the applicants' contention that the Fair Work Commission should be satisfied that each dismissal was a case of genuine redundancy. At first instance, the question was resolved in the employees' favour. An appeal was later allowed, and the dispute was referred back to the Fair Work Commission for reconsideration. The Commissioner again decided that none of the dismissals was a case of genuine redundancy. The applicant again appealed. Permission to do so was granted but the appeal was dismissed.
24. The applicant, who was the employer, then sought by way of originating application in this Court the issue of a writ of certiorari quashing the Fair Work Commission's decisions and a writ of prohibition to compel the Fair Work Commission to cease dealing further with all the unfair dismissal applications. Relief of that nature falls within the original jurisdiction of the Federal Court under s 39B of the Judiciary Act and s 562 of the Fair Work Act, to which I have already made reference, and relief of that nature is available if the decision of the Fair Work Commission that is challenged is affected by what is referred to as a jurisdictional error. The grounds of review in Helensburgh Coal included that the Fair Work Commission had misconstrued s 389(2) of the Fair Work Act. In dismissing that aspect of the application, in the joint reasons of Katzmann, Snaden and Raper JJ, their Honours said at [66]: It is for the [Fair Work Commission], as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the [Fair Work Commission] thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the [Fair Work Commission's] assessment of what "would have been reasonable in all [of] the circumstances".
25. Therefore, Helensburgh Coal turned on statutory interpretation. The Full Court was not engaged in the task of determining if the redundancy was genuine, which is a matter that is in the hands of and jurisdiction of the Fair Work Commission as a specialist tribunal.
26. It follows that Helensburgh Coal is distinguishable from what the applicant seeks to achieve by amendment here and really does not assist him in raising a reasonable ground for this Court to consider it has or should have become apprised of an application for declaratory relief to the effect that his redundancy was not genuine within the meaning of s 389(2) of the Fair Work Act. Although this Court may have jurisdiction to make a declaration, that does not mean that the originating process should be amended to permit the applicant to seek a declaration in this Court.
27. There are a number of reasons that I consider the originating process should not be amended to permit the applicant to raise the issue of genuine redundancy. These are as follows:
28. There was a determination of separate questions. These were formulated and heard on the understanding that the determination would resolve the proceedings or, if not, reduce the issues in dispute, and that would have the potential benefit, also, of leading to a mediated outcome.
29. As already mentioned, the Fair Work Commission is required to form a state of satisfaction in relation to whether or not there has been an unfair dismissal. It has not done so. It is the specialist tribunal which has had power conferred on it by the legislature to make that determination.
30. I have doubts that this Court would make a declaration about what the Fair Work Commission should or should not be satisfied of under the Fair Work Act and, as a consequence, the declaration that is sought appears to be hypothetical.
31. Further and, in any event, assuming that a declaration could otherwise be made, there is no obvious utility in making a declaration of such a right because it would not address the question of the state of satisfaction of the Fair Work Commission, which would need to be determined by the Fair Work Commission and, amongst other things, it would also have to be satisfied of all of the other criteria in s 385 in any event.
32. It would not have any evident consequence for the applicant. It could not lead to his reinstatement or compensation by order of this Court.
33. For all those reasons, I refuse to grant the applicant leave to amend his originating process. That being so, the proceeding should be dismissed as there is no reasonable prospect of a claim as pleaded in the substituted statement of claim succeeding.
34. The orders will be:
35. The applicant's interlocutory application for leave to amend his originating process be dismissed.
36. Pursuant to r 30.02 of the Rules, the originating process and the proceeding be dismissed.
37. I should also mention an earlier order made by the Court in May 2023 that costs up to the making of that order were granted in favour of the respondent in the cause, and the cause has been determined in the respondent's favour. There is no need, therefore, to make any further order related to the costs of the proceeding, and the costs of the proceeding are otherwise the subject of s 570 of the Fair Work Act, and there is no application before me to the effect that orders should be made within the exception in that provision. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.