Wang v University of New South Wales

REASONS FOR JUDGMENT WILCOX J: 1 I have before me a notice of motion filed by the respondent in the principal proceeding, University of New South Wales ('the University'), by which the University seeks summary dismissal of the principal proceeding pursuant to Order 20 rule 2(1)(a) and/or (b) of the Federal Court Rules. 2 Order 21 rule 2(1) reads as follows: 'Where in any proceeding it appears to the Court that in relation to the proceeding generally, or in relation to any claim for relief in the proceeding: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceeding.' 3 The principal proceeding is an application for relief pursuant to s 170CK of the Workplace Relations Act 1996 ('the Act'). The sole basis for the application, it has been stated and today confirmed, was an alleged breach by the University, as employer, of the provisions of s 170CK(2)(e) of the Act. The applicant in the principal proceeding, Jenny Wang, was formerly an employee of the University. 4 Section 170CK relevantly provides: '(2) … an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: … (e) the filing of a complaint, or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.' 5 The evidence establishes that Ms Wang became unhappy about the situation in her workplace, at the University, in about the middle of 2004. Over a period of some months, she made complaints to her immediate supervisor, and to other university personnel. The complaints were made both orally and in writing. 6 Officers of the University made investigations concerning the matters of complaint. Ms Wang claims these investigations were inadequate and reached incorrect conclusions. There is dispute between the parties concerning those claims and Ms Wang's criticisms of the University's grievance procedures. At no time, did Ms Wang complain to any authority outside the University. Nor did she institute any proceeding against the University until the commencement of the present proceeding, after her termination. At no time, did she seek recourse to any administrative authority outside the University. 7 As this is a strike out application, Ms Wang is entitled to have it dealt with on the view of the facts that is most favourable to her case. Accordingly, if it was relevant for me to go to the matter, I would be obliged, in considering the present application, to assume she is correct in the criticisms she makes of the University's procedures and its manner of considering her internal complaints. I emphasise this is the assumption I would have to make; I would not make any finding at this time. I do not have adequate material on which to base a finding. 8 The problem about the situation, from Ms Wang's point of view, is that it is not relevant for me to make any finding, or make any assumption, about the adequacy of the grievance procedures, or the investigation of her internal complaints. Ms Wang concedes that at no stage did she file any complaint, or participate in any proceedings, or have recourse to any competent administrative authority outside the University itself. There is Full Court authority for the view that para (e) of s 170CK(2) is limited in its application to actions external to the employer itself. 9 The matter was dealt with briefly by Gray, Whitlam and Mansfield JJ in He v Lewin [2004] FCAFC 161 ('He'). At para 44, their Honours said: 'Section 170CK(2)(e) is directed to the making of complaints to outside authorities either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone.' 10 In Zhang v Royal Australian Chemical Institute [2004] FCA 1392, Finkelstein J applied He. At para 3 of his Honour's judgment, he analysed para (e) in the following way: 'Three acts of an employee can attract the operation of section 170CK(2)(e). They are: (1) the filing of a complaint; (2) the participation in proceedings; or (3) recourse to competent administrative authorities. In each instance, the Act must involve or arise out of an allegation that the employer has violated some law or regulation. According to the cases, the principal one being [He] at [44], a case in which the applicant's husband was the prosecutor, the filing of a complaint must be made to "outside authorities" who have power to investigate the allegations made against the employer. Thus, section 170CK(2)(e) does not apply where the complaint is made directly to the employer. This puts the first of the three conditions on the same plane as the other two.' 11 Finkelstein J's judgment was considered by a Full Court, consisting of Spender, Kenny and Lander JJ, in Zhang v Royal Australian Chemical Institute [2005] FCAFC 99. Spender and Kenny JJ agreed with the reasons of Lander J. At [19] Lander J, quoted from the judgment of the Full Court in He. At [22] he indicated he saw no reason to doubt the correctness of the construction of s 170CK(2)(e) arrived at in He. He went on to say that, for the reasons which follow, he agreed with that construction. 12 At [23] to [26] his Honour said this: 'Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer. However, it was argued by the appellant that a complaint to the employer would be caught by the subsection. In my opinion, that cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of 'filing' a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the 'filing of a complaint' with the words that follow 'or the participation in proceedings', namely 'against an employer involving alleged violation of laws or regulations'. The use of the word 'against' in s 170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer's conduct would not be filing a complaint 'against' that employer.' 13 Lander J supported this construction of para (e) by reference to Article 5 of the Convention described in Schedule 10 to the Act as the Termination of Employment Convention 1982. 14 Paragraph (c) of Article 5 of that Convention uses words almost identical to those contained in para (e) of s 170CK(2) of the Act. At [29], Lander J said: 'The Act makes those reasons for termination unlawful. The purpose of the Article is to prevent retaliation against employees who make complaints to third parties against their employers: International Labour Organisation 'Protection Against Unjustified Dismissal', Report of Committee of Experts, International Labour Office, 1995, paras 115-117.' 15 The factual situation in the present case is similar to that encountered in both He and Zhang. I emphasise that Ms Wang is entitled to have the benefit of favourable assumptions concerning any relevant disputed facts. Her problem is that there is no relevant disputed fact. Ms Wang concedes she made no complaint, participated in no proceeding, and had no recourse to administrative authorities outside the University. It follows that s 170CK(2)(e) of the Act is inapplicable to her claim. 16 In her written submissions, Ms Wang suggested that, if the Court finds her application 'does lack a cause of action, or is manifestly inadequate, the Applicant should be given leave to re-plead or amend her Application'. If there was some way in which Ms Wang's problem could be resolved by an amended application, I would be disposed to grant leave for this course to be taken. However, the problem is at the heart of the claim she wishes to make. No amendment can overcome the difficulty that her concession makes para (e) inapplicable to her case. Accordingly, there is no reason to allow the case to proceed. It must fail, as a matter of law. In this situation, it is correct to say that no reasonable cause of action is disclosed. Order 20 rule 2(1)(a) applies to the proceeding. 17 It follows from what I have said that this proceeding was instituted without reasonable cause. Consequently, it comes within the exception set out in s 347 of the Act. There is no discretionary reason to deny the University its costs. The solicitors for the University spelled out the position to Ms Wang's solicitors but she decided to press on with the proceeding notwithstanding her solicitors' advice to the contrary. 18 I order that the application be dismissed pursuant to Order 20 rule 2(1)(a) of the Federal Court Rules and that Ms Wang pay the costs incurred by the University in relation both to the notice of motion and the principal proceeding. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.