AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2011 >> [2011] FMCA 929

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Cavar v Nursing Australia [2011] FMCA 929 (28 November 2011)

Last Updated: 1 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAVAR v NURSING AUSTRALIA
[2011] FMCA 929

INDUSTRIAL LAW – Application for summary dismissal of proceeding under Fair Work Act 2009.


Federal Magistrates Court Rules, rr.8.02, 13.10

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145
CEPU v Active Tree Services Pty Ltd [2011] FMCA 535
Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
General Steel Industries Inc. v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125; [1964] HCA 69
Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant:
CELIA CAVAR

Respondent:
NURSING AUSTRALIA

File Number:
SYG 678 of 2011

Judgment of:
Barnes FM

Hearing date:
14 September 2011

Last date of submissions:
12 October 2011

Delivered at:
Sydney

Delivered on:
28 November 2011

REPRESENTATION

Applicant:
In person

Counsel for the Respondent:
Mr I Latham

ORDERS

(1) The applicant’s application filed in proceedings SYG 678/2011 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 678 of 2011

CELIA CAVAR

Applicant


And


NURSING AUSTRALIA

Respondent


REASONS FOR JUDGMENT

  1. On 28 February 2011 Ms Cavar commenced proceedings against Nursing Australia in the Federal Court of Australia under the Fair Work Act 2009 (Cth) (the FW Act). The matter was transferred to this court on 8 April 2011.
  2. On 26 August 2011 Nursing Australia filed an application in a case seeking that the court stay or dismiss the application and costs. This judgment relates to that application in a case.
  3. I have considered the various bases for claims against Nursing Australia apparently sought to be raised by Ms Cavar in the various documents before the court and in her submissions.
  4. In Form 5B, (the Federal Court form used under the pre-July 2011 Federal Court Rules where there is a claim under the FW Act alleging dismissal in contravention of a general protection) Ms Cavar claimed her employer was Nursing Australia, her employment “started” in May 2010 “and in a previous period”, that she worked in the “health industry” at the Royal Rehabilitation Centre and that her employment ended on 13 July 2010.
    In the part of the Form requiring a description of each general protection the employee claimed had been contravened and each section of the FW Act relevant to the claim Ms Cavar did not refer to any provisions of the FW Act but stated “dismissal, discrimination, management neglect, harassment, cut off esencial (sic) human rights – job refucing (sic) to offer employment...management negligence, adverse action”. She attached a copy of a certificate under s.369 of the FW Act which is said to relate to a claim that she was dismissed by Nursing Australia in contravention of Part 3-1 of the FW Act. She sought damages of $100,000.
  5. In the affidavit accompanying her original application Ms Cavar claimed to have been discriminated against because of her age, background and marital status under s.351 of the FW Act, that she was “harassed/ offended for nothing”, that “management neglect...cut off” her essential human rights, specifically her right to work and that she had experienced “victimisation & no equal employment opportunity”.
  6. On 6 July 2011 the court ordered that Ms Cavar file and serve any amended application, points of claim and supporting affidavit on or before 27 July 2011. The respondent had foreshadowed filing an application in a case seeking summary dismissal and orders were made in relation to any such application in a case.
  7. Ms Cavar did not file an amended application in accordance with those orders. On 27 July 2011 she filed an “affidavit”, which is in part submissions, to which she annexed points of claim. She outlined her personal history and stated that from May 2005 to 2009 she “got [her] first job in Nursing through Nursing Agency ACCESS” and in May 2010 signed an agreement with Nursing Australia. A copy of this agreement was said to be, but was not in fact, annexed to this affidavit. However it is in evidence as an annexure to the affidavit of Renato Ettore Marasco, the Workplace Relations Counsel for Nursing Australia’s parent company.
  8. Ms Cavar claimed that the agreement with Nursing Australia was to the effect that her “work placement” was to be “with any company where [Nursing Australia] had a contract”. She also claimed that Prince of Wales Public Hospital (POW Hospital) had “offer[ed] to employ [her] through [her] agency”. She claimed that she had corresponded with a manager at Nursing Australia and that POW Hospital had requested that she “do complete medical check-up” including “blood tests, x-rays and vaccinations”, which she had “done in previous period”. She complained that Nursing Australia and POW Hospital were “FORSING (sic) [her] AND PUTTING IN GANGER (sic) [her] HEALTH [by requiring her] TO DO DOUBLE PROCEDURES” including being re-vaccinated and receiving “UNNECESSARY RADIATION”. She complained that they were treating her “as an extremely suspicious (sic) that [she] was transferring some kind of diseases”. She appeared to attribute some aspect of this to the fact that “Serbian cleaners” were working in POW Hospital wards and claimed that this was a “MAJOR REASON why they had to do my medical check-up and NOT EMPLOY ME”. She claimed that this was “DISCRIMINATION BASED ON [her] BACKGROUND, RELIGIOUS AND DISABILITY”. It is notable that these claims relate to potential employment by POW.
  9. Ms Cavar also referred to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now the Australian Human Rights Commission Act 1986 (Cth)) and claimed that a manager at Nursing Australia “did unlawful discrimination and no employment opportunity refusing, harassing using all adverse actions towards me at any place”.
  10. Annexed to the affidavit were documents such as a letter from Nursing Australia addressed “Dear Member” setting out the need, consistent with a NSW Health Policy Directive, for evidence of specified vaccinations should a member wish to work in public hospitals in the Sydney Metropolitan Area and emails between Ms Cavar and Nursing Australia between June and July 2010 about the need for her to have an official serology report as directed by POW Hospital. According to these emails Ms Cavar advised Nursing Australia that she had eventually obtained the necessary reports (some of which were attached) and Nursing Australia acknowledged this. Also attached is a copy of a letter to a member of parliament from Ms Cavar complaining, among other things, about robbery, theft of documents from the post, unauthorised home visits, blocked phone calls and checked emails and breach of workplace laws by managers, “some of them from specific ethnic groups”. The relevance of this letter to these proceedings is not clear.
  11. In her points of claim Ms Cavar, who described herself as an “Assistant Nurse 4th year”, referred to having “signed an agreement with Nursing Australia” on 14 May 2010 whereby she “appointed Nursing Australia as her agent to endeavour to procure employment as Assistant Nurse, experienced, referred as “Placements””. However the points of claim continue, somewhat confusingly, to allege that “Nursing Australia made a placement for the Applicant as an assistant Nurse with the Respondent” (notwithstanding that the respondent in these proceedings is Nursing Australia). It is then alleged that “On 18 May 2010 the applicant commenced employment with the Respondent as an experienced assistant Nurse” and that the “applicant was employed by the Respondent between 18 May 2010 until 13 July 2010 in few places”, being the “Royal Rehabilitation Centre, Red Leaf, Presbyterian Aged Care, St. Luke Aged Care and Taren Point – Beach side”.
  12. Relevantly, it is alleged in cl.8 that “Special offer and procedure has been prepared from Prince of Vales (sic) Public Hospital at Randwick to employ applicant as Full time Assistant Nurse” and in cl.9 that Nursing Australia “failed to comply with all proofs from Applicant and NSW Health’s policy directive (PD2007_006) and refused, did adverse actions towards Applicant NOT TO OFFER EMPLOYMENT WITH DISCRIMINATORY AND NO EQUAL EMPLOYMENT OPPORTUNITY BACKGROUND”. The particulars to cl.9 are that:
  13. There is no explanation in the points of claim or elsewhere for how Ms Cavar’s contention that Nursing Australia failed to comply with a NSW Health Policy Directive is a matter that is within the jurisdiction of this court. There is no direct allegation that Nursing Australia took adverse action against Ms Cavar (see s.342 of the Fair Work Act) for any of the reasons in s.340 or s.351 of the FW Act based on any of the matters raised in cl.9 of the points of claim.
  14. In cl.10 the points of claim address a matter initially raised by the respondent in relation to whether or not Ms Cavar had been granted an extension of time before Fair Work Australia. The respondent’s contentions in that respect were not pursued in connection with the application in a case and it is not necessary for present purposes to consider that aspect of the points of claim.
  15. The basis for Ms Cavar’s claims may also be seen in light of the orders sought. Putting aside her application for an extension of time to apply to Fair Work Australia, Ms Cavar sought orders: “that all materials, examinations, tests Applicant has been doing” (sic), “that all procedures/tests/vaccinations have been already done and Copy of the Adult Vaccination Record Card was lodged with application for the job shows that respondent had intension (sic) to harass, intimidate, bulling (sic) and did course of adverse actions towards Applicant”; that “The breach of conduct was done by Respondent with no acceptance and no respect Applicant’s dignity and all proofs provided by Australian’s authority”; that the “Applicant was forced, humiliated, unrespected, suspicious, rejected, caused substantiated damages such as, loss of income, loss of confidence, depression, anxiety, fear for the future”; and that “In regards to the unlawful, unacceptable, unreasonable behaviour and discriminatory actions taken from the Respondent with no progress for Applicant’s employment, found by the Court to be substantiated compensation under Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination” (sic).
  16. These points of claim do not expressly raise any claim that Nursing Australia dismissed Ms Cavar in contravention of Part 3-1 of the FW Act. Rather, it appears from the points of claim that Ms Cavar acknowledged that it was the hospital (in particular POW Hospital) that was her potential employer and that she took issue with the fact that she was required to produce evidence of fresh health tests which she claimed she had already undergone. She claimed that Nursing Australia “had intension (sic) to harass, intimidate, bulling (sic) and did course of adverse actions towards [her]”. She sought “compensation” under the Australian Human Rights Commission Act for unlawful discrimination.
  17. In its application in a case Nursing Australia sought that the application be stayed or dismissed generally pursuant to r.13.10 of the Federal Magistrates Court Rules on the basis that the applicant had no reasonable prospect of successfully prosecuting the claim. There are a number of grounds in the application in a case. Counsel for Nursing Australia advised the court that the grounds that took issue with whether the court had jurisdiction to consider the claim were not pressed although it was pointed out for Nursing Australia that the claim before the court was markedly different from the application conciliated by Fair Work Australia and that pursuant to s.371 of the FW Act the court only has jurisdiction to deal with the application conciliated before Fair Work Australia (See CEPU v Active Tree Services Pty Ltd [2011] FMCA 535 at [33]). It was contended that it was apparent from the certificate under s.369 of the FW Act issued in relation to the application made to Fair Work Australia by Ms Cavar, and which alleged that she was dismissed by Nursing Australia in contravention of Part 3-1 of the Act, that the “dispute” between the parties was limited to such matters. This was said to be the only matter properly before the court in these proceedings.
  18. Insofar as Ms Cavar asserts that she has claims in addition to claims in relation to a dispute about an alleged dismissal by Nursing Australia in contravention of Part 3-1 of the Act such matters may be raised in these proceedings as they would not be subject to the limitation in s.371 of the FW Act (and see s.365). However the difficulty with the claims based on the Australian Human Rights Commission Act is that Ms Cavar has not taken any complaint to the Australian Human Rights Commission such as to give this court jurisdiction under s.46PO of the Australian Human Rights Commission Act.
  19. In any event, the basis for Ms Cavar’s claims against Nursing Australia about the requirement of POW Hospital that she produce certain vaccination and other reports before being employed by POW Hospital is not clear. As the respondent submitted, the points of claim do not assert that Ms Cavar had a workplace right (s.341) to participate in proceedings under a workplace law or to make a complaint or enquiry notwithstanding that such entitlements are a jurisdictional prerequisite for a finding that adverse action has taken place under the FW Act. Nor do the points of claim explain how it is contended that Nursing Australia took adverse action against Ms Cavar for one of the reasons in s.340 within s.342 of the FW Act, except insofar as there are very general and unparticularised assertions about discrimination and what may be intended to assert injury. The ‘evidence’ put before the court by Ms Cavar and her submissions did not clarify these issues or raise factual matters that would provide a basis for such a claim of adverse action by Nursing Australia.
  20. Further, as the respondent submitted, to the extent that Ms Cavar asserted that any action was taken by Nursing Australia, on her own claims it was not taken by Nursing Australia as her employer or potential employer and hence would not fall within s.342 of the FW Act. In the points of claim Ms Cavar’s complaints relating to the directive from POW Hospital do not assert adverse action by Nursing Australia as her employer or prospective employer. Ms Cavar refers to potential employment by POW Hospital and a “placement” by Nursing Australia albeit, somewhat confusingly, she also claimed she was employed by Nursing Australia from 18 May 2010 to 13 July 2010.
  21. The respondent submitted that Ms Cavar had no reasonable prospects of successfully prosecuting the claim in the application as elucidated in the points of claim and that on this basis the application should be stayed or dismissed generally pursuant to r.13.10 of the Federal Magistrates Court Rules.
  22. After Nursing Australia filed the application in a case and a supporting affidavit annexing a copy of the Nursing Australia contract and Ms Cavar’s application to Fair Work Australia, Ms Cavar filed a document described as “evidence in relation to the application in a case” in which she submitted that she had workplace rights because she was an employee and had signed a contract with Nursing Australia and had worked in a few places and because she “expected new contract with a new work place” at POW Hospital. It is not clear how such matters could come within s.341 of the Act although Ms Cavar contended that Nursing Australia took a course of adverse action against her within s.342 of the FW Act in that it dismissed her, injured her during her employment, altered her position to her prejudice and discriminated between her and other employees and it may be that this was intended to raise a claim that Ms Cavar was an employee of Nursing Australia. Ms Cavar claimed that she was “harassed, humiliated, forced [to] work under incredible pressure by course of action of others at work place” and that Nursing Australia “failed to investigate incident occurred on 13 July 2010”; “failed to comply with OH&S procedure” and forced her to disclose her “privacy-potential illness or infection disease”. Ms Cavar claimed the “Legal grounds” to her claims were under the “Australian Human Rights and Equal Employment Opportunity Act 1986”, the Age Discrimination Act 2004 (Cth), Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth) and that she was directly and indirectly discriminated against or victimised, but there was no claim or evidence addressing the reason for such asserted action.
  23. Ms Cavar also claimed discrimination “based on harassment in employment” under s.351 of the FW Act on the ground of “infection disease or suspected disease”. She made this claim notwithstanding that she put before the court an exchange of emails with Nursing Australia in which she was informed that the provision of vaccination and serology information was a requirement (a “directive”) from the POW Hospital, not a requirement of Nursing Australia.
  24. Ms Cavar also claimed that her “fundamental human rights” had been affected by Nursing Australia. She attached copies of documents about her employment and qualifications from Bosnia Herzegovina.
  25. To address the possibility that the issues that Ms Cavar sought to raise may be somewhat wider than was apparent from the application and points of claim, the parties were given the opportunity to file post-hearing written submissions. Ms Cavar filed a document described as an “affidavit” of 25 September 2011 and supporting documents which I have had regard to as submissions, including a partial copy of what appears to be an affidavit filed in proceedings against another party, a copy of a 2004 New South Wales Nurses’ Association Brochure entitled “Occupational Health and Safety Essentials for Nurses”, annotated payslips, copies of emails to and from Nursing Australia in June, July, August and December 2010, submissions and an application for leave to rely on an amended application in these proceedings alleging unlawful discrimination under s.46PO of the Australia Human Rights Commission Act and also referring to “unlawful dismissal” pursuant to s.352 of the FW Act, and to ss.342, 351 and 361 of the FW Act.
  26. Counsel for the respondent filed amended submissions elaborating on the contention that the application should be stayed or dismissed generally pursuant to r.13.10 of the Federal Magistrates Court Rules and submitting that insofar as the applicant sought to amend the application such amendment should not be allowed.
  27. Rule 13.10 of the Federal Magistrates Court Rules is as follows:
  28. Counsel for the respondent referred to the consideration of authorities in relation to r.13.10 in Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145 at [16] – [32] which were said to establish that the test is now lower than that considered in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125; [1964] HCA 69. However it was acknowledged that the court ought to be cautious and should not summarily dismiss a claim unless the matter was “clear, beyond any doubt” (Balding at [19]) and that it was inappropriate to summarily dismiss an application if there was contested evidence and a real issue of law. It was submitted that the applicant’s claim was such that it was clear and beyond any doubt that she had no reasonable prospect of successfully prosecuting the proceeding or claim or any of the proposed amendments and that her claim was “hopeless”.
  29. The applicant submitted that it was clear that she had reasonable prospects of successfully prosecuting the proceedings and all claims, including the proposed amendment. She also suggested that the issues raised were of significance and should be dealt with by a superior court at first instance. First, insofar as this is to be taken as an application to transfer these proceedings back to the Federal Court, the assertions made by Ms Cavar are not such as to satisfy me that the court should transfer these proceedings back to the Federal Court (see s.39 of the Federal Magistrates Act 1999 (Cth) and r.8.02(4) of the Federal Magistrates Court Rules). The matter was transferred to this court by the Federal Court. The proceedings cannot be said to be likely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court on any of the points in issue.
  30. Rule 13.10(a) reflects the test in s.17A of the Federal Magistrates Act and s.31A of the Federal Court of Australia Act 1976 (Cth) in relation to summary judgment. While it is a less stringent test than the previous “no reasonable cause of action” test considered in General Steel Industries, the power to summarily dismiss or give summary judgment must nonetheless be exercised with caution (Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] per French CJ and Gummow J). As French CJ and Gummow J stated in Spencer in relation to s.31A of the Federal Court of Australia Act at [25] such a provision “requires a practical judgment” by the court “as to whether the applicant has more than a “fanciful” prospect of success”.
  31. Hayne, Crennan, Kiefel and Bell JJ pointed out in Spencer at [51] – [60] that the expression “no reasonable prospect” differs from the notion of “no real prospect” and expressed the view that it is not necessary to reach “a certain and concluded determination that a proceeding would necessarily fail” before the test is satisfied. I have however borne in mind that where a case requires the resolution of matters of law and fact the considerations in dismissing an application on this basis are “amplified” (Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378 per Marshall J at [9] and Spencer at [25]).
  32. There is a distinction between summary dismissal and striking out deficient pleadings (see Spencer at [23]), but a provision such as r.13.10(a) may apply to a case in which pleadings or points of claim “disclose no reasonable cause of action and their deficiency is incurable”, a case in which there is “unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by possible amendment”. However it is not limited to such categories (Spencer at [22]).
  33. In this instance Ms Cavar has sought to characterise her asserted case against Nursing Australia in several ways. She has filed points of claim and also a proposed amended application. However I am satisfied that she has no reasonable prospect of successfully prosecuting the proceeding either as it presently stands or as she seeks to amend it. Hence the amendment application should be refused and the application dismissed.

The original adverse action claim

  1. Ms Cavar’s original application to the Federal Court followed an application to Fair Work Australia to deal with an alleged dismissal by Nursing Australia in contravention of a general protection under the FW Act. As far as can be discerned, despite the generality and lack of clarity in her description of her claim in the points of claim and the other material before the court, it appears that Ms Cavar’s claim is that Nursing Australia took adverse action against her within s.342 of the FW Act, notwithstanding the absence of such an assertion in the points of claim filed on 27 July 2011. It also appears from her application to Fair Work Australia and her submission of 25 September 2011 that her claim in this respect is that Nursing Australia dismissed her on 20 December 2010.
  2. The prohibition against adverse action set out in s.340 of the FW Act is as follows:
  3. Ms Cavar does not allege in the points of claim or otherwise rely on any evidence to suggest that Nursing Australia took adverse action against her because she had, had exercised or proposed to exercise a workplace right (see s.341). These requirements are fundamental to the protection in s.340.
  4. Adverse action is defined in s.342. It can be taken by:

(i) an employer against an employee;

(ii) by a person against an independent contractor;

(iii) by an employee against an employer;

(iv) by an independent contractor against a person who has entered into a contract for services with the independent contractor; and

(v) by an industrial association against a person.

  1. On Ms Cavar’s claims the relationship between her and Nursing Australia as at December 2010 (the date of the claimed dismissal) fell into none of these relationships. Taking her claims at their highest, she asserted that she was employed by Nursing Australia between 18 May 2010 and 13 July 2010. However in her affidavit of 27 July 2011 Ms Cavar acknowledged that she had a placement agreement with Nursing Australia and referred to an offer by POW Hospital to “employ [her] through [her] agency” and in that context complained that the hospital did not employ her. On the material before the court the applicant’s allegations about a dismissal by Nursing Australia in December 2010 do not and cannot amount to allegations of adverse action within ss.340 and 342 of the FW Act. She has no reasonable prospect of successfully prosecuting this claim.
  2. Pursuant to s.371 of the Fair Work Act the court only has jurisdiction in relation to a matter within s.365 to deal with the application that was conciliated before Fair Work Australia (CEPU v Active Tree Services Pty Ltd at [33]). In her points of claim Ms Cavar raised a claim that was markedly different from the application to Fair Work Australia and relating to events of June and July 2010. In any event, Ms Cavar’s claims that POW Hospital required her to have a medical check-up and that it did not employ her do not and cannot constitute adverse action by Nursing Australia against her. Insofar as she appears to assert that Nursing Australia discriminated between her and other employees, or caused her injury, again there is no claim within s.340 of the FW Act and nor is it apparent how advising Ms Cavar of a requirement of a hospital that Ms Cavar comply with a NSW Health Policy Directive in any way constituted adverse action within s.342 of the FW Act. Ms Cavar’s allegations in relation to the NSW Health Policy Directive as originally formulated and as included in her proposed amended application have no reasonable prospects of success.

Discrimination under s.351 of the Fair Work Act

  1. Ms Cavar’s original claim also asserted discrimination by Nursing Australia under s.351 of the Fair Work Act. Taking Ms Cavar’s claims at their highest, if she was employed by Nursing Australia it was only for the period 18 May 2010 to 13 July 2010. Her complaints about that period relate to the POW Hospital directive that she have a complete medical check-up and the hospital’s failure to employ her. However s.351 is limited to circumstances where an employer takes adverse action against a person who is “an employee, or prospective employee, of the employer”. It may be that she seeks to suggest a subsequent failure by Nursing Australia to arrange hospital placements for her. However such a claim would not be within s.351 of the FW Act. Ms Cavar has no reasonable prospects of successfully prosecuting a claim under s.351 of the FW Act of discrimination by Nursing Australia in any such respect.

Harassment and management neglect

  1. Insofar as Ms Cavar claimed that she was harassed by Nursing Australia and the victim of “management neglect” there is no basis in the fact that Nursing Australia told her of the POW Hospital directive for a claim of harassment constituting discrimination within s.351 of the FW Act by Nursing Australia. Insofar as Ms Cavar appears to allege discrimination that might be said to be within s.351 on the basis that she was over 50 years of age and did not get jobs at the workplaces of the respondent’s clients, her complaints in this respect appear to relate to prospective employment by hospitals, not to Nursing Australia as her employer.
  2. In the document of 25 September 2011 described as an affidavit, but which is more in the nature of submissions and is treated as such, Ms Cavar reiterated her claims about signing an agreement with Nursing Australia. She then claimed to be an employee and also a “member” of Nursing Australia and that on this basis Nursing Australia had an obligation to “sort...out any issue raised during [her] employment and comply with OH&S rules”. No basis is asserted or apparent for the claim that this court has jurisdiction in relation to any contention by Ms Cavar that Nursing Australia breached state Occupational Health and Safety legislation or policy.
  3. Ms Cavar also appeared to take issue with what was said to have occurred at the Royal Rehabilitation Centre on 13 July 2010. She complained about harassment by Nursing Australia staff and also about the conduct of staff at the Royal Rehabilitation Centre. This was not a matter raised in the points of claim or the original application. Ms Cavar did not claim that she was dismissed by Nursing Australia on 13 July 2010. Her contentions in this respect, including the claim that Nursing Australia failed to investigate an incident on 13 July 2010, do not raise any arguable case against Nursing Australia under s.351 of the FW Act or otherwise. I am satisfied that Ms Cavar has no reasonable prospect of success in her discrimination, harassment and management neglect claims against Nursing Australia.

Proposed Unfair Dismissal Claim

  1. Ms Cavar seeks to rely on a proposed amended application in which she asserts unfair dismissal by Nursing Australia. Such a claim can only be dealt with by Fair Work Australia (see Part 3-2 of the FW Act). The court has no power to deal with such a claim and Ms Cavar has no prospects of success in such a claim in these proceedings.

Proposed Claim under Section 352 of the Fair Work Act

  1. For the first time in the proposed amended application Ms Cavar seeks to assert a breach of s.352 of the FW Act by Nursing Australia. Section 352 provides that an employer “must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”.
  2. However, as set out above, on her own points of claim, if Ms Cavar was employed by Nursing Australia it was only from 18 May 2010 to 13 July 2010. Yet her application to Fair Work Australia asserted a dismissal by Nursing Australia on 20 December 2010. There is no assertion or evidence of an illness or injury of a prescribed kind (see reg.3 of the Fair Work Regulations 2009 (Cth)) at or about that time. Ms Cavar’s complaints about Nursing Australia’s alleged failure to investigate an incident on 13 July 2010 or to comply with New South Wales Occupational Health and Safety legislation in relation to her possible employment by POW Hospital or an incident at the Royal Rehabilitation Centre (in circumstances where she had a medical certificate for three days from 13 July 2010) do not raise even an arguable case of a failure by Nursing Australia to comply with s.352 of the FW Act or one that is otherwise within the jurisdiction of this court. These proposed claims have no reasonable prospects of success.

Claims under the Australia Human Rights Commission Act

  1. As indicated Ms Cavar also seeks to include claims under s.46PO of the Australian Human Rights Commission Act in the proposed amended application, apparently on the basis of discrimination on the basis of age, disability and sex. However, there is no evidence (and she does not assert) that she has taken any complaint about Nursing Australia to the Australian Human Rights Commission.
  2. In such circumstances she cannot make an application this court under s.46PO of the Australian Human Rights Commission Act. Such a claim has no prospects of success.

Conclusion

  1. I have borne in mind that Ms Cavar is self-represented. She has however been given every opportunity to put before the court some clarification of the basis of her claims. The points of claim and the proposed amendments lack clarity. Nonetheless I have endeavoured to consider all the matters that Ms Cavar seeks to raise in the context of the present application for summary dismissal. I am satisfied that she has no reasonable prospect of successfully prosecuting her existing claims against Nursing Australia. I am also satisfied that she should not be given leave to rely on the proposed amended application as it has no reasonable prospects of success as it stands, is confused and unclear, being in part unintelligible or based on legislation which is clearly inapplicable. Ms Cavar did not file an amended application when previously given the opportunity to do so. There is no explanation for the delay or for why this amendment is now sought (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [5] and [100]).
  2. I have borne in mind that the court should be slow to shut out an applicant from pursing arguable grounds. However in this case as I am satisfied that Ms Cavar has no reasonably arguable case in relation to the fresh matters sought to be raised, no purpose would be served by allowing the amendment.
  3. The application for leave to file an amended application should be refused. The respondent has established that the applicant has no reasonable prospect of successfully prosecuting the existing claims. The applicant’s application should be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules. As requested by Nursing Australia I will hear the parties on costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM


Date: 28 November 2011

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2011/929.html