Ebet Limited v Gibbons (Department of Justice and Attorney General) [2014] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ebet Limited v Gibbons (Department of Justice and Attorney General) [2014] QIRC 017 PARTIES: Ebet Limited (Applicant) v Gibbons, Jason Clifford (Department of Justice and Attorney General) (Respondent) CASE NO: B/2013/70 PROCEEDING: Application to strike out matter B/2013/62 DELIVERED ON: 24 January 2014 HEARING DATE: 13 January 2014 MEMBER: Deputy President Kaufman ORDERS : Application is dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION TO DISMISS - Strike out application to recover unpaid wages - Pro rata long service leave - Employee alleged demotion - Tendered resignation - Employer claimed prejudice to fair hearing - Alternative causes of action pleaded - Determined nothing untoward in manner underpayment application formulated - Strike out application misconceived - Application dismissed. CASES: Industrial Relations Act 1999, s 278, s 43, s 43 (4), s 43(4)(b)(c), s 43(4)(c)(i), APPEARANCES: Mr C Mossman, M + K Lawyers, for the Applicant Mr P Waltham for the Department of Justice and Attorney General, the Respondent [1] On 13 January 2014 I dismissed an application by (Ebet Limited), hereinafter referred to as Ebet, to strike out an application (B/2013/62) to recover unpaid wages (the underpayment application) made by Jason Clifford Gibbons of the Department of Justice and Attorney (the Department) on behalf of Kasey Ann Hansen (the employee). -- 1 of 5 -- 2 [2] These are my reasons. [3] The underpayment application seeks an order under s 278 of the Industrial Relations Act 1999 (the Act) that Ebet pay to the employee the sum of $9,961.43. It alleges that the employee is owed this amount by way of pro-rata long service leave under s 43(4)(c)(i) of the Act. [4] Section 43 relevantly reads: 43 Entitlement "(1) … (2) An employee is entitled to long service leave on full pay of - (a) for the first 10 years continuous service -8.6667 weeks; and (b) if the employee has completed at least a further 5 years continuous service - another period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years. (3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if - (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of - (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer - (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or … ." [5] It appears that the employee had been engaged for more than seven, but fewer than 10 years, at the time of the termination of her employment. [6] The underpayment application sets out what may be loosely described as particulars of the claim. -- 2 of 5 -- 3 [7] The nub of the allegation seems to be that, on around 15 January 2013 Ebet, sought to demote the employee. It is alleged that she was given the option to accept the new position or resign. She continued to work in her old position, whilst seeking to reverse Ebet's decision, until 4 February 2013 when she went on personal or sick leave. She sought medical assistance and commenced taking prescribed anti depressants in March 2013. [8] On 14 April 2013 the employee tendered her written resignation. Ebet declined to pay her any sum by for pro-rata long service leave, presumably because it contends that none of the conditions in s 43(4) has been satisfied. [9] After setting out the factual basis of the claim the employee's alleged entitlement to pro-rata long service leave is "pleaded" in three alternatives: "An employee's entitlement to pro rata long service leave under s 43(4)(c)(i) of the Act is contingent upon an employee being terminated by an employer. It is submitted that the employee did not resign of her own volition or at her own instigation, but rather she merely accepted the repudiation of her employment contract by the respondent in that there was a serious non-consensual intrusion on the nature of the employee's status and responsibilities in a way which is not permitted by the contract. There is no suggestion that the employee was dismissed for conduct, capacity or performance thus this is not a fact in issue. Such a finding would mean that the employee has an entitlement to pro rata long service leave as provided by s. 43(4)(c)(i) of the Act. In the alternative, it is submitted that the employee was unfairly dismissed within the meaning of s 73 of the Act. Such a finding would mean that the employee has an entitlement to pro rata long service leave as provided by s 43(4)(c)(ii) of the Act. In the alternative, it is submitted that the employee terminated her service because of illness or incapacity. Such a finding would mean that the employee has an entitlement to pro rata long service leave as provided by s 43(4)(b)(i) of the Act." [10] Ebet sought to strike out the underpayment application, on the basis that it is embarrassing, that the Department has acted contrary to the proper purpose and function of pleadings in that it has pleaded substantially different alternatives that enlarge the issues, cloud what the real issue is and create unfairness by disenabling Ebet to properly prepare its case. [11] Ebet further contended that the alternatives pleaded by the Department would cause significant additional expense and delay, would involve considerably more hearing time in this Commission as well as the requirement to hear additional witnesses. [12] It asserted that the alternatives contain inconsistent allegations, are confusing, cloud which issue is relevant and/or are unfair because Ebet would not be able to properly prepare for the hearing. [13] In my opinion, Ebet's application to have the underpayment application struck out in its entirety was misconceived. -- 3 of 5 -- 4 [14] Before a court will deprive a plaintiff or applicant of the opportunity to have his or her day in court there must be reasons of the most compelling nature.1 This is not such a case. No case was put by Ebet that would have remotely justified striking out the underpayment application. At best it might have warranted an order that the "pleadings" be amended by deleting one or two of the alternative paragraphs. Had I thought that that course was appropriate I would have heard the parties on amending the strike out application. [15] Ebet essentially put its case on the basis that, as s 43(4) only applies if there is a reason for the termination, being one of the reasons specified, in this instance, in sub-paragraphs (b) or (c), the department must elect upon which of those it relies. [16] It relied on the decision of Commissioner Asbury (as she then was) in AWU v Sunshine Coast Private Hospital2 (Sunshine Coast) for the proposition that it is necessary to ascertain the reason that primarily motivated the employee to terminate his or her employment and then ascertain whether that reason fell within those specified in s 43(4)(b) or (c). [17] In Sunshine Coast the Commissioner rejected the employer's contention that the employee had been dismissed by the employer, either constructively or otherwise. The employer had sought to argue that the employee had been dismissed by it for cause, thereby bringing the case outside the purview of s 43(4)(c)(i). [18] The issue therefore became whether the employee had resigned due to illness or incapacity and was thus protected by s 43(4)(b)(i). The inquiry became whether he was asserting illness or injury as his reason for leaving when the real reason was one that did not fall within the section. [19] With respect to Mr Mossman, who appeared for Ebet, Sunshine Coast does not assist him. [20] In my opinion, the manner in which the Department's case is "pleaded" is unexceptional. Although this Commission is not bound by the rules of evidence or of the courts, it is often useful to have regard to them and modify them as the case requires. [21] In the courts, proceedings are commenced by an originating process which is accompanied by a statement of claim. Loosely speaking, the underpayment application may be likened to a statement of claim. [22] In the statement of claim the plaintiff alleges all of the material facts that show that the plaintiff has a cause of action enforceable against the defendant. The statement of claim may formulate any question of law the court will be asked to determine. It must also set out the relief the plaintiff claims against the defendant.3 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 2 AWU v Sunshine Coast Private Hospital [2003] 172 QGIG 1097. 3 Bernard Cairns, Australian Civil Procedure, (Lawbook, 7th ed 2007) 151. -- 4 of 5 -- 5 [23] A pleading must contain a statement in summary form of the material facts on which the party relies. Facts alleged in a statement of claim must disclose a cause of action known to the law. Conclusions of law must not be asserted as material facts. A plaintiff may cast the statement of claim to maximize the possible range of causes of action.4 [24] If all the material facts are alleged in the pleadings, the opposite party has notice of the case to be answered.5 [25] A party is permitted to plead inconsistent and alternative versions of a claim or defence.6 [26] It is clear from this elementary review of the common law and the rules of court relating to pleadings that there was nothing untoward in the manner in which the underpayment application was formulated. [27] The strike out application was misconceived. [28] The Commission orders accordingly. 4 Ibid at 158. 5 Ibid at 160. 6 ibid at 161 -- 5 of 5 --