Sallehpour v Frontier Software Pty Ltd [2003] FCA 735

FEDERAL COURT OF AUSTRALIA

Sallehpour v Frontier Software Pty Ltd [2003] FCA 735

Workplace Relations Act 1996 (Cth): ss 170CN, 170FA Federal Court Rules: O 20 r 2(1)(a) MOHAMMADALI SALLEHPOUR v FRONTIER SOFTWARE PTY LTD (ABN 5700 575 1879) V 13 of 2003 GOLDBERG J 16 JULY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 13 of 2003

BETWEEN: MOHAMMADALI SALLEHPOUR

Applicant

AND: FRONTIER SOFTWARE PTY LTD

(ABN 5700 575 1879)

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 16 JULY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The cause of action raised and alleged in paragraph 3 of the applicant's amended application filed 31 March 2003, that his employment was terminated in contravention of an order under s 170CN of the Workplace Relations Act 1996 (Cth), be dismissed. 2. The claim in paragraph 4 of the applicant's amended application filed 31 March 2003 for relief pursuant to s 170CN of the Workplace Relations Act 1996 (Cth) be dismissed. 3. The costs of the respondent's motion filed 26 June 2003 be reserved for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 13 of 2003

BETWEEN: MOHAMMADALI SALLEHPOUR

Applicant

AND: FRONTIER SOFTWARE PTY LTD

(ABN 5700 575 1879)

Respondent

JUDGE: GOLDBERG J

DATE: 16 JULY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 10 January 2003 the applicant, who is self-represented, filed an application in the Court against the respondent, his former employer Frontier Software Pty Ltd, claiming that his employment with the respondent had been terminated unlawfully and in breach of a number of provisions of the Workplace Relations Act 1996 (Cth) ("the Act"). As a result of directions given by the Court, an amended application was filed on 31 March 2003. In that amended application, as indeed in the earlier application, one of the claims made by the applicant pursuant to s 170CN of the Act was that his employment was terminated in contravention of an order under s 170FA of the Act. 2 In par 4 of the amended application, the applicant claimed relief pursuant to s 170CP of the Act in respect of a contravention of, inter alia, s 170CN of the Act. I should also point out that in the amended application claims are made by the applicant that his employment was terminated for reasons prohibited by various provisions in s 170CK of the Act and that his employment was terminated without the period of notice required by s 170CM of the Act. 3 On 30 April 2003 I made an order which required the applicant to provide further and better particulars of his application as the nature of the claims made was not clear. In particular, I ordered: "if the applicant wishes to maintain his claim pursuant to subsection 170CN of the WR Act he should state: (i) what is the name of the order made by the Australian Industrial Relations Commission pursuant to section 170FA; (ii) what are the facts relied upon by the applicant to establish that the order affected the applicant; (iii) what are the facts relied upon by the applicant to support the conclusion that the respondent breached any section 170FA order." In compliance with my directions, a statement of facts was filed by the applicant on 4 June 2003 in which he set out in relation to the claim made under s 170CN of the Act his response. In summary, the applicant stated that he was unaware of the details and/or the name of the order made by the Australian Industrial Relations Commission and he gave an explanation of his lack of knowledge not relevant for present purposes. 4 In the statement the applicant was unable to specify any facts which established that any such order made under s 170FA affected him, and in relation to the particulars sought as to the facts relied upon to support the conclusion that the respondent breached any order made under s 170FA of the Act, he was unable to provide any particulars which bore upon any order made under s 170FA. 5 On 26 June 2003 the respondent filed a motion in which it moved the Court pursuant to O 20 r 2 of the Federal Court Rules for orders that par 3 of the applicant's amended application be struck out and that par 4 of the amended application be partly struck out by deleting any reference to s 170CN of the Act. The motion was supported by an affidavit sworn by the respondent's solicitor in which he stated that he had been informed by the General Manager of the respondent that no order had been made by the Australian Industrial Relations Commission pursuant to s 170FA of the Act in relation to the respondent. The solicitor for the respondent said that he had conducted a search of the relevant database of decisions and orders of the Australian Industrial Relations Commission and that the results of that search had not revealed any decisions or orders made pursuant to s 170FA of the Act in relation to the respondent. 6 As I noted earlier, the respondent relies for the relief sought in the motion on O 20 r 2(1)(a) of the Federal Court Rules which in substance provides that where it appears to the Court that in relation to any claim for relief no reasonable cause of action is disclosed, the Court may order that the proceeding be stayed or dismissed, generally or in relation to any claim for relief in the proceeding. 7 I am satisfied on the material before me that no reasonable cause of action is disclosed in relation to the applicant's claim that his employment was terminated in contravention of an order under s 170CN of the Act. Section 170CN is in the following terms: "An employer must not terminate an employee's employment in contravention of an order in force under section 170FA." Section 170FA(1) provides: "Subject to this Part, the Commission may, at any time on or after 26 February 1994, make an order for the purpose of giving effect to the requirements of Article 12 (in so far as it relates to a severance allowance or other separation benefits) or 13 of the Termination of Employment Convention in relation to the termination of employment of employees." The respondent has led evidence that no such order under s 170FA has been made. The applicant has been unable to contradict that evidence and has been unable to specify in the particulars given of his amended application any details of any such order made under s 170FA. In the absence of it being established that there is any such order under s 170FA in existence, any application or claim made pursuant to s 170CN of the Act seeking relief under s 170CR of the Act, is bound to fail. That is to say, no reasonable cause of action is disclosed in relation to such a claim. 8 Accordingly, the order of the Court will be that the cause of action raised and alleged in par 3 of the applicant's amended application, filed 31 March 2003, that his employment was terminated in contravention of an order under s 170CN of the Act 1996 be dismissed, and that the claim in par 4 of the amended application for relief pursuant to s 170CN of the Act be dismissed. Having regard to the nature of the proceeding, I consider the appropriate order for costs to be that the costs of the respondent's motion be reserved for further consideration.