“Latai Smith, a living woman…” was employed as a security officer by Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia. She brought a proceeding against Certis’s General Manager – Head of Human Resources, Mr La Spina, alleging that Certis breached the Fair Work Act by directing her to, when at work, wear a face mask and register her contact details electronically with the Service NSW COVID safe check-in application.
In Smith v La Spina [2022] FedCFamC2G 31, Cameron J observed that as currently articulated, the litigation did not identify a cause of action against Mr La Spina. The claim form was struck out with liberty to seek leave to replead.
The applicant had attempted to foister a unilateral contract on Mr La Spina while still employed, demanding he answer a series of questions within a certain time or else it would be considered agreement by acquiescence to the terms of a contract, and by default, certain new terms added as an addendum to the employment contract in existence.
The new terms in the “Notice of Default to Conditional Acceptance to Vaccinate” included an estoppel of the requirement sought to be imposed, a $5,000,000 termination payment in the event of the termination of her employment without providing sworn evidence of the 15 questions enclosed, and also purported to restrain Mr La Spina from having legal representation in the hearings unless any extra person “joined” to proceedings each pay a “joinder fee” of $2,000,000.
Latai Smith then filed an application seeking leave to file an amended claim form, which included allegations of coercion and misrepresentation, and claims that as she had not agreed to Certis’s pandemic related requirements, the imposition of them breached her contract with it. In Smith v La Spina (No 2) [2022] FedCFamC2G 276, Cameron J held that the proposed allegations against Mr La Spina lacked reasonable prospects of success and no purpose would be served by granting leave to make them, and consequently, the application was dismissed.
The case touched on the creation of an alleged “contract” by the three-letters process:
And also the requirement allegedly banning legal representation in the hearings unless each pay a “joinder fee” of $2,000,000:
In Latai Smith v Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia [2022] FWC 1462, the applicant sought a remedy for unfair dismissal. In Chambers, Deputy President Cross approved the employers application to be legally represented. Despite this, the key concern of the applicant during the primary proceeding where she appeared by video link, was being paid the $2,000,000, (or multiples of that figure), due to the employers legal representation in appearance. “Where is my money?” She had to be muted several times due to her constant interruptions in order to hear from the employers representative.
She sent other correspondence to the Fair Work Commission accusing Deputy President Cross of “causing harm and intimidation to a vulnerable person” by “aiding and abetting a crime to happen” contrary to the Criminal Code 1995, and “committing malfeasance by aiding a third party lawyer to pervert the law for the benefit of your own criminal agenda”, asserting “You should know the law and you should understand employment contract law, you should also know the rules of estoppel and the rules of joinder..”
In what will come as no surprise, her refusal to participate in the hearing left Deputy President Cross with no choice but to dismiss the unfair dismissal application:
“Whatever the basis of her actions, the Applicant quite clearly failed to meaningfully attend a hearing and/or comply with a direction. In fact, by her discourteous actions, the Applicant sought to disrupt the proceeding so they could not occur, over clear warnings regarding the consequences of her actions.”
The foisted unilateral contract strategy was also attempted in Neville v State of Queensland (Queensland Health) [2022] QIRC 92 in March 2022. It is interesting to note the similarities with the wording in the documents served in Neville with this applicant. Although adapted in each to suit the particular situation, the passages in Neville (at 37) are identical to those in Latai Smith v Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia [2022] FWC 1462 in June 2022, (just before 7; also referred to in Latai Smith’s first case in January 2022 Smith v La Spina [2022] FedCFamC2G 31 (at 6) indicating some sort of a template had been used by one applicant, if not both.
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