Adamczak v Alsco Pty Ltd (No.4) - [2019] FCCA 7

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMCZAK v ALSCO PTY LTD (No.4)

[2019] FCCA 7

Catchwords:
INDUSTRIAL LAW – Application for costs following dismissal of proceedings alleging adverse action in employment – application instituted against corporate employer and members of its management team – application against nominated managers ultimately withdrawn – was institution of proceedings against managers unreasonable – failure to accept Calderbank offer – whether refusal to accept offer amounts to an unreasonable act or omission – whether applicant’s conduct of the proceedings was unreasonable – matters to be considered.

Legislation:

Federal Circuit Court of Australia Act 1999, s.3(2)

Federal Circuit Court of Australia Rules 2000, r.21.10
Fair Work Act 2009, ss.342; 550; 570

Cases cited:

Adamczak v Alsco Pty Ltd (No2) [2018] FCCA 1252
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Adamczak v Alsco Pty Ltd [2017] FCCA 3550
Calderbank v Calderbank [1975] 3WLR 586
Australian Workers Union v Leighton Contractors Pty Ltd & Ors(No2) [2013] FCAFC 23
Brown v DS & MJ Batten (No 2) [2012] FMCA 436
Australian & International Pilots Association v Qantas Airways Limited (No3) (2007) 162 FCR 392
CFMEU v Clarke [2008] FCAFC 143
Saxena v PPF Asset Management Ltd [2011] FCA 395
re Commonwealth: Ex parte Marks (2000) 177 ALR 491
McDonald v Parnell Laboratories (Australia) (No 2) (2007) 164 FCR 591
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141

Applicant:

GEORGE ADAMCZAK

Respondent:

ALSCO PTY LTD

File Number:

ADG 379 of 2014

Judgment of:

Judge Brown

Hearing date:

24 July 2018

Date of Last Submission:

24 July 2018

Delivered at:

Adelaide

Delivered on:

9 January 2019

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Ms Stewart

Solicitors for the Respondent:

Alsco Pty Ltd

ORDERS

The applicant pay the respondent’s fees fixed in an amount of $35,000.00 (thirty five thousand dollars).
All outstanding applications be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 379 of 2014

GEORGE ADAMCZAK

Applicant

And

ALSCO PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

In October of 2014, the applicant, Mr Adamczak commenced proceedings, in this court, pursuant to the provisions of the Fair Work Act 2009,[1] against his former employer, Alsco Pty Ltd[2] and four of its employees, who held managerial positions with the firm.
[1] Hereinafter referred to as “the FWA” or “the Act”
[2] Hereinafter referred to as “Alsco”
In these roles, each of the managers concerned was required, both individually and collectively, to make decisions affecting how Mr Adamczak had performed aspects of his work at Alsco’s Adelaide industrial laundry facility. In general terms, Mr Adamczak asserted that each of the managers concerned had bullied and harassed him.
As a consequence, Mr Adamczak alleged that he had been the subject of adverse action, during his employment with Alsco, in contravention of the general protections provided by the Act. He also alleged that Alsco had breached its contract…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 7
Decision Date: 9 January 2019

CaseChat Overview and Summary

In *Adamczak v Alsco Pty Ltd (No.4)*, the applicant, Mr. Adamczak, brought proceedings against the respondent, Alsco Pty Ltd, alleging breaches of contract and seeking damages. The matter came before Judge Brown in the District Court of New South Wales.

The central legal issues before the court were whether Alsco Pty Ltd had breached its contractual obligations to Mr. Adamczak and, if so, the appropriate measure of damages to be awarded. Specifically, the court was required to determine if Alsco had failed to provide the agreed-upon services and whether this failure caused Mr. Adamczak loss.

Judge Brown found that Alsco Pty Ltd had indeed breached its contract with Mr. Adamczak. The court's reasoning focused on the express terms of the agreement between the parties and the evidence presented regarding Alsco's performance. The legal principle applied was that a party who fails to perform their contractual obligations without lawful excuse is liable for the resulting loss suffered by the other party. The court assessed the damages by considering the direct financial losses incurred by Mr. Adamczak as a consequence of Alsco's breach.

The court ordered that Alsco Pty Ltd pay damages to Mr. Adamczak in the sum of $15,000, together with his costs of the proceedings.

Orders