Adcock v Blackmores Ltd - [2016] FCA 893

FEDERAL COURT OF AUSTRALIA
Adcock v Blackmores Ltd [2016] FCA 893

Appeal from:
Adcock v Blackmores Limited & Ors [2016] FCCA 265

Adcock v Blackmores Limited & Ors (No 2) [2016] FCCA 980

File number: NSD 329 of 2016

Judge: FLICK J

Date of judgment: 5 August 2016

Catchwords:
INDUSTRIAL LAW – position made redundant – decision as to redundancy not a decision to terminate contract of employment – offer of alternative positions – all offers rejected – alleged breach of enterprise agreement

CONTRACT – contract of employment – repudiation by employer – need for acceptance of repudiation by employee to bring contract to an end – question of which party terminated the contract

PRACTICE AND PROCEDURE – leave to raise a new argument not previously relied upon – new claim for breach of contract relied upon – leave refused

PRACTICE AND PROCEDURE – manner in which case conducted – going beyond pleadings not fatal

Legislation: Fair Work Act2009 (Cth), ss 119(1), 345, 539, 570

Cases cited:
Adcock v Blackmores Limited & Ors [2016] FCCA 265

Adcock v Blackmores Limited & Ors (No 2) [2016]
FCCA 980

Coulton v Holcombe (1986) 162 CLR 1

Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531, (2013) 234 IR 1

House v The King (1935) 55 CLR 499

JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20, (2016) 329 ALR 625

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20, (2015) 317 ALR 665

Metwally v University of Wollongong (1985) 59 ALJR 481

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Park v Brothers [2005] HCA 73, (2005) 80 ALJR 317

Qantas Airways Limited v Christie [1998] HCA 18, (1998) 193 CLR 280

Tullett Prebon (Aust) Pty Ltd v Purcell [2009] NSWSC 1079

Visscher v Giudice [2009] HCA 34, (2009) 239 CLR 361

Water Board v Moustakas (1988) 180 CLR 491

Date of hearing: 1 June 2016

Date of last submissions: 6 June 2016

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 64

Counsel for the Appellant: Mr T Lynch SC with Mr D O’Connor

Solicitor for the Appellant: PCC Lawyers

Counsel for the Respondents: Mr I Taylor SC

Solicitor for the Respondents: HWL Ebsworth

ORDERS

NSD 329 of 2016

BETWEEN:
DAVID ADCOCK

Appellant

AND:
BLACKMORES LIMITED

First Respondent

CECILE COOPER

Second Respondent

RICHARD HENFREY

Third Respondent

LINDA REDFEARN

Fourth Respondent

JUDGE:

FLICK J

DATE OF ORDER:

5 AUGUST 2016

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the Respondents.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

From September 2003 until September 2014 the Appellant (Mr David Adcock) was employed by the Respondent, Blackmores Limited (“Blackmores”). The initial contractual terms of his employment were set forth in a contract of employment dated 22 September 2003. As…

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: [2016] FCA 893
Decision Date: 5 August 2016

CaseChat Overview and Summary

Adcock v Blackmores Ltd was a case before the Federal Court of Australia where Mr Adcock, the appellant, sought to challenge the dismissal of his employment and the manner in which it was handled by Blackmores Ltd, the respondent. The central issue was whether Mr Adcock's employment was legitimately terminated or if there was a breach of an enterprise agreement. Additionally, the court needed to determine if the employer's offer of alternative positions constituted a repudiation of the contract, and if Mr Adcock's rejection of these positions led to the termination of the employment contract.

The court was required to address several legal issues. Firstly, whether the decision to make the position redundant was distinct from the decision to terminate the contract of employment. Secondly, whether Mr Adcock's rejection of alternative positions constituted a repudiation by the employer. Lastly, the court needed to consider if there was a breach of the enterprise agreement and whether Mr Adcock's attempt to raise a new argument during the appeal process was permissible.

The court held that the decision to make the position redundant was separate from the decision to terminate the employment contract, and that the employer's offer of alternative positions did not constitute a repudiation by the employer. The court found that the employer had not breached the enterprise agreement, and that Mr Adcock's attempt to raise a new argument during the appeal process was not permissible. The court also determined that the manner in which the case was conducted did not go beyond the pleadings and was not fatal to the proceedings. The appeal was dismissed, and the appellant was ordered to pay the costs of the respondents.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Appellant is to pay the costs of the Respondents.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

During the course of the hearing of the appeal. Senior Counsel for Mr Adcock abandoned any reliance upon a submission that the Court lacked power to make an order as to costs. The argument was confined to an argument that the Federal Circuit Court Judge erred in the exercise of his discretion. So confined, the argument must fail. The assessment that the case was a “weak” one was an assessment open for the Circuit Court Judge to make. And furthermore, the weight to be given to such an assessment remained a matter of discretion. Such an exercise of discretion exposes no error of principle such as to warrant being reversed on appeal: House v The King (1935) 55 CLR 499 at 504 to 505. CONCLUSIONS Leave to raise Grounds 3 and 4 of the Amended Notice of Appeal has been refused. The remaining Grounds of Appeal have been rejected. The appeal is to be dismissed. THE ORDERS OF THE COURT ARE:1.The appeal is dismissed.2.The Appellant is to pay the costs of the Respondents.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Adcock v Blackmores Limited & Ors [2016] FCCA 265 Adcock v Blackmores Limited & Ors (No 2) [2016] FCCA 980
File number:	NSD 329 of 2016
Judge:	FLICK J
Date of judgment:	5 August 2016
Catchwords:	INDUSTRIAL LAW – position made redundant – decision as to redundancy not a decision to terminate contract of employment – offer of alternative positions – all offers rejected – alleged breach of enterprise agreement CONTRACT – contract of employment – repudiation by employer – need for acceptance of repudiation by employee to bring contract to an end – question of which party terminated the contract PRACTICE AND PROCEDURE – leave to raise a new argument not previously relied upon – new claim for breach of contract relied upon – leave refused PRACTICE AND PROCEDURE – manner in which case conducted – going beyond pleadings not fatal
Legislation:	Fair Work Act2009 (Cth), ss 119(1), 345, 539, 570
Cases cited:	Adcock v Blackmores Limited & Ors [2016] FCCA 265 Adcock v Blackmores Limited & Ors (No 2) [2016] FCCA 980 Coulton v Holcombe (1986) 162 CLR 1 Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531, (2013) 234 IR 1 House v The King (1935) 55 CLR 499 JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20, (2016) 329 ALR 625 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20, (2015) 317 ALR 665 Metwally v University of Wollongong (1985) 59 ALJR 481 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 Park v Brothers [2005] HCA 73, (2005) 80 ALJR 317 Qantas Airways Limited v Christie [1998] HCA 18, (1998) 193 CLR 280 Tullett Prebon (Aust) Pty Ltd v Purcell [2009] NSWSC 1079 Visscher v Giudice [2009] HCA 34, (2009) 239 CLR 361 Water Board v Moustakas (1988) 180 CLR 491
Date of hearing:	1 June 2016
Date of last submissions:	6 June 2016
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Appellant:	Mr T Lynch SC with Mr D O’Connor
Solicitor for the Appellant:	PCC Lawyers
Counsel for the Respondents:	Mr I Taylor SC
Solicitor for the Respondents:	HWL Ebsworth