Bhalla v Woolworths Group Pty Ltd

Case [2024] FedCFamC2G 652

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bhalla v Woolworths Group Pty Ltd [2024] FedCFamC2G 652   

File number(s): MLG 3982 of 2020
Judgment of: JUDGE SYMONS
Date of judgment: 23 July 2024
Catchwords: PRACTICE AND PROCEDURE – adverse action – dismissal - application for leave to file further amended statement of claim – application made during closing submissions of trial – amendment directed at the identification of person whose conduct said to be engaged in by respondent for the purpose of 793(1)(a) of the Fair Work Act 2009 (Cth) – where evidentiary case emerged during cross-examination of respondent witnesses – where amendment opposed – whether proposed amendments liable to be struck out – where proposed amendments bring case run at trial in conformity with the pleading – application granted
Legislation:

Fair Work Act 2009 (Cth), ss 340, 342, 361, 793.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.

Federal Court Rules 2011 (Cth), r 16.53.

Cases cited:

 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500;

[2012] HCA 32.

Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94.

Forshaw v Qantas Airways Limited [2023] FCA 957.

Monash Health v Singh [2023] FCAFC 166.

Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580; [2020] VSCA 186.

Wong v National Australia Bank Limited (2022) 318 IR 148; [2022] FCAFC 155.

Wood v City of Melbourne Corporation (1979) 26 ALR 430; [1979] FCA 42.

Division: Division 2 General Federal Law
Number of paragraphs: 60
Date of last submissions: 24 May 2024
Date of hearing: On the papers 
Place: Melbourne
Counsel for the Applicant: Mr T Rawlinson
Solicitor for the Applicant: Betts Law Company
Counsel for the Respondent: Mr J Tracey
Solicitor for the Respondent: Minter Ellison

ORDERS

MLG3982 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SURESH BHALLA

Applicant
AND:

WOOLWORTHS GROUP PTY LTD (ACN 000 104 675)

Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:

1.The applicant be granted leave to file and serve a further amended statement of claim in the form annexed to her written submissions filed on 17 May 2024 by 4pm on 25 July 2024.

2.The respondent be granted leave to file and serve a defence to the further amended statement of claim referred to in paragraph 1 by 4pm on 13 August 2024.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules…

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AGLC
Bhalla v Woolworths Group Pty Ltd [2024] FedCFamC2G 652
Case
[2024] FedCFamC2G 652
Decision Date

CaseChat Overview and Summary

The case of Bhalla v Woolworths Group Pty Ltd involved Ms Bhalla, the applicant, taking legal action against Woolworths Group Pty Ltd, the respondent, over her dismissal from employment. Ms Bhalla alleged that her dismissal constituted adverse action under the Fair Work Act 2009 (Cth), specifically because she exercised workplace rights and due to her race or national extraction. Woolworths admitted that Ms Bhalla's dismissal was adverse action but denied the reasons stated by Ms Bhalla. The respondent claimed that Ms Bhalla was dismissed because she failed to comply with lawful and reasonable directions. During the trial, it emerged that the person who made the decision to dismiss Ms Bhalla may not have been the sole decision-maker as previously asserted by Woolworths. This led to an application for leave to file a further amended statement of claim to identify the correct person who made the decision. The application was made during the closing submissions of the trial.

The central legal issue before the court was whether the proposed amendments to the statement of claim should be allowed, particularly given that they were made during the closing submissions of the trial. The court had to consider whether these amendments would bring the case run at trial in conformity with the pleadings and whether they were liable to be struck out. The respondent opposed the application, arguing that the proposed amendments were an attempt to introduce new evidence and would unfairly prejudice the respondent.

The court granted the application for leave to file a further amended statement of claim. It found that the proposed amendments brought the case run at trial in conformity with the pleadings and that the application was not an attempt to introduce new evidence but rather to correct the identification of the person whose conduct was engaged in for the purpose of s 793(1)(a) of the Fair Work Act. The court held that the amendment was necessary to ensure that the proceedings were justly conducted and that the proposed amendments did not unfairly prejudice the respondent.

As a result of the court's decision, the case was allowed to proceed with the correct identification of the decision-maker. The court's decision ensured that the proceedings were fair and just, and that the correct legal issues were addressed in the trial.

Orders

Orders of the court

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Background

Background to the litigation

To understand how the application came about it is necessary to set out some background to the proceeding.BACKGROUND The applicant’s case against the respondent, Woolworths Group Pty Ltd, involves allegations of adverse action including an allegation that the respondent dismissed Ms Bhalla from employment because she exercised workplace rights contrary to s 340(1)(a)(i) of the Fair Work Act 2009 (Cth) (FW Act) and because of her race or national extraction, contrary to s 351(1) of the FW Act. The respondent admits that it dismissed Ms Bhalla from employment on 22 November 2022 and that this action constituted “adverse action” within the meaning of s 342(1) of the FW Act but denies that the decision to dismiss Ms Bhalla was made for any proscribed reason, including any of those identified by Ms Bhalla. The respondent submits that the reason for Ms Bhalla’s dismissal was that described in the letter of termination dated 22 November 2022 namely that Ms Bhalla had “repeatedly fail[ed] and/or refus[ed] to comply with the lawful and reasonable directions in the Direction and Warning Letters”. The direction was described in both of these communications (dated 14 September 2022 and 20 October 2022, respectively) as a “direction to confirm…that upon your return to work you will, as required, perform all tasks that fall within the scope of the duties of a Level 1 Store Team Member under the Agreement – including recovery work, returns work, incidental cleaning work and/or any other work which is incidental to, or in connection with, any of the other tasks listed in the Level 1 classification description in the Agreement”. It is agreed that reference to the Agreement is to the BIGW Stores Agreement 2019. The direction was given in circumstances where Ms Bhalla had been absent from work on medical grounds for over six months but had been recently assessed by the respondent as fit to return to work in the respondent-owned Big W store located in Doncaster, Melbourne. The respondent, in its affidavit material read at trial and in its written submissions filed in advance of the final hearing, asserted that the decision to dismiss Ms Bhalla was made by one individual, namely, Ms Kathleen Toner, who at relevant times was employed by the respondent as Area Operations Manager of Big W. The respondent submitted that to the extent that s 361(1) of the FW Act was engaged, the evidence of Ms Toner would have the effect of discharging the respondent’s onus under this provision. Prior to final hearing, Ms Bhalla had not actively sought to controvert the position taken by the respondent as to the identification of Ms Toner as sole decision-maker. However, in opening submissions on day one of trial, counsel for Ms Bhalla, Mr Rawlinson, made the following submission:[1] Ultimately, Ms Bhalla’s employment was terminated. The reason stated by Ms Toner for the termination was that Ms Bhalla had refused to comply with a lawful and reasonable direction to perform returns, recovery and cleaning work.The written evidence, however, suggests that Ms Toner acted on information received from Ms Johnson, who had, in turn, acted on information received from Ms Thomas. It will be a live issue I submit in the evidence being the extent to which the termination decision wasn’t made by Ms Toner alone, and she says it was, and that will be an issue of fact for your Honour to determine in the evidence.[1] T9 lines 17 – 26.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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