Butlin v ACA Home Improvements Pty Ltd - [2018] FCCA 3555

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTLIN v ACA HOME IMPROVEMENTS PTY LTD & ORS

[2018] FCCA 3555

Catchwords:
INDUSTRIAL LAW – Adverse action – termination of employment for a prohibited reason – where employer contended applicant was dismissed by reason of redundancy – where employer offered applicant the opportunity to continue working as a subcontractor – accessorial liability – third respondent the guiding mind of the first respondent – liability of second respondent not proved.

Legislation:

Fair Work Act 2009, ss.358, 361, 368, 550(2)

Cases cited:

Adams v Cape Industries PLC [1990] Ch 433
AKD16 v Minister for Immigration and Border Protection & Anor (2016) 315 FLR 228
Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290

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

Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Coghlan v Cumberland [1898] 1 Ch 704
Dearman, Owners ofSS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Gas Lighting Improvement Co Ltd v Inland Revenue Commissioners [1923] AC 723

General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676

Hobart Bridge Co Ltd v Federal Commissioner of Taxation (1951) 82 CLR 372
Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269
Jones v Hyde (1989) 63 ALJR 349

Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Moteki v Legnor Pty Ltd (2018) FCCA 1988

Multinational Gas & Petrochemical Co v Multinational Gas and Petrochemical [1983] Ch 258
New South Wales v The Commonwealth (2006) 229 CLR 1
Paterson v Paterson (1953) 89 CLR 212
Salomon v Salomon & Co Ltd [1897] AC 22
Sons of Gwalia (Subject to Deed of Company Arrangement) v Margaretic (2007) 231 CLR 160
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) (1999) 73 ALJR 306
Warren v Coombes (1979) 142 CLR 531

Other material:
Davies & Worthington, Gower & Davies’ Principles of Modern Company Law (Sweet & Maxwell, 7^th ed, 2003)

Applicant:

RODNEY BUTLIN

First Respondent:

ACA HOME IMPROVEMENTS PTY LTD (ACN 168 432 317)

Second Respondent:

DAVID BAKER

Third Respondent:

VINCENT SHEN

File Number:

MLG 437 of 2017

Judgment of:

His Honour Judge Wilson

Hearing dates:

15 February 2018, 7 June 2018 and
14 September 2018

Date of Last Submission:

19 October 2018

Delivered at:

Melbourne

Delivered on:

5 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Latham

Solicitors for the Applicant:

Anderson Gray Lawyers

Counsel for the First Respondent:

Mr J Hooper

Solicitors for the First Respondent:

Jasper Lawyers Pty Ltd

Counsel for the Second Respondent:

Mr J Hooper

Solicitors for the Second Respondent:

Jasper Lawyers Pty…

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: [2018] FCCA 3555
Decision Date: 5 December 2018

CaseChat Overview and Summary

In *Butlin v ACA Home Improvements Pty Ltd*, the applicant, Mr Butlin, brought proceedings against ACA Home Improvements Pty Ltd (the first respondent) and two other respondents, alleging adverse action was taken against him in contravention of the *Fair Work Act 2009* (Cth). The applicant contended that his employment was terminated for a prohibited reason, specifically because he had made a complaint or inquiry about his employment. The first respondent, however, argued that the applicant's dismissal was a genuine redundancy and that the offer to continue working as a subcontractor was a separate arrangement.

The primary legal issue before the court was whether the termination of Mr Butlin's employment was substantially for a prohibited reason, namely his engagement in a protected workplace right, or whether it was a genuine redundancy as asserted by the employer. The court was also required to consider the accessorial liability of the other respondents, particularly the extent to which the guiding mind of the first respondent could be held liable for any contravention.

His Honour Judge Wilson found that the employer's asserted reason for dismissal, redundancy, was not the true reason. Instead, the court determined that the termination was substantially motivated by the applicant's exercise of a workplace right, specifically his complaints and inquiries regarding his employment. The court found the first respondent liable for adverse action. While the second respondent's liability was not proven, the court found the third respondent, identified as the guiding mind of the first respondent, to be vicariously liable for the contravention.

Orders