Cai v Tiy Loy & Co Ltd (No 2) - [2015] FCCA 2924

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI v TIY LOY & CO LTD (No.2)

[2015] FCCA 2924

Catchwords:
PRACTICE & PROCEDURE – Applicant claimed he was a “caretaker” within the meaning of a State Award – reasons for judgment (earlier judgment) rejected that claim – applicant subsequently claims that on the basis of allegations made in the points of defence and the manner in which the respondent conducted its case at the hearing the applicant is entitled to final orders on the basis that he was a “tea attendant” within the meaning of the State Award – whether matters contained in the points of defence or the manner in which the respondent conducted its case precludes the respondent from resisting the applicant's contention that he was a “tea attendant” within the meaning of the State Award – respondent not so precluded – whether, given the findings made in the earlier judgment, the applicant, without amending his points of claim, is entitled to seek final orders on the basis that he was an employee of a class different from that which he initially pleaded and which was rejected in the earlier judgment – leave required – whether applicant should be granted leave to amend points of claim to claim that the applicant was employed as a “tea attendant” within the meaning of the State Award – leave granted.

INDUSTRIAL LAW – Whether based on findings made in the earlier judgment the applicant was employed as a “tea attendant” within the meaning of the State Award – whether applicant engaged in serving morning or afternoon teas or lunches or other meals, including washing up and other duties in connection with such work for the major and substantial part of his work time – applicant was employed as “tea attendant”.

Legislation:

Fair Work Act 2009, s.340

Federal Circuit Court Rules 2001 (Cth), rr.1.05(3)(b), 4.03(1), 4.04(1), 4.05(1), 7.01, 45.06, 45.08
Federal Court Rules 2011 (Cth), rr.16.02(1)(d), 16.02(3)
Workplace Relations Act 1996 (Cth), s.208
Workplace Relations Act 1996 (Cth), Schedule 8, cl. 31

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Cai v Tiy Loy & Co Ltd [2015] FCCA 715

Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387
Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Limited [2015] FCA 696
Federated Engine Drivers and Firemen’s Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836
Leotta v Public Transport Commission (1976) 9 ALR 437
Logan v Otis Elevator Company Pty Limited [1997] IRCA 200
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494
Ware v O’Donnell Griffin (Television Services) Pty Limited [1971] AR (NSW) 18

Applicant:

REE BIN CAI

Respondent:

TIY LOY & CO LTD

File Number:

SYG 2817 of 2012

Judgment of:

Judge Manousaridis

Hearing date:

7 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Sydney

Delivered on:

30…

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: [2015] FCCA 2924
Decision Date: 30 October 2015

CaseChat Overview and Summary

In *Cai v Tiy Loy & Co Ltd (No 2)*, the Federal Circuit Court of Australia considered whether Mr Cai could pursue a claim that he was employed as a "tea attendant" under a State Award, after his earlier claim that he was a "caretaker" under the same award had been rejected. The dispute arose following an earlier judgment where the court found Tiy Loy & Co Ltd had contravened the *Fair Work Act 2009* (Cth) by altering Mr Cai's employment status. The court had granted liberty to apply for further hearings regarding compensation, penalties, and an annual leave loading claim.

The legal issues before the court were threefold: first, whether Mr Cai was entitled to pursue a claim that he was employed as a "tea attendant" given that this was not the basis of his original claim and had not been pleaded; second, whether Tiy Loy & Co Ltd was precluded from resisting this new contention without amending its points of defence; and third, whether, based on the findings of the earlier judgment, Mr Cai was in fact employed as a "tea attendant" under the relevant award.

The court reasoned that the Federal Circuit Court Rules 2001 (Cth) govern proceedings for relief under the *Fair Work Act 2009* (Cth), and that while the applicant had not initially pleaded the "tea attendant" claim, leave could be granted to amend the points of claim. The court determined that Tiy Loy & Co Ltd was not precluded from resisting the "tea attendant" claim simply because it had not amended its points of defence. Crucially, the court found that Mr Cai was indeed employed as a "tea attendant" within the meaning of the State Award, having engaged in serving teas and other related duties for the major and substantial part of his work time.

Consequently, the court granted Mr Cai leave to amend his points of claim to formally assert his employment as a "tea attendant". The court also found that Mr Cai was employed as a "tea attendant" under the State Award, thereby entitling him to the benefits and entitlements associated with that classification.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 27 March 2015 I delivered reasons for judgment (earlier judgment) in which I found that the respondent (Tiy Loy) contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by deciding to alter the position of the applicant, Mr Cai, from a full time to a part time employee.[1] I also found Mr Cai was not a “caretaker” for the purposes of the Miscellaneous Workers General Services (State) Award (State Award) and the Miscellaneous Award 2010 (2010 Award). I granted the parties liberty to apply to list the matter before me to hear submissions on the amount of compensation I should award to Mr Cai, the imposition of penalties, and the outstanding claim for the payment of a 17.5% loading for annual leave taken by Mr Cai. The matter was then listed before me for hearing on 7 July 2015. [1] Cai v Tiy Loy & Co Ltd [2015] FCCA 715 Before the hearing on 7 July 2015, however, counsel for Mr Cai filed written submissions in which he claimed that:a)Tiy Loy admitted in its response to amended application (points of defence) that it had employed Mr Cai as a tea attendant, and that Mr Cai, therefore, was covered by the State Award and the 2010 Award as a tea attendant; b)Mr Cai was paid amounts that were substantially less than the amounts he was entitled to be paid under the State Award and the 2010 Award as a tea attendant; andc)the Court should order that Tiy Loy pay to Mr Cai an amount that reflects the difference between what Tiy Loy paid to Mr Cai, and the amounts Tiy Loy ought to have paid Mr Cai as a tea attendant under the awards. Mr Cai made no such claim at the substantive hearing. The claim Mr Cai made, which I determined against him, was that he was a “caretaker” within the meaning of the State Award. Having decided that claim against him, I assumed the State Award and the 2010 Award did not apply to Mr Cai. At the hearing on 7 July 2015, the parties made submissions on the following three issues: (a) whether it is open to Mr Cai now to claim he was employed as a tea attendant, even though at the substantive hearing he made no such claim; (b) assuming it is open to Mr Cai to claim he was a tea attendant, whether Tiy Loy is prevented, without amending its points of defence, from contending Mr Cai was not employed as a tea attendant; and (c) assuming Tiy Loy is not prevented from so contending, whether Mr Cai, as he now claims, was employed as a tea attendant or, as Tiy Loy claims, Mr Cai was not employed as a tea attendant and, therefore, was award free. These reasons for judgment deal, therefore, with these three issues. The starting point is to identify the issues the parties tendered to the Court, and the findings I made on those issues. Proceedings for relief under the FW Act that are brought in this Court are in part regulated by Part 45 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Relevant to these reasons are r.45.06 and r.45.08. Rule 45.06 provides that an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act must, among other things, accord with the approved form, and must be accompanied by a claim in accordance with the approved form. Rule 45.08 of the FCC Rules provides that an application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the FW Act, other than a claim covered by r.45.06 of the FCC Rules, must also accord with the approved form, and must also be accompanied by a claim in accordance with the approved form. The FCC Rules provide a common form of application, but different forms of claim.[2] Both forms of claim, however, require the applicant to complete a part headed “Contravention(s) alleged”, and invite the applicant to answer the question “what are the grounds for the claim” by setting out “in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim”. [2] Forms 2 and 4 respectively.

Ratio Decidendi

Legal Principle Established

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