Carr v Empirical Works Pty Ltd - [2019] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARR v EMPIRICAL WORKS PTY LTD & ANOR

[2019] FCCA 1114

Catchwords:
INDUSTRIAL LAW – Application alleging breaches to the Fair Work Act 2009 (Cth) and the Australian Consumer Law – whether the first and second respondents contravened s.31 of the Australian Consumer Law – whether the applicant’s employment was terminated for making an application to the Fair Work Commission – whether the first respondent breached the employment contract – cross-claim alleging breach under s.18 of the Australian Consumer Law – whether the applicant engaged in misleading and deceptive conduct during pre-employment negotiations – applications dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 360, 361, 545, 546

Competition and Consumer Act 2010 (Cth) Sch.2, ss.18, 31, 236

Trade Practices Act 1974 (Cth) s.52

Cases cited:

Carr v Empirical Works Pty Ltd & Anor [2017] FCCA 1813

State of Victoria (office of Public Prosecutions) v Grant [2014] FCAFC 184;

(2014) 67 AILR 102-322; (2014) 246 IR 441

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9;

(2008) 71 NSWLR 323

Stoelwinder v Southern Health Care Network [2000] FCA 444;

(2000) 177 ALR 501; (2000) 97 IR 76

Applicant:

PETER CARR

First Respondent:

EMPIRICAL WORKS PTY LTD

Second Respondent:

PAUL LIN

File Number:

SYG 549 of 2016

Judgment of:

Judge Nicholls

Hearing date:

3 December 2018

Date of Last Submission:

20 December 2018

Delivered at:

Sydney

Delivered on:

30 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Duc

Solicitors for the Applicant:

Duc Legal

Counsel for the Respondents:

Ms K Jones

Solicitors for the Respondents:

PCC Lawyers

ORDERS

The application made on 9 March 2016 is dismissed.
The cross claim made on 2 May 2016 and as further amended is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 549 of 2016

PETER CARR

Applicant

And

EMPIRICAL WORKS PTY LTD

First Respondent

PAUL LIN

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 9 March 2016 by Mr Peter Carr (“the applicant”) seeking declarations, compensation and pecuniary penalties pursuant to ss.340, 545 and 546 of the Fair Work Act 2009 (Cth) (“the FWA”), ss.31 and 236 of the Australian Consumer Law (“the ACL”), and for breach of contract, against Empirical Works Pty Ltd (“the first respondent”), (“Empirical Works”), and Mr Paul Lin (“the second respondent”), a director of the first respondent.

Before the Court

The parties first came before the Court on 30 March 2016. Both parties were represented. On that date, Mr Carr sought an extension of time within which to make a competent application under s.340 of the FWA. I granted that extension of time and made various orders for the progress of the matter, including that the matter proceed by way of pleadings and be sent for mediation.
Since the first court date, the parties have appeared before the Court at directions on several occasions. The events outlined below are relevant to the current proceedings.
On 13 April 2016 Mr…

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 1114
Decision Date: 30 April 2019

CaseChat Overview and Summary

The applicant, Carr, brought proceedings against the respondents, Empirical Works Pty Ltd and another, alleging breaches of the *Fair Work Act 2009* (Cth) and the Australian Consumer Law. The dispute concerned allegations of unlawful termination, breach of employment contract, and contraventions of sections 31 and 18 of the Australian Consumer Law. The matter was heard by Judge Nicholls.

The court was required to determine whether the respondents contravened section 31 of the Australian Consumer Law by making false or misleading representations about the employee's employment conditions. It also had to consider whether the applicant's employment was terminated as a result of them making an application to the Fair Work Commission, and whether the first respondent breached the terms of the employment contract. Furthermore, the court addressed a cross-claim by the respondents alleging that the applicant engaged in misleading and deceptive conduct during pre-employment negotiations, in contravention of section 18 of the Australian Consumer Law.

Judge Nicholls dismissed the applications. The reasoning involved a detailed examination of the evidence presented in relation to each claim. The court found that the applicant had not established the necessary elements for a contravention of section 31 of the Australian Consumer Law, nor had they proven that their termination was linked to their Fair Work Commission application. Similarly, the breach of contract claim was not substantiated. The cross-claim alleging misleading and deceptive conduct by the applicant during pre-employment negotiations was also dismissed, as the respondents failed to demonstrate the requisite elements of that claim.

Orders