Carrabba v PFP (Aust) Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARRABBA v PFP (AUST) PTY LTD & ANOR

[2019] FCCA 2857

Catchwords:
INDUSTRIAL LAW – Employment – dismissal – alleged contravention of general protection provisions of Fair Work Act 2009 (Cth) – whether payment in lieu of notice – whether implied term.

Legislation:

Fair Work Act 2009 (Cth), ss.117, 340, 341, 342, 360, 361, 550, 570

Federal Circuit Court of Australia Act 1999 (Cth), s.75

Federal Circuit Court Rules 2001 (Cth), r.21.02(1)

Cases cited:

Australian National Hotels v Jager (2000) 9 Tas R 153

Board of Bendigo Regional Institute of Technical and Further Education v

Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012)

220 IR 445; (2012) 290 ALR 647

Brennan v Kangaroo Island Council [2014] HCASL 153

Brennan v Kangaroo Island Council [2013] SASFC 151; (2013) 120 SASR 11

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306;

(2017) 274 IR 420

Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014]

HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014)

314 ALR 1; (2014) 66 AILR 102-268

Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC

143; (2008) 170 FCR 574; (2008) 176 IR 245

Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd

[2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422

Construction, Forestry, Mining and Energy Union v McCorkell Constructions

Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911

General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51

ALJR 235; (1976) 12 ALR 605

Hill v Compass Ten Pty Ltd [2012] FCA 761

Kuczmarski v Ascot Administration Pty Ltd [2016] SADC 65; (2016) 259 IR 233

Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899;

(1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67

Rankin v Marine Power International Pty Ltd [2001] VSC 150

Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA

1250

Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310

Thorpe v Vetis Consulting Services Pty Ltd [2019] FCCA 2375

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014)

243 IR 468; (2014) 66 AILR 102-285

WZASX v Minister for Immigration & Border Protection [2017] FCA 1415

Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347

Applicant:

ROBERT CARRABBA

First Respondent:

PFP (AUST) PTY LTD

Second Respondent:

KERRY ROBERTS

File Number:

PEG 537 of 2015

Judgment of:

Judge Antoni Lucev

Hearing dates:

9 and 10 February 2017

Date of Last Submission:

10 February 2017

Delivered at:

Sydney (via video-link to Perth)

Delivered on:

9 October 2019

(delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicant:

Mr S Heathcote

Solicitors for the Applicant:

Steve Heathcote, Barrister & Solicitor (APX Law Pty Ltd trading as)

Counsel for the Respondents:

Ms M Saraceni

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 537 of 2015

ROBERT CARRABBA

Applicant

And

PFP (AUST) PTY LTD

First Respondent

KERRY ROBERTS

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first respondent, PFP (AUST) Pty Ltd (“PFP”), is a wholly owned subsidiary of UMW Corporation Sdn Bhd (“UMW”), which is headquartered in Kuala Lumpur, Malaysia.
PFP is in the business of supplying piping and pressure vessel components to the oil and gas and mining industries.
In 2004 PFP employed the applicant, Robert Carrabba (“Mr Carrabba”) as its General Manager.
The Applicant’s employment terms did not include a term that dealt with either of the parties’ obligation to give notice of termination of the employment.
On 27 October 2014, UMW appointed the second respondent, Kerry Roberts (“Mr Roberts”) as its “Head of the PFP Group”. Mr Carrabba became the Mr Robert’s subordinate because of that appointment.
On 14 September 2015 PFP dismissed Mr Carrabba.

Application overview

Mr Carrabba claims that:
a)PFP took adverse action against him because he exercised his workplace right to complain and, in doing so, PFP contravened s.340 of the Fair Work Act 2009 (Cth) (“FW Act”);
b)Mr Roberts was an accessory to PFP’s contravention because he was involved in PFP’s decision to take adverse action against Mr Carrabba by dismissing him; and
c)PFP breached his employment contract when it terminated his employment without giving him notice of the termination in circumstances where the employment contract:
i)did not include an express term about the period of notice that either party was required to give the other to terminate employment;
ii)included an implied term that the employment could only be terminated on reasonable notice; and
iii)did not include a term that authorised PFP to terminate his employment without notice, by paying him an amount of money in lieu of giving him notice.
Mr Carrabba claims, by way of remedy:
a)compensation for earnings lost because of the adverse action and the contravention of s.340 of the FW Act;
b)damages for breach of the employment contract; and
c)pecuniary penalties for contravention of s.340 of the FW Act by PFP and Mr Roberts.

Workplace Right

Mr Carrabba contends that:
a)he had, and he exercised, his workplace right to complain in relation to his employment: FW Act, s.341(1)(c)(ii); and
b)he exercised his workplace right when he:
i)complained to UMW about the manner in which Mr Roberts spoke to him and to his colleague; and
ii)complained to UMW about PFP’s dealings with him.

Adverse Action

Mr Carrabba contends that PFP took adverse action against him when it dismissed him on 14 September 2015.

Law re: general protections and complaints

It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
In the context of adverse action proceedings it is for Mr Carrabba to assert and establish that:
a)he exercised the workplace rights pleaded;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
If Mr Carrabba proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for UMW to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 at [221] per RD Nicholson J.
In Barclay the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 (“Russell”) at [60] per Foster J. In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
a)French CJ and Crennan J in Barclay said:
i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Mr Carrabba submits that the making by him of one or more complaints was a reason for his dismissal. That allegation having been raised, s.361 of the FW Act operates to create a presumption that Mr Carrabba was dismissed including because of the making by him of one or more of the complaints. The onus is then cast on PFP and Mr Roberts to prove otherwise. To displace the presumption, PFP and Mr Roberts need to establish that the making by Mr Carrabba of one or more of the complaints was not a substantial and operative factor for dismissing him: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285 (“Greater Metropolitan Cemeteries Trust (No 2)”) at [17] per Bromberg J, where the Federal Court noted that the relevant authorities as to the operation of ss.360 and 361 of the FW Act are discussed in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person may be regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 (“BHP Coal”) at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 (“Endeavour Co”) at [32] per Jessup J.

Complaint or inquiry

An employee has a workplace right if the employee is able to make a complaint in relation to his or her employment: s.341(1)(c)(ii) of the FW Act.
For a communication to be a "complaint" for the purposes of section 341(1)(c) of the FW Act, it must be more than a mere request for assistance. It must state a particular grievance or finding of fault: Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 (“Zhang”); Hill v Compass Ten Pty Ltd [2012] FCA 761 per Cowdroy J. Ultimately, a complaint must convey, and have been intended to convey, a complaint: Zhang.
In Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 (“Trilab”) at [16] per Judge Lucev, this Court noted that divergent approaches have emerged in this Court and the Federal Court as to when an employee “is able to make a complaint”. For reasons which will become apparent it is unnecessary for the Court to deal further with dichotomy in views as to the proper construction of s.341(1(c) of the FW Act as reflected in judgments of this Court which have applied both views: see Trilab.

Consideration – general protection contravention

This part of the application ultimately concerns two complaints:
a)the 2 April 2015 email from Mr Carrabba to PFP reporting an alleged verbal tirade by Mr Roberts; and
b)the letter from Mr Carrabba’s lawyer, Mr Heathcote, of 31 August 2015 addressed to various UMW employees, two of whom were directors of PFP.
There is no dispute that Mr Carrabba’s dismissal was adverse action.
In relation to the 2 April 2015 email the Court finds that:
a)it was not a complaint per se made by Mr Carrabba, but rather his account of the matters being investigated by PFP in relation to a complaint by an unnamed and unknown person in relation to the consumption of alcohol in breach of PFP’s no alcohol policy, and of other possible breaches of the no alcohol policy, and in relation which there is no complaint, but an observation that Mr Roberts spoke in an aggressive manner;
b)it could not have formed any part of the decision-makers reasons for dismissing Mr Carrabba because the decision-makers, Mohanachandran KP Madhavan Nair (“Mohan”), who had been involved at Board level with PFP since 2012, and a director of PFP since December 2014, and an International Marketing Director within the UMW Group, and Mr Roberts were not aware of it when Mr Carrabba was dismissed on 14 September 2015, and indeed were unaware of it until the present proceedings had commenced, and the decision-makers were not cross-examined in an endeavour to establish that they had seen it prior to Mr Carrabba’s dismissal;
c)if there was a complaint concerning the subject matter, that is the alleged breach of the no alcohol policy referred to therein, it is not known who made that complaint, and Mr Carrabba disavowed that it was originally his complaint; and
d)it preceded the dismissal of Mr Carrabba by more than five months, and there is no obvious or inherent causal link between it and the dismissal.
In the above circumstances the Court is not satisfied that the 2 April 2015 email:
a)was a complaint for the purposes of s.341(1)(c) of the FW Act; or
b)formed any part of the reason for Mr Carrabba’s dismissal, let alone a substantial and operative reason.
In relation to the letter from Mr Carrabba’s lawyer, Mr Heathcote, of 31 August 2015 the Court notes that it came against the background of a discussion between Mr Roberts and Mr Carrabba earlier in August 2015 as to whether there might be a mutually beneficial way of Mr Carrabba leaving PFP’s employment. The letter itself is not to Mr Carrabba’s employer, but is addressed to four employees of UMW, two of whom were also directors of PFP. Further, and tellingly, and this was Mr Carrabba’s evidence, the letter was intended to protect the best interests of UMW, and sought to do so by referring to what had been happening at PFP. The evidence established that at this time it was obvious, or ought to have been obvious, to Mr Carrabba that he was unlikely to remain in employment with PFP much longer. The letter of 31 August 2015 is a carrot and stick letter, seeking on the hand to inform UMW about matters related to PFP that Mr Carrabba says that UMW are not being informed about, and that they will not be informed about by Mr Roberts if Mr Carrabba is dismissed, and seeking to have talks about those matters, but in the absence thereof effectively threatening litigation (which is how it was understood by UMW: see their response of 4 September 2015). The letter of 31 August 2105 is not a complaint: rather it is a request to have discussions which, if refused, will result in litigation, or damage to PFP’s (and hence UMW’s) reputation. Save in one respect, it is not even a letter in relation to Mr Carrabba’s employment, other than peripherally: the subject matter is the corporate reputation and conduct of PFP, not Mr Carrabba’s employment. The matters were ones in respect of which UMW were being invited by Mr Carrabba, somewhat presumptuously, “to exercise appropriate supervision of”.
The one respect in which the letter of 31 August 2015 can be said to be in relation to Mr Carrabba’s employment is the reference to Mr Carrabba’s concern as to how PFP have dealt with his “contractual rights” (the precise nature of which are not relevantly explained), and in respect of which, and together with the other matters, Mr Carrabba seeks to “speak with any of you” at a convenient time.

The Court is prepared to accept that the 31 August 2015 letter is a complaint in relation to Mr Carrabba’s employment, but only in relation to his “contractual rights”. A complaint arguably need not be made directly to the employer of an employee: see Thorpe v Vetis Consulting Services Pty Ltd [2019] FCCA 2375 at [44] per Judge Lucev. Here the complaint is made to employees of a parent company, two of whom are also directors of the employer, PFP. In the circumstances the complaint is made to persons who have the capacity to act in relation to the complaint, if that was what was being sought in the 31 August 2015 letter.
The question then becomes was the dismissal of Mr Carraba because of the complaint, that is, because of the exercise of a workplace right.
By the time the 31 August 2015 letter was written it is plain that PFP were already giving consideration to the dismissal of Mr Carrabba, and may have been doing so for some time.
The evidence further indicates that on 1 September 2015, and before Mr Roberts had seen, or was aware of the contents of, the 31 August 2015 letter, he had emailed Mohan from UMW:
a)setting out issues of alleged sub-standard performance by Mr Carrabba, including disloyalty (to Mr Roberts), not acting in the best interests of PFP, acting in his own best interests, discouraging others from applying for employment with PFP, failing to co-operate with consultants who had been brought in, and not being, in general, participatory; and
b)indicating that he thought Mr Carrabba’s ought to be dismissed.
It is fair to observe therefore that, at the very least, the 31 August 2015 letter did not operate as the trigger for Mr Carrabba’s dismissal. Indeed, Mr Carrabba’s dismissal had earlier in 2015 (in March) been raised at a PFP Board level as part of a “recovery plan” which was considered by the Board.
The evidence of Mohan was instructive. His evidence was that:
a)he would have had Mr Carrabba exit PFP much earlier: in fact, as early as 2012 or 2013;
b)that there were, at least in his view, issues with respect to impaired stock, surplus cash and depreciating assets in 2014, in relation to which Mohan considered that Mr Carrabba’s employment ought to have ended;
c)steps had been taken prior to the receipt of the 31 August 2015 to obtain advice, both internal and external to the UMW Group, about Mr Carraba’s possible dismissal;
d)that there was a delay, prior to 31 August 2015, in acting upon Mr Carraba’s situation pending the outcome of the investigation into the breach of the no alcohol policy;
e)that the reasons upon which he acted in approving Mr Carrabba’s dismissal were those contained in Mr Robert’s 1 September 2015 email; and
f)he had no regard to the matters in the 31 August 2015 letter in making the decision to dismiss Mr Carrabba.
Although Badrul Feisal Abdul Rahim (“Budral”) who was the Chief Operating Officer of UMW, and a Board member of PFP had to finally approve the dismissal of Mr Carrabba, the evidence indicates that that action was administrative only, and Budral was not the decision-maker. The role of decision-maker, was one fulfilled ultimately by Mohan, and to a lesser extent, by Mr Roberts.
Insofar as Mr Roberts’ role as a decision-maker is concerned the Court re-iterates that both Mohan and Mr Roberts had no knowledge at the relevant time of the 2 April 2015 email, and it follows that it could not therefore have been part of any reason for dismissal. Further, Mr Roberts did not have knowledge of the 31 August 2015 letter at the time he wrote his 1 September 2015 containing the reasons for which he considered Mr Carrabba ought to be dismissed. Neither Mohan nor Mr Carrabba resiled from the effect of their evidence as outlined above under cross-examination. The Court sees no reason not to believe their direct evidence as to the reasons for Mr Carrabba’s dismissal.
In the above circumstances the Court finds that:
a)the exercise of a workplace right in relation to the complaint made by Mr Carrabba in relation to his “contractual rights” was not a reason at all for, or at the very least not a substantial and operative reason for, Mr Carrabba’s dismissal; and
b)even if both the 2 April 2015 email, and the 31 August 2015 letter (as a whole), were complaints, or matters in relation to Mr Carrabba’s employment, for the purposes of s.341(1)(c) of the FW Act, neither of them was a reason, or at the very least a substantial and operative reason, for Mr Carrabba’s dismissal.
It follows that insofar as the application alleges a contravention of a general protection by the taking of adverse action because of the exercise of a workplace right by Mr Carrabba, that part of the application must be dismissed.

Ancillary liability claims

Section 550 of the FW Act deems that a person who is involved in a contravention of a civil remedy provision (relevantly, the general protections claim referred to above) is taken to have also contravened that provision. Because the claims made by Mr Carrabba against PFP have been unsuccessful it is unnecessary to consider the application of the ancillary liability provisions of s. 550 of the FW Act to Mr Roberts.

Consideration - Breach of Contract - Implied Term as to Notice

At common law, where a contract of employment is, as here, silent on its termination and the necessary notice period, as a matter of law, a term is to be implied into that contract giving the right to terminate upon the giving of reasonable notice: Rankin v Marine Power International Pty Ltd [2001] VSC 150; Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
The common law position set out above precedes the statutory safety net entitlement as to notice of termination and payment in lieu introduced by the FW Act. The National Employment Standard set out in section 117 of the FW Act prohibits a national system employer, such as PFP, from terminating an employee's employment unless the employer has given written notice of the specified notice period. Relevantly, in all the circumstances of the Applicant, this would be a period of 5 weeks, as a minimum: see s.117(3) of the FW Act.
It is not in dispute that PFP paid Mr Carrabba three months’ pay in lieu of notice.
The effect of s.117 of the FW Act upon the implication of a period of notice into a contract otherwise silent on the point was dealt with by the District Court of South Australia in Kuczmarski v Ascot Administration Pty Ltd [2016] SADC 65; (2016) 259 IR 233 (“Kuczmarski”) at [53]-[68] per Judge Clayton where it was held that:
a)where termination on notice is dealt with in a contract, award or Act it is not “necessary” to imply the term because the topic has been addressed. Section 117 of the FW Act prescribes a minimum period of notice. As such it is not “necessary” to imply an additional term as to notice into the employment contract because Parliament has already imposed an obligation on employers to give a period of notice. As such, there was no relevant “gap to fill”; and
b)section 117 of the FW Act excludes or displaces the implied term, sets a minimum standard or safety net, and leaves the parties to contracts of employment free to agree expressly a greater period of notice should they wish to do so.
In Kuczmarski the District Court of South Australia followed the judgment of the Full Court of the Supreme Court of South Australia in Brennan v Kangaroo Island Council [2013] SASFC 151; (2013) 120 SASR 11 (“Brennan”). In Brennan it was said, at [34] per Vanstone, Anderson and Parker JJ, that:
a)the implication of an obligation to give reasonable notice was not necessary to give business efficacy to an employee’s employment contract where the employee’s employment was covered by an award, because the existence of an award provision dealing with notice on termination of employment was effective without any need to imply an obligation into the employment contract to give reasonable notice, and was so notwithstanding that the award operated and had effect independently of the employment contract; and
b)because of the award it could not be said that the implication of such a term would have been accepted by the contracting parties as a matter so obvious as to “go without saying”.
In Brennan v Kangaroo Island Council [2014] HCASL 153 (“Brennan – Special Leave”) the High Court refused special leave to appeal Brennan, observing at [5] per Bell and Gageler JJ that the analysis in Brennan was consistent with that of the High Court in Byrne. In Australian National Hotels v Jager (2000) 9 Tas R 153 (“Jager”) the Full Court of the Supreme Court of Tasmania held that the trial judge had been wrong to imply a term of notice into a contract where the State industrial relations law provided for minimum periods of notice on termination of an employment contract. Having regard to the judgments of the High Court in Byrne and Brennan – Special Leave, and of two Full Courts of State Supreme Courts in Brennan and Jager, and the District Court of South Australia in Kuczmarski, the Court will apply the latter three judgmenets which are plainly correctly decided (particularly in light of Brennan – Special Leave), and decline to follow this Court’s judgment in McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 which is, with respect, wrongly decided.
In the circumstances, Mr Carrabba’s contract is effective and has business efficacy without implying any additional period of what would otherwise be reasonable notice.
The alleged breach of contract claim brought by Mr Carrabba must therefore fail, and be dismissed.

Conclusion and orders

The Court has concluded that the claims made by Mr Carrabba alleging a contravention of a general protection provision of the FW Act and a breach of contract have both not been made, It follows that his application must be dismissed. There will be an order accordingly.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has read, and re-read significant portions of each of the following:
a)the Claim Form and Response;
b)each of the affidavits;
c)the entirety of the Transcript;
d)exhibit 1; and
e)the written submissions submitted by PFP and Mr Roberts.
These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
On the face of it this is a no costs matter: FW Act, s.570(1). If, however, any party considers that they might be entitled to costs: see FW Act, s.570(2), an application for costs might be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth). The Court observes, however, that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints, with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 9 October 2019

[2019] FCCA 2857

9 October 2019 (delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))