Cavar v Greengate Management Services Pty Ltd (No.2) - [2016] FCCA 3358

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVAR v GREENGATE MANAGEMENT SERVICES PTY LTD (No.2)

[2016] FCCA 3358

Catchwords:
INDUSTRIAL LAW – Adverse action.

DISCRIMINATION LAW – Unlawful discrimination on grounds of age, ethnicity and nationality.

PRACTICE AND PROCEDURE – Application for summary dismissal – no reasonable prospects of success.

PRACTICE AND PROCEDURE – Industrial law – prohibition on bringing claims under the Fair Work Act 2009 and also under other statutes.

Legislation:

Fair Work Act 2009, ss.12, 65, 340, 341, 342, 344, 349, 351, 355, 361, 362, 725, 728, 732, 734

Federal Circuit Court of Australia Act 1999, s.17A
Racial Discrimination Act 1975, ss.9, 15
Age Discrimination Act 2004, ss.14, 18
Australian Human Rights Commission Act 1986, s.46PO
Federal Circuit Court Rules 2001, rr.13.10, 21.10, sch.1

Cases cited:

Cavar v St Brigid’s T/A Green Gate Pty Ltd [2015] FCCA 1993
Cavar v Green Gate Pty Ltd [2015] FCA 1179
Cavar v Greengate Management Pty Ltd and Cavar v Green Gate Pty Ltd [2016] FCCA 449
Cavar v Greengate Management Services Pty Ltd [2016] FCA 961
Spencer v Commonwealth (2010) 241 CLR 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131
Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306

Applicant

CELIA CAVAR

Respondent:

GREENGATE MANAGEMENT SERVICES PTY LTD

File Numbers:

SYG 106 of 2015 and SYG 3351 of 2015

Judgment of:

Judge Cameron

Hearing dates:

26 February and 21 March 2016

Date of Last Submission:

21 March 2016

Delivered at:

Sydney

Delivered on:

22 December 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr T. Glover

Solicitors for the Respondent:

FCB Workplace Law

ORDERS

SYG 106 of 2015

The proceeding be dismissed.

SYG 3351 of 2015

The proceeding be dismissed.
The applicant pay the respondent’s costs fixed in the amount of $6,424.14.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 106 of 2015 and SYG 3351 of 2015

CELIA CAVAR

Applicant

And

GREENGATE MANAGEMENT SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

Fair Work Act proceeding (SYG106/2015)

On 16 January 2015 the applicant, Ms Cavar, lodged an application and related Form 2 claim form alleging, amongst other things, that she had been dismissed from her employment with Greengate Management Services Pty Ltd (“Greengate Management”) in contravention of ss.340, 342, 344, 349, 351, 355 and 362 of the Fair Work Act 2009 (“FW Act”) and that Greengate Management had breached the Age Discrimination Act 2004 (“AD Act”), the Racial Discrimination Act 1975 (“RD Act”) and the Australian Human Rights Commission Act 1986 (“AHRC Act”). She later filed a statement of claim relevantly alleging that Greengate Management had taken adverse action against her, namely by changing her position to her…

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.

Keep reading for free

Create a free CaseChat account to read Cavar v Greengate Management Services Pty Ltd (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 3358
Decision Date: 22 December 2016

CaseChat Overview and Summary

In *Cavar v Greengate Management Services Pty Ltd (No.2)*, the Federal Circuit and Family Court of Australia considered an application by the respondent, Greengate Management Services Pty Ltd, for summary dismissal of proceedings brought by the applicant, Mr Cavar. Mr Cavar alleged that he had been subjected to adverse action in contravention of the *Fair Work Act 2009* (Cth) and also unlawful discrimination on the grounds of age, ethnicity, and nationality.

The primary legal issue before the Court was whether Mr Cavar's claim under the *Fair Work Act 2009* had no reasonable prospects of success, thereby warranting summary dismissal. A related issue was whether Mr Cavar was prohibited from pursuing claims under both the *Fair Work Act 2009* and other statutes, such as anti-discrimination legislation, for the same conduct.

Judge Cameron found that Mr Cavar's claim under the *Fair Work Act 2009* did not have reasonable prospects of success. The Court applied the principles governing summary dismissal, which require a high degree of certainty that a claim is bound to fail. The Court determined that the evidence presented did not establish a sufficient causal link between the alleged adverse action and Mr Cavar's protected attributes to satisfy the requirements of the adverse action provisions. Furthermore, the Court considered the interplay between the *Fair Work Act 2009* and other legislative regimes, concluding that while concurrent claims might be permissible in some circumstances, the specific factual matrix of this case did not support the continuation of the adverse action claim.

The Court ordered that the proceedings brought by Mr Cavar under the *Fair Work Act 2009* be dismissed.

Orders