Cavar v MSS Security Pty Ltd (No 2)

[2025] FCA 606

FEDERAL COURT OF AUSTRALIA

Cavar v MSS Security Pty Ltd (No 2) [2025] FCA 606    

File number(s):	NSD 1299 of 2023
Judgment of:	GOODMAN J
Date of judgment:	12 June 2025
Catchwords:	INDUSTRIAL LAW – contract of employment – no loss established – application dismissed
Cases cited:	Cavar v MSS Security Pty Ltd [2024] FCA 1460
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	17
Date of last submission:	28 April 2025
Date of hearing:	Determined on the papers
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms N Campbell
Solicitor for the Respondent:	Ms P Sena, in-house counsel for the respondent

ORDERS

NSD 1299 of 2023

BETWEEN:

CELIJA (CELIA) CAVAR

Applicant

AND:

MSS SECURITY PTY LTD ABN 29 100 573 966

Respondent

ORDER MADE BY:	GOODMAN J
DATE OF ORDER:	12 JUNE 2025

THE COURT ORDERS THAT:

1.The originating application filed on 7 November 2023 be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J:

1. The respondent employed the applicant under a contract of employment for a period of approximately three months before dismissing the applicant during the probationary period provided for under the contract.

2. Following a proceeding in the Fair Work Commission, which was settled, the applicant filed an originating application in this Court seeking an order for damages for breach of contract and misleading and deceptive conduct. The originating application is accompanied by a statement of claim in which the applicant makes a series of allegations against the respondent. For the reasons set out in Cavar v MSS Security Pty Ltd [2024] FCA 1460, I struck out most of the statement of claim, leaving only a claim for breach of contract for an alleged failure to provide 76 hours per fortnight of work to the applicant. That claim – which the parties agreed be determined on the papers – is the subject of these reasons for judgment.

3. The applicant’s claim, in essence, is as follows:

   (1)the contract provided that the applicant was employed as a full-time Relief Security Officer, for 76 hours per fortnight;

   (2)the respondent breached the contract because from 14 August 2023 the applicant’s weekly hours were reduced to 24 hours (rather than 38); and

   (3)as a result, the applicant is entitled to damages.

4. The applicant relied upon affidavits sworn by the applicant on 21 October 2023, 22 February 2024, 8 June 2024, 3 February 2025 and 14 April 2025. The respondent relied upon affidavits of Mr Glenn Robertson, its State Operations Manager for New South Wales, affirmed on 22 February 2024 and 31 March 2025.

5. From those affidavits the facts relevant to the claim for determination (and leaving aside the evidence and submissions of the applicant irrelevant to the extant claim) are as follows.

6. On 6 June 2023, the applicant and the respondent entered into the contract. The contract relevantly provided:

   LETTER OF APPOINTMENT…