Cavar v MSS Security Pty Ltd (No 2)
[2025] FCA 606
•12 June 2025
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:
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.
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.
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.
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.
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.
On 6 June 2023, the applicant and the respondent entered into the contract. The contract relevantly provided:
LETTER OF APPOINTMENT – FULL-TIME
Congratulations on this offer of employment as a full-time Security Officer with MSS Security Pty Ltd (the Company), Australia’s leading provider of security services. As a member of a company with a long and proud history, we expect you will positively contribute to the level of service we provide to our clients.
…
Effective Date
The effective date of this contract is 08 June 2023.
Terms of Employment
As a Security Officer with the Company you agree to perform your duties at any site at which the Company has a contract to provide security services.
Your employment with the Company in a Full-time position will be dependent upon the Company retaining the contract with its client to provide security services at the site where you work.
…
Probationary Period
Your position as a Full-time Security Officer is subject to a probationary period of three (3) months. During this period either you or the Company may terminate the contract of employment by providing one (1) week’s notice or payment of 1 week’s wages in lieu of notice.
This probation period does not affect any rights under the Fair Work Act 2009.
12 Hour Ordinary Time Shifts
Signing this contract of employment indicates your understanding and agreement to working 12 Hour Ordinary Time Shifts and the Company’s method of payment regarding overtime whilst employed by the Company on any site at which 12 hour shifts are applicable.
…
(emphasis in original)
The applicant worked her first shift for the respondent on 9 June 2023.
The respondent terminated the applicant’s employment on 5 September 2023.
In Schedule A to these reasons are tables setting out the hours rostered to the applicant as recorded in the respondent’s fortnightly rosters for the period from 9 June to 5 September 2023.
The respondent’s payslips created with respect to the applicant during the period of her employment record the hours in respect of which the respondent paid the applicant for particular fortnightly periods.
The hours referred to in the roster and in the payslips are, in summary:
Fortnight Period Hours as per roster Hours as per payslips 5 June 2023 to 18 June 2023 60 60 19 June 2023 to 2 July 2023 92 92 3 July 2023 to 16 July 2023 108 108 17 July 2023 to 30 July 2023 108 108 31 July 2023 to 13 August 2023 104 104 14 August 2023 to 27 August 2023 83 83 28 August 2023 to 10 September 2023 75 58.6
The difference between the 75 hours rostered and the 58.6 hours paid for the final fortnight is due to the applicant taking personal leave with respect to a 12 hour shift on 30 August 2023 for which the applicant was rostered, in circumstances where personal leave is paid on a standard day of 7.6 hours; and the applicant being rostered for a 12-hour shift on 4 September 2023 which she did not work.
The applicant’s case appears to rely upon emails sent to the applicant by employees of the respondent in about mid-August 2023, which the applicant contends show that in subsequent weeks the applicant was to be rostered to work less than 38 hours per week. Those emails (as reproduced) are difficult to read and it is not clear that the applicant was in fact to be rostered to work less than 38 hours per week.
In any event, those emails are overtaken by the hours actually worked by the applicant and the payment made to the applicant for those hours.
For the fortnight ending on 27 August 2023, the applicant was paid for 83 hours. During the fortnight ending 10 September 2023: (1) the applicant’s employment was terminated on 5 September 2023; (2) the applicant was paid for 58.6 hours, which exceeds the pro rata equivalent for the period 28 August 2023 to 5 September 2023.
It follows that regardless of the roster shown in the mid-August 2023 emails, the applicant was paid an amount in excess of the amount payable for a 76 hour fortnight. Thus, if the mid-August 2023 emails do show a proposed roster allocation of less than 76 hours per fortnight, then this caused no loss to the applicant.
For the foregoing reasons the applicant’s originating application must be dismissed. The respondent accepts that there should be no order as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate:
Dated: 12 June 2025
SCHEDULE A
Shift End Date Shift Duration (hours) 9-6-2023 12 13-6-2023 12 14-6-2023 12 15-6-2023 12 16-6-2023 12 Total: 60
Shift End Date Shift Duration (hours) 20-6-2023 12 22-6-2023 12 23-6-2023 12 23-6-2023 8 26-6-2023 12 28-6-2023 12 29-6-2023 12 30-6-2023 12 Total: 92
Shift End Date Shift Duration (hours) 3-7-2023 12 4-7-2023 12 5-7-2023 12 7-7-2023 12 8-7-2023 12 11-7-2023 12 12-7-2023 12 13-7-2023 12 14-7-2023 12 Total: 108
Shift End Date Shift Duration (hours) 17-7-2023 12 18-7-2023 12 22-7-2023 12 23-7-2023 12 24-7-2023 8 25-7-2023 12 27-7-2023 8 28-7-2023 8 29-7-2023 12 30-7-2023 12 Total: 108
Shift End Date Shift Duration (hours) 2-8-2023 8 3-8-2023 8 4-8-2023 8 5-8-2023 12 6-8-2023 12 7-8-2023 8 8-8-2023 8 9-8-2023 8 12-8-2023 12 13-8-2023 12 14-8-2023 8 Total: 104
Shift End Date Shift Duration (hours) 18-8-2023 8 19-8-2023 12 20-8-2023 12 21-8-2023 3 23-8-2023 8 24-8-2023 8 25-8-2023 8 26-8-2023 12 27-8-2023 12 Total: 83
Shift End Date Shift Duration (hours) 29-8-2023 12 30-8-2023 12 31-8-2023 12 1-9-2023 12 3-9-2023 12 4-9-2023 12 5-9-2023 3 Total: 75
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