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Celand v Skycity Adelaide Pty Ltd

Celand v Skycity Adelaide Pty Ltd

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Case Copied 29 February 2016 48 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CELAND v SKYCITY ADELAIDE PTY LTD

[2016] FCCA 399

Catchwords:
INDUSTRIAL LAW – Employment – alleged adverse action as a result of exercise of workplace right – alteration of position of employment – injury and discrimination in employment – dismissal – causal relationship between adverse action and workplace right – constructive dismissal – nature of repudiatory conduct.

EVIDENCE – Privilege against disclosure of settlement negotiations – application of section 131 of the Evidence Act and exception thereto – whether evidence is necessary to avoid court being misled – attempt to negotiate a settlement.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 340(1), 341(1), 342(1), 346, 351(1), 360, 361, 545(2)

Evidence Act 1995 (Cth), ss.131(1), 131(2)(g), 131(5), 140(1), 140(2),
Work Health & Safety Act 2012 (SA), s.68

Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [No 1] (2012) 248 CLR 500
Shortv Ambulance Australia [2015] FCAFC 55
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17
Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (No3) [2004] FCA 1570
White v Overland [2001] FCA 1835
Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No2) [2011] FCA 276
Galafassi v Kelly [2014] NSWCA 190
GPI Leisure Corporation Limited (in liq) v Yuill (1997) 42 NSWLR 225
Kong v Kang & Ors [2014] VSC 28
Arthur Young & Anor v Tieco International & Ors (1995) 182 LSJS 367
Morawski v State Rail (1988) 14 NSWLR 374
Penhall-Jones v New South Wales [2007] FCA 925
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650
Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27
Street v Queensland Bar Association (1989) 168 CLR 461
Hodkinson v Commonwealth (2011) 207 IR 129
Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2014] FCCA 6
Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Jones v Dunkel (1959) 101CLR 295
Railpro Service Pty Ltd v Flavel [2015] FCA 504
Police Federation of Australia v Nixon (2008) 168 FCR 340

Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor (2007) 233 CLR 115

Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319

Applicant:

JENNIFER CELAND

Respondent:

SKYCITY ADELAIDE PTY LTD

File Number:

ADG 394 of 2014

Judgment of:

Judge Brown

Hearing dates:

31 November, 1, 2, 3 & 4 December 2015

Date of Last Submission:

4 December 2015

Delivered at:

Adelaide

Delivered on:

29 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Heywood-Smith QC

Solicitors for the Applicant:

Hamdan Lawyers

Counsel for the Respondent:

Ms Eastman SC

Solicitors for the Respondent:

Sparke Helmore

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: [2016] FCCA 399
Decision Date: 29 February 2016

CaseChat Overview and Summary

In *Celand v Skycity Adelaide Pty Ltd*, the applicant, Mr Celand, alleged that Skycity Adelaide Pty Ltd, the respondent employer, had taken adverse action against him in contravention of the *Fair Work Act 2009* (Cth). The dispute concerned the alleged constructive dismissal of Mr Celand, arising from a series of actions by his employer that he claimed altered his position of employment, leading to injury and discrimination. The matter was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether Skycity Adelaide had engaged in adverse action against Mr Celand because he had exercised a workplace right, and whether the employer's conduct amounted to a repudiation of the employment contract, thereby constituting a constructive dismissal. The Court was also required to consider the admissibility of evidence relating to settlement negotiations, specifically in light of section 131 of the *Evidence Act 1995* (Cth) and its exceptions.

Judge Brown found that the evidence did not establish a causal relationship between Mr Celand's exercise of a workplace right and the alleged adverse action. The Court determined that Skycity Adelaide's conduct did not amount to a repudiation of the employment contract, and therefore, there was no constructive dismissal. Regarding the evidence of settlement negotiations, the Court applied section 131 of the *Evidence Act*, finding that the evidence was not necessary to avoid the Court being misled and that the exception did not apply in this instance.

Orders