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Celand v Skycity Adelaide Pty Ltd

Celand v Skycity Adelaide Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

Appeal from:
Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399

Skycity Adelaide Pty Ltd v Celand [2017] FCCA 196

File number: SAD 80 of 2016

Judges: LOGAN, BROMBERG AND CHARLESWORTH JJ

Date of judgment: 21 December 2017

Catchwords:
INDUSTRIAL LAW – contract of employment – alleged adverse action as a result of exercise of workplace right – causal relationship between any adverse action and workplace right – whether constructive dismissal – appeal dismissed

INDUSTRIAL LAW – costs – circumstances in which order for costs available – whether will be ordered rarely – whether necessary to prove exceptional circumstances – Fair Work proceedings – prohibition on recovery – exceptions to prohibition – “unreasonable act or omission” – whether the unsuccessful applicant had made an unreasonable act or omission – consideration of a “walkaway” Calderbank offer which was not accepted – rejection of such an offer not generally unreasonable in Fair Work proceedings – Fair Work Act 2009 (Cth) s 570(2)

Legislation:
Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 346, 351, 360, 361, 570

Federal Court of Australia Act 1976 (Cth) s 24

Sex Discrimination Act 1984 (Cth)

Workplace Relations Act 1996 (Cth) s 824 (repealed)

Work Health & Safety Act 2012 (SA) s 68

Federal Court Rules 2011 (Cth) r 36.10

Cases cited:
Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506

Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd(No 2) [2002] FCA 224

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Australian Workers Union v Leighton Contractors Pty Limited (No 2) (2013) 232 FCR 428

Black v Lipovac [1998] FCA 699

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Calderbank v Calderbank [1975] 3 All ER 333

Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528

Fox v Percy (2003) 214 CLR 118

General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235

House v The King (1936) 55 CLR 499

Hutchinson v Comcare (No 2) [2017] FCA 370

Jones v Dunkel (1959) 101 CLR 298

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Malik v Bank of Credit and Commerce International SA (In liquidation) [1998] AC 20

Miba Pty Ltd v Nescor Industries Group Pty Ltd [1996] FCA 834;

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: [2017] FCAFC 222
Decision Date: 21 December 2017

CaseChat Overview and Summary

In Celand v Skycity Adelaide Pty Ltd, the applicant, Celand, appealed against a decision of the Federal Circuit Court of Australia, which dismissed his application and ordered him to pay costs to the respondent, Skycity Adelaide Pty Ltd. Celand claimed that he had been constructively dismissed due to the exercise of his workplace rights and that the employer had taken adverse action against him. The primary legal issue was whether there was a causal link between Celand's alleged constructive dismissal and the exercise of his workplace rights. Additionally, the court needed to determine the circumstances under which an order for costs would be appropriate in Fair Work proceedings, particularly whether an unsuccessful party's act or omission must be unreasonable to warrant such an order.

The Federal Court of Australia found that there was no causal relationship between Celand's alleged dismissal and the exercise of his workplace rights. The court also held that, in Fair Work proceedings, an unsuccessful party's rejection of a "walkaway" Calderbank offer was not generally considered unreasonable, and therefore, an order for costs was not warranted unless exceptional circumstances were proven. The court noted that orders for costs in such proceedings were rare and typically only made in cases of unreasonable behaviour. The court concluded that Celand's rejection of the Calderbank offer was not unreasonable, and thus, the order for costs made by the Federal Circuit Court of Australia should be set aside.

Consequently, the appeal against the original dismissal of Celand's application was dismissed, and the appeal against the costs order was allowed. The court ordered that the respondent's application for costs in the Federal Circuit Court of Australia be dismissed. The decision underscores the high threshold for awarding costs in Fair Work proceedings and reinforces the principle that rejection of a Calderbank offer is not, in itself, an unreasonable act warranting such an order.

Orders

Orders of the court

1. The appeal against the order of 29 February 2016 by which the appellant’s application to the Federal Circuit Court of Australia (court below) was dismissed be dismissed.

2. The appellant’s application filed on 14 March 2017 in relation to the order for costs made by the court below on 2 March 2017 in favour of the respondent (costs order) be deemed to be an application for leave to appeal against that order and for any resultant appeal to be heard and determined instanter.

3. The appellant be granted leave to appeal against the costs order.

4. The appeal against the costs orders be allowed, that order be set aside and, in lieu thereof it be ordered that the respondent’s application for costs in the court below be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 Skycity Adelaide Pty Ltd v Celand [2017] FCCA 196
File number:	SAD 80 of 2016
Judges:	LOGAN, BROMBERG AND CHARLESWORTH JJ
Date of judgment:	21 December 2017
Catchwords:	INDUSTRIAL LAW – contract of employment – alleged adverse action as a result of exercise of workplace right – causal relationship between any adverse action and workplace right – whether constructive dismissal – appeal dismissed INDUSTRIAL LAW – costs – circumstances in which order for costs available – whether will be ordered rarely – whether necessary to prove exceptional circumstances – Fair Work proceedings – prohibition on recovery – exceptions to prohibition – “unreasonable act or omission” – whether the unsuccessful applicant had made an unreasonable act or omission – consideration of a “walkaway” Calderbank offer which was not accepted – rejection of such an offer not generally unreasonable in Fair Work proceedings – Fair Work Act 2009 (Cth) s 570(2)
Legislation:	Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 346, 351, 360, 361, 570 Federal Court of Australia Act 1976 (Cth) s 24 Sex Discrimination Act 1984 (Cth) Workplace Relations Act 1996 (Cth) s 824 (repealed) Work Health & Safety Act 2012 (SA) s 68 Federal Court Rules 2011 (Cth) r 36.10
Cases cited:	Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506 Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd(No 2) [2002] FCA 224 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 Australian Building and Construction Commissioner v Hall [2017] FCA 274 Australian Workers Union v Leighton Contractors Pty Limited (No 2) (2013) 232 FCR 428 Black v Lipovac [1998] FCA 699 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Calderbank v Calderbank [1975] 3 All ER 333 Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528 Fox v Percy (2003) 214 CLR 118 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 House v The King (1936) 55 CLR 499 Hutchinson v Comcare (No 2) [2017] FCA 370 Jones v Dunkel (1959) 101 CLR 298 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Malik v Bank of Credit and Commerce International SA (In liquidation) [1998] AC 20 Miba Pty Ltd v Nescor Industries Group Pty Ltd [1996] FCA 834;