Cigarette & Gift Warehouse Pty Ltd v Whelan

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FEDERAL COURT OF AUSTRALIA

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Appeal from: Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 695
File number: QUD 11 of 2018
Judges: GREENWOOD, LOGAN AND DERRINGTON JJ
Date of judgment: 8 February 2019
Catchwords:

INDUSTRIAL LAW – appeal from Federal Court – alleged denial of procedural fairness – allegations unsubstantiated.

INDUSTRIAL LAW – alleged contraventions of s 340(1) Fair Work Act 2009 (Cth) whether there was a workplace right - whether complaint or inquiry about bonuses is a workplace right – whether complaint or inquiry about request to a third party is a workplace right - whether workplace right was exercised or proposed to be exercised – whether applicant was discriminated against - whether exercise of workplace right was a substantive or operative reason for dismissal – where decision maker gave no direct testimony in the proceedings – whether second respondent involved in the contravention.

INDUSTRIAL LAW – alleged contravention of ss 44(1) and 117 Fair Work Act 2009 (Cth) – refusal to pay statutory entitlements – evidence that entitlements deliberately withheld – whether second respondent involved in contravention.

CONTRACTS – cross claim – whether payment to applicant was a loan or advance – whether payment was a discretionary bonus.

COMPENSATION – claim for loss of opportunity to work for first respondent – whether employment would have continued - claim for loss of opportunity to work at former employer – claim of non-economic loss for hurt and humiliation - whether post dismissal actions of employer are relevant to compensation.

Legislation:

Fair Work Act 2009 (Cth) ss 61(2)(i), 44(1), 117, 123, 340(1), 545, 550

Fair Work Regulations 2009 (Cth)

Cases cited:

Australian Communications and Media Authority v Mobilegate Ltd (No 8) (2010) 275 ALR 293

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

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

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2012) 209 FCR 448

EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fox v Percy (2003) 214 CLR 118

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 231

Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359

State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441

Warren v Coombes (1979) 142 CLR 531

Date of hearing: 24 May 2018
Date of last submissions: 24 May 2018
Registry: Queensland
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 55
Counsel for the Appellants: Mr P Roney QC
Solicitor for the Appellants: Nyst Legal
Counsel for the Respondent: Mr E White
Solicitor for the Respondent: Adams Wilson Lawyers

ORDERS

QUD 11 of 2018
BETWEEN:

CIGARETTE & GIFT WAREHOUSE PTY…

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Details
Case
[2019] FCAFC 16
Decision Date

CaseChat Overview and Summary

The appeal in Cigarette & Gift Warehouse Pty Ltd v Whelan involved the applicant, a former employee, contesting the dismissal of his employment. The applicant argued that his dismissal was due to his participation in activities protected by the Fair Work Act 2009 (Cth). The applicant contended that he was dismissed after complaining about a bonus and requesting a third party to inquire into the matter. The Federal Court of Australia heard the appeal, with the primary focus on whether the applicant's activities constituted a workplace right under the Fair Work Act and if these activities were the reason for his dismissal.

The legal issues that the court had to address included whether the applicant's complaint or inquiry about bonuses constituted a workplace right, whether the right was exercised or proposed to be exercised, and if the exercise of this right was a substantive reason for the dismissal. Additionally, the court needed to determine if the applicant was discriminated against and if the second respondent was involved in the contravention of the Act. The court also considered whether the payment made to the applicant was a loan or an advance and if it was a discretionary bonus. Furthermore, the court examined the compensation claim for the loss of opportunity to work for the first respondent, the claim for loss of opportunity to work at the former employer, and the claim for non-economic loss for hurt and humiliation.

The court found that the applicant's allegations were unsubstantiated, and his dismissal did not contravene the Fair Work Act. The court held that the applicant's complaint or inquiry about bonuses was not a workplace right, and there was no evidence that the exercise of such a right was the reason for his dismissal. The court also found that the second respondent was not involved in the contravention of the Act. Regarding the cross claim, the court determined that the payment to the applicant was a discretionary bonus and not a loan or advance. The compensation claim was also dismissed, as the court found that the post-dismissal actions of the employer were not relevant to the claim.

The court dismissed the appeal and reserved all questions of costs for consideration in the event that a party makes an application for costs. If a party wishes to make an application for costs, notice in writing should be given to the Registrar and the opposing party not later than 20 February 2019.

Orders

Orders of the court

1. The appeal be dismissed.

2. All questions as to costs in relation to the appeal be reserved for consideration in the event that a party makes an application for costs.

3. If a party (or parties) wishes to make application for costs, notice in writing should be given to the Registrar and the opposing party (or parties) not later than 20 February 2019.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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