Cummins South Pacific Pty Ltd v Keenan

Cummins South Pacific Pty Ltd sought an appeal against a decision of the Federal Circuit Court of Australia, challenging aspects of the decision relating to the dismissal of Mr Keenan and his entitlement to long service leave. The appeal centred on whether Mr Keenan's dismissal was in contravention of section 340(1) of the Fair Work Act 2009 (FW Act), the interpretation of section 341(1)(c)(ii) concerning complaints, and the assessment of evidence by the primary judge in relation to the breach of sections 340(1) and 352 of the FW Act. Additionally, the appeal disputed the calculation of Mr Keenan's long service leave entitlements under the Long Service Leave Act 1992 (Vic) (LSL Act), specifically whether he was "continuously employed" by "one employer" in Victoria while employed overseas.

The court was required to decide whether Mr Keenan's complaints were made within the meaning of section 341(1)(c)(ii) of the FW Act and whether he was "able to make" a complaint or inquiry. Furthermore, the court had to determine if the primary judge erred in finding that Cummins had failed to rebut the statutory presumption in section 361 of the FW Act. The court also needed to interpret the LSL Act to determine if Mr Keenan was entitled to long service leave for periods where he had no connection to Victoria and whether a substantial connection to Victoria was required at all relevant times.

The court allowed the appeal in part, setting aside certain paragraphs of the Federal Circuit Court's order and referring the matter for urgent mediation. The appeal was dismissed in relation to the calculation of Mr Keenan's long service leave entitlements under the LSL Act. The court found that the primary judge had not erred in characterising Mr Keenan's communication as a complaint and that Cummins had not demonstrated any error in the assessment of evidence. However, the court found errors in the primary judge's approach to the assessment of evidence concerning the contravention of sections 340(1) and 352 of the FW Act. The final orders included allowing the appeal in part, setting aside specific paragraphs of the Federal Circuit Court's order, and referring the matter for mediation. If unresolved, the proceeding was to be listed for a Case Management Hearing.