Dousi v Colgate Palmolive Pty Limited

Colgate Palmolive Pty Limited applied to the High Court of Australia for special leave to appeal a decision concerning the disclosure of material facts. The applicant, Colgate Palmolive, was alleged to have failed to disclose its policy of terminating employees who accrued a certain amount of workers' compensation leave, specifically 52 weeks. This failure to disclose was central to the dispute, with the applicant focusing on the interpretation of section 57(1)(e) of relevant legislation and the significance of differing judicial approaches in *Do Carmo's case*.

The primary legal issues before the Court were whether the applicant's policy of terminating employees after 52 weeks of workers' compensation leave constituted a material fact of a decisive character that ought to have been disclosed. This involved determining the correct approach to identifying material facts, particularly in light of the distinction between primary and secondary facts, and whether the applicant's knowledge of an alternative work system or practice was a relevant consideration. The Court was also required to consider whether the majority judgments in the Court below had improperly imported notions of duty and breach of duty into the assessment of whether an employee had taken "all reasonable steps" to ascertain facts.

The applicant argued that the approach adopted in *Do Carmo's case* by Justices Dawson and Brennan, which considered knowledge of an alternative system of work as a material fact of a decisive character, should be applied. The applicant contended that the majority in the Court of Appeal, particularly Justice Meagher, had erred in distinguishing between primary and secondary facts, thereby finding that the knowledge of an alternative system was not a material fact of decisive character. The applicant asserted that the employer had failed to disclose two relevant and material facts: one that it had a legal duty to disclose, and another that, even without a legal duty, non-disclosure would have prevented the employee from satisfying the requirement of taking reasonable steps.