Flageul v WeDrive Pty Ltd

Case [2021] FCAFC 102

FEDERAL COURT OF AUSTRALIA

Flageul v WeDrive Pty Ltd [2021] FCAFC 102

Appeal from: Flageul v WeDrive Pty Ltd [2020] FCA 1666
File number: VID 799 of 2020
Judgment of: FLICK, MURPHY AND O'CALLAGHAN JJ
Date of judgment: 15 June 2021
Catchwords:

INDUSTRIAL LAW – claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) – whether primary judge erred in dismissing claims

CORPORATIONS LAW - claim made under s 232 of the Corporations Act 2001 (Cth) - whether primary judge erred in dismissing claim

APPEALS – findings of fact – not shown to be glaringly improbable – role of appellate court in reviewing findings of fact 

Legislation:

Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth)

Corporations Act2001 (Cth)

Fair Work Act 2009 (Cth) ss 340, 341, 360, 361
Cases cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301

Board of Bendigo Regional Institute of Technical and Further Educationv Barclay [2012] HCA 32; (2012) 248 CLR 500

Browne v Dunn (1894) 6 R 67

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Fexuto Pty Limited v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

House v The King [1936] HCA 40; (1936) 55 CLR 499

Maric v Ericsson Australia Pty Ltd [2020] FCA 452; (2020) 293 IR 442

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550

Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2020] FCAFC 37; (2020) 275 FCR 423

Short v Ambulance Victoria [2015] FCAFC 55; 249 IR 217

Wilmar Sugar Australia Limited v Mackay Sugar Limited [2017] FCAFC 40; (2017) 345 ALR 174

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 87
Date of hearing: 19 May 2021
Counsel for the Appellant: Ms L De Ferrari SC
Solicitor for the Appellant: AJH Lawyers
Counsel for the Respondents: Mr A Meagher
Solicitor for the Respondents: Clyde & Co

ORDERS

VID 799 of 2020
BETWEEN:

YAN FRANCK FLAGEUL

Appellant
AND:

WEDRIVE PTY LTD T/A WEDRIVE (ABN 47 621 317 324)

First Respondent

STEVEN MACE

Second Respondent

GREGG TAYLOR

Third Respondent

ORDER MADE BY:

FLICK, MURPHY AND O'CALLAGHAN JJ

DATE OF ORDER:

15 JUNE 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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


REASONS FOR JUDGMENT

FLICK J:

  1. The Appellant in the present proceeding, Mr Yan Flageul, was the Chief Executive Officer of the First Respondent,…

Continue reading Flageul v WeDrive Pty Ltd

Sign in free to access the full text

Details
AGLC
Flageul v WeDrive Pty Ltd [2021] FCAFC 102
Case
[2021] FCAFC 102
Decision Date

CaseChat Overview and Summary

Mr Flageul appeals against the dismissal of his proceeding against WeDrive Pty Ltd and others, seeking pecuniary penalties under the Fair Work Act 2009 (Cth) and damages pursuant to the Fair Work Act, the Corporations Act 2001 (Cth) and the Australian Consumer Law. Mr Flageul claimed adverse action, breach of s 358 of the FW Act, oppression and unconscionable conduct by the respondents. The primary judge dismissed all of Mr Flageul’s claims. The central issue for the court was whether the primary judge erred in dismissing Mr Flageul’s claims under ss 340 and 358 of the FW Act and under s 232 of the Corporations Act. The court considered whether the findings of fact made by the primary judge were not glaringly improbable and whether the primary judge erred in dismissing the claims.

The court found that the findings of fact were not glaringly improbable and therefore should not be disturbed on appeal. The court held that the primary judge did not err in dismissing the claims. The court found that Mr Flageul had not established that he was dismissed because of the exercise of any workplace right, which was a necessary element for a claim under s 340 of the FW Act. The court also held that Mr Flageul’s claim under s 358 of the FW Act failed because he did not establish that the respondents engaged in conduct that was oppressive, discriminatory or in breach of a provision of the FW Act. The court found that the primary judge did not err in dismissing the claim under s 232 of the Corporations Act, which required Mr Flageul to establish that the respondents engaged in oppressive or unfair conduct.

The appeal is dismissed. There is to be no order for costs.

Orders

Orders of the court

1. The appeal is 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

Grounds 1.1 to 1.8 of the Notice of Appeal are dismissed. CONCLUSIONS Subject to these short observations directed solely to the claims made by the Appellant pursuant to the Fair Work Act, concurrence is expressed with the reasons of Murphy and O’Callaghan JJ. Like their Honours, no view is expressed as to whether the decision in PIA Mortgage Services v King is “plainly wrong” and whether preference should be given to the obiter views expressed by Bromberg J (with whom Mortimer J agreed) in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, (2020) 302 IR 400 (“Cummins South Pacific v Keenan”). That question simply does not arise for resolution in the present appeal. Nor were the competing views addressed in sufficient detail by opposing Counsel in the present proceeding so as to place the Court in a safe position to even express any tentative opinion. Separate from the failure of the Appellant to make good his contention that he was dismissed “because” of the exercise of any workplace right, stands the further difficulty confronting the Appellant in respect to his contention directed to PIA Mortgage Services v King being “plainly wrong”. This difficulty is that the primary Judge “accepted” that the fifth complaint was “anchored” in a “legal right”: [2020] FCA 1666 at [285]. Irrespective of whether PIA Mortgage Services v King was applied to the facts, or the broader view expressed by Bromberg J in Cummins South Pacific v Keenan be applied, this was not an issue which would have led to any different result. The appeal is to be dismissed. There is to be no order for costs. This is an appeal by Mr Flageul against a decision of a judge of this court dismissing his proceeding against the respondents, in which Mr Flageul sought the payment of pecuniary penalties under s 546 of the Fair Work Act 2009 (Cth) (the FW Act), and damages pursuant to the FW Act, the Corporations Act 2001 (Cth) (the Corporations Act) and the Australian Consumer Law (set out in Sch 2 to the Competition and Consumer Act 2010 (Cth)) (the ACL). His causes of action comprised claims of adverse action, breach of s 358 of the FW Act, oppression and unconscionable conduct on the part of the respondents. It is sufficient to describe the facts in the following broad terms, which are taken from the reasons of the primary judge: see Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [4]-[12]. For many years Mr Flageul sought to develop an application or “app” called “WeDrive”. The app was intended to permit a member of the public who had driven to an event, but did not want to drive home, to be allocated a driver who would arrive at the event and drive the member of the public home in their car; that driver would then be collected by another driver (a co-driver). By early 2017, considerable work had been completed in the development of this app, which was owned by Mr Flageul’s company, WeDrive Australia Pty Ltd (WeDrive Australia). Mr Steven Mace, the second respondent, was a majority shareholder, director and executive chairman of Multi Services Solutions Group Pty Ltd (MSS Group). Mr Christopher Russell was at the time the CEO of this company. It owned six subsidiaries which carried on a number of businesses, including MSS Transport Services Pty Ltd (MSS Transport), which carried on a business of outsourced car detailing for hire car companies. This included, for this purpose, the provision of staff to collect hire vehicles. Mr Matthew Barker was at all relevant times the managing director of MSS Transport. Mr Taylor, the third respondent, was the non-executive chairman of MSS Group. He was also a director of other unrelated companies.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.