FEDERAL COURT OF AUSTRALIA
Flageul v WeDrive Pty Ltd [2020] FCA 1666
File number: VID 653 of 2018 Judgment of: STEWARD J Date of judgment: 18 November 2020 Catchwords: INDUSTRIAL LAW – termination of employment – where applicant through his company developed ride sharing app – where that company assigned associated intellectual property to newly incorporated first respondent after due diligence conducted by third respondent – where applicant appointed as C.E.O. of first respondent – where minority of shares in first respondent issued to applicant – where majority of shares in first respondent issued to second and third respondents – where first respondent’s financial performance following assignment of intellectual property fell below expectations of second and third respondents – where functionality of app fell below expectations of second and third respondents – where second and third respondents discovered that applicant’s company did not own all intellectual property associated with app before assignment – where applicant subsequently dismissed as C.E.O. – where applicant and second and third respondents each agreed to step down as directors of first respondent and to sell all shares for $1 – where applicant made series of alleged complaints or inquiries to second and third respondents prior to dismissal as C.E.O. – where applicant allegedly worked pursuant to consultancy agreement following dismissal as C.E.O. and end of associated notice period – whether applicant exercised workplace rights – whether applicant made “complaints” or “inquiries” for purposes of s. 341(c)(ii) of Fair Work Act 2009 (Cth.) – whether complaints or inquiries “in relation to” applicant’s employment as C.E.O. for purposes of s. 341(c)(ii) – whether applicant “able” to make complaints or inquiries for purposes of s. 341(c)(ii) – whether adverse action taken “because” of applicant exercising workplace rights – whether s. 358 breached because applicant dismissed in order to be engaged as independent contractor to perform same or substantially same work under contract for services
CORPORATIONS – oppression – whether conduct of respondents oppressive to unfairly prejudicial to or unfairly discriminatory against applicant as member of first respondent whether in that capacity or any other capacity for purposes of s. 232 of Corporations Act 2001 (Cth.)
EQUITY – unconscionable conduct – where applicant allegedly subject to special disadvantages including mental health issues – where applicant alleged respondents aware of mental health issues and other special disadvantages – whether conduct of respondents towards applicant unconscionable within meaning of unwritten law for purposes of s. 20 of Australian Consumer Law
COSTS – whether power to award costs under s. 570 of Fair Work Act 2009 (Cth.) should be exercised as against applicant
Legislation: Competition and Consumer Act 2010 (Cth.) Sch. 2, s. 20
Corporations Act 2001 (Cth.) ss. 9, 202B, 232, 233, 290, 1317AA
Fair Work Act 2009 (Cth.) ss. 340, 341, 342, 358, 360, 361, 570
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.) s. 20
Occupational Health and Safety Act 2004 (Vic.) ss. 21, 25
Cases cited: Australian and Consumer Commission v. Quantum Housing Group Pty…
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- AGLC
- Flageul v WeDrive Pty Ltd [2020] FCA 1666
- Case
- [2020] FCA 1666
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the applicant had exercised workplace rights protected under the Fair Work Act, whether his dismissal constituted adverse action taken because of such exercise, and if the dismissal breached the Act by being a pretext for engaging him as an independent contractor. Additionally, the court had to determine if the conduct of the respondents was oppressive or unfairly prejudicial to the applicant under the Corporations Act and if it amounted to unconscionable conduct under the Australian Consumer Law.
In its reasoning, the court found that the applicant had not exercised workplace rights that would warrant protection under the Fair Work Act. It determined that the alleged complaints or inquiries made by the applicant did not pertain to his employment as CEO and did not fall within the scope of protected activities. The court further held that the dismissal did not contravene the Act as it was not taken because of the applicant's exercise of any such rights. The court did not find the conduct of the respondents to be oppressive or unconscionable, and it declined to exercise its power to award costs against the applicant under the Fair Work Act.
The court dismissed the proceeding and made no order as to costs, effectively concluding that the applicant's claims were without merit and that the actions of the respondents did not breach the relevant legislative provisions.
Orders
Orders of the court
1. The proceeding be dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: STEWARD J
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