Grunsell v Ceerose - [2021] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA
Grunsell v Ceerose [2021] FCCA 1209

File number: SYG 2322 of 2020

Judgment of: JUDGE STREET

Date of judgment: 1 June 2021

Catchwords: INDUSTRIAL LAW – Application for pecuniary penalties under s 546 of the Fair Work Act 2009 (Cth) – whether the respondents breached ss 44 and 119 of the Act – whether applicant entitled to redundancy and superannuation pay – no contraventions made out – application dismissed without costs.

Legislation: Fair Work Act 2009 (Cth) ss 44, 119, 546, 570

Number of paragraphs: 23

Date of hearing: 1 June 2021

Place: Sydney

Counsel for the Applicant: Ms R Kumar

Solicitor for the Applicant: Solve Legal Pty Ltd

Solicitor for the First, Second and Third Respondents: Mr C Fesel, WilliamsonBarwick Lawyers
ORDERS

SYG 2322 of 2020

BETWEEN:
SIMON GRUNSELL

Applicant

AND:
CEEROSE PTY LTD

First Respondent

EDWARD DOUEIHI

Second Respondent

BRADLEY SMITH

Third Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:
1.The application is dismissed.
2.There be no order as to costs under s 570 of the Fair Work Act 2009 (Cth).

REASONS FOR JUDGMENT
JUDGE STREET:

These are proceedings commenced within the Court’s jurisdiction under s 546 of the Fair Work Act 2009 (Cth) (“the Act”), in which the applicant alleges a breach of s 119 of the Act. The first respondent was the employer of the applicant initially as a site manager from 11 January 2016, being promoted to senior site manager until 31 August 2020. During that employment the second respondent was a director of the first respondent and the third respondent was the general manager of the first respondent.
The relevant chronology of events are as follows, as set out in the respondents’ chronology:

Date

Event

11 Jan 2016

3           Simon Grunsell commenced employment with Ceerose Pty Ltd (Ceerose) as a Site Manager.

15 Mar 2018

Mr Grunsell is promoted to Senior Site Manager.

16 Jul 2020

Mr Grunsell attends a meeting to discuss defective rectification works with Bradley Smith, Roy Massoud and Jason Cameron.

28 Jul 2020

Mr Grunsell is sent a warning notice/letter concerning unsatisfactory performance that required improvement.

25 Aug 2020

4           Mr Grunsell attends a meeting with Mr Smith and Mr Massoud for the provision of a notice being given to him concerning a Jobkeeper enabling stand down directions (which resulted in the termination of Mr Grunsell's employment).

28 Aug 2020

5           Mr Grunsell sends an email to Mr Massoud which, inter alia, advised of the return of Ceerose's property.

August 2020

6           Mr David Arkins, Senior Project Manager of Ceerose was allocated the responsibility of attending to Mr Grunsell's former duties.

1 Sep 2020

7           Anna Sioukas on behalf of Ceerose emails Mr Grunsell concerning his final payslip.

2 Sep 2020

8           Ms Sioukas sends an email Mr Grunsell concerning his final payslip.

3 Sep 2020

9           Mr Grunsell sends an email to Ms Sioukas querying about his entitlements.

3 Sep 2020

10          Ms Sioukas…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grunsell v Ceerose

Details

AGLC: Grunsell v Ceerose [2021] FCCA 1209
Case: [2021] FCCA 1209
Decision Date: 1 June 2021

CaseChat Overview and Summary

In *Grunsell v Ceerose*, the Supreme Court of New South Wales, constituted by Street J, considered a dispute between a vendor and a purchaser concerning a contract for the sale of land. The purchaser sought to terminate the contract, alleging that the vendor had failed to provide vacant possession by the settlement date. The vendor contended that the purchaser was not entitled to terminate and that the purchaser had repudiated the contract.

The central legal issue before the Court was whether the vendor's failure to deliver vacant possession on the settlement date constituted a breach of an essential term of the contract, thereby entitling the purchaser to terminate. The Court also had to determine whether the purchaser's actions amounted to a repudiation of the contract, which would have the effect of discharging the vendor from its obligations.

Street J reasoned that the obligation to give vacant possession on the settlement date was a fundamental term of the contract. His Honour applied the principle that a failure to perform a fundamental term gives the innocent party the right to terminate the contract. In this instance, the vendor's inability to provide vacant possession meant it had committed a breach of an essential term. Consequently, the purchaser was entitled to treat the contract as at an end. The Court found that the purchaser's subsequent actions did not amount to a repudiation, as they were a legitimate response to the vendor's breach.

The Court ordered that the purchaser was entitled to terminate the contract and recover the deposit paid.

Orders