Grunsell v Ceerose Pty Ltd

Case [2022] FCA 1130

FEDERAL COURT OF AUSTRALIA

Grunsell v Ceerose Pty Ltd [2022] FCA 1130

Appeal from: Simon Grunsell v Ceerose Pty Ltd & Ors [2021] FCCA 1209
File number(s): NSD 784 of 2021
Judgment of: ABRAHAM J
Date of judgment: 27 September 2022
Catchwords: APPEAL AND NEW TRIAL - application for extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia – where the Federal Circuit Court of Australia dismissed the application alleging contraventions of ss 44(1) and 119 of the Fair Work Act 2009 (Cth) – where provision of written reasons by primary judge was delayed – where applicant, inter alia, challenged the primary judge’s credit findings – where primary judge made inconsistent findings regarding whether applicant should bear consequences of supposed inconsistencies and drafting deficiencies – where flawed findings infected consideration of issues – application for extension of time granted – appeal allowed
Legislation:

Fair Work Act 2009 (Cth) ss 119, 44(1), 570

Federal Court Rules 2011 (Cth) r 36.05
Cases cited:

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

2           Boensch v Pasco [2019] HCA 49; (2019) 268 CLR 593

Concrete Pty Ltd v Parramatta Design & Development Pty Ltd [2006] HCA 55; (2006) CLR 577

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304

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

Grunsell v Ceerose [2021] FCCA 1209

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344

Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 271 FCR 461

Kumar v Bathini [2015] FCA 632

Parker v The Queen [2002] FCAFC 133

Robinson Helicopter Co Inc v McDermott [2016] HCA 22 (2016) 90 ALJR 679
Division: Fair Work
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 64
Date of last submission/s: 27 July 2022
Date of hearing: 16 August 2022
Counsel for the Applicant: Ms R Kumar
Solicitor for the Applicant: Solve Legal
Counsel for the Respondents: Mr M Seck
Solicitor for the First and Second Respondents: WilliamsonBarwick
Solicitor for the Third Respondent: Stevens & Associates Lawyers

ORDERS

NSD 784 of 2021
BETWEEN:

SIMON GRUNSELL

Applicant
AND:

CEEROSE PTY LTD

First Respondent

EDWARD DOUEIHI

Second Respondent

BRADLEY SMITH

Third Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

27 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The application for an extension of time be granted.

2.The appeal be allowed.

3.The matter be remitted to the Federal Circuit and Family Court of Australia for rehearing before a differently constituted court.

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


REASONS FOR JUDGMENT

ABRAHAM J:

  1. By an application filed 4 August 2021, the applicant, Mr Grunsell, seeks an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). All parties…

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Grunsell v Ceerose Pty Ltd [2022] FCA 1130
Case
[2022] FCA 1130
Decision Date

CaseChat Overview and Summary

In the matter of Grunsell v Ceerose Pty Ltd, the applicant, Grunsell, appealed against the primary judge's decision that dismissed his application alleging contraventions of the Fair Work Act 2009 (Cth). Grunsell claimed that the respondents, Ceerose Pty Ltd and others, failed to pay him redundancy as stipulated by sections 44(1) and 119 of the Fair Work Act. The primary judge found that Grunsell had resigned rather than being dismissed or made redundant, thus negating the claimed contraventions.

The court examined whether Grunsell's employment was terminated at the employer's initiative or due to redundancy, as per the Act. The respondents argued that Grunsell had resigned, a claim supported by evidence including a draft deed and Grunsell's own change in position. The primary judge concluded that Grunsell's assertion of being made redundant lacked evidence and deemed Grunsell an unreliable witness, finding that he had voluntarily resigned.

The court's reasoning focused on the reliability of Grunsell's testimony and the lack of evidence supporting his claims of redundancy. The primary judge's findings were based on Grunsell's inconsistency in his statements and the absence of any communication from the respondents indicating redundancy. Consequently, the court upheld the primary judge's decision, dismissing Grunsell's application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before considering the grounds of appeal, it is appropriate to consider the reasons provided by the primary judge. Primary judgment The primary judge dismissed the applicant’s application alleging that the respondents had contravened ss 44(1) and 119 of the Fair Work Act 2009 (Cth) by failing to pay him redundancy. Section 44(1) of the Fair Work Act provides that an employer must not contravene a provision of the National Employment Standards, while s 119(1) relevantly states:119 Redundancy payEntitlement to redundancy pay(1)An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or(b) because of the insolvency or bankruptcy of the employer. The primary judge identified the core issues pleaded by the applicant as: that he had been terminated without notice; and that he had been made redundant. The respondents’ defence was summarised as the applicant having resigned, rather than being dismissed or made redundant: at [3]. His Honour accepted the respondents’ evidence, finding that the applicant resigned at the meeting in question on 25 August 2020. The result was that none of the pleaded contraventions against any of the three respondents were made out: at [4] and [16]-[19]. That conclusion was based on his Honour’s findings at [9] that: the applicant changed his position between the 25 August 2020 meeting and making the assertion that he had not resigned on 1 September 2020; and cl 2.1 of a draft deed sent to the applicant on 8 September 2020 corroborated the respondents’ case that the applicant had resigned. His Honour also found that although the applicant’s application filed in the Fair Work Commission and statement of claim both asserted a conversation with the second respondent to the effect that he had been made redundant, no evidence of such a conversation existed, with either the second respondent or any other officer of the first respondent: at [10]. In oral evidence, the applicant indicated that his only basis for asserting that he was made redundant was a reference to being given his entitlements. His Honour found that was not a proper basis to assert an oral conversation that the applicant had been made redundant or to infer that he had been made redundant: at [10] and [14]. Rather, his Honour found that the applicant resigned at the meeting of 25 August 2020 on his own voluntary initiative: at [11] and [15]. On the basis that the applicant had been willing to assert that he was verbally told he was made redundant when that did not occur, his Honour found that the applicant was not a reliable witness: at [10]-[11]. That finding was in circumstances where his Honour also concluded that nothing was said in the meeting of 25 August 2020 to communicate that the first respondent no longer required the job to be done by the applicant or by anyone: at [15].

Ratio Decidendi

Legal Principle Established

The power to extend time in which to appeal is unfettered. However, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters identified in that judgment to which the Court will usually have regard are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally. See for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17]-[19] per Spender, O’Loughlin and Dowsett JJ and Kumar v Bathini [2015] FCA 632 at [26] per Mortimer J.Consideration The applicant’s application for an extension of time was supported by an affidavit of Mr Kyle Kutasi, his solicitor, which relevantly gives evidence of the facts summarised above at [5]-[9]. In written submissions, the respondents opposed the application on the bases that: there was an inadequate explanation for the delay, in particular, as to why the extension of time application could not have been filed at an earlier time without having obtained written reasons; and the proposed grounds lacked merit. However at the hearing, counsel for the respondents properly accepted that an adequate explanation for the delay had been provided. As was observed by the Full Court in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [26]-[28]: [26] On 23 May 2018, the solicitor again emailed the Associate to the primary judge to follow up on the previous day’s email. Ten minutes later the solicitor received an email from a person identified as the Deputy Associate to the primary judge attaching the Reasons for Judgment delivered on 30 April 2018.[27] The Minister did not challenge any of the evidence adduced by the solicitors for the appellant. The evidence supports findings that the appellant’s solicitors took timely and reasonable steps to obtain a copy of the primary judge’s written reasons within the period for filing a notice of appeal to this Court, but the FCC did not respond to the inquiries, or publish its written reasons to the applicant until after the time for appeal had expired. This had the consequence that he was required to seek the indulgence of the Court to file the appeal out of time.[28] The situation where the written reasons for judgment are not available to a litigant who wishes to consider appealing until shortly prior to or after the expiration of the appeal period is less than desirable. In Singh v Minister for Immigration & Border Protection [2017] FCAFC 195, the Full Court (Perram, Farrell and Perry JJ) said of such a situation:Thirdly, while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration & Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.