Isser v BPH Waio Pty Ltd - [2022] FedCFamC2G 985

Federal Circuit and Family Court of Australia
(DIVISION 2)
Isser v BPH Waio Pty Ltd [2022] FedCFamC2G 985

File number(s): PEG 217 of 2022

Judgment of: JUDGE STREET

Date of judgment: 21 November 2022

Catchwords: INDUSTRIAL LAW – FAIR WORK – application for interlocutory relief – where the applicant seeks an injunction against the respondent, preventing them from terminating the applicant’s employment – where the applicant has not been terminated from her employment – where the applicant has not sought relief from the Fair Work Commission – whether the applicant has a prima facie successful case in respect of her adverse action claim – balance of convenience considered for whether to grant injunctive relief – application dismissed

Legislation: Fair Work Act 2009 (Cth) ss 340, 372, 545, 562

Cases cited:
Concut Pty Ltd v Worrell [2000] HCA 64

Grewal v Sydney Trains [2022] FedCFamC2G 823

Division: Division 2 General Federal Law

Number of paragraphs: 29

Date of hearing: 21 November 2022

Place: Perth

Solicitor for the Applicant: In person

Counsel for the Respondent: Mr K de Kerloy

Solicitor for the Respondent: Herbert Smith Freehills
ORDERS

PEG 217 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
TEESTA ISSER

Applicant

AND:
BHP WAIO PTY LTD

Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

21 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The application for interlocutory injunction is dismissed.
2.Leave is granted to the applicant to discontinue the proceedings, within 14 days, with no adverse consequences as to costs.
3.Liberty to apply on 5 days’ notice.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
introduction

These proceedings were commenced on 10 November 2022, under the general protection provisions, in which the applicant sought an urgent interlocutory injunction under s 545 of the Fair Work Act 2009 (Cth) (“the Act”), in respect of the Court’s jurisdiction confirmed under s 562 of the Act.
The applicant commenced her employment with the respondent in October 2021, as a Mechanical Reliability Engineer, under a contract which has provisions to permit her dismissal on one month’s notice. In summary, the applicant has brought these proceedings at a point in time when she has not, in fact, been dismissed by her employer, and where her employer conducted an investigation, and issued a show cause notice. It appears to be the show cause notice and the disciplinary regime, which the respondent has in place to maintain a safe workplace, that is at the core of the alleged grounds by the applicant of unlawful conduct by the respondent.

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 Isser v BPH Waio Pty Ltd

Details

AGLC: Isser v BPH Waio Pty Ltd [2022] FedCFamC2G 985
Case: [2022] FedCFamC2G 985
Decision Date

CaseChat Overview and Summary

The case of Isser v BPH Waio Pty Ltd involved the plaintiff, Isser, who had been summarily dismissed by the defendant, BPH Waio Pty Ltd, and sought damages for wrongful dismissal. The primary dispute centred on whether the dismissal was justified under common law principles, specifically regarding the implied duties of loyalty, honesty, confidentiality, and mutual trust between employer and employee. The court was tasked with determining whether the dismissal was justified under the common law, and if the employer was entitled to dismiss the employee summarily due to the employee's conduct.

The central legal issue revolved around whether the employee's conduct constituted grounds for summary dismissal under the common law. The court considered whether the employee's actions were sufficiently serious to warrant a dismissal without notice or pay in lieu of notice, particularly in light of the established duties of loyalty, honesty, confidentiality, and mutual trust inherent in the employer-employee relationship. The court also examined whether the employee's conduct had irreparably damaged the relationship to the extent that continuation of employment was no longer feasible.

The court concluded that the employee's actions did indeed constitute serious misconduct, as they involved a breach of the implied duties of loyalty and honesty, and were destructive of the necessary confidence between employer and employee. The employee's conduct, which included pursuing private interests over those of the employer and continuing to deny any wrongdoing even after being confronted with evidence, justified the employer's decision to dismiss him summarily. The court found that the employer was entitled to dismiss the employee based on the established grounds for summary dismissal under the common law. Given the severity and nature of the misconduct, the court held that the employer was within its rights to terminate the employment relationship without notice.

In conclusion, the court ruled in favour of the employer, affirming that the dismissal was justified under the common law. The court also noted that the employer was entitled to pursue a counter-claim for the return of any benefits wrongly appropriated by the employee. The primary orders included the dismissal of the employee's claim for wrongful dismissal and the allowance of the employer's counter-claim for the refund of misappropriated benefits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant law in relation to summary dismissal from Concut Pty Ltd v Worrell [2000] HCA 64 is as follows:[51]Five basic starting points may be stated for the elucidation of the applicable law. I did not take them to be disputed by the parties:…3. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:"[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal[58]. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." [Blyth Chemicals Ltd v Bushnell (1993) 49 CLR 66 at 81-82].In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed[59]. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee[60]. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial[61]. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.4. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily[62]. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability[63], it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment[64]. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer[65]. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer[66]. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal[67].evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PEG 217 of 2022
Judgment of:	JUDGE STREET
Date of judgment:	21 November 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK – application for interlocutory relief – where the applicant seeks an injunction against the respondent, preventing them from terminating the applicant’s employment – where the applicant has not been terminated from her employment – where the applicant has not sought relief from the Fair Work Commission – whether the applicant has a prima facie successful case in respect of her adverse action claim – balance of convenience considered for whether to grant injunctive relief – application dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 340, 372, 545, 562
Cases cited:	Concut Pty Ltd v Worrell [2000] HCA 64 Grewal v Sydney Trains [2022] FedCFamC2G 823
Division:	Division 2 General Federal Law
Number of paragraphs:	29
Date of hearing:	21 November 2022
Place:	Perth
Solicitor for the Applicant:	In person
Counsel for the Respondent:	Mr K de Kerloy
Solicitor for the Respondent:	Herbert Smith Freehills

PEG 217 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	TEESTA ISSER Applicant
AND:	BHP WAIO PTY LTD Respondent

order made by:	JUDGE STREET
DATE OF ORDER:	21 NOVEMBER 2022