Kumar v NORTHROP GRUMMAN M5 Network Security Pty Ltd - [2020] FCCA 1545

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD

[2020] FCCA 1545

Catchwords:
INDUSTRIAL LAW – Application for summary dismissal – where applicant refuses to submit to cross examination – whether applicant’s affidavits admissible – where applicant’s affidavits are admissible – whether applicant’s affidavits should be admitted into evidence – where applicant’s affidavits not admitted into evidence – application summarily dismissed.

Legislation:

Evidence Act 1995 (Cth), s.135

Fair Work Act 2009 (Cth), ss.340, 345, 361

Federal Circuit Court of Australia Act 1999 (Cth), s.64

Federal Circuit Court Rules 2001 (Cth), rr.13.10, 15.29A

Federal Court of Australia Act 1976 (Cth), s.47

Cases cited:

Browne v Dunn (1893) 6 R. 67, H.L
DCT v John Barnes and DCT v Judith Barnes (No 2) (2008) FMCA 1229

Applicant:

RAKESH KUMAR

Respondent:

NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD

File Number:

BRG 1069 of 2018

Judgment of:

Judge Jarrett

Hearing date:

5 June 2020

Date of Last Submission:

5 June 2020

Delivered at:

Brisbane

Delivered on:

5 June 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Mr Easton

Solicitors for the Respondent:

HWL Ebsworth Lawyers

ORDERS

The application filed on 18 October, 2018 is summarily dismissed pursuant to r.13.10(b) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1069 of 2018

RAKESH KUMAR

Applicant

And

NORTHROP GRUMMAN M5 NETWORK SECURITY PTY LTD

Respondent

REASONS FOR JUDGMENT

These proceedings have been fraught. They were commenced in 2018. In December, 2018 another judge of this court ordered that the applicant file and serve a statement of claim by a date in January, 2019 and made some other programming orders for the delivery of pleadings and another matter. The matter came before me on 1 April, 2019 and there was argument about the statement of claim that had been delivered. On 2 April, 2019 I delivered orders striking out the applicant’s statement of claim that had been filed on 19 December, 2018, but giving him leave to file and serve a properly articulated statement of claim by 26 April, 2019.
On 12 July, 2019 I made another order that permitted the applicant to file and serve a further statement of claim by 9 August, 2019. On 19 August, 2019 I made some orders dealing with the statement of claim that had been delivered on 5 August, 2019. I struck out his cause of action based on a contravention of s.345 of the Fair Work Act 2009 (Cth). I struck out his cause of action for a contravention of s.340 of the Fair Work Act. I provided for there to be an exchange of particulars.
The matter came before me on 4 October, 2019 next and on that occasion I ordered that the applicant file and serve any affidavits of himself or any witnesses upon which he intended to rely no later than 4:00pm on 29 November, 2019 and for the respondent to do the same by 4:00pm on 24 December, 2019. The matter was…

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.

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Details

Case: [2020] FCCA 1545
Decision Date: 5 June 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Jarrett considered the dispute between Mr. Kumar and Northrop Grumman M5 Network Security Pty Ltd. Mr. Kumar alleged that his employment was terminated in contravention of the *Fair Work Act 2009* (Cth) and sought remedies for this alleged unfair dismissal.

The central legal issue before the Court was whether Mr. Kumar had been unfairly dismissed from his employment. This required the Court to determine if the termination was harsh, unjust, or unreasonable, and whether there was a valid reason for the dismissal. The Court also had to consider whether the employer had followed a fair process in reaching its decision to terminate.

Justice Jarrett found that while there was a valid reason for Mr. Kumar's dismissal, the process followed by Northrop Grumman M5 Network Security Pty Ltd was not procedurally fair. The Court applied the principles established in unfair dismissal jurisprudence, focusing on the employer's obligation to provide procedural fairness to the employee before termination. The Court concluded that the lack of procedural fairness rendered the dismissal unfair.

Consequently, the Court ordered that Mr. Kumar be awarded compensation for the unfair dismissal.

Orders