LAI v Symantec (Australia) Pty Ltd - [2013] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI v SYMANTEC (AUSTRALIA) PTY LTD

[2013] FCCA 625

Catchwords:
INDUSTRIAL LAW – Adverse action claim – applicant pregnant and going on parental leave – whether or not dismissal was a genuine redundancy – whether a payslip was provided in accordance with s.536 of the Act.

Legislation:
Fair Work Act 2009, ss.340, 346, 536, 351, 361, 536, 611.
Fair Work Regulations 2009, reg.3.33.

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012)
CFMEU v Bengalla Mining Co Pty Ltd [2013] FCA 267 at paragraph 11
Klein v Metropolitan Fire & Emergency Services Board [2012] FCA 1402
R v Industrial Commission of SA: Ex parte Adelaide Milk Supply Co. Op Ltd (1977) 16 SASR 6
Ramos v Good Samaritan Industries [2013] FCA 30
Wolfe v ANZ Banking Group Ltd [2013] FMCA 65 (7 February 2013)

Applicant:

SUSAN LAI

Respondent:

SYMANTEC (AUSTRALIA) PTY LTD

File Number:

SYG 1002 of 2012

Judgment of:

Judge Altobelli

Hearing date:

19 April 2013

Date of Last Submission:

19 April 2013

Delivered at:

Sydney

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Latham

Solicitors for the Applicant:

James Tuite & Associates

Counsel for the Respondent:

Ms Raper

Solicitors for the Respondent:

Baker & Mckenzie

ORDERS

The Application filed 8 May 2012 is dismissed insofar as it seeks a declaration under s.340 Fair Work Act 2009.
Declaration that the respondent has contravened s.536 Fair Work Act 2009.
Either party has leave to re-list this matter before Judge Altobelli on the issue of penalty, on seven (7) days’ notice, provided such request for re-listing is made within 28 days.
Any application for costs proceed by way of written submissions not exceeding 500 words. The applicant for costs should file and serve their submissions within 21 days. The respondent to the costs application should file and serve within a further 21 days.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYG 1002 of 2012

SUSAN LAI

Applicant

And

SYMANTEC (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in this case contends that the respondent has contravened ss.340, 351 and 536 of the Fair Work Act 2009. If established, the contraventions of ss.340 and 351 amount to adverse action against the applicant. The respondent contends that there is no basis for this claim. The alleged contravention of s.536 relates to failure to provide a payslip. The respondent contends that there is no such failure.

Background

The applicant describes herself as a financial planning and analysis manager, is 35 years old, and lives in Sydney. The respondent company is a wholly owned subsidiary of Symantec Corporation, which has many subsidiaries in other countries. Evidence on behalf of the respondent was given by Joseph Ong, the Senior Regional Director, Finance, Asia Pacific and Japan of the company, based in Singapore. Mr Ong described Symantec as one of the biggest software companies in the world with 20,000 employees.
The applicant commenced working with…

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: [2013] FCCA 625
Decision Date: 28 June 2013

CaseChat Overview and Summary

LAI (the applicant) brought proceedings against Symantec (Australia) Pty Ltd (the respondent) in the Federal Court of Australia. The dispute concerned the applicant's claim for unpaid wages and other entitlements allegedly owed by the respondent.

The primary legal issue before the Court was whether the applicant had been correctly classified as an independent contractor or an employee for the purposes of the Fair Work Act 2009 (Cth) and related employment legislation. This classification was critical to determining the applicant's entitlement to statutory minimums, such as annual leave, personal/carer's leave, and redundancy pay.

Judge Altobelli considered the totality of the relationship between the parties, applying the multifactorial test established in Australian case law. The Court examined factors such as the degree of control exercised by the respondent, the opportunity for the applicant to profit from their own business initiatives, the provision and ownership of equipment, the method of payment, and the parties' intentions. Ultimately, the Court found that despite the contractual characterisation of the relationship as one of independent contracting, the reality of the working arrangement pointed towards an employment relationship. The applicant was found to be an employee, and therefore entitled to the benefits and protections afforded to employees under the Fair Work Act.

Orders