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LHMU v Cuddles Management Pty Ltd

LHMU v Cuddles Management Pty Ltd

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Case Copied 26 May 2009 71 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LHMU & ANOR v CUDDLES MANAGEMENT PTY LTD

[2009] FMCA 463

INDUSTRIAL LAW – Application alleging injury and termination of employment for prohibited reason – employee claimed entitlement to return to work after maternity leave – referral of matter to union – commencing conciliation proceedings against employer – employer alleges poor performance by employee – damages for breach of contract.

INDUSTRIAL LAW – Award entitlement – maternity leave – whether Award applied – whether employer receiving recurrent funding from State or Federal Government.

INDUSTRIAL LAW – Contract of employment – notice of termination – statutory guarantee of maternity leave – whether notice of termination can run concurrent with maternity leave.

CONTRACT – Breach – Contract of employment – notice of termination – damages – mitigation.

Children’s Services (Private) Award 2006, cll.3, 4, 19, 22 and 24 and Sch.C
Constitution
Corporations Act 2001
Industrial Relations Act 1979 (WA), s.85
Workplace Relations Act 1996 (Cth), ss.4, 6, 265(1)(b), 279(1) and (2), 280, 698, 699, 719(1), 791(1)(a), 792(1), 793(1), 807(1)(a), 807(1)(c), 809, 824(2), 841(b), 854(10)(a), sch.2 cll.2 and 3, sch.8 cl.8

Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No. 2) (2008) 178 IR 168; [2008] WASCA 254
AIMPE v Australian Coastal Shipping Commission (1972) 146 CAR 468
AMWSU v Multicon Engineering (WA) Pty Ltd (1980) 60 WAIG 1055
CEPU v ACI Operations Pty Ltd (2006) 150 IR 179; [2006] FCA 122
Community & Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238
Community & Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; [2001] FCA 267

Hayward v Rohd Four Pty Ltd T/As CM Testing Service & Ors 177 IR 212; [2008] FMCA 1490
McDonald v State of South Australia (2008) 172 IR 256
McSharer v Hospital Employees Industrial Union of Workers, WA (1974) 54 WAIG 1545
Maritime Union of Australia v Geraldton Port Authority (1993) 93 FCR 34; [1999] FCA 89
Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392
Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR
Rizkalla v GBC Fordigraph Pty Ltd [2008] FMCA 1600
Swingler v Methodist Ladies College (2002) 82 WAIG 861; [2002] WAIRComm 5170
The Chief Secretary v The Hospital Employees Industrial Union of Workers of WA (Coastal Branch) (1931) 11 WAIG 105

First Applicant:

LIQUOR HOSPITALITY AND MISCELLANEOUS UNION

Second Applicant:

NICOLE POPPAS

Respondent:

CUDDLES MANAGEMENT PTY LTD

File Number:

PEG 93 of 2008

Judgment of:

Lucev FM

Hearing date:

14 October 2008

Date of Last Submission:

14 October 2008

Delivered at:

Perth

Delivered on:

26 May 2009

REPRESENTATION

Counsel for the First and Second Applicants:

Mr. M. Aulfrey

Solicitor for the First and Second Applicants:

Mr. M. Aulfrey

Respondent:

Mr. J Carver (as an officer of the company pursuant to s.854(10)(a) of the Workplace Relations Act 1996 (Cth))

DECLARATIONS AND ORDERS

The Court declares:
a)the respondent’s conduct in relation to the second applicant, namely:
(i)her dismissal;…

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: [2009] FMCA 463
Decision Date: 26 May 2009

CaseChat Overview and Summary

In the case of LHMU v Cuddles Management Pty Ltd, the applicant, a former employee, sought damages for breach of contract and penalties under the Workplace Relations Act 1996 (Cth) after her employment was terminated during maternity leave. The dispute arose from the employee's return to work following maternity leave and her subsequent termination by the employer, who cited poor performance as the reason for the dismissal. The matter was referred to a union, which commenced conciliation proceedings against the employer.

The primary legal issues before the court were whether the employer was required to pay the employee's full salary during her maternity leave, as per an industrial award, and whether the statutory guarantee of maternity leave under the Workplace Relations Act 1996 (Cth) applied to the employee's situation. Additionally, the court needed to determine if the notice of termination could run concurrently with the statutory maternity leave and whether the employer had breached the employee's contract of employment by terminating her during this period.

The court found that the employer was not bound by the industrial award as they did not receive recurrent funding from the State or Federal Government. However, the statutory guarantee of maternity leave did apply, and the employer was required to pay the employee's full salary during this leave. The court held that the notice of termination could not run concurrently with the statutory maternity leave, and the employer had breached the employee's contract of employment by terminating her during this period. As a result, the court ordered the employer to pay the employee damages for the breach of contract and directed the matter to a penalty hearing for any further determinations.

Orders

Orders of the court

The respondent pay the second applicant damages of $3,906.52 for breach of the second applicant’s contract of employment by 4.00pm on 12 June 2009.

In relation to penalty for the breach of s.792(1) of the WR Act the matter will be adjourned to a directions hearing at 9.45am on 15 June 2009.

With respect to costs, if any, the Court reserves costs for determination following any penalty hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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