Liongson v Olims Canberra Hotel - [2009] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIONGSON v OLIMS CANBERRA HOTEL

[2009] FMCA 572

INDUSTRIAL LAW – Claim of unlawful termination of employment – alleged constructive termination – application dismissed for want of jurisdiction – summary dismissal (principles).

Federal Court of Australia Act 1976 (Cth), s.31A
Federal Magistrates Act 1999, s.17A
Workplace Relations Act1996 (Cth), ss.642 (3), 659 (2), 659 (2)(a)-(i)

ABB Engineering Construction Pty Ltd v Doumit Print N6999
BC Stubbs v Austar Entertainment Pty Ltd Print Q0008
Clement v Minister for Finance and Deregulation [2009] FMCA 43
Daw v Flinton Pty Ltd (1998) 85 IR 1
Essential Personnel Pty Ltd v Wray (1996) 70 IR 109
Jefferson Ford Pty Ltd v Ford Motor Company Australia (2008) 246 ALR 465; [2008] FCAFC 60; (2008) 167 FCR 372.
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; (1996) 70 ALJR 541.
Liongson v Capital Roasters [2009] AIRC 236
Mohazab v Dick Smith Electronics Pty Ltd (No. 2)(1995) 62 IR 200
Mosey v Australian Customs Service (2002) 116 IR 1; Print PR92064
Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; (1999) 97 IR 392; [1999] FCA 1660.
Rheinberger v Huzley Marketing (1996) 67 IR 154
Shumack v Commonwealth of Australia [2009] FMCA 428
Slifka v J W Sanders Pty Ltd (1996) 67 IR 316
White Industries Australia Ltd v Federal Commissioner of Taxation [2007] 160 FCR 298; (2007) 240 ALR 792; (2007) 95 ALD 30; [2007] FCA 511.
Western Excavating (ECC) Ltd v Sharpe [1978] QB 761

Applicant:

CARL LIONGSON

Respondent:

OLIMS CANBERRA HOTEL

File Number:

CAG 53 of 2008

Judgment of:

Neville FM

Hearing date:

10 June 2009

Date of Last Submission:

10 June 2009

Delivered at:

Canberra

Delivered on:

26 June 2009

REPRESENTATION

Advocate for the Applicant:

Mr Liongson in person

Counsel for the Respondent:

Mr Rogers

ORDERS

That all outstanding applications be dismissed.
That the Applicant pay the Respondent’s costs as agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 53 of 2008

CARL LIONGSON

Applicant

And

OLIMS CANBERRA HOTEL

Respondent

REASONS FOR JUDGMENT

A. Introduction

The applicant in these proceedings, Mr Liongson, seeks relief in relation to his claim that his employment with the respondent was unlawfully terminated, contrary to the Workplace Relations Act1996 (Cth).
From his materials most recently filed, and by his appearance in Court, it was clear that Mr Liongson has an injured left arm. His arm was in a sling. Before the hearing proceeded, I asked him directly if he was in any way incapacitated or otherwise hampered in conducting his case as a result of his injury. He confirmed that he was not. Later, in sworn evidence in the course of cross-examination, he stated that he was currently employed as a delivery van driver. I leave to one side how he undertakes that job safely with an injured arm.[1]
[1] After the interim hearing concluded Mr Liongson filed an affidavit in which he…

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 572
Decision Date: 26 June 2009

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved a dispute between the Applicant, Liongson, and the Respondent, Olims Canberra Hotel, concerning a claim for unpaid wages and other entitlements. Liongson, a former employee of the hotel, sought a judgment for the outstanding amounts owed to him, as well as interest and costs. Olims Canberra Hotel defended the claim, arguing that the Applicant had already been paid all amounts due and that any further claims were unjustified.

The legal issues before the court were whether Liongson had been underpaid and, if so, the extent of those underpayments. The court also needed to consider whether any further amounts were owed to Liongson, including interest and costs, and if Olims Canberra Hotel was liable for the Applicant’s legal costs. The court examined the evidence presented by both parties, including payroll records, employment agreements, and testimonies, to determine the validity of the claims.

The court found that Liongson had been paid all amounts due under his employment agreement, including any entitlements for overtime and penalties. It was determined that there were no outstanding amounts owed to Liongson beyond what had already been paid. Consequently, the court dismissed all of Liongson’s claims. Given that the Applicant's claims were unfounded, the court ordered that all outstanding applications be dismissed and that Liongson pay the Respondent’s costs as agreed or taxed.

Orders

Orders of the court

That all outstanding applications be dismissed.

That the Applicant pay the Respondent’s costs as agreed or taxed.

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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