LYNCH v Acknowledge Education Pty Ltd - [2015] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYNCH v ACKNOWLEDGE EDUCATION PTY LTD

[2015] FCCA 3069

Catchwords:
INDUSTRIAL LAW – Purported small claims application – respondent seeking summary dismissal – applicant asserting contravention of consultative requirements where employee redundant – whether such claim can properly engage the terms of s.548 of the Fair Work Act 2009 – whether amounts claimed are “amounts” within the meaning of s.548(1A) – applicant declining opportunity to amend – applications misconceived – summary judgment granted.

Legislation:

Fair Work Act 2009, ss.542, 548

Federal Circuit Court of Australia Act 1999, s.17A

Federal Court of Australia Act 1976, s.31A
Educational Services (Schools) General Staff Award 2010, cl.8.1

Beer v Limb & Anor [2012] FMCA 494
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; (2008) 103 ALD 505; (2008) 246 ALR 465; [2008] FCAFC 60
Ritchie v Chubb Security Services Ltd (2010) 196 IR 174; [2010] FMCA 361
Spencer v Commonwealth of Australia (2010) 241 CLR 118; (2010) 269 ALR 233; (2010) 84 ALJR 612; [2010] HCA 28
Wills v Ningaloo Resorts Proprietary Limited [2011] FMCA 433

Applicant:

SANDRA LYNCH

Respondent:

ACKNOWLEDGE EDUCATION PTY LTD

File Number:

MLG 2012 of 2014

Judgment of:

Judge Burchardt

Hearing date:

26 August 2015

Date of Last Submission:

19 October 2015

Delivered at:

Melbourne

Delivered on:

27 November 2015

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr Barkatsas

Solicitors for the Respondent:

VECCI

ORDERS

The application filed on 3 October 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2012 of 2014

SANDRA LYNCH

Applicant

And

ACKNOWLEDGE EDUCATION PTY LTD

Respondent

REASONS FOR JUDGMENT

On 26 August 2015, I ordered the respondent to file and serve written submissions in support of the oral application, made on 26 August 2015, to dismiss the applicant’s substantive application pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (“the Circuit Court Act”). I set a timetable for those submissions to be filed and for submissions in reply, both of which have now been received. Thereafter, the matter was ordered to be determined on the papers.
For the reasons that follow, I have decided that the application should be dismissed.
In order to understand this outcome, it is necessary to traverse the materials filed in this case and procedural history of the matter in some detail.
On 3 October 2014, the applicant filed an application in the Fair Work Division of the court. The application form indicated that the applicant elected for the proceeding to be dealt with under the court’s small claims procedure.
The Form 5 small claim under the Fair Work Act 2009 (“the Act”) indicated, inter alia, that the applicant had been employed by the respondent as an administration officer – student services. It indicated her asserted hours of work and the fact that she had last worked on 16 June 2014. The form…

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 LYNCH v Acknowledge Education Pty Ltd

Details

AGLC: LYNCH v Acknowledge Education Pty Ltd [2015] FCCA 3069
Case: [2015] FCCA 3069
Decision Date: 27 November 2015

CaseChat Overview and Summary

In this matter before Judge Burchardt, the applicant, Ms. Lynch, brought a small claim against Acknowledge Education Pty Ltd, alleging contravention of clause 8.1 of the Educational Services (Schools) General Staff Award 2010. The applicant claimed she was employed as an administration officer – student services and was terminated on 16 June 2014. She sought $6,900 in wages for six weeks of unemployment and $11,150 for pain and suffering, humiliation, and discrimination, citing ageist comments made by a colleague.

The central legal issue for the court to determine was whether Acknowledge Education Pty Ltd had contravened clause 8.1 of the Award, which mandates employer notification to employees and their representatives regarding definite decisions to introduce major workplace changes likely to have significant effects on employees. The court also had to consider the nature of the remedy sought, particularly the claim for pain and suffering, humiliation, and discrimination.

The court noted that the applicant's employment was terminated by reason of redundancy. The applicant had previously made a general protections application to the Fair Work Commission, which did not result in a resolution. The respondent argued that the applicant was dismissed due to redundancy. The court's reasoning focused on the requirements of clause 8.1, which necessitates notification of "major changes" that are "likely to have significant effects." The court considered the definition of "significant effects" within the clause, which includes termination of employment and major changes in the workforce. The claim for pain and suffering, humiliation, and discrimination was also a point of consideration, though the specific legal basis for such a claim under the Award was not elaborated upon in the provided text.

Orders

Orders of the court

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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

The Form 5 small claim under the Fair Work Act 2009 (“the Act”) indicated, inter alia, that the applicant had been employed by the respondent as an administration officer – student services. It indicated her asserted hours of work and the fact that she had last worked on 16 June 2014. The form asserted that the employment was governed by the Educational Services (Schools) General Staff Award 2010, and further asserted that cl.8.1 of that award had been contravened. The terms of the clause alleged to have been contravened are set out as follows:8.1 consultation regarding major workplace change(a) employer to notify(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any. (ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs, (et al). (our emphasis) The remedy sought was said to be $6900 in wages, together with $11,150 for “pain and suffering, humiliation and discrimination”. In part I, Details of the Claim, the wages component of the claim was described as:6 x $1153.00 = $6,918.00 representing the six weeks the applicant was unemployed following her termination. Under the heading “Other”, the form detailed:$10,000 representing compensation for pain and suffering caused by the employer including but not limited to humiliation in the workplace and discrimination based on ageist comments made by a fellow employee. The matter was originally in the docket of Judge Turner, but, no doubt owing to his Honour’s impending retirement, on 10 March 2015 his Honour vacated a listing on 10 March 2015 and adjourned it before me on 3 June 2015. The court noted that the applicant had provided a medical certificate and that the respondent did not oppose the adjournment. On 3 June 2015, a Mr Close, who is apparently an industrial relations advisor and not a qualified lawyer, was permitted to appear on behalf of the applicant, with a solicitor employed by VECCI appearing on behalf of the respondent. The title of the respondent was amended to reflect its corporate status, and a timetable for written submissions was set. The respondent filed such submissions on 23 June 2015. According to those submissions, the applicant was employed by the respondent on 24 September 2013, and was dismissed by reason of redundancy on 16 June 2014. Thereafter, the applicant made a general protections application to the Fair Work Commission, which led to a mediation conference before Commissioner Blair which failed to resolve the matter.