Mahajan v Burgess Rawson & Associates - [2017] FCCA 1560

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHAJAN v BURGESS RAWSON & ASSOCIATES
PTY LTD

[2017] FCCA 1560

Catchwords:
FAIR WORK – Adverse action – dismissal because of pregnancy, because of taking personal and annual leave and because of being absent due to illness or injury.

Legislation:
Fair Work Act 2009, ss.340, 342(1), 351(1), 352, 360, 361(1)
Fair Work Regulations 2009, r.3.01(2)(3)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32
Browne v Dunn (1983) 6 R 67
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; (2014) 314 ALR 1; (2014) 88 ALJR 980; [2014] HCA 41
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; (2015) 147 ALD 528; (2015) 320 ALR61; [2015] FCAFC 25
General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1976) 51 ALJR 235
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451
New South Wales Police Force v Winter [2011] NSWCA 330; (2011) DDCR 69

Applicant:

TIFFANY MAHAJAN

Respondent:

BURGESS RAWSON & ASSOCIATES PTY LTD (ACN 005 272 337)

File number:

MLG 2651 of 2016

Judgment of:

Judge Riley

Hearing date:

5 May 2017

Date of last submission:

5 May 2017

Delivered at:

Melbourne

Delivered on:

6 July 2017

REPRESENTATION

Counsel for the applicant:

Matthew Minucci

Solicitors for the applicant:

Clayton Utz

Counsel for the respondent:

Toby Borgeest

Solicitors for the respondent:

Abrahams Meese Lawyers

DECLARATIONS

The respondent contravened:
(a)s.340 of the Fair Work Act 2009 (“the Act”), by dismissing the applicant because she took annual leave and personal leave;
(b)s.351 of the Act, by dismissing the applicant because she was pregnant; and
(c)s.352 of the Act, by dismissing the applicant because she was temporarily absent from her work on account of illness or injury.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2651 of 2016

TIFFANY MAHAJAN

Applicant

And

BURGESS RAWSON & ASSOCIATES PTY LTD (ACN 005 272 337)

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application in which the applicant alleges that the respondent dismissed her from her employment:
a)in breach of s.340 of the Fair Work Act 2009 (“the Act”), because she exercised her workplace rights to take:
i)annual leave; and/or
ii)personal leave;
b)in breach of s.351 of the Act:
i)because she was pregnant; and/or
ii)because of her sex; and
c)in breach of s.352 of the Act, because she was temporarily absent from her work on account of illness or injury.
Mr Perrin, who made the decision on behalf of the respondent to terminate the applicant’s employment, and who is a director of the respondent, denied that he decided to dismiss the applicant from her employment because she was pregnant, intended to take maternity leave or had taken sick leave from time to time[1].…

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: [2017] FCCA 1560
Decision Date: 6 July 2017

CaseChat Overview and Summary

Mahajan (the plaintiff) brought proceedings against Burgess Rawson & Associates (the defendant), a commercial real estate agency, concerning the sale of a property. The plaintiff alleged that the defendant had breached its duty of care in its conduct of the sale, specifically in relation to the marketing and sale process of the property. The dispute centred on whether the defendant had acted with reasonable care and skill in its role as agent for the vendor. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the defendant, Burgess Rawson & Associates, had breached its contractual and/or tortious duty of care owed to the plaintiff, Mahajan, in the marketing and sale of the plaintiff's property. This involved determining whether the defendant's actions and omissions in conducting the sale fell below the standard of care expected of a reasonably competent real estate agent in Victoria. The court was required to assess the defendant's conduct against the terms of the agency agreement and the general principles of negligence.

Riley J found that the defendant had breached its duty of care to the plaintiff. The court's reasoning focused on the defendant's failure to adequately market the property and its conduct in relation to the sale process, which was found to be deficient. Specifically, the court considered the defendant's advice and actions regarding the reserve price and the conduct of the auction, concluding that these fell short of the required standard. The legal principle applied was that an agent owes a duty to exercise reasonable care and skill in carrying out its mandate, and a breach of this duty can lead to liability for any loss suffered by the principal as a result.

The court ordered that the defendant pay damages to the plaintiff, reflecting the loss suffered due to the breach of duty.

Orders