McAlister v Yara Australia Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

McAlister v Yara Australia Pty Ltd [2021] FCCA 1409

File number(s): SYG 463 of 2016
Judgment of: JUDGE OBRADOVIC
Date of judgment: 25 June 2021
Catchwords:

INDUSTRIAL LAW – Contract of Employment – where employee was summarily dismissed – whether breach of contract – whether term of reasonable notice implied – remedies for breach

INDUSTRIAL LAW – Adverse Action Claim – whether contract of employment terminated for prohibited reason

INDUSTRIAL LAW – redundancy – whether applicant’s role made redundant
Legislation: Fair Work Act 2009 (Cth), ss 117, 119, 340, 361
Federal Circuit Court Act 1999 (Cth), s 76
Federal Circuit Court Rules 2001, r 21.02
Cases cited:

Australian Blue Metal Ltd v Hughes [1963] AC 74
Banks & Banks [2015] FamCAFC 36
Boyd v Glenvill Pty Ltd [2021] FCCA 265
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Brennan v Kangaroo Island Council [2014] HCASL 153
Bropho v State of Western Australia [1990] HCA 24
Byrne v Australian Airlines Ltd [1995] HCA 24
CAE Australia Pty Ltd v Zekants & Anor [2012] FWA 7992
CFMEU v Claremont Coal Pty Ltd (2015) 253 IR 166
Carrabba v PFP (Aust) Pty Ltd & Anor [2019] FCCA 2857
Elton v Bywater Medical Management P/L [2011] QDC 114
Flageul v WeDrive Pty Ltd [2021] FCAFC 102
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
Guthrie v News Ltd [2010] VSC 196
Heldberg v Rand Transport (1986) Pty Ltd [2018] FCA 1141
Jones v Department of Energy and Minerals (1995) 60 IR 30

1           Jones v Dunkel [1959] HCA 8

Kuczmarski v Ascot Administration Pty Ltd [2016] SADC 65
Macauslane v Fisher & Paykel Finance Pty Ltd [2002] QCA 282
McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227
Miller v Sunland Park Pty Ltd & Another [2014] FCCA 89
Mimmo v Fernando [2016] VSC 510
Nair v Queensland University of Technology, [2019] FCCA 1709
Pappas v P&R Electrical Pty Ltd [2016] SADC 132
Quality Bakers of Australia Ltd v Goulding and Another (1995) 60 IR 327
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250
Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674
Richards v Nicoletti [2016] WAIRC 941
Stewart v Nickles [1999] FCA 888
Unsworth v Tristar Steering and Suspension Australia Ltd [2008] FCA 1224
Walton v Wollondilly Abattoirs Co Op Limited (1993) 50 IR 81
Westen v Union des Assurances De Paris (1996) 88 IR 259

Windross v Transact Communications Pty Ltd [2002] FMCA 145.
Number of paragraphs: 266
Date of last submission/s: 4 February 2020
Date of hearing: 12, 13, 14, 15 August 2019, 15, 16 October 2019 and 4 February 2020
Place: Parramatta
Counsel for the Applicant:  Ms Muir
Solicitor for the Applicant:  Petrine Costigan Lawyers
Counsel for the Respondent:  Ms Andelman
Solicitor for the Respondent:  Holman Fenwick Willan

ORDERS

SYG 463 of 2016
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Details
Case
[2021] FCCA 1409
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between Janelle McAlister and Yara Australia Pty Ltd. Ms McAlister commenced employment with Hydro Agri Australia Pty Ltd, later renamed Yara Australia Pty Ltd, in December 1996 as an Administration Manager and Operations Manager. Her role evolved over time to encompass a wide range of responsibilities, including logistics, human resources, financial administration, and contractual arrangements. The precise nature of her duties and the scope of her authority were central to the proceedings.

The court was required to determine the extent of Ms McAlister's responsibilities and the authority she possessed in her role as an employee of Yara Australia Pty Ltd. Specifically, the court needed to assess the scope of her duties concerning logistics, financial approvals, contractual agreements, and human resources matters, particularly in the period leading up to April 2015. The court's findings on these matters would inform the overall assessment of her employment and the circumstances surrounding her departure from the company.

The court's reasoning focused on the detailed evidence presented regarding Ms McAlister's employment contract and her subsequent duties. The initial offer of employment in November 1996 outlined her role as Administration Manager with specific responsibilities and remuneration. Over time, her duties expanded significantly, as evidenced by her involvement in arranging stock orders, managing shipping schedules, dealing with customs clearance agents, overseeing product distribution, processing payments, signing various company documents including cheques and tax forms, and managing employee contracts and benefits. Her participation in the Management Committee from 2012 further underscored the breadth of her responsibilities. The court considered this extensive and varied scope of duties in its determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

From when the hearing concluded to when judgement is to be delivered, the trial judge has finalised over 540 other matters and delivered over 150 judgments, both written and oral. All judicial determinations require reasons to be provided. None of this will of course be important to the parties, who deserve a timely determination to their dispute, which they have not here had. But, it is important to understand the pressure placed upon the Federal Circuit Court judges by their workload.BACKGROUND AND BRIEF CHRONOLOGY In order to better understand what occurred, it is important to set out the general background of Ms McAlister’s employment with Yara. Hydro Agri Australia Pty Ltd (“Hydro Agri”) was established in or about 1996. Hydro Agri was a subsidiary company of Hydro Agri International, a business unit of Norsk Hydro ASA in Oslo, Norway, a company listed on the stock exchange in Oslo, and at the time the world’s largest nitrogen fertiliser producer. Yara is part of the Yara group of global companies. Between January 1997 and July 2004, Mr Stein Chingen Haugen was the Managing Director of Hydro Agri. As part of the process of establishing the Hydro Agri business in Australia, in or about late 1996, Mr Haugen approached Ms McAlister to perform the role of Office Manager and Operations Manager. On 11 November 1996, Mr Haugen offered Ms McAlister a position with Hydro Agri. The proposal was accepted by Ms McAlister and a contract of employment contract was subsequently signed by Ms McAlister and Mr Haugen on behalf of Hydro Agro. Ms McAlister started working for Hydro Agri on 13 December 1996. On commencement, her base salary was $52,000. In or around March 1997, Mr Bill Terry joined Hydro Agri as a sales agronomist. In or around mid-2004, Mr Terry took over the role as the Managing Director of Yara from Mr Haugen. On 15 March 2004, Hydro Agri changed its name to Yara. From May 2009 to July 2016, Mr Steven Sullivan was employed by Yara Nipro Pty Ltd (“Yara Nipro”). In or around 2008 Yara purchased 40% of the issued capital of Yara Nipro and in or around 2011 purchased the remaining issued capital, thus becoming a 100% owner of Yara Nipro. In 2012, Yara established its Management Committee. Ms McAlister was one of the original members of the Management Committee. She remained on that committee until 13 April 2015. In or around June 2012, Mr Neill George Wiseman joined Yara Nipro as a Logistics Manager. In late October 2014, Mr Adam Marsh from TransAction Customs & Forwarding Pty Ltd (“TransAction”) requested from Ms McAlister a contract with Yara to provide it with customs brokerage services. In or around February 2015, Ms Henriette Magnussen was appointed as Managing Director of Yara Australia. On 17 February 2015, the Management Committee met. On 23 February 2015, Ms McAlister signed a contract with TransAction on behalf of Yara. On 4 March 2015, all Yara staff members took part in an ethics training course. On 5 March 2015, Mr Marsh on behalf of TransAction executed the contract with Yara, which Ms McAlister had signed on 23 February 2015.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The parties are invited to make any costs applications pursuant to rule 21.02 of the Federal Circuit Court Rules 2001. CONCLUSION For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

Ratio Decidendi

Legal Principle Established

According to Mr Haugen’s evidence, Ms McAlister was instrumental in the early years of the Australian operation. Ms McAlister’s Role: Responsibilities and Remuneration As noted earlier, Ms McAlister was offered employment by Mr Haugen in November 1996. That offer of employment, which she ultimately accepted, was as follows:Employment Contract ProposalbetweenJanelle McAlisterandHydro Agri Australia Pty LtddatedSydney, November 11th, 1996Title: Administration ManagerCommencement: January 1st, 1997Gross Salary: A$ 52,000Annual year end bonuses: One Month Gross SalarySuperannuation: 10%Leave Loading: 17.5%Vacation: 4 weeks annuallyHealth Insurance: Yes, details to be agreed uponCompany car: Yes, details to be agreed uponMobile Phone/Private Phone: Yes, details to be agreed uponAll other details to be according to the rules and regulations set forth by the appropriate Australia government authority(ies) between employer and employee. On or about 5 January 1997, Mr Haugen, in consultation with Ms McAlister, prepared a Position Description for Ms McAlister’s role, tilted “Administration/Operations Manager”. Included in the position description were the following:(a)The basic role function was described as “to be responsible for the administrative and operational functions of Hydro Agri Australia Pty Ltd”(b)Accountabilities included:(i)Arranging ordering of stock;(ii)Maintaining shipping schedule;(iii)Receipt and distribution of shipping documents. Dealing directly with customs clearance agents to ensure that the containers are cleared and delivered most cost efficiently;(iv)Arranging for collection of product from wharf and distribute to warehouse/customer depending on order type;(v)Arranging for release of product from our warehouses; and(vi)Arrange for payment of all invoices.(c)The role included human relations responsibilities. From the commencement of her role at Yara, Ms McAlister was responsible for logistics, which she described in her oral evidence as:Organising the orders to be placed in Norway, receiving the shipment details, forwarding the documents to our broker and arranging for clearance of the goods, and delivery to the warehouse. And then sale of the goods on receipt of the order… Customers would order product…. I had arranged for the warehouse to release the goods. Sometimes the customer would collect them, and other times I would arrange for delivery to the customer. Until April 2015, Ms McAlister’s role with Yara was wide and varied, and included many responsibilities. By way of example:(a)After Ms McAlister took on human resource responsibilities from early 1997, her duties included matters such as preparing contracts of employment, arranging company cars and other salary benefits for employees, signing warning and termination letters, salary increase letters, payment of all salaries, superannuation and reimbursement of expenses;(b)Ms McAlister was responsible for the approval and payment of invoices received by the business. She was also responsible for processing of all orders received to be released from warehouses, delivery of goods to customers, signing cheques, tax documents, car leases, contracts for customs brokers and warehousing providers;(c)Ms McAlister was responsible for regularly signing shipping line authorities to release goods to an agent authorising them to collect the goods on behalf of Yara and transport them to the required location. If containers were sold to customers whilst still on water, Ms McAlister was required to sign authorities for customs brokers in order to clear the goods through customs and arrange for collection of shipping containers; and(d)From 2012, Ms McAlister was part of the Management Committee.