McLoughlin v Randstad Pty Ltd - [2021] FCAFC 160

FEDERAL COURT OF AUSTRALIA
McLoughlin v Randstad Pty Ltd [2021] FCAFC 160

Appeal from: McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223

File number: NSD 231 of 2021

Judgment of: WHITE, O'CALLAGHAN AND COLVIN JJ

Date of judgment: 26 August 2021

Date of publication of reasons: 2 September 2021

Catchwords: APPEAL AND NEW TRIAL - appeal from decision of Federal Circuit Court dismissing appellant's claim alleging dismissal in contravention of Fair Work Act 2009 (Cth) - where appellant claimed her employment terminated for exercising workplace right, alternatively because of conduct which was a manifestation of her mental disability - whether primary judge failed to discharge judicial task of providing reasons for decision - where reasons of primary judge expressed at high level of generality - appeal allowed - matter remitted for rehearing

Legislation: Fair Work Act 2009 (Cth) ss 351, 361, 570

Cases cited:
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85

Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 38

Date of hearing: 26 August 2021

Counsel for the Appellant: Ms K Edwards with Mr S McIntosh

Solicitor for the Appellant: Australian Centre For Disability Law

Counsel for the Respondents: Mr M Seck

Solicitor for the Respondents: Holding Redlich

ORDERS

NSD 231 of 2021

BETWEEN:
BEVERLY MCLOUGHLIN

Appellant

AND:
RANDSTAD PTY LTD (ABN 28 080 275 378)

First Respondent

BROOKE O'KEEFE

Third Respondent

NICK PESCH

Fourth Respondent

ORDER MADE BY:

WHITE, O'CALLAGHAN AND COLVIN JJ

DATE OF ORDER:

26 AUGUST 2021

THE COURT ORDERS THAT:
1.Ground 1 in the Further Amended Notice of Appeal is upheld.
2.The Appeal is allowed.
3.The Cross-Appeal is dismissed, noting that the Order of dismissal is not to preclude the Respondent from re-agitating the issue raised in Ground 1 in the remittal ordered by the Court.
4.The Amended Notice of Contention is dismissed.
5.The matter is remitted to the Federal Circuit Court for re-hearing before another Judge.
6.The Appellant is by 2 September 2021 to file and serve written submissions not exceeding 3 pages in support of the application for costs.
7.The Respondents are by 9 September 2021 to file and serve written submissions not exceeding 3 pages concerning the application for costs.
8.Subject to any further order from the Court, the Court will consider the issue of costs on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the

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: [2021] FCAFC 160
Decision Date: 26 August 2021

CaseChat Overview and Summary

In the case of McLoughlin v Randstad Pty Ltd, the appellant sought review of a decision by the Federal Circuit Court which dismissed her claim that her employment was terminated in contravention of the Fair Work Act 2009 (Cth). The appellant argued that her dismissal was due to either her exercising a workplace right or because of conduct that was a manifestation of her mental disability. The primary judge's reasons for dismissing the claim were considered by the court to be too general, and thus the judge had failed to properly discharge their judicial task of providing adequate reasons for the decision.

The legal issues before the court were whether the primary judge had correctly applied the law and provided sufficient reasons for the dismissal of the appellant's claims. The court found that the primary judge's reasons were not detailed enough, and as such, the judge had not properly discharged their judicial task. The court also noted that the dismissal of the appellant's claims was not supported by the evidence presented.

The appeal was allowed, and the matter was remitted to the Federal Circuit Court for re-hearing before another judge. The court emphasised that the dismissal of the cross-appeal did not prevent the respondent from re-agitating the issue raised in Ground 1 of the Further Amended Notice of Appeal during the re-hearing. The court also ordered that written submissions concerning the application for costs be filed by both parties within specified timeframes. The issue of costs was to be considered by the court on the papers, subject to any further orders.

Orders

Orders of the court

1. Ground 1 in the Further Amended Notice of Appeal is upheld.

2. The Appeal is allowed.

3. The Cross-Appeal is dismissed, noting that the Order of dismissal is not to preclude the Respondent from re-agitating the issue raised in Ground 1 in the remittal ordered by the Court.

4. The Amended Notice of Contention is dismissed.

5. The matter is remitted to the Federal Circuit Court for re-hearing before another Judge.

6. The Appellant is by 2 September 2021 to file and serve written submissions not exceeding 3 pages in support of the application for costs.

7. The Respondents are by 9 September 2021 to file and serve written submissions not exceeding 3 pages concerning the application for costs.

8. Subject to any further order from the Court, the Court will consider the issue of costs on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223
File number:	NSD 231 of 2021
Judgment of:	WHITE, O'CALLAGHAN AND COLVIN JJ
Date of judgment:	26 August 2021
Date of publication of reasons:	2 September 2021
Catchwords:	APPEAL AND NEW TRIAL - appeal from decision of Federal Circuit Court dismissing appellant's claim alleging dismissal in contravention of Fair Work Act 2009 (Cth) - where appellant claimed her employment terminated for exercising workplace right, alternatively because of conduct which was a manifestation of her mental disability - whether primary judge failed to discharge judicial task of providing reasons for decision - where reasons of primary judge expressed at high level of generality - appeal allowed - matter remitted for rehearing
Legislation:	Fair Work Act 2009 (Cth) ss 351, 361, 570
Cases cited:	AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	38
Date of hearing:	26 August 2021
Counsel for the Appellant:	Ms K Edwards with Mr S McIntosh
Solicitor for the Appellant:	Australian Centre For Disability Law
Counsel for the Respondents:	Mr M Seck
Solicitor for the Respondents:	Holding Redlich

ORDER MADE BY:	WHITE, O'CALLAGHAN AND COLVIN JJ
DATE OF ORDER:	26 AUGUST 2021