Mendonca v Chan and Naylor (Parramatta) Pty Ltd - [2014] FCCA 1042

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENDONCA v CHAN & NAYLOR (PARRAMATTA) PTY LTD & ANOR

[2014] FCCA 1042

Catchwords:
INDUSTRIAL LAW – Adverse action – reasons for adverse action.

WORDS & PHRASES – “misconduct” – “serious misconduct” – “serious and wilful misconduct”.

Legislation:

Fair Work Act 2009, ss.43, 44, 87, 90, 117, 123, 340, 341, 342, 351, 352, 360, 361, 539, 545, 546, 550

Fair Work Regulations 2009, reg.1.07
Crimes Act 1914, s.4AA
Long Service Leave Act 1955 (NSW), ss.4, 11, 12

Cases Cited:
Browne v S Smith & Son Pty Ltd (1985) 8 FCR 206
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131
Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191
United Firefighters Union of Australia v Easy [2013] FCA 763
Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178
North v Television Corporation Ltd (1976) 11 ALR 599
Soliman v University of Technology, Sydney (2012) 207 FCR 277
McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375
Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89
Gooley v Westpac Banking Corporation (1995) 129 ALR 628
Carter v The Dennis Family Corporation [2010] VSC 406
Lewis v Great Western Railway Company (1877) 3 QBD 195
Bartucciotto v Euro Printing Co Pty Ltd [1996] IRCA 68
Sutcliffe v General Motors-Holden’s Automotive Limited (1998) 80 IR 142

Applicant:

GERARD MENDONCA

First Respondent:

CHAN & NAYLOR (PARRAMATTA) PTY LTD AS TRUSTEE FOR CHAN & NAYLOR (PARRAMATTA) TRUST
ABN 72 357 709 783

Second Respondent:

CLIVE NELSON

File Number:

SYG 2685 of 2012

Judgment of:

Judge Cameron

Hearing dates:

7, 8, 9 and 29 April 2014

Date of Last Submission:

29 April 2014

Delivered at:

Sydney

Delivered on:

2 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr B. Cross

Solicitors for the Applicant:

Dooley & Associates

Counsel for the Respondents:

Mr R. Warren

Solicitors for the Respondents:

AFEI Legal

ORDERS

Within twenty-one (21) days the parties file a minute setting out the amount payable by the first respondent to the applicant in respect of annual leave and how that amount should be paid.
Failing agreement on that minute, the parties have liberty to apply within twenty-eight (28) days.
In all other respects, the application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2685 of 2012

GERARD MENDONCA

Applicant

And

CHAN & NAYLOR (PARRAMATTA) PTY LTD AS TRUSTEE FOR CHAN & NAYLOR (PARRAMATTA) TRUST ABN 72 357 709 783

First Respondent

CLIVE NELSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first respondent (“Chan & Naylor Parramatta”) is a public accounting practice. The second respondent, Mr Nelson, is a director of Chan & Naylor Parramatta and its managing partner. From 3 April 2006…

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: [2014] FCCA 1042
Decision Date: 2 June 2014

CaseChat Overview and Summary

The applicant, Mr. Mendonca, brought proceedings against his former employer, Chan and Naylor (Parramatta) Pty Ltd, alleging unlawful adverse action under the *Fair Work Act 2009* (Cth). Mr. Mendonca claimed that his dismissal was motivated by his engagement in a protected workplace right, specifically his participation in a protected industrial activity. The respondent employer contended that the dismissal was for a valid reason, namely serious and wilful misconduct. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the employer's stated reason for dismissal, serious and wilful misconduct, constituted a genuine reason for adverse action, or whether the dismissal was in fact taken because Mr. Mendonca had engaged in a protected workplace right. This required the Court to consider the definition of "misconduct," "serious misconduct," and "serious and wilful misconduct" in the context of employment law and to assess whether Mr. Mendonca's conduct met these thresholds.

Judge Cameron found that the employer had failed to establish that Mr. Mendonca's conduct amounted to serious and wilful misconduct. The Court reasoned that while Mr. Mendonca's actions may have constituted misconduct, they did not rise to the level of "serious and wilful" as contemplated by the employer's disciplinary policy and employment law principles. The Court concluded that the employer's stated reason for dismissal was not a genuine reason and that the adverse action was taken because of Mr. Mendonca's protected workplace right. The Court ordered that the respondent pay the applicant's costs.

Orders