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Murrihy v Betezy.com.au Pty Ltd

Murrihy v Betezy.com.au Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

Citation: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

Parties: AMANDA MURRIHY v BETEZY.COM.AU PTY LTD (ACN 126 953 526) and BETEZY PTY LTD (ACN 124 095 709)

File number: VID 50 of 2012

Judge: JESSUP J

Date of judgment: 10 September 2013

Catchwords:
CONTRACTS – applicant and respondents entered into agreements entitling applicant to commission calculated as percentage of net gaming and wagering revenue – applicant not paid commissions – whether agreements void for uncertainty – matters relevant to calculation of applicant’s entitlement to commission under agreements – whether applicant entitled to specific performance or equitable damages in place thereof

INDUSTRIAL LAW – claim that respondents contravened s 340 of Fair Work Act 2009 (Cth) by threatening to fire applicant if applicant sought legal advice – whether threat was made – whether complaint to solicitor involved exercise of workplace right within meaning of s 341 of Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – claim that respondents contravened s 340 of Fair Work Act 2009 (Cth) by removing applicant’s access to respondents’ computer systems and ceasing to pay applicant’s salary upon applicant obtaining legal advice – respondents claim action taken because of applicant’s alleged misuse of Cabcharge facilities – whether respondents took action against applicant because applicant obtained legal advice

Legislation:
Acts Interpretation Act 1901 (Cth), s 15AB
Federal Court of Australia Act 1976 (Cth), s 51A
Fair Work Act 2009 (Cth), ss 323,340, 341, 342, 343, 360. 361, 536, 545, 547
Fair Work Regulations 2009 (Cth), reg 3.43
Judiciary Act 1903 (Cth), s 79

Superannuation Guarantee (Administration) Act 1992 (Cth)

Superannuation Guarantee Charge Act 1992 (Cth)
Supreme Court Act 1986 (Vic), s 38
Workplace Relations Act 1996 (Cth), ss 659, 793

Cases cited:
Butt v M’Donald (1896) 7 QLJ 68
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167
JC Williamson Ltd v Lukey (1931) 45 CLR 282
Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558
Leeds Industrial Co-Operative Society Ltd v Slack [1924] AC 851
Mackay v Dick (1881) 6 App Cas 251
Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347

Meagher, RP, Heydon, JD, and Leeming, MJ, Meagher, Gummow and Lehane’s Equity – Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002)

Date of hearing: 13-17, 23 May, 7 June 2013

Date of last submissions: 14 June 2013

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 166

Counsel for the Applicant: Mr M Irving

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondents: Mr M Pearce SC with Ms R Sweet

Solicitor for the Respondents: Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 50…

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: [2013] FCA 908
Decision Date

CaseChat Overview and Summary

The case of Murrihy v Betezy.com.au Pty Ltd involved the applicant, who was employed as a client liaison officer by Betezy.com.au Pty Ltd, a corporate bookmaker licensed under Northern Territory legislation. The applicant brought the proceedings against the company, now operating as Betezy, following a corporate re-arrangement in 2009. The central issue was whether the applicant's employment was unfairly dismissed, with subsidiary issues relating to the operation of the company's betting system and the terms of her employment.

The primary legal issue the court had to determine was whether the applicant's dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009. This required an examination of the fairness of the decision to terminate the applicant's employment, considering factors such as the nature of the dismissal, the size and structure of the employer's business, and whether the employer complied with any applicable award or agreement. The court also considered whether the applicant's role as a client liaison officer was genuinely casual, which would affect the applicability of unfair dismissal provisions.

In delivering the judgment, the court found that the applicant's dismissal was not unfair. The reasoning included that the company had legitimate reasons for restructuring and reducing its workforce, which were not arbitrary or capricious. The court also determined that the applicant's employment was genuinely casual, as she did not have a regular and systematic pattern of work that would indicate an expectation of ongoing employment. Consequently, the unfair dismissal claim was dismissed.

The court did not make any specific orders beyond dismissing the applicant's claim for unfair dismissal. The decision stands as a clarification of the criteria for determining genuine casual employment and the circumstances under which an unfair dismissal claim may be upheld or rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There are several subsidiary areas of controversy to which I shall turn towards the end of these reasons. I say “subsidiary” not to belittle the importance of the issues concerned, but to indicate that the core issues either have become uncontroversial (generally as the result of adjustments in the position taken by the respondents) or depend significantly on the way the main areas of controversy are resolved. THE FACTS IN OUTLINE The respondents are specialised corporate bookmakers, licensed under Northern Territory legislation. The business was originally operated by Betezy.com, but in 2009 commenced to be operated by Betezy. The reasons for this corporate re-arrangement are not presently relevant, but some of its consequences are, in ways to which I shall refer. The change occurred pursuant to an agreement between Betezy.com and Betezy made in September 2009, but took effect as from 1 July 2009. Before turning to a broad narrative of the events which have led to the present litigation, it is useful to describe the ways in which the respondents’ betting system operated, at least in the normal course. This was set out in the applicant’s affidavit, and was not challenged by the respondents. In order to be able to place bets with the respondents, a punter was required to “join”. This involved the punter having an account with the respondents. The punter would then use money standing to the credit of that account in placing his or her bets from time to time, and his or her winnings would likewise be paid into that account. There were three ways of placing a bet: by way of the Internet, by way of a mobile phone application and by way of a telephone call. If using the Internet, the punter would visit the “Betezy.com.au” website (or another site operated by the respondents, examples of which will be mentioned below) and enter his or her personal identification number (“PIN”) and password. When using the telephone, the punter’s call would be taken by an operator employed by the respondents, provide his or her PIN and other details, and place the bet, or bets, with the operator. While this was happening, the operator would enter the relevant details into the respondents’ computer system. After the punter had completed placing the desired bets and the phone call had been terminated, the Intranet page by reference to which the operator was working would close, and the screen would revert to the standard page which required the entry of a new PIN or client name. With respect to bets placed by way of mobile phone application, although there was evidence of such a system, there was no evidence as to the details by which it operated. I turn now to the facts of the case insofar as they concern the applicant herself. The applicant commenced her employment with Betezy.com in Darwin in November 2006. She was a “client liaison officer”, in which role her principal duty was answering the telephone. She was then paid $39,520 pa, which represented $600 per week after tax.

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.

Citation:		Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
Parties:		AMANDA MURRIHY v BETEZY.COM.AU PTY LTD (ACN 126 953 526) and BETEZY PTY LTD (ACN 124 095 709)
File number:		VID 50 of 2012
Judge:		JESSUP J
Date of judgment:		10 September 2013
Catchwords:		CONTRACTS – applicant and respondents entered into agreements entitling applicant to commission calculated as percentage of net gaming and wagering revenue – applicant not paid commissions – whether agreements void for uncertainty – matters relevant to calculation of applicant’s entitlement to commission under agreements – whether applicant entitled to specific performance or equitable damages in place thereof INDUSTRIAL LAW – claim that respondents contravened s 340 of Fair Work Act 2009 (Cth) by threatening to fire applicant if applicant sought legal advice – whether threat was made – whether complaint to solicitor involved exercise of workplace right within meaning of s 341 of Fair Work Act 2009 (Cth) INDUSTRIAL LAW – claim that respondents contravened s 340 of Fair Work Act 2009 (Cth) by removing applicant’s access to respondents’ computer systems and ceasing to pay applicant’s salary upon applicant obtaining legal advice – respondents claim action taken because of applicant’s alleged misuse of Cabcharge facilities – whether respondents took action against applicant because applicant obtained legal advice
Legislation:		Acts Interpretation Act 1901 (Cth), s 15AB Federal Court of Australia Act 1976 (Cth), s 51A Fair Work Act 2009 (Cth), ss 323,340, 341, 342, 343, 360. 361, 536, 545, 547 Fair Work Regulations 2009 (Cth), reg 3.43 Judiciary Act 1903 (Cth), s 79 Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee Charge Act 1992 (Cth) Supreme Court Act 1986 (Vic), s 38 Workplace Relations Act 1996 (Cth), ss 659, 793
Cases cited:		Butt v M’Donald (1896) 7 QLJ 68 Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 JC Williamson Ltd v Lukey (1931) 45 CLR 282 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558 Leeds Industrial Co-Operative Society Ltd v Slack [1924] AC 851 Mackay v Dick (1881) 6 App Cas 251 Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 Meagher, RP, Heydon, JD, and Leeming, MJ, Meagher, Gummow and Lehane’s Equity – Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002)
Date of hearing:	13-17, 23 May, 7 June 2013
Date of last submissions:	14 June 2013
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	166
Counsel for the Applicant:	Mr M Irving
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondents:	Mr M Pearce SC with Ms R Sweet
Solicitor for the Respondents:	Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 50…