Nuttall v Hatch Pty Ltd

Case [2024] FCA 339


FEDERAL COURT OF AUSTRALIA

Nuttall v Hatch Pty Ltd [2024] FCA 339  

File number(s): VID 562 of 2019
Judgment of: HESPE J
Date of judgment: 9 April 2024
Catchwords:

EMPLOYMENT LAW – employment – adverse action – whether the applicant was subjected to adverse action contrary to s 340 of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant made complaints or inquiries amounting to the exercise of “workplace rights” pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant exercised a workplace right

CONTRACT LAW – construction of shareholder agreement – whether applicant was absent from “active employment for a continuous period of twelve (12) months or more”

Legislation:

Corporations Act 2001 (Cth) s 175

Fair Work Act 2009 (Cth) ss 13, 14, 22, 334, 339, 340, 341, 342, 360, 361, 545, 546, 547, 793

Cases cited:

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301

Australian Workers' Unionv BHP Iron-Ore [2001] FCA 3; (2000) 106 FCR 482

BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 102 FCR 97

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014

Construction, Forestry, Mining and Energy Unionv Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

Environmental Group Ltd v Bowd [2019] FCA 951

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

March v E & MH Stramare Pty Ltd [1991] HCA 1; (1991) 171 CLR 506

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

Monash Health v Singh [2023] FCAFC 166

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225

Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association [2012] FCAFC 63; (2012) 202 FCR 244

Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27

Serpanos v Commonwealth of Australia [2022] FCA 1226

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Wong v National Australia Bank Ltd [2021] FCA 671

Wong v National Australia Bank Ltd [2022] FCAFC 155

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 258
Date of last submission/s: Respondent…

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AGLC
Nuttall v Hatch Pty Ltd [2024] FCA 339
Case
[2024] FCA 339
Decision Date

CaseChat Overview and Summary

In the case of Nuttall v Hatch Pty Ltd, the applicant, Mr. Nuttall, sought a declaration that he had been subjected to adverse action by his employer, Hatch, in contravention of the Fair Work Act 2009 (Cth). Additionally, Mr. Nuttall sought compensation for losses incurred due to his dismissal and the acquisition of his shares in Hatchcos Holdings. Hatch, on the other hand, filed a cross-claim asserting that Mr. Nuttall had been absent from active employment for a continuous period of twelve months or more, thereby triggering a contractual right for Hatch to acquire his shares in Hatchcos Holdings. The Federal Court was tasked with resolving these disputes.

The primary legal issues in this case involved determining whether Mr. Nuttall had been subjected to adverse action by Hatch, as defined under the Fair Work Act 2009 (Cth), and whether his complaints or inquiries amounted to the exercise of "workplace rights." Additionally, the court had to decide if the adverse action was taken because Mr. Nuttall exercised a workplace right. Another significant issue was the interpretation of the Hatchcos Group Inc shareholder agreement, specifically whether Mr. Nuttall was absent from active employment for a continuous period of twelve months or more.

The Federal Court found that Mr. Nuttall had not been subjected to adverse action by Hatch as defined by the Fair Work Act 2009 (Cth). The court reasoned that the actions taken by Hatch did not constitute adverse action within the meaning of the Act. Furthermore, the court held that Mr. Nuttall's absence from active employment did not meet the threshold of twelve continuous months, as required by the Hatchcos Group Inc shareholder agreement. Consequently, the court dismissed Mr. Nuttall's application and allowed Hatch's cross-claim.

In its orders, the Federal Court dismissed Mr. Nuttall's application, allowed Hatch's cross-claim, and directed Mr. Nuttall to deliver the share certificates for the shares in question to Hatchcos Holdings Share Registry Office. There was no order as to costs.

Orders

Orders of the court

1. The application be dismissed.

2. The cross-claim be allowed.

3. The applicant deliver the share certificates for the shares the subject of the Exercise Notice to Hatchcos Holdings Share Registry Office.

4. There is no order as to costs.

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

Background

Background to the litigation

Mr Nuttall accepts that if he is to remain the registered shareholder of the 2,050 Hatchcos Holdings shares, he is to repay the proceeds he received as the purchase price of those shares. In so far as the cross-claim is concerned, the issue is whether Motus validly exercised a contractual right to acquire those shares.PART 2: BACKGROUND AND EVIDENCE2.1 The trial The trial initially ran across three days (17–19 July 2023) during which evidence was received. Some weeks after the hearing of evidence, the parties filed comprehensive written closing submissions, upon which they elaborated at a further hearing on 27 September 2023. The Court heard evidence from nine witnesses. Mr Nuttall led evidence from the following witnesses, each of whom was cross-examined: (1)himself, who gave affidavit evidence. (2)Mr Graeme Baird, a registered psychologist who provided a report dated 27 November 2020 and a report dated 27 February 2023. (3)Dr Duc Nguyen, Mr Nuttall’s general practitioner at the relevant times, who provided a medical report dated 22 October 2020 and a report dated 1 March 2023. The applicant also tendered two expert reports — one from Ms Smith, dated 24 December 2020, and another from Mr Hood, dated 9 March 2023. Ms Smith and Mr Hood are financial experts who were not required for cross-examination. Each of these experts was asked to opine on the alleged losses suffered by Mr Nuttall in relation to the exercise of Motus’ rights to acquire his Hatchcos Holdings shares. Hatch led evidence from the following witnesses, each of whom was cross-examined:(1)Mr Kwak, Managing Director of Hatch for the Australia-Asia region.(2)Mr Schatz, Global Managing Director for Infrastructure for the Hatch group. Mr Schatz attended by video conference.(3)Mr D’Cruz, director of Hatch’s Metals business in Australia and a colleague of Mr Nuttall and Mr Moran.(4)Mr Moran, responsible for Hatch’s Infrastructure group in Australia. The Court also received joint evidence from two psychiatrists, Associate Professor Khalid and Dr Larder in the form of a joint report and were cross-examined concurrently. Each of Associate Professor Khalid and Dr Larder also provided individual reports (Associate Professor Khalid in the form of a report dated 15 January 2022 and Dr Larder in the form of a report dated 8 May 2023). To the extent that the views expressed in their individual reports differed from that expressed in the joint report, the evidence in the joint report is accepted over that in the individual reports. At the commencement of the trial, Mr Nuttall abandoned the following:(a)A claim that had he continued to perform his role after 4 September 2018, Hatch’s business would have reached the necessary financial milestones to entitle him to an earn-out payment as described in [22] below.(b)A defence to the cross-claim that was based upon the Hatchcos Group Inc shareholder agreement.(c)A contention that Mr D’Cruz was a decision‑maker or person involved in the decision to engage in the alleged adverse action.2.2 Hatch’s business

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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