Rangi v Kmart Australia Ltd

Link copied
Case Copied 35 min read

FEDERAL COURT OF AUSTRALIA

Rangi v Kmart Australia Ltd [2019] FCA 1778

Appeal from:

Application for leave to appeal:

Rangi v Kmart Australia Ltd [2018] FCCA 2040 and

Rangi v K-Mart Australia Ltd (No.2) [2018] FCCA 3622

File numbers: VID 949 of 2018
VID 1618 of 2018
Judge: STEWARD J
Date of judgment: 1 November 2019
Catchwords: INDUSTRIAL LAW – applications for leave to appeal –
where primary judge gave summary judgment in a proceeding involving adverse action claims – where primary judge made costs order pursuant to s 570 of the Fair Work Act 2009 (Cth) – whether the decisions are attended by sufficient doubt – whether the alleged failures to promote altered the position of the employee to the employee’s prejudice within the meaning of item 1(c) of s 342(1) of the Fair WorkAct 2009 (Cth) – whether the decision to order costs warrants reconsideration
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 361, 570

Federal Circuit Court of Australia Act 1999 (Cth) s 17A

Federal Court of Australia Act 1976 (Cth) s 24

Workplace Relations Act 1996 (Cth) s 298K (repealed)

Limitation of Actions Act 1958 (Vic) s 5

Cases cited:

Blair v Australian Motor Industries Ltd (1982) 3 IR 176

Childs v Metropolitan Transport Trust (1982) 29 AILR 24

Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; (2006) 157 IR 470

Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ex parte Bucknell (1936) 56 CLR 221

House v The King (1936) 55 CLR 499

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Rowland v Alfred Health [2014] FCA 2

Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107

Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122

Date of hearing: 28 August 2019
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 54
Solicitor for the Applicant: Mr Y Rangi of Rangi Lawyers
Counsel for the Respondent: Mr M McKenney
Solicitor for the Respondent: Landers & Rogers

ORDERS

VID 949 of 2018
BETWEEN:

YUDHVIR RANGI

Applicant
AND:

KMART AUSTRALIA LTD

Respondent
VID 1618 of 2018
BETWEEN:

YUDHVIR RANGI

Applicant
AND:

KMART AUSTRALIA LTD

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

1 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The parties are to confer on the issue of costs in respect of proceedings VID949/2018 and VID1618/2018 and within 14 days hereof they are to file agreed orders or, if no agreement is…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Rangi v Kmart Australia Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCA 1778
Decision Date

CaseChat Overview and Summary

The case of Rangi v Kmart Australia Ltd was heard in the Fair Work Division of the Federal Circuit Court. Mr Rangi, a qualified lawyer and owner of Rangi Lawyers, filed an application against Kmart, alleging breaches of contract and contraventions of the Fair Work Act 2009 (Cth). He claimed that Kmart had reduced his salary and failed to promote him on three occasions due to his exercise of workplace rights. The primary judge granted summary judgment in favour of Kmart and ordered costs under section 570 of the Fair Work Act. Mr Rangi sought leave to appeal the decisions of the primary judge. The court had to decide whether the summary judgment and the costs order were attended by sufficient doubt, and if the alleged failures to promote had altered Mr Rangi’s position to his prejudice within the meaning of the Fair Work Act.

The court considered whether the primary judge’s decisions were attended by sufficient doubt. It noted that the primary judge had found that Mr Rangi had failed to establish his claims on the balance of probabilities. The court examined the evidence and found that the primary judge’s conclusions were reasonable and not open to reconsideration. The court also considered the application for costs under section 570 of the Fair Work Act, which allows the court to order costs if it is satisfied that the proceedings were frivolous or vexatious, or were instituted or conducted in a manner that was unreasonable, oppressive or wasteful of time or resources. The court found that the proceedings were not frivolous or vexatious, and that the decision to order costs warranted reconsideration. The court noted that Mr Rangi had not provided any evidence to support his claims, and that his allegations were not supported by the evidence.

The application for leave to appeal was dismissed. The parties were ordered to confer on the issue of costs in respect of proceedings VID949/2018 and VID1618/2018 and to file agreed orders or submissions within 14 days. The court emphasised that the decision was not a reflection on the merits of the case, but rather a decision on the application for leave to appeal. The court also noted that the decision did not affect the outcome of the proceedings in the Federal Circuit Court.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The parties are to confer on the issue of costs in respect of proceedings VID949/2018 and VID1618/2018 and within 14 days hereof they are to file agreed orders or, if no agreement is reached, submissions of no more than two pages in length.

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

Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) relevantly provides:Summary judgment…(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.…Background Mr Rangi is a qualified lawyer and has his own legal practice, Rangi Lawyers, in Thomastown. In the period 2008 to 2018, Mr Rangi was employed by Kmart at their store located in South Morang (the “South Morang Store”). The employment relationship after 2011, on Mr Rangi’s account, was marked by some difficulties. He thus took the significant step of instituting a proceeding against his employer in 2017 by way of an application in the Fair Work Division of the Federal Circuit Court. Mr Rangi subsequently filed a document entitled “Amended Points of Claim” in the Federal Circuit Court claiming, in essence, that: (i) Kmart was in breach of a contract entered into by the parties on or around 1 March 2009 by reason of reducing his salary from that of a Level 3 Supervisor to that of a Level 1 Retail Assistant; and (ii) Kmart had contravened s 340 of the FW Act by failing to promote him on three occasions by reason of him exercising his workplace rights. The three adverse action claims can be briefly summarised as follows (drawing on the Amended Points of Claim):(1)On or around 24 October 2011, during an oral conversation between a manager of the South Morang Store and Mr Rangi, the manager allegedly said to Mr Rangi words to the following effect, “We are restarting the evening filling shift, do you want to take up the role of team leader for the evening?”. Mr Rangi allegedly replied “Yes, I accept the role for the evening shift”. This conversation was said to constitute the “Promotion Assurance”. On or around 11 November 2011, Mr Rangi made an oral complaint to Kmart regarding a change to the timing of his shifts (the “Roster Complaint”). On or around 28 November 2011, Kmart reneged on the Promotion Assurance by failing to promote Mr Rangi. It was claimed that by making the Roster Complaint, Mr Rangi had exercised a “workplace right” for the purposes of s 341(1)(a) and (c) of the FW Act; and that Kmart took “adverse action” against Mr Rangi, within the meaning of item 1(c) of s 342(1) of the FW Act, by failing to promote him.(2)On or around 21 November 2012, Mr Rangi made a complaint to Kmart alleging that colleagues had engaged in bullying conduct towards him (the “First Bullying Complaint”). On or around 2 October 2013, Mr Rangi made a complaint to Kmart that the duty manager had engaged in bullying conduct towards him (the “Second Bullying Complaint”). On 24 January 2014, a manager of the South Morang Store advised Mr Rangi that he could commence training under the Manager in Training (“MIT”) Program (the “Training Assurance”). This did not eventuate. It was claimed that by making the First and Second Bullying Complaints, Mr Rangi had exercised a “workplace right” for the purposes of s 341(1)(a) and (c) of the FW Act; and that Kmart took “adverse action” against Mr Rangi, within the meaning of item 1(c) of s 342(1) of the FW Act, by denying him training under the MIT Program (which was referred to as the “Second Failure to Promote”).(3)On 27 February 2014, Mr Rangi made a complaint to Kmart regarding the failure to commence training under the MIT Program (the “MIT Complaint”). On 13 March 2014, Mr Rangi again applied for the MIT Program. The application was not accepted and Kmart did not promote Mr Rangi to the position of duty manager. It was claimed that by making the MIT Complaint, Mr Rangi had exercised a “workplace right” for the purposes of s 341(1)(a) and (c) of the FW Act; and that Kmart took “adverse action” against Mr Rangi, within the meaning of items 1(c) and 1(d) of s 342(1) of the FW Act, by denying him training under the MIT Program and a promotion (when two other duty managers were appointed shortly thereafter).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.