Saad v Ada Evans Chambers Pty Ltd - [2018] FCCA 1832

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAAD v ADA EVANS CHAMBERS PTY LTD & ANOR

[2018] FCCA 1832

Catchwords:
INDUSTRIAL LAW – Application alleging breaches of the FWA and the Legal Services Award 2010 – unpaid parental leave – extension of unpaid parental leave – failure to consult – return to work guarantee – replacement employees – adverse action – declarations made.

Legislation:

Fair Work Act 2009 (Cth), ss.3, 43, 44, 45, 46, 76, 83, 84, 84A, 340, 341, 342, 360, 361, 545, 546, 550

Legal Services Award 2010

Cases cited:

Stanley v Service to Youth Council Incorporated [2014] FCA 643; (2014) 225 FCR 317

Turnbull v Symantec [2013] FCCA 1771; (2013) 280 FLR 196
CPSU, the Community and Public Sector Union and Anor v Commonwealth of Australia [2006] FCA 1589; (2006) 157 IR 457
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Kennewell v MG & CG Atkins T/A Cardinia Waste & Recylers [2015] FCA 716
Maswan v Escada Textilvertrieb T/A Escada [2011] FWA 4239
Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frifth & Associates [2014] FWCFB 1276; (2014) 240 IR 448
Siriwardhana v FDGH Pty Ltd [2013] FWC 5609
Alcwyn Roberts and Peter Collins v Coles Group Supply Chain Pty Ltd [2016] FWC 4898
Ingersole v Castle Hill Country Club Limited [2014] FCCA 450

Applicant:

PATRYCIA SAAD

First Respondent:

ADA EVANS CHAMBERS PTY LTD (ACN 065 856 260)

Second Respondent:

MICHAEL JOHN MAXWELL

File Number:

SYG 820 of 2014

Judgment of:

Judge Nicholls

Hearing dates:

23 – 25 October 2017

Date of Last Submission:

25 October 2017

Delivered at:

Sydney

Delivered on:

9 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

Turner Freeman Lawyers

Counsel for the Respondents:

Mr A Britt

ORDERS

THE COURT DECLARES THAT:

The first respondent breached s.45 of the Fair Work Act 2009 (Cth) by contravening cl.8 of the Legal Services Award 2010.
The second respondent is taken to have breached s.45 of the Fair Work Act 2009 (Cth) through a contravention of cl.8 of the Legal Services Award 2010, pursuant to s.550 of the Fair Work Act 2009 (Cth).

THE COURT ORDERS THAT:

The application made on 27 March 2014 is otherwise dismissed.
The applicant to file and serve written submissions on the issue of appropriate compensation on or before 30 July 2018.
The respondents to file and serve written submissions in reply on or before 20 August 2018.

THE COURT NOTES THAT:

The parties are to advise the Court whether the quantum of compensation is to be determined on the written submissions, or whether a hearing is required, on or before 20 August 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 820 of 2014

PATRYCIA SAAD

Applicant

And

ADA EVANS CHAMBERS PTY LTD (ACN 065 856 260)

First Respondent

MICHAEL JOHN MAXWELL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 27 March 2014 by Ms Patrycia Saad (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.

Keep reading for free

Create a free CaseChat account to read Saad v Ada Evans Chambers Pty 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: [2018] FCCA 1832
Decision Date: 9 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Saad, against a decision of the respondent, Ada Evans Chambers Pty Ltd, regarding the termination of his employment. The appeal was heard by Judge Nicholls.

The primary legal issue before the court was the interpretation and application of section 83(1) of the relevant legislation, which governs an employer's obligations when making decisions that affect an employee's position, particularly in the context of parental leave. Specifically, the court had to determine when the obligation to consult arises, the nature and extent of that obligation, and whether the employer had fulfilled its duty to inform and provide an opportunity for discussion regarding the effect of its decision on the employee's pre-parental leave position.

The court's reasoning, drawing on the principles established in *Stanley*, clarified that the obligation under section 83(1) is triggered only after an employer has made a definite decision. The employer is then required to take "all reasonable steps" to inform the affected employee about the effect of the decision and provide an opportunity to discuss it. This obligation is objective, meaning the employer's subjective view of adequacy is not determinative. The court also noted that the scope of consultation may be influenced by the employee's willingness to engage, and that the "effect of the decision on the employee's pre-parental leave position" should be interpreted broadly to include the personal impact on the employee.

Orders

Orders of the court

Full text does not contain this section.

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

Both parties referred to Stanley. For current purposes, the following is of relevance (Stanley at [193] to [196]):“[193] However, some features of the obligation imposed by s 83(1) on an employer may be noted. First, the obligation is expressed to arise only when an employer has made a decision of the stipulated kind. This is indicated by the words “makes a decision” in subsection (1)(b) and, to a lesser extent, by the words “the effect of the decision” in the concluding line. In this respect, the obligation established by s 83(1) is similar to that imposed by the standard “Introduction of change” clause in Awards of the former Australian Conciliation and Arbitration Commission (Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 at 688) which provided:Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.This means that s 83(1) does not impose an obligation on an employer to consult with the affected employee before the employer makes the relevant decision.[194] Secondly, the obligation when it arises is of a stringent kind. The employer must take “all reasonable steps” to give the employee information about the effect of the decision and the opportunity to discuss the effect of the decision. This means that any reasonable step must be taken and an employer will not discharge the obligation by some activity if, in the circumstances, further action could reasonably be expected. The nature and extent of the reasonable steps required will vary according to the nature and circumstances of the case. An employer’s subjective view of what may be adequate will not be decisive: the section establishes an objective criterion.[195] The content of an employer’s obligation under s 83 may well be informed by the attitude of the affected employee. Some employees will wish to engage in active discussion and seek detailed information, while others will not. The opportunity to be provided by an employer may be more extensive in the case of the former than in the case of the latter.[196] Thirdly, s 83(1) contemplates a form of consultation of a discrete kind. That is the effect of the employer’s decision “on the employee’s pre-parental leave position”. However, given the obvious policy consideration underlying s 83(1), there is no reason to construe that expression narrowly. In particular, it does not seem appropriate to construe s 83(1) as requiring a form of consultation concerning the employee’s position, but not concerning the employee personally. A decision having a significant effect on “the status, pay or location” of an employee’s pre-parental leave position will usually have an intrinsic effect on the employee personally. It is natural to suppose that s 83(1) contemplates discussion about the effect of the decision on the employee personally as well as on the employee’s pre-parental position. SYC did not submit to the contrary.”[Emphasis added.]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.