Sankararamalingam v InfoTech Professionals Pty Ltd - [2017] FCA 917

FEDERAL COURT OF AUSTRALIA
Sankararamalingam v InfoTech Professionals Pty Ltd [2017] FCA 917

Appeal from:
Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729

Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378

File number: NSD 522 of 2017

Judge: FLICK J

Date of judgment: 11 August 2017

Catchwords:
PRACTICE AND PROCEDURE – appeals – need to identify appellable error – no error identified

INDUSTRIAL LAW – alleged underpayment of salary – alleged non-payment of holiday pay and personal/carer’s leave – alleged failure to give notice or pay redundancy – no appellable error

INDUSTRIAL LAW – costs – whether costs order should be made in accordance with s 570 of the Fair Work Act – principles of application of s 570 – appeal instituted without reasonable cause – costs ordered against Appellant

Legislation:
Fair Work Act2009 (Cth) ss 117, 119, 123, 570

Federal Court of Australia Act1976 (Cth) s 25(1AA)

Cases cited:
Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23, (2013) 232 FCR 428

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729

Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378

Shamir v Commonwealth (Australian Taxation Office) [2015] FCA 1463

Date of hearing: 21 June 2017

Registry: New South Wales

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 56

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Mr I Latham

Solicitor for the Respondent: Sachi Legal

ORDERS

NSD 522 of 2017

BETWEEN:
VALLIGOMATHY SANKARARAMALINGAM

Appellant

AND:
INFOTECH PROFESSIONALS PTY LTD

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

11 AUGUST 2017

THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The Appellant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

The Appellant, Ms Valligomathy Sankararamalingam, was formerly employed by the Respondent, Infotech Professionals Pty Ltd.
On 5 August 2016, Ms Sankararamalingam filed an Application in the Fair Work Division of the Federal Circuit Court of Australia seeking relief under the Fair Work Act2009 (Cth) (the “Fair Work Act”). That Application claimed (inter alia) that “from 2007 to Nov 14, 2014 I was working as a trainer and an academic coordinator”.
On 4 November 2016 a Judge of that Court published reasons for a decision striking out some of the claims sought to be advanced by Ms Sankararamalingam but otherwise dismissing an application filed on behalf of the Respondent seeking summary dismissal of the proceeding: Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729. In a subsequent judgment published in March 2017, reasons for decision were given dismissing what remained of the application: Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378. Orders were made on 24 March 2017.
On 10 April 2017, Ms Sankararamalingam filed…

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: [2017] FCA 917
Decision Date: 11 August 2017

CaseChat Overview and Summary

The appeal in Sankararamalingam v InfoTech Professionals Pty Ltd was brought by the Appellant against the Respondent regarding a dispute over underpayment of salary, non-payment of holiday pay and personal/carer’s leave, and alleged failure to provide notice or pay redundancy. The case was initially heard in the Federal Circuit Court of Australia, and the Appellant subsequently appealed to the Full Court of the Federal Court.

The primary legal issues before the court involved whether there was any appellable error in the decision of the Federal Circuit Court, and if the appeal was instituted with reasonable cause under section 570 of the Fair Work Act. The Appellant argued that the Federal Circuit Court erred in its findings and conclusions, but the court found no such error. The reasoning of the Federal Circuit Court was deemed sound and based on the evidence presented.

The court held that the appeal was not instituted with reasonable cause, as no appellable error was identified in the lower court's decision. The Appellant's arguments lacked prospects of success, and the findings of the Federal Circuit Court were sound. Consequently, the appeal was dismissed, and the Appellant was ordered to pay the Respondent's costs.

The orders of the court were that the appeal was dismissed, and the Appellant was to pay the costs of the Respondent. The decision underscores the importance of identifying appellable error in appeals and the consequences of bringing an appeal without reasonable cause.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The Appellant is to pay the costs of the Respondent.

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

The Respondent’s submission is accepted. The Appellant should be ordered to pay the costs of the appeal.Conclusions An extremely flexible attitude has been extended to the Appellant in presenting her arguments on appeal in order to provide her with some assurance that her claims have been properly examined. The somewhat unusual course has also been pursued in this judgment in expressly setting forth much of the text of the reasons for decision of the Federal Circuit Court. That course has been pursued to provide at least some further reassurance to the Appellant that both her claims and the reasons for decision of the Federal Circuit Court have again been examined by this Court with some considerable degree of care. Underlying the course pursued by the Appellant, however, was the erroneous assumption that it was open to her in this Court to simply seek a fresh and different decision in respect to her claims without the necessity to first identify some appellable error on the part of the Federal Circuit Court Judge. No appellable error has been discerned. Moreover, it would appear that each of the findings made by that Judge was soundly based upon such evidence as was before him. Any consideration of whether the Notice of Appeal challenging this decision was filed within time or whether time should be extended within which to permit the Notice of Appeal to be filed is left to one side. The arguments advanced have no prospects of success on appeal. The findings upon which the Federal Circuit Court Judge proceeded were findings open to him and expose no appellable error. The proceeding is to be dismissed with costs. An affidavit filed by the Appellant after the hearing and without any indication as to whether it has been served on the Respondent does not affect any of the conclusions reached. THE ORDERS OF THE COURT ARE:1.The proceeding is dismissed.2.The Appellant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729 Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378
File number:	NSD 522 of 2017
Judge:	FLICK J
Date of judgment:	11 August 2017
Catchwords:	PRACTICE AND PROCEDURE – appeals – need to identify appellable error – no error identified INDUSTRIAL LAW – alleged underpayment of salary – alleged non-payment of holiday pay and personal/carer’s leave – alleged failure to give notice or pay redundancy – no appellable error INDUSTRIAL LAW – costs – whether costs order should be made in accordance with s 570 of the Fair Work Act – principles of application of s 570 – appeal instituted without reasonable cause – costs ordered against Appellant
Legislation:	Fair Work Act2009 (Cth) ss 117, 119, 123, 570 Federal Court of Australia Act1976 (Cth) s 25(1AA)
Cases cited:	Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23, (2013) 232 FCR 428 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729 Sankararamalingam v Infotech Professionals Pty Ltd (No 2) [2017] FCCA 378 Shamir v Commonwealth (Australian Taxation Office) [2015] FCA 1463
Date of hearing:	21 June 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	56
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr I Latham
Solicitor for the Respondent:	Sachi Legal