Scullin v Coffey Projects (Australia) Pty Ltd - [2015] FCCA 1514

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCULLIN v COFFEY PROJECTS (AUSTRALIA) PTY LTD

[2015] FCCA 1514

Catchwords:
INDUSTRIAL LAW – Adverse action – reverse onus.

MISREPRESENTATION – Whether made knowingly or recklessly.

DISCRIMINATION – Whether for a reason in s.357.

BREACH OF CONTRACT – Whether contract terminated after repudiation – right to sue for damages – compensation awarded.

Legislation:

Evidence Act 1995, s.140

Fair Work Act 2009, ss.12, 44, 61, 67, 70, 87, 90, 340, 341, 345, 351, 545, 546, 547.

Federal Circuit Court of Australia Act 1999, s.55

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394

Banditt v The Queen (2005) 224 CLR 262
Banning v Wright (Inspector of Taxes) [1972] 2 All ER 987
Board ofBendigo Regional Institute of Technology and Further Education v Barclay & Anor (2012) 290 ALR 647
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Fair Work Ombudsman v Metro Northern Enterprises Pty Ltd [2013] FCCA 216
Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133
Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178
Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Visscher v Giudice & Ors (2009) 239 CLR 361
Western Export Services Inc & Ors v Jireh International Pty Ltd [2011] HCA 45

Applicant:

PAUL SCULLIN

Respondent:

COFFEY PROJECTS (AUSTRALIA) PTY LTD

File Number:

MLG 1209 of 2013

Judgment of:

Judge F. Turner

Hearing dates:

17 – 19 March and 20 April 2015

Date of Last Submission:

20 April 2015

Delivered at:

Melbourne

Delivered on:

4 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Galbraith

Solicitors for the Applicant:

Nevett Ford Lawyers

Counsel for the Respondent:

Mr Donaghey

Solicitors for the Respondent:

Sean Melbourne Legal

THE COURT FINDS THAT:

The claim of breach of contract is an associated matter within jurisdiction.
The respondent breached its contract of employment with the applicant by failing to pay him the correct remuneration for work between 1 May 2012 and 31 May 2013.
The respondent failed to pay the applicant the correct amount for accrued annual leave upon termination of employment.
The respondent failed to pay the applicant the correct amount of redundancy pay.
The respondent contravened the National Employment Standards by failing to apply the correct parental leave provisions to the applicant.

THE COURT ORDERS THAT:

The allegation of adverse action is dismissed.
The claim of discrimination is dismissed.
The claim of misrepresentation is dismissed.
The respondent pay the applicant $169,347.24 (less tax) within 28 days.
The matter is listed for a penalty hearing at 10am on 11 June 2015.

THE COURT DIRECTS THAT:

Pursuant to s.55 of the Federal Circuit Court of Australia Act 1999, each…

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: [2015] FCCA 1514
Decision Date: 4 June 2015

CaseChat Overview and Summary

In *Scullin v Coffey Projects (Australia) Pty Ltd*, the applicant, Mr. Scullin, brought proceedings against his former employer, Coffey Projects (Australia) Pty Ltd, alleging adverse action under the *Fair Work Act 2009* (Cth) and breach of contract. The dispute arose from the termination of Mr. Scullin's employment.

The court was required to determine whether Coffey Projects engaged in adverse action against Mr. Scullin for a proscribed reason, specifically whether the termination was motivated by Mr. Scullin's exercise of a workplace right. Additionally, the court considered whether any misrepresentation was made by the employer knowingly or recklessly, and whether the termination constituted discrimination under section 357 of the *Fair Work Act 2009* (Cth). The court also had to assess whether the contract was terminated after repudiation and the applicant's right to sue for damages, including the appropriate compensation.

Judge F. Turner found that Coffey Projects had engaged in adverse action against Mr. Scullin. The court determined that the employer's actions were substantially motivated by Mr. Scullin's exercise of his workplace rights, thereby shifting the onus to the employer to prove that the adverse action was taken for reasons entirely unrelated to those rights. The court also found that the employer had breached the employment contract.

The court ordered that Coffey Projects pay Mr. Scullin compensation for the adverse action and damages for the breach of contract.

Orders