Sensis Pty Ltd v Gundi

[2017] FCA 1519

FEDERAL COURT OF AUSTRALIA

Sensis Pty Ltd v Gundi [2017] FCA 1519

Appeal from:

Gundi v Sensis Pty Ltd [2017] FCCA 1438

File number:

VID 774 of 2017

Judge:

O'CALLAGHAN J

Date of judgment:

15 December 2017

Catchwords:

INDUSTRIAL LAW – whether respondent’s position was made redundant – whether respondent was redeployed to a “Reasonable alternative position” within the meaning of the Sensis Enterprise Agreement 2014  – whether respondent was offered a “Suitable Position” within the meaning of the Sensis Enterprise Agreement 2014 –  whether respondent entitled to a remedy for breach of contract – whether primary judge erred in reversing the onus of proof when considering the questions of whether respondent deployed to “Reasonable alternative position” or offered “Suitable Position” within the meaning of the Sensis Enterprise Agreement 2014  

Legislation:

Evidence Act 1995 (Cth), s 140

Fair Work Act 2009 (Cth), ss 50, 539(2) (Item 4), 546

Federal Court of Australia Act 1976 (Cth), s 27

Cases cited:

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Briginshaw v Briginshaw (1938) 60 CLR 336

Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226

Fox v Percy (2003) 214 CLR 118

Date of hearing:

3 November 2017

Registry:

Victoria

Division:

Fair Work

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

43

Counsel for the Appellant:

Mr M F Wheelahan QC and Mr B Avallone

Solicitor for the Appellant:

Seyfarth Shaw Australia

Counsel for the Respondent:

Mr R A Millar

Solicitor for the Respondent:

McDonald Murholme Solicitors

ORDERS

VID774 of 2017
BETWEEN:	SENSIS PTY LTD Appellant
AND:	ROBERT GUNDI Respondent
JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	15 DECEMBER 2017

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Circuit Court of Australia on 27 June 2017 in MLG1206/2016 be set aside.

3.In lieu of the orders made by the Federal Circuit Court of Australia on 27 June 2017 in MLG1206/2016, the proceeding be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

THE FACTS

1. The respondent (the respondent or Mr Gundi) started work with the appellant (the appellant or Sensis) in 2008.  He was employed to sell advertising services by making “cold calls” to potential customers.  In October 2011, the respondent was offered and accepted the position of “Media Sales Advisor”, which also involved selling the appellant’s advertising services.  The terms of his employment were contained, in part, in a contract of employment dated 6 October 2011 (the October 2011 contract of employment).  The respondent worked under a “mobile operating model”, which meant that he spent much of his working day visiting customers.

2. The respondent’s employment was also governed by an enterprise agreement, called the Sensis Enterprise Agreement 2014 (the enterprise agreement).  The parties agreed that, because the October 2011 contract of employment contained an “entire agreement” clause, the enterprise agreement was not incorporated into that…