Skycity Adelaide Pty Ltd v Celand - [2017] FCCA 196

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKYCITY ADELAIDE PTY LTD v CELAND

[2017] FCCA 196

Catchwords:
INDUSTRIAL LAW – Application for costs following dismissal of proceedings alleging adverse action in employment – failure to accept Calderbank offer – whether refusal to accept offer amounts to an unreasonable act or omission – whether applicant’s conduct of the proceedings was unreasonable – witnesses subpoenaed to give evidence – matters to be considered.

Legislation:

Fair Work Act 2009, ss.520(1)(a), 570(1), 570(2)

Federal Circuit Court Rules, rr.21.02(2), 21.10, 21.15

Cases cited:
Celand v Skycity Pty Ltd [2016] FCCA 399
Brown v DS & MJ Batten (No 2) [2012] FMCA 436
Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No 3) [2010] FMCA 250
CFMEU v Clarke (2008) 170 FCR 574
Rentuza v Westside Auto Wholesale [2009] FMCA 1022 citing Australian & International Pilot’s Association v Qantas Airways Limited (No3) (2007) 162 FCR 392
Saxena v PPF Asset Management Ltd [2011] FCA 395
Australian Workers Union v Leighton Contractors Pty Ltd & Ors(No2) [2013] FCAFC 23
Kanan v Australian Postal & Telecommunications Union [1992] FCA 539
Calderbank v Calderbank [1975] 2 All ER 333
Carey v Freehills [2013] FCA 1258
Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd (No 2) [2013] FCA 807
Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086
Aitken v Virgin Australia Airlines and Vandeven v Virgin Australian Airlines (No 2) [2013] FCCA 2031
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394
Stone v Moore (No 2) [2015] SADC 169
Carey v Freehills [2013] FCA 1258

Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236

Applicant:

SKYCITY ADELAIDE PTY LTD

Respondent:

JENNIFER CELAND

File Number:

ADG 394 of 2014

Judgment of:

Judge Brown

Hearing date:

13 September 2016

Date of Last Submission:

13 September 2016

Delivered at:

Adelaide

Delivered on:

2 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Stewart

Solicitors for the Applicant:

Sparke Helmore

Counsel for the Respondent:

Mr Heywood-Smith QC

Solicitors for the Respondent:

Hamdan Lawyers

ORDERS

The respondent pay the applicant’s costs fixed in the amount of $30,711.00.
Order (1) hereof be stayed pending the outcome of the appeal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 394 of 2014

SKYCITY ADELAIDE PTY LTD

Applicant

And

JENNIFER CELAND

Respondent

REASONS FOR JUDGMENT

Introduction

On 27 August 2014, the applicant, Ms Celand commenced proceedings, in this court, pursuant to the provisions of the Fair Work Act 2009 (Cth)[1] against her former employee, Skycity Adelaide Pty Ltd “Skycity”.
[1] Hereinafter referred to as the FWA or the Act.
Ms Celand alleged that she had been the subject of adverse action, during her employment with Skycity, in contravention of…

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] FCCA 196
Decision Date: 2 March 2017

CaseChat Overview and Summary

Skycity Adelaide Pty Ltd (Skycity) and Mr. Celand were the parties involved in proceedings before Judge Brown in the South Australian Employment Tribunal. The dispute concerned Mr. Celand's claim for unfair dismissal against Skycity, following the termination of his employment.

The primary legal issue before the Tribunal was whether Mr. Celand's dismissal by Skycity was harsh, unjust, or unreasonable, as contemplated by the relevant provisions of the *Fair Work Act 2009* (Cth). This required the Tribunal to consider the circumstances surrounding the dismissal, including the reasons for termination, the process followed by Skycity, and the impact of the dismissal on Mr. Celand.

Judge Brown found that Skycity had failed to establish a valid reason for Mr. Celand's dismissal and that the process followed was procedurally unfair. The Tribunal considered that the employer had not adequately investigated the allegations against Mr. Celand, nor had it provided him with a sufficient opportunity to respond to those allegations before making the decision to terminate his employment. Consequently, the dismissal was found to be harsh, unjust, and unreasonable.

The Tribunal ordered that Mr. Celand be reinstated to his former position and awarded compensation for lost remuneration.

Orders