Smith v Edith Cowan University - [2023] FedCFamC2G 940

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smith v Edith Cowan University [2023] FedCFamC2G 940

File number(s): PEG 187 of 2021

Judgment of: JUDGE VASTA

Date of judgment: 29 August 2023

Catchwords: INDUSTRIAL LAW - Redundancy – notice period – whether misrepresentation as to payment of notice period if worked – whether EA should be construed as giving immediate effect to offers of redundancy – whether respondent “paid” the applicant – application dismissed – Costs – whether applicant committed unreasonable act

Legislation: Fair Work Act 2009 (Cth): ss 50, 323, 345, 550, 570(2)

Cases cited:
Bevis v VA Holdings Proprietary Limited trading as Granton Homes [2020] FCCA 2082

Coote v Mainline Access Pty Ltd and Another [2019] FCCA 383

Division: Division 2 General Federal Law

Number of paragraphs: 101

Date of last submission/s: 29 August 2023

Date of hearing: 28-29 August 2023

Place: Brisbane

Solicitor for the Applicant: APX Law

Counsel for the Respondents: Ms Millar

Solicitor for the Respondents: HWL Ebsworth Lawyers
ORDERS

PEG 187 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DAVID SMITH

Applicant

AND:
EDITH COWAN UNIVERSITY

First Respondent

CLIVE BARSTOW

Second Respondent

JENNIFER ROBERTSON (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

29 AUGUST 2023 AMENDED ORDER 13 OCTOBER 2023

THE COURT ORDERS THAT:
1.The application filed on 6 September 2021 be dismissed.
2.The Applicant pay the Respondents costs of the application fixed in the sum of $5,000 within 90 days of the date of this order.

THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
B.Order has been amended pursuant to Rule r.17.05(2)(e) Federal Circuit and Family Court (Division 2)(General Federal Law) Rules 2021 to add “within 90 days of the date of this order” in order 2.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)
JUDGE VASTA

On 6 September 2021, the applicant David Anthony Smith filed an application in this Court seeking declarations be made against the first respondent, Edith Cowan University, and the second respondent, Clive Bairstow, that they had made a misrepresentation to the applicant pursuant to section 345 of the Fair Work Act 2009 (Cth) “(Fair Work Act”).
The application also sought a declaration that the first respondent and the third respondent, Jennifer Margarita Robertson, the fourth respondent, Arshad Omari, and the fifth…

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: [2023] FedCFamC2G 940
Decision Date: 29 August 2023

CaseChat Overview and Summary

The parties in this matter were Smith, an employee, and Edith Cowan University, the employer. The dispute arose from the termination of Smith's employment, specifically concerning the notice period to be provided upon redundancy. The matter was heard in the Fair Work Commission. Smith alleged that the university misrepresented the payment of the notice period if he worked it and argued that the relevant employment legislation should be construed to give immediate effect to offers of redundancy. Smith also sought to have the university deemed to have paid him the full notice period. The university denied these claims and asserted that Smith had committed an unreasonable act warranting an order for costs against him.

The legal issues that the Commission was required to decide included whether the university had misrepresented the payment of the notice period, if the Fair Work Act should be construed to give immediate effect to redundancy offers, and if the university had effectively "paid" Smith the notice period. Additionally, the Commission needed to determine whether Smith had acted unreasonably, thereby warranting an order for costs against him.

In its decision, the Commission found that the university had not misrepresented the payment of the notice period. It also ruled that the Fair Work Act should not be construed to give immediate effect to redundancy offers. Consequently, the university had not effectively "paid" Smith the notice period. Moreover, the Commission held that Smith had committed an unreasonable act in pursuing his claims, and thus, it made an order for costs against him. The application for relief was dismissed in its entirety.

The final orders of the Commission included dismissing Smith's application in its entirety and ordering him to pay the university's costs. The Commission found no basis for the claims regarding misrepresentation, the interpretation of the Fair Work Act, or the payment of the notice period. Furthermore, it concluded that Smith's conduct in pursuing the application was unreasonable, warranting the costs order against him.

Orders