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Smith v Marriott Support Services

Smith v Marriott Support Services

Case [2013] FCA 312 10 April 2013

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FEDERAL COURT OF AUSTRALIA
Smith v Marriott Support Services [2013] FCA 312

Citation: Smith v Marriott Support Services [2013] FCA 312

Parties: BRADLEY SMITH v MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)

File number: VID 281 of 2011

Judge: TRACEY J

Date of judgment: 10 April 2013

Catchwords: PRACTICE AND PROCEDURE – Application by litigation representative for approval of settlement – applicant intellectually disabled – consideration of relevant requirements – settlement approved.

Legislation: Fair Work Act 2009 (Cth) – ss 369, 371
Federal Court Rules 2011 (Cth) – rr 9.70, 9.71

Cases cited: Gillespie v Alperstein [1964] VR 749 – cited
Hickey v Public Advocate (Victoria) [2012] FCA 1203 – cited
Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 – considered, applied
Wade v State of Victoria(No 2) [2012] FCA 1080 – cited

Date of hearing: Determined on the papers

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Solicitor for the Applicant: AED Legal Group

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 281 of 2011

BETWEEN:
BRADLEY SMITH
Applicant

AND:
MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

10 APRIL 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. Pursuant to Rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the deed of release exhibited as KW-1 to the affidavit of Ms Kairstien Wilson sworn on 3 April 2013 be approved.
2.The affidavit of Kairstien Wilson sworn on 3 April 2013 and the exhibits thereto be treated as confidential and be placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THIS COURT.”
3.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 281 of 2011

BETWEEN:
BRADLEY SMITH
Applicant

AND:
MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)
Respondent

JUDGE:

TRACEY J

DATE:

10 APRIL 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Bradley Smith suffers from epilepsy, attention deficit hyperactivity disorder, autism (Aspergers), developmental delay and a moderate intellectual disability. He is 26 years old.
From March 2006 Mr Smith was employed by the respondent pursuant to a contract of employment. He performed his duties in a sheltered environment as a supported employee.
In July 2010 the respondent advised Mr Smith that, as from 6 September 2010, his work hours would be reduced to two and a half days per week and that, from 30 June 2011, his paid employment would be terminated.
Mr Smith commenced a proceeding in Fair Work Australia. He alleged that the respondent had dismissed him from employment in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“the Act”). The respondent sought to justify its actions on the ground of economic necessity. Attempts by Fair Work Australia to resolve the dispute were unsuccessful.…

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.

Continue reading Smith v Marriott Support Services

Details

AGLC: Smith v Marriott Support Services [2013] FCA 312
Case: [2013] FCA 312
Decision Date

CaseChat Overview and Summary

In the case of Smith v Marriott Support Services, Bradley Smith, who suffers from epilepsy, attention deficit hyperactivity disorder, autism (Aspergers), developmental delay and a moderate intellectual disability, was employed by Marriott Support Services from March 2006. However, in July 2010, Marriott Support Services informed Smith that his work hours would be reduced to two and a half days per week from 6 September 2010, and that his employment would be terminated from 30 June 2011. Smith commenced a proceeding in Fair Work Australia alleging that Marriott Support Services had dismissed him from employment in contravention of the general protections provisions of the Fair Work Act 2009. Marriott Support Services sought to justify its actions on the ground of economic necessity. The legal issues the court had to decide were whether the settlement was in Smith's best interests and whether it should be approved. The court found that the settlement was in Smith's best interests and approved the settlement. The court was satisfied that Smith had a basic understanding of at least some of the terms and looked forward to putting the dispute behind him and moving on with the next chapter of his life. The court ordered that the settlement be approved, and that the affidavit of Kairstien Wilson sworn on 3 April 2013 and the exhibits thereto be treated as confidential and be placed in a sealed envelope marked "NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THIS COURT."

Orders