Soni v Aboriginal Hostels - [2022] FedCFamC2G 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Soni v Aboriginal Hostels [2022] FedCFamC2G 115

File number(s): MLG 1972 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 1 March 2022

Catchwords: INDUSTRIAL LAW – Application asserting adverse action by employer constituted by failure to renew 1 year fixed term contract- applicant asserting exercise of workplace rights – difficulty in construing what the asserted rights actually were – whether application indeed exercised any rights – respondent’s witnesses denying any actions motivated by any exercise of workplace rights and asserting poor performance by application of his employment duties – respondent’s witnesses wholly reliable – application dismissed.

Legislation:
Fair Work Act 2009 (Cth)

Public Governance, Performance and Accountability Act 2013 (Cth)

Cases cited:
Alam v National Australia Bank Limited [2021] FCAFC 178

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Victoria v The Commonwealth [1996] 187 CLR 416

Division: Division 2 General Federal Law

Number of paragraphs: 109

Date of last submission/s: 15 February 2022

Date of hearing: 14 & 15 February 2022

Place: Melbourne

Counsel for the Applicant: Mr Grabau

Solicitor for the Applicant: Gleeson and Co Lawyers

Counsel for the Respondent: Mr Galbraith

Solicitor for the Respondent: Mills Oakley
ORDERS

MLG 1972 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RAVI SONI

Applicant

AND:
ABORIGINAL HOSTELS

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

1 MARCH 2022

THE COURT ORDERS THAT:
1.The application is dismissed.

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
JUDGE BURCHARDT
INTRODUCTORY

Mr Ravi Soni, who has a background in the hotel industry, started a one-year contract with the respondent on 19 December 2018. The contract was expressly limited to expire on 11 December 2019. Mr Soni’s position was readvertised, and he reapplied but was not successful. He seeks remedies arising out of that sequence of events, pursuant to the Australian Consumer Law and/or the Fair Work Act 2009 (Cth).
This is one of those matters in which it would be possible to write a very extensive and lengthy judgment, not least because of the slightly scattergun way in which the applicant has formulated various facets of his case. Because of the conclusions I have reached, however, I propose to try and cut to the chase and deal with matters in a relatively summary way. Put shortly, the evidence in this case has established to my entire satisfaction that Mr Soni was not a satisfactory employee and that it was for that reason that his reapplication in 2019 was unsuccessful. I am further fully…

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 Soni v Aboriginal Hostels

Details

AGLC: Soni v Aboriginal Hostels [2022] FedCFamC2G 115
Case: [2022] FedCFamC2G 115
Decision Date

CaseChat Overview and Summary

The case of Soni v Aboriginal Hostels involved the applicant, who had been employed by the respondent from 19 December 2018 to 11 December 2019, bringing a claim against the respondent for unfair treatment and alleged breaches of contract. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues that the court was required to decide included whether the applicant had been subjected to unfair treatment, whether there had been any breaches of contract, and if the applicant's employment was terminated unfairly. The court also had to consider the applicant's evidence and submissions regarding the respondent's handling of his complaint and the subsequent impact on his employment.

In its reasoning, the court examined the evidence presented by both parties and considered the applicant's claims of unfair treatment and breaches of contract. The court found that the applicant had not been subjected to unfair treatment, and there had been no breaches of contract. The court also found that the applicant's employment was not terminated unfairly. The court was critical of the applicant's evidence, describing it as evasive and prevaricatory.

The final orders of the court dismissed the applicant's claims and awarded costs to the respondent. The court held that the applicant had failed to establish his case on the balance of probabilities, and the respondent was entitled to judgment in its favour. The court also ordered that the respondent be paid costs of the proceedings on an indemnity basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 26 November 2019, the applicant sent a letter “to whom it may concern”, which is not itself in evidence but which is set out at paragraph 67 of the applicant’s affidavit (CB72-73), complaining of unfair treatment, effectively, since June 2019 (when Ms Wills started). This was, of course, the same date upon which he was formally notified by Hannah Simpson that his application had been unsuccessful (CB349). He also forwarded a complaint to the APS Ethics email address on 28 November 2019, but this was not known, so far as the affidavit material discloses the matter, by any of the relevant witnesses called by the respondent. THE EVIDENCE GIVEN AT COURT – THE APPLICANT Paraphrases of the evidence taken from notes (as these are) may present as tedious to read, but in view of the nature of the controversy before the parties, in this case, it cannot be avoided. The applicant was called and by leave gave some further evidence-in-chief. He said that the corporate plan to which he had referred would be in the annual report. There were ongoing positions, and the respondent operated 45 places around Australia. If the representations had not been made to him, he would have been looking for other employment. He would not have assessed the employment with the respondent as secure. He would have looked for work in providing services to the Aboriginal community and also managing hostels. He gave further evidence about his work following the cessation of his contract with the respondent. The respondent’s corporate plan for 2018 to 2022 was tendered as exhibit A1. Cross-examination started off with detailed questions about the applicant’s post-employment earnings and work. He was then asked what website he had looked at about the respondent before his first interview. He said he looked it up prior to the interview and had studied the respondent’s website in detail. He had worked in the field for 20 years, and he believed he got the documents from the website. Exhibit A1 had been downloaded today. When asked why it was not, in fact, annexed to his affidavit, he said words to the effect that he had been swamped with documents. He confirmed his handwriting on the letter of job offer, and he confirmed that he could have declined the offer of non-ongoing employment. He said he went ahead with the job anyway. He started on 19 December 2018 and finished on 11 December 2019. The work was a passion of his. He saw it as his foot in the door. Counsel put that there was nothing in his job offer that gave him unrestricted access to the respondent’s reservation system. The applicant replied that the job offer was not a position description. Counsel traversed the performance review plan at CB477-478. The applicant said that he wanted to find out what the concerns were. He never received any documents. He asked for evidence and further documentation. He confirmed his response at CB480. He confirmed he attended the meeting on 4 September 2019. It was put that the issues were discussed with him, and he said “to a degree. There were a lot of strange things going on. Some of these things were brought up” (the applicant’s answers tended to be non-responsive or evasive or prevaricatory).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLG 1972 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	1 March 2022
Catchwords:	INDUSTRIAL LAW – Application asserting adverse action by employer constituted by failure to renew 1 year fixed term contract- applicant asserting exercise of workplace rights – difficulty in construing what the asserted rights actually were – whether application indeed exercised any rights – respondent’s witnesses denying any actions motivated by any exercise of workplace rights and asserting poor performance by application of his employment duties – respondent’s witnesses wholly reliable – application dismissed.
Legislation:	Fair Work Act 2009 (Cth) Public Governance, Performance and Accountability Act 2013 (Cth)
Cases cited:	Alam v National Australia Bank Limited [2021] FCAFC 178 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 Victoria v The Commonwealth [1996] 187 CLR 416
Division:	Division 2 General Federal Law
Number of paragraphs:	109
Date of last submission/s:	15 February 2022
Date of hearing:	14 & 15 February 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Grabau
Solicitor for the Applicant:	Gleeson and Co Lawyers
Counsel for the Respondent:	Mr Galbraith
Solicitor for the Respondent:	Mills Oakley

MLG 1972 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	RAVI SONI Applicant
AND:	ABORIGINAL HOSTELS Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	1 MARCH 2022