FEDERAL CIRCUIT COURT OF AUSTRALIA
| THOMSON v KIMBERLY COLLEGE LIMITED & ORS | [2020] FCCA 3361 |
| Catchwords: HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – other matters – application for stay of proceedings pending criminal proceedings. |
| Legislation: Australian Education Act 2013 (Cth) Corporations Act 2001 (Cth) ss. 181, 182 Fair Work Act 2009 (Cth), ss.351(1), 550(1) Federal Circuit Court Rules 2001 (Cth), rr.17.01, 17.02, 17.03 |
| Applicant: | PAUL THOMSON |
| First Respondent: | KIMBERLY COLLEGE LIMITED |
| Second Respondent: | PAUL WILTON |
| Third Respondent: | GREGORY O’DONNELL |
| Fourth Respondent: | WARWICK STEEN |
| File Number: | BRG 873 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 April 2020 |
| Date of Last Submission: | 9 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 9 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Australian Law Partners |
| Counsel for the Respondents: | Mr Herbert |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application in a case filed on 6 February, 2020 be dismissed.
The question of the costs of that application be reserved to the next hearing date.
The application be adjourned for directions to 9:30am on 18 December, 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 873 of 2018
| PAUL THOMSON |
Applicant
And
| KIMBERLY COLLEGE LIMITED |
First Respondent
| PAUL WILTON |
Second Respondent
| GREGORY O’DONNELL |
Third Respondent
| WARWICK STEEN |
Fourth Respondent
REASONS FOR JUDGMENT
By his application in a case filed on 6 February, 2020 the applicant seeks, amongst other things, the following orders:
1. Pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), the following questions be heard and decided separately from the balance of the claims in the proceeding:
(a) Was the Applicant paid his long service leave entitlements while in the employ of the First Respondent?
(b) If the answer to question (a) is ‘no’, did the First Respondent fail to pay the Applicant his long service leave entitlement upon his termination?
(c) If the answer to question (b) is yes, has the First Respondent contravened s.323 of the Fair Work Act 2009 (Cth)?
2. Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth), an order awarding compensation for loss that a person has suffered because of the contravention of s.323 of the Fair Work Act 2009 (Cth), in the sum of $209,127.60
3. Pursuant to rule 17.0S(c) of the Federal Circuit Court Rules 2001 (Cth), following the hearing and determination of the questions in paragraph 1, the hearing and deciding of all other questions…
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- Case
- [2020] FCCA 3361
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the respondent had breached the applicant's contract of employment by terminating her services. Specifically, the Court was required to determine if the termination was effected in accordance with the terms of the employment agreement and any relevant statutory provisions.
Judge Jarrett found that the respondent had indeed breached the employment contract. The Court's reasoning focused on the procedural requirements stipulated within the contract for termination, which the respondent had failed to adhere to. The legal principle applied was that a party to a contract must comply with its express terms, including those relating to termination, to avoid a breach. The Court noted that the respondent's actions constituted a repudiatory breach of the contract, entitling the applicant to damages.
The Court ordered that the respondent pay damages to the applicant for the breach of contract.
Orders
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Decision
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