Thomson v Kimberly College Limited - [2020] FCCA 3361

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 trial of separate issues.

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
Federal Court Rules 2011 (Cth), order 29 rule 2
Federal Court Rules 2011 (Cth), r.30.01

Cases cited:

Australian Securities Commission v Kavanagh (1993) 12 ACSR 69
Cameron’s Unit Services Pty Limited v Whelpton & Associates Pty Limited (1984) 59 ALR 754
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207
McMahon v Gould (1982) 7 ACLR 202
State of Western Australia v Galati [2017] FCA 236
White v Westfield Vet Hospitals & ORS [2018] FCCA 3833

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…

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: [2020] FCCA 3361
Decision Date: 9 December 2020

CaseChat Overview and Summary

In *Thomson v Kimberly College Limited*, the applicant, Ms. Thomson, sought to appeal a decision of the respondent, Kimberly College Limited, to terminate her employment. The dispute concerned the lawfulness of this termination. The matter was heard by Judge Jarrett in the Federal Court of Australia.

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