FEDERAL COURT OF AUSTRALIA
Trustee for The MTGI Trust v Johnston [2016] FCAFC 140
Review of: The Trustee for The MTGI Trust v Johnston [2015] FWCFB 1288
The Trustee for The MTGI Trust v Johnston [2015] FWCFB 6168File number: NSD 1696 of 2015 Judges: SIOPIS, COLLIER AND KATZMANN JJ Date of judgment: 18 October 2016 Catchwords: INDUSTRIAL LAW — application for relief under s 39B of the Judiciary Act 1903 (Cth) against Full Bench of Fair Work Commission arising from two decisions refusing permission to appeal — whether decisions affected by jurisdictional error — where employee brought action in Commission for remedy for unfair dismissal — where employer alleged that employment not terminated at its initiative and that employee had abandoned his employment — where employee successful at first instance and in a separate decision following a separate hearing recovered costs against employer Legislation: Fair Work Act 2009 (Cth) ss 45, 97, 107, 385, 387, 390, 391, 392, 394, 400, 400A, 401, 403, 562, 587, 604, 611, 613
Fair Work Regulations 2009 (Cth) Sch 3.1
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) s 39B
Cases cited: Abram v Bank of New Zealand [1996] ATPR ¶42‑340
Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
DP World Brisbane v Maritime Union of Australia [2013] FWCFB 8556; 237 IR 180
GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343
Gregory v Qantas Airways Ltd [2016] FCAFC 7
Hamod v New South Wales [2011] NSWCA 375
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Malouf v Malouf [2006] NSWCA 83
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986)
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537
Wan v Australian Industrial Relations Commission (2001) 116 FCR 481
Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46; 108 ACSR 445
Date of hearing: 4 August 2016 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 136 Counsel for the Applicant: Mr A Duc Solicitor for the First Respondent: Mr J Conomy (solicitor advocate) of Laxon Lex Counsel for the Second Respondent: The Second Respondent filed a submitting notice
Table of Corrections 19 October 2016 The appearance for the First Respondent has been corrected. ORDERS
NSD 1696 of 2015 BETWEEN: THE TRUSTEE FOR MTGI TRUST T/A MACQUARIE TECHNOLOGY GROUP INTERNATIONAL
Applicant
AND: DAVID JOHNSTON
First…
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- AGLC
- Trustee for The MTGI Trust v Johnston [2016] FCAFC 140
- Case
- [2016] FCAFC 140
- Decision Date
CaseChat Overview and Summary
The case of Trustee for The MTGI Trust v Johnston concerns an application for relief under section 39B of the Judiciary Act 1903 (Cth) against a Full Bench of the Fair Work Commission. The dispute arose from two decisions of the Commission which refused permission to appeal a decision that dismissed an application by the respondent, Mr Johnston, for unfair dismissal. The primary legal issue before the court was whether the Commission's decisions were affected by a jurisdictional error.
The court considered whether Mr Johnston was entitled to personal/carer’s leave under section 97 of the Fair Work Act 2009 (Cth). The Fair Work Commission had previously held that Mr Johnston was entitled to take leave to care for his family due to an unexpected emergency, specifically the premature birth of his child and his wife's hospitalisation. The employer, MTGI, argued that Mr Johnston's request for leave was not valid as there is no legal entitlement to paid parental leave in Australia. The court examined the statutory provisions and found that Mr Johnston complied with the notice requirements under section 107 of the Act and provided evidence that his leave was taken for a reason specified in section 97.
The court found that the Fair Work Commission did not make a jurisdictional error in its decisions. It determined that Mr Johnston's actions did not indicate an intention to abandon his employment and that MTGI initiated the termination of the employment relationship. The court held that the Commission's decisions were sound and did not contain any jurisdictional errors.
The final orders of the court were to dismiss the application, and to set timelines for any application for costs, the submissions in response, and any submissions in reply, all limited to five pages.
The court considered whether Mr Johnston was entitled to personal/carer’s leave under section 97 of the Fair Work Act 2009 (Cth). The Fair Work Commission had previously held that Mr Johnston was entitled to take leave to care for his family due to an unexpected emergency, specifically the premature birth of his child and his wife's hospitalisation. The employer, MTGI, argued that Mr Johnston's request for leave was not valid as there is no legal entitlement to paid parental leave in Australia. The court examined the statutory provisions and found that Mr Johnston complied with the notice requirements under section 107 of the Act and provided evidence that his leave was taken for a reason specified in section 97.
The court found that the Fair Work Commission did not make a jurisdictional error in its decisions. It determined that Mr Johnston's actions did not indicate an intention to abandon his employment and that MTGI initiated the termination of the employment relationship. The court held that the Commission's decisions were sound and did not contain any jurisdictional errors.
The final orders of the court were to dismiss the application, and to set timelines for any application for costs, the submissions in response, and any submissions in reply, all limited to five pages.
Orders
Orders of the court
1. The application be dismissed.
2. Any application for costs be filed and served within 14 days, together with submissions and any affidavit evidence, the submissions not to exceed five (5) pages.
3. In the event that an application is filed, the submissions in response (also not exceeding five (5)) pages and any affidavit evidence be filed within 14 days of service of the application.
4. Submissions in reply be filed and served within seven (7) days thereafter.
5. Any such application be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The application is without merit. Background In November 2013 Mr Johnston’s wife gave birth to their fifth child. The baby was born 10 weeks premature. Consequently, Mr Johnston was required to look after the other children, three of whom were under five years of age, while his wife was hospitalised. Initially he took annual leave for that purpose, with the express agreement of MTGI. Later, at the instigation of a social worker from the hospital, he applied for “personal/carer’s leave” for the balance of the time that might be required to deal with this “unexpected emergency”. At the time he had more than 270 hours of accrued personal leave. His request was never answered, at least not directly, and when his annual leave ran out in early January 2014 he did not then resume work, instead returning to duties about two weeks later. On the day he returned, after he queried the pay he had received during his absence, he was told that he had abandoned his employment. The principal argument before the Commission concerned Mr Johnston’s entitlement to personal/carer’s leave. MTGI’s contention was that Mr Johnston was merely seeking compensation for paid parental leave which “100% of all mature Australians would know … does not exist in Australian law today”. Section 97 of the FW Act states: Taking paid personal/carer’s leave An employee may take paid personal/carer’s leave if the leave is taken: (a)because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or (b)to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of: (i) a personal illness, or personal injury, affecting the member; or (ii) an unexpected emergency affecting the member.(Emphasis added.) On Mr Johnston’s account of what had happened to him, he took his leave because his four older children required his care or support as a result of the unexpected emergency occasioned by the prolonged hospitalisation and convalescence of his wife following the premature birth of their baby. The entitlement to take leave is not contingent upon obtaining the employer’s consent, either in advance of taking the leave or at all. It is, however, contingent on the employee complying with s 107. Section 107 imposes obligations on an employee to give his or her employer notice as soon as practicable (which may be a time after the leave has started), and to advise the employer of the period, or expected period, of the leave. If required to do so by the employer, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97. Mr Johnston gave notice to MTGI in accordance with s 107 and provided evidence that the leave was taken for a reason specified in s 97, although there was no evidence to suggest that he had been required to do so. The effect of the evidence was that his notice was ignored.The application to the Commission
Evidence
Evidence Before The Court
Orders were made for the filing of witness statements and outlines of submissions on 23 May 2014 and on 17 June the matter was listed for hearing over three days, beginning 6 August 2014. On or about 19 June a statement from Mr Johnston was filed but no witness statement was filed on behalf of MTGI. Consequently, on 17 July 2014 the period allocated for the hearing was reduced to one day. Outlines of submissions were filed on behalf of both parties by their respective lawyers on or about 23 June 2014 but on 21 July 2014 MTGI’s lawyers filed a notice of ceasing to act.Mr Johnston’s evidence In his statement Mr Johnston said that he commenced employment with MTGI in July 2008 as a senior field engineer. At the same time he said he was also employed as a consultant with InfiNet Wireless. MTGI, he explained, was at all material times the Australian distributor of InfiNet Wireless products. Mr Johnston performed most of his work by telephone, email and site visits. By agreement with the director of MTGI, much of this work was conducted from his home in Bomaderry on the south coast of New South Wales. In November 2012 Mrs Johnston was pregnant with their fifth child. Their four other children were all dependent. They ranged in age from 2 to 13. On 7 November 2012, following an ultrasound, Mrs Johnston was told to immediately attend Shoalhaven Hospital. Mr Johnston drove her to the hospital. After she was examined, she was rushed by ambulance to the Royal Hospital for Women in Randwick, in the eastern suburbs of Sydney. Mr Johnston followed in his car. From the car he telephoned Mr Wallace. He told him that his wife was being rushed to hospital, that there were “complications with the baby”, and that he needed to be away for a while to support her. He asked Mr Wallace whether he knew anything about paternity leave to which Mr Wallace replied: “No. Why are you bothering going to the hospital? You can’t do anything anyway. Just turn around and go home.”. Mr Johnston did not follow Mr Wallace’s advice and continued to the hospital. Later that night, Mrs Johnston gave birth to their son, Adam, by emergency caesarean. He was 10 weeks premature. Within a few days Mr Johnston made contact with Ian Kerr, MTGI’s bookkeeper. Mr Johnston described him as the CFO/Accountant. He told him that he was taking annual leave so that he could be with his wife and son in hospital. His payslip issued on 15 November 2013 records that he had 151.21 hours of accrued annual leave. It also showed that he had 270.22 hours of personal leave available to him. While on leave he performed “limited duties” for MTGI — sending and receiving emails and other correspondence in relation to product pricing and technical support. On 11 November 2013 Mr Johnston sent an email to Warren Bold of Polyfone, which we gather is part of the MTGI group, advising him of a new firmware release for InfiNet Wireless. Less than an hour and a half later he received an email from Mr Wallace, sent from his iPhone:Are u insane?I will tell Polyfone staff when to consider new firmware.Are u trying to undermine my credibility?
Decision
Reasons for decision
The Senior Deputy President caused a reply to be sent to Mr Wallace explaining what had occurred and why, indicating that the transcript would soon be available and would be sent to him and giving him the opportunity to file further submissions once he received it. The transcript was duly dispatched but no further submissions were forthcoming. The decisions of the Senior Deputy PresidentThe interlocutory application for summary dismissal The Senior Deputy President first dealt with the interlocutory application for summary dismissal. He said he was satisfied that there was no proper basis to grant the application. After referring to s 97 of the FW Act, he explained:The circumstances in which the applicant in the present matter was seeking to take personal/carer’s leave were the hospitalisation of his wife and her premature baby in Sydney, some 2½ hours drive from their home in Bomaderry, and the need for the applicant to provide the primary care for his other four young children, aged 2, 3, 4 and 13 years, during his wife’s hospitalisation. In my view, the applicant in these circumstances was entitled to take personal/carer’s leave in order to provide care and support for members of his immediate family (the four young children) who required that care because of an unexpected emergency affecting them (the prolonged hospitalisation of their mother, following the premature birth by caesarean operation). The respondent was made aware of the circumstances relating to the proposed taking of personal/carer’s leave and no issue was raised at the time in relation to the notice given by the applicant. The Senior Deputy President proceeded to consider another argument advanced in support of the interlocutory application: that MTGI was dismissed as trustee for the MTGI Trust before the proceedings began and that Mr Johnston was improperly using the proceedings to improve his commercial interests with other groups. The Senior Deputy President said that there was no evidence to support the argument. He also said that there were other reasons for rejecting MTGI’s application, including the merits of the unfair dismissal application. He concluded that MTGI had not demonstrated any reasonable basis for the Commission not to hear and consider Mr Johnston’s application. The unfair dismissal application The Senior Deputy President was satisfied that Mr Johnston did not abandon his employment. He said that there was nothing about his conduct indicative of an intention to do so. Rather, he took approved annual leave and then relied on the letter from the hospital to seek to transfer that leave to personal leave which he had accrued. He was never advised that his request was denied or that MTGI would consider that he had abandoned his employment if he did not return to work on 6 January. He observed that MTGI’s conduct was inconsistent with its later claim that Mr Johnston had abandoned his employment, noting that the claim was not made until after Mr Johnston had returned to work and queried the pay he had received during his absence. In these circumstances, he found that MTGI initiated the termination of the employment relationship (and therefore dismissed Mr Johnston).
Ratio Decidendi
Legal Principle Established
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