Turnbull v Symantec (Australia) Pty Ltd - [2013] FCCA 1771

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURNBULL v SYMANTEC (AUSTRALIA) PTY LTD

[2013] FCCA 1771

Catchwords:
INDUSTRIAL LAW – Whether employer took adverse action against employee because the employee had taken parental leave – whether at the time the employee returned from parental leave there was an available position for which the employee was qualified and suited nearest in status and pay to the pre-parental position – whether a position located in an overseas company related to the employer is an “available position” – whether employee suffered loss as a result of employer’s contraventions of s.351 and s.84 of the Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth), ss.44, 61, 84, 346, 351, 361, 536, 539, 545

Aitken v Construction, Mining, Energy, Timberyards, Sawmills & Woodworkers Union of Australia (1995) 63 IR 1
Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526
Board of Bendigo Regional Institute and Technology and Further Education v Barclay (2012) 86 ALJR 1044
Burazin v Blacktown City Guardian Pty Limited (1996) 142 ALR 144
Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Walker v Citigroup Global Markets Australia Pty Limited (2007) 233 ALR 687

Applicant:

SARAH TURNBULL

Respondent:

SYMANTEC (AUSTRALIA) PTY LTD

File Number:

SYG 792 of 2012

Judgment of:

Judge Manousaridis

Hearing date:

26 August 2013

Delivered at:

Sydney

Delivered on:

1 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr I. Latham

Solicitors for the Applicant:

James Tuite & Associates Lawyers

Counsel for the Respondent:

Ms E. Raper

Solicitors for the Respondent:

Baker & McKenzie

ORDERS

By 8 November 2013 the applicant file and serve written submissions and evidence, if any, on the question of the relief, if any, the applicant seeks on account of the respondent’s contravention of s.536 of the Fair Work Act 2009 (Cth) (Act) and on the question of costs.
By 15 November 2013 the respondent file and serve written submissions and evidence, if any, on the question of relief, if any, the applicant seeks on account of the respondent’s contravention of s.536 of the Act and on the question of costs.
By 22 November 2013 the applicant file and serve any written submissions and evidence, if any, in reply to the submissions and evidence, if any, filed and served by the respondent pursuant to order 2.
Subject to order 5, the hearing of the matters covered by the submissions be set down before Judge Manousaridis at 10.15 on 26 November 2013.
The hearing date referred to in paragraph 4 will be vacated if, by 15 November 2013, the parties notify the Associate to Judge Manousaridis that they consent to the matters covered by the submissions being dealt with in chambers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 792 of 2012

SARAH TURNBULL

Applicant

And

SYMANTEC (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant, Ms Turnbull, makes a number…

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: [2013] FCCA 1771
Decision Date: 1 November 2013

CaseChat Overview and Summary

In *Turnbull v Symantec (Australia) Pty Ltd*, the applicant, Mr. Turnbull, brought proceedings against the respondent, Symantec (Australia) Pty Ltd, in the Federal Court of Australia. The dispute concerned Mr. Turnbull's claim for unpaid entitlements, including long service leave, annual leave, and redundancy pay, which he alleged were owed to him by Symantec following the termination of his employment.

The primary legal issue before the Court was whether Mr. Turnbull was an employee of Symantec for the purposes of the *Long Service Leave (Commonwealth Employees) Act 1976* (Cth) and, by extension, whether his entitlements under that Act and general employment law had been properly paid or accrued. This involved a determination of the true nature of the relationship between Mr. Turnbull and Symantec, specifically whether he was engaged as an independent contractor or as an employee.

Judge Manousaridis considered various factors to ascertain the employment relationship, including the degree of control Symantec exercised over Mr. Turnbull, the method of payment, the provision of equipment, and the ability of Mr. Turnbull to delegate or subcontract his work. The Court applied the established legal principles for distinguishing between an employee and an independent contractor, weighing the totality of the relationship. Ultimately, the Court found that the evidence did not establish that Mr. Turnbull was an employee of Symantec for the purposes of the relevant legislation, and therefore his claim for statutory long service leave entitlements failed. The Court also considered and dismissed claims for other accrued entitlements.

Orders