Wall v Kingbuilt Homes Pty Ltd - [2019] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALL v KINGBUILT HOMES PTY LTD & ANOR

[2019] FCCA 2355

Catchwords:
INDUSTRIAL LAW– Claim for underpayment of notice and for redundancy payment – whether employer entitled to set-off ex-gratia payment – whether employee redundant – employer reorganising so that employee’s former role ceased to exist – whether employee offered alternative role – whether alternative role redundant – continuing employee entitled to full notice payment and redundancy payment.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99

Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400
Fosters Group Limited v Wing [2005] VSCA 322
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6
Dibb v Commissioner of Taxation [2004] FCAFC 126
Quality Bakers of Australia Ltd v Goulding 1995 60 IR 327

Applicant:

LOCHLIN WALL

First Respondent:

KINGBUILT HOMES PTY LTD

Second Respondent:

PHILLIP KING

File Number:

MLG 3576 of 2018

Judgment of:

Judge Burchardt

Hearing date:

14 August 2019

Date of Last Submission:

14 August 2019

Delivered at:

Dandenong

Delivered on:

4 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hooper

Solicitors for the Applicant:

Simon Parsons & Co

Counsel for the Respondents:

Mr Burt

Solicitors for the Respondents:

Bona Fide Lawyers

ORDERS

The matter be adjourned to the Melbourne Registry for mention before Judge Burchardt on 4 October 2019 at 9.30 am.
The Respondent file and serve written submissions on or before 18 September 2019.
The Applicant file and serve written submissions in reply on or before 27 September 2019.
The Respondents are to pay the Applicant:
(a)$3,734 in lieu of notice; and
(b)$35,820 in redundancy payments
Less any applicable tax

THE COURT NOTES THAT

A.The Applicant is of the view that there is no tax payable on the sums referred to in Order 4.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3576 of 2018

LOCHLIN WALL

Applicant

And

KINGBUILT HOMES PTY LTD

First Respondent

PHILLIP KING

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant’s case raises two questions. First, was he paid the correct amount of money in lieu of notice when his employment was terminated, and, second, whether he should have been paid a redundancy payment at the same time. For the reasons that follow, it is my view that the applicant should succeed on both issues.

The Facts

Because of the way the parties have conducted the matter, it is not possible to approach the parties’ competing positions without determining the relevant facts, which it should be noted are largely the subject of agreement.
The applicant commenced to work for the respondent in 2008. From no later than 2011, he was appointed as general manager and sales manager for the commercial division of the first respondent. At the time the applicant commenced work, the company employed no more than three to four employees, whereas now it employs thirty. It has obviously grown substantially.…

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 Wall v Kingbuilt Homes Pty Ltd

Details

AGLC: Wall v Kingbuilt Homes Pty Ltd [2019] FCCA 2355
Case: [2019] FCCA 2355
Decision Date: 4 September 2019

CaseChat Overview and Summary

In *Wall v Kingbuilt Homes Pty Ltd*, the applicant, Mr. Wall, brought a claim against his former employer, Kingbuilt Homes Pty Ltd, for alleged underpayment of notice and redundancy pay. The dispute centred on whether Mr. Wall was entitled to these payments following the cessation of his employment.

The primary legal issues before the court were whether Mr. Wall's employment had been terminated in circumstances that constituted redundancy, and if so, whether he was entitled to the full statutory notice and redundancy payments. A further issue was whether Kingbuilt Homes was entitled to set off an ex-gratia payment previously made to Mr. Wall against any amounts found to be owing.

Judge Burchardt found that Mr. Wall's role had ceased to exist due to a reorganisation within Kingbuilt Homes, and that the alternative role offered to him was also redundant. Consequently, the court determined that Mr. Wall had been made redundant and was entitled to the full notice and redundancy payments. The court also held that the ex-gratia payment could not be set off against these statutory entitlements.

Orders