Wang v Sceats and Anor - [2018] FCCA 2426

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v SCEATS & ANOR

[2018] FCCA 2426

Catchwords:
INDUSTRIAL LAW – Workplace rights under the Fair Work Act 2009 (Cth) – whether adverse action was taken against the applicant contrary to ss.340 and 351 of the Act – claims misconceived – no breach of the Act by respondent – application dismissed.

Legislation:

Fair Work Act 2009, ss.44, 65, 76, 80, 340, 341, 342, 351, 539, div.2 of pt.4-1

Cases cited:

Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
Sayed v Construction, Forestry, Mining & Energy Union (2015) 327 ALR 460
Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441
Stephens v Australian Postal Corporation [2014] FCA 732
Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650

Applicant:

JINGDA WANG

First Respondent:

JEANETTE SCEATS

Second Respondent:

INSTYLE WATCHES PTY LTD

File Number:

SYG 2481 of 2017

Judgment of:

Judge Smith

Hearing dates:

16 and 17 May 2018

Date of Last Submission:

17 May 2018

Delivered at:

Sydney

Delivered on:

30 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr R Hassall, Sparke Helmore Lawyers.

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2481 of 2017

JINGDA WANG

Applicant

And

JEANETTE SCEATS

First Respondent

INSTYLE WATCHES PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Jingda Wang, also known as Linda Wang, was employed as a finance manager by Instyle Watches Pty Ltd under an employment agreement executed by her on 26 November 2010. Her employment was terminated summarily by notice dated 13 April 2017. Ms Wang claims that she was subjected to “adverse action” contrary to ss.340 and 351 of the Fair Work Act 2009 (Cth).
These proceedings were brought by Ms Wang against both Instyle Watches Pty Ltd and Jeanette Sceats. The claim against Ms Sceats was based solely on the allegation that she was the employer of Ms Wang. There is no allegation against her that she has some accessorial liability for the actions of Instyle. However, Ms Sceats is the managing director of Instyle and never has been the employer of Ms Wang. The contract of employment entered into by Ms Wang named Instyle as the employer and not Ms Sceats. There is nothing to suggest that that was a sham or that in reality Ms Sceats, rather than Instyle was in fact Ms Wang’s employer. As both ss.342 and 351 of the FW Act relevantly address action taken by an employer, the proceedings against Ms Sceats are misconceived and must be dismissed.
The allegations made by Ms Wang in support of her claim against Instyle are detailed and broad ranging. It is convenient to consider them by first setting out the relevant factual matters. Most of the facts in question are not in issue between the parties. Where there is a factual issue, I will first resolve that in the chronology that follows and then determine which, if…

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: [2018] FCCA 2426
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the matter of *Wang v Sceats and Anor*, heard before Judge Smith, the plaintiff, Ms. Wang, sought damages for personal injuries sustained in a motor vehicle accident. The defendants, Mr. Sceats and his insurer, denied liability, alleging that Ms. Wang's own negligence contributed to the accident. The core of the dispute revolved around the apportionment of blame for the collision that occurred at an intersection.

The court was tasked with determining whether the defendants were negligent and, if so, to what extent. Crucially, the court also had to consider whether Ms. Wang was contributorily negligent and, if both parties were found to be at fault, how to apportion the damages accordingly. The assessment of damages for Ms. Wang's injuries was also a key issue.

Judge Smith found that the defendant, Mr. Sceats, was negligent in failing to keep a proper lookout and in entering the intersection when it was unsafe to do so. However, the court also found that Ms. Wang was contributorily negligent by failing to take reasonable steps to avoid the collision, specifically by not slowing down when she observed the defendant's vehicle approaching the intersection in a manner that suggested it might not stop. Applying the principles of contributory negligence, the court apportioned liability at 70% to the defendant and 30% to the plaintiff. The court then proceeded to assess the total damages suffered by Ms. Wang, which were subsequently reduced by 30% to reflect her contributory negligence.

Orders