Yang v Langs Building Suppliers Pty Ltd - [2018] FCCA 3203

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v LANGS BUILDING SUPPLIERS PTY LTD

[2018] FCCA 3203

Catchwords:
INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – workplace rights – adverse action – dismissal.

INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – other protections – adverse action – alleged racial discrimination in training and dismissal.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1)(a)(i), 342, 351, 360, 361

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No.1] (2012) 248 CLR 500
CFMEU v Pilbara Iron Co (Services) Pty Ltd (No.3) [2012] FCA 697
Hodkinson v Commonwealth [2011] FMCA 171
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Tattsbet Ltd v Morrow [2015] FCAFC 62

Applicant:

HIAYAN YANG

Respondent:

LANGS BUILDING SUPPLIERS PTY LTD

File Number:

BRG 874 of 2016

Judgment of:

Judge Jarrett

Hearing date:

19 May 2017

Delivered at:

Brisbane

Delivered on:

7 November 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr S A Mackie

Solicitors for the Respondent:

K & L Gates

ORDERS

The application filed on 22 September, 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2016

HIAYAN YANG

Applicant

And

LANGS BUILDING SUPPLIERS PTY LTD

Respondent

REASONS FOR JUDGMENT

Ms Yang seeks compensation and other relief for alleged contraventions of s.340(1)(a)(i) of the Fair Work Act 2009 (Cth) for adverse action by the respondent in:
a)discriminating between Ms Yang and other employees of Langs on the basis of her race; and
b)terminating her employment, because of her race.
Langs denies that race played any part in its decision-making process concerning Ms Yang. In particular, it denies any contravention of s.351 of the Fair Work Act on the basis that:
a)the training that Langs provided to Ms Yang was appropriate and not discriminatory; and
b)Ms Yang was dismissed because the decision maker (Mark Price, windows manager) was put in a position where he needed to choose between retaining Ms Yang or another employee, Ms Suzy Stone. Langs claims that Mr Price selected Ms Stone because her performance was better and because of concerns about Ms Yang’s behaviour and commitment to the role.

Agreed facts

The parties appear to agree on the following factual matters:
a)Langs manufactures and sells windows and screens. It manufactures the windows on site;
b)Ms Yang was employed as an estimator by Langs, commencing on 23 May, 2016. Her job was to prepare estimates on the cost of manufacturing windows. The advertisement for the job required “a comprehensive knowledge of all current Standards & Codes relevant to aluminium windows construction in Queensland”;
c)her job required her to read building plans, determine what products were being requested, and then enter the products into the respondent’s estimating software, commonly called “V6”;
d)Ms Yang had not previously worked in Australia, or in preparing windows estimates. Six years previously she had worked in China in building and construction, but “it was mainly reinforced concrete”. She had…

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 3203
Decision Date: 7 November 2018

CaseChat Overview and Summary

In the District Court of Queensland, Judge Jarrett considered a dispute between the applicant, Mr. Yang, and the respondent, Langs Building Suppliers Pty Ltd. The core of the disagreement concerned allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL), specifically relating to representations made by the respondent about the suitability of certain building materials for the applicant's intended use. The applicant sought damages for losses incurred as a result of relying on these alleged misrepresentations.

The primary legal issues before the court were whether the respondent had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of section 18 of the ACL. This involved determining whether the statements made by the respondent's representatives regarding the performance and application of the building materials were factually accurate and whether they conveyed a false impression to the applicant, a consumer. The court also had to assess whether the applicant had suffered loss or damage as a consequence of this conduct.

Judge Jarrett found that the respondent's representations concerning the suitability of the building materials were indeed misleading and deceptive. The court reasoned that the respondent, as a supplier of building materials, held a position of expertise and that the applicant, a consumer, reasonably relied on the information provided. The evidence demonstrated that the materials were not fit for the purpose represented, leading to defects and additional costs for the applicant. The court applied the principles of section 18 of the ACL, focusing on the objective test of whether the conduct was likely to mislead a reasonable consumer in the position of the applicant.

Consequently, the court ordered that the respondent pay damages to the applicant in the sum of $15,000, representing the costs incurred by the applicant in rectifying the issues arising from the use of the unsuitable materials. The respondent was also ordered to pay the applicant's costs of the proceeding.

Orders