Cigarette & Gift Warehouse Pty Ltd v Whelan

• Jurisdiction: Australia Federal only
• Judgment Date: 08 February 2019
• Neutral Citation: [2019] FCAFC 16
• Date: 08 February 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Appeal from:	Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 695
File number:	QUD 11 of 2018
Judges:	GREENWOOD, LOGAN AND DERRINGTON JJ
Date of judgment:	8 February 2019
Catchwords:	INDUSTRIAL LAW – appeal from Federal Court – alleged denial of procedural fairness – allegations unsubstantiated. ; INDUSTRIAL LAW – alleged contraventions of s 340(1) Fair Work Act 2009 (Cth) whether there was a workplace right - whether complaint or inquiry about bonuses is a workplace right – whether complaint or inquiry about request to a third party is a workplace right - whether workplace right was exercised or proposed to be exercised – whether applicant was discriminated against - whether exercise of workplace right was a substantive or operative reason for dismissal – where decision maker gave no direct testimony in the proceedings – whether second respondent involved in the contravention. ; INDUSTRIAL LAW – alleged contravention of ss 44(1) and 117 Fair Work Act 2009 (Cth) – refusal to pay statutory entitlements – evidence that entitlements deliberately withheld – whether second respondent involved in contravention. ; CONTRACTS – cross claim – whether payment to applicant was a loan or advance – whether payment was a discretionary bonus. ; COMPENSATION – claim for loss of opportunity to work for first respondent – whether employment would have continued - claim for loss of opportunity to work at former employer – claim of non-economic loss for hurt and humiliation - whether post dismissal actions of employer are relevant to compensation.
Legislation:	Fair Work Act 2009 (Cth) ss 61(2)(i), 44(1), 117, 123, 340(1), 545, 550 Fair Work Regulations 2009 (Cth)
Cases cited:	Australian Communications and Media Authority v Mobilegate Ltd (No 8) (2010) 275 ALR 293 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2012) 209 FCR 448 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fox v Percy(2003) 214 CLR 118 Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 231 Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 Warren v Coombes (1979) 142 CLR 531
Date of hearing:	24 May 2018
Date of last submissions:	24 May 2018
Registry:	Queensland
Division:	Fair WorkGeneral Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	55
Counsel for the Appellants:	Mr P Roney QC
Solicitor for the Appellants:	Nyst Legal
Counsel for the Respondent:	Mr E White
Solicitor for the Respondent:	Adams Wilson Lawyers

ORDERS

		QUD 11 of 2018
BETWEEN:	CIGARETTE & GIFT WAREHOUSE PTY LTD ACN 055 030 567 First Appellant ; TRAVERS BEYNON Second Appellant
AND:	ANDREW WHELAN Respondent

JUDGES:	GREENWOOD, LOGAN AND DERRINGTON JJ
DATE OF ORDER:	8 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. All questions as to costs in relation to the appeal be reserved for consideration in the event that a party makes an application for costs.

3. If a party (or parties) wishes to make application for costs, notice in writing should be given to the Registrar and the opposing party (or parties) not later than 20 February 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, at [64] – [65] (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd) the Full Court observed:

64. Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.

65. The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion.

2. The appellants, Cigarette & Gift Warehouse Pty Ltd and its managing director, Mr Travers Beynon, contend that the orders under challenge in the present appeal were the result of a failure by the learned primary judge to decide the case brought against them by the respondent, Mr Andrew Whelan, by reference to the nature of that case as disclosed in the pleadings. They contend that they were denied procedural fairness in just the way described by the Full Court in the observations made in the passage quoted from Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, quoted above.

3. Cigarette & Gift Warehouse Pty Ltd, as the primary judge found, carries on a business of providing services in the cigarette and gift supply industry by way of franchising. It is also known as “Freechoice”, although there is a separate, related company known as Freechoice Vending Australia Pty Ltd (Freechoice Vending). Each is a member of the Freechoice Australia corporate group. In the evidence led at trial, there were numerous references to “Freechoice”, particularly in a significant, contemporaneously recorded conversation between Messrs Beynon and Whelan on the date of his dismissal, 24 August 2015. There is no doubt that these are references to Cigarette & Gift Warehouse Pty Ltd. It is therefore convenient likewise to use that name to refer to that company in these reasons for judgment.

4. Mr Whelan was employed by Freechoice as its National Sales Manager from around 6 June 2013 to 10 November 2013, and from 11 November 2013 until 24 August 2015, as its General Manager.

5. The primary judge found that, in August 2015, Freechoice had contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW ACT) by taking adverse action against Mr Whelan by dismissing him and s 44(1) by failing to give him a notice of termination (the adverse action and notice claims). In respect of these contraventions, the primary judge awarded Mr Whelan $17,625.72 for economic loss and $5,000.00 for non-economic loss. Her Honour found that Freechoice had further contravened s 44(1) of the FW ACT, by failing to pay $17,160.40 to him on termination for...