Flageul v WeDrive Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 15 June 2021
• Neutral Citation: [2021] FCAFC 102
• Date: 15 June 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Flageul v WeDrive Pty Ltd [2021] FCAFC 102

Appeal from:	Flageul v WeDrive Pty Ltd [2020] FCA 1666
File number:	VID 799 of 2020
Judgment of:	FLICK, MURPHY AND O'CALLAGHAN JJ
Date of judgment:	15 June 2021
Catchwords:	INDUSTRIAL LAW – claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) – whether primary judge erred in dismissing claims ; CORPORATIONS LAW - claim made under s 232 of the Corporations Act 2001 (Cth) - whether primary judge erred in dismissing claim ; APPEALS – findings of fact – not shown to be glaringly improbable – role of appellate court in reviewing findings of fact
Legislation:	Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth) ss 340, 341, 360, 361
Cases cited:	Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Browne v Dunn (1894) 6 R 67 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fexuto Pty Limited v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 House v The King [1936] HCA 40; (1936) 55 CLR 499 Maric v Ericsson Australia Pty Ltd [2020] FCA 452; (2020) 293 IR 442 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2020] FCAFC 37; (2020) 275 FCR 423 Short v Ambulance Victoria [2015] FCAFC 55; 249 IR 217 Wilmar Sugar Australia Limited v Mackay Sugar Limited [2017] FCAFC 40; (2017) 345 ALR 174
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	87
Date of hearing:	19 May 2021
Counsel for the Appellant:	Ms L De Ferrari SC
Solicitor for the Appellant:	AJH Lawyers
Counsel for the Respondents:	Mr A Meagher
Solicitor for the Respondents:	Clyde & Co

ORDERS

		VID 799 of 2020
BETWEEN:	YAN FRANCK FLAGEUL Appellant
AND:	WEDRIVE PTY LTD T/A WEDRIVE (ABN 47 621 317 324) First Respondent ; STEVEN MACE Second Respondent ; GREGG TAYLOR Third Respondent

order made by:	FLICK, MURPHY AND O'CALLAGHAN JJ
DATE OF ORDER:	15 June 2021

THE COURT ORDERS THAT:

1. The appeal is dismissed.

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

REASONS FOR JUDGMENT

FLICK J:

1. The Appellant in the present proceeding, Mr Yan Flageul, was the Chief Executive Officer of the First Respondent, WeDrive Pty Ltd (“WeDrive”). His services as such were terminated on 21 December 2017 by the Second Respondent, Mr Steven Mace, who was a non-executive director of WeDrive. The Third Respondent was Mr Gregg Taylor, another director of WeDrive.

2. Mr Flageul commenced proceedings in this Court seeking the payment of pecuniary penalties and damages under the Fair Work Act 2009 (Cth) (the “Fair Work Act”), and also damages pursuant the Corporations Act 2001 (Cth) (the “Corporations Act”) and the Australian Consumer Law. By way of an Amended Statement of Claim dated 16 October 2019, Mr Flageul (in very summary form) contended that there had been a contravention of s 340(1) of the Fair Work Act “because” he had exercised a “workplace right” within the meaning of s 341(1) of that Act. He also alleged oppressive and unconscionable conduct on the part of the Respondents.

3. On 18 November 2020, a Judge of this Court dismissed Mr Flageul’s proceeding: Flageul v WeDrive Pty Ltd [2020] FCA 1666.

4. Mr Flageul appealed.

5. The opportunity has been taken to read in draft form the joint reasons of Murphy and O’Callaghan JJ. Gratitude is expressed to their Honours for their careful exposition of the facts. Concurrence is expressed with their Honours reasons for rejecting all of the Grounds of Appeal. The opportunity has nevertheless been taken to separately address the claims made pursuant to the Fair Work Act and the reasons for also concluding that the primary Judge committed no appellable error in rejecting those claims.

6. The appeal is to be dismissed.

The Fair Work Act – ss 340, 341, 360 & 361

7. Although also set forth in the joint reasons of Murphy and O’Callaghan JJ, it is prudent to again set forth the provisions of the Fair Work Act of immediate relevance to the present appeal.

8. Section 340(1) of the Fair Work Act prohibits the taking of “adverse action” and provides as follows:

340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

…

It is s 341(1) which identifies a “workplace right” and that sub-section provides as follows:

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee – in relation to his or her employment.

…

When applying s 340(1) to the facts of a particular case and in the identification of the reason or reasons why action has been taken, ss 360 and 361 assume importance. Section 360 provides as follows:

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

Section 361(1) provides as follows:

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

9. The legislative intent sought to be achieved by the Commonwealth Legislature by ss 360 and 361 is to “provide a balance between the parties to a workplace dispute by, first, establishing a presumption in favour of an employee who alleges that an employer had taken, or is taking, adverse action against him or her...