PIA Mortgage Services Pty Ltd v King

• Jurisdiction: Australia Federal only
• Judgment Date: 24 February 2020
• Neutral Citation: [2020] FCAFC 15
• Date: 24 February 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Appeal from:	King v PIA Mortgage Services Pty Ltd & Ors [2018] FCCA 3426 & King v PIA Mortgage Services Pty Ltd & Ors (No 2) [2019] FCCA 1460
File number:	NSD 51 of 2019
Judges:	RANGIAH, CHARLESWORTH AND SNADEN JJ
Date of judgment:	24 February 2020
Catchwords:	INDUSTRIAL LAW – adverse action – appeal and cross-appeal from two decisions of the Federal Circuit Court of Australia – whether respondent was dismissed in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the “FW Act”) – whether respondent was “able to make” a complaint or inquiry – whether penalties imposed were manifestly excessive – appeal and cross-appeal both upheld in part ; CONTRACTS – employment contract – cross appeal against finding that contract of employment was not breached – whether absence from duty triggered an entitlement to summarily terminate – whether employee was absent for a valid reason – whether absence was waived or condoned, or otherwise consented to – whether employee was entitled to damages for breach of contract – no breach of contract – cross-appeal dismissed in part ; COMPENSATION – whether statutory compensation awarded was sufficient or excessive – whether judge below erred in awarding compensation in an amount equal to a prior offer that was rejected – whether compensation should be assessed as the value of the remaining contract period – cross-appeal dismissed
Legislation:	Australian Consumer Law Corporations Act 2001 (Cth) s 1317AA Crimes Act 1914 (Cth) s 4AA Explanatory Memorandum, Fair Work Bill 2008 (Cth) Fair Work Act 2009 (Cth) Pts 2-2, 3-1, ss 12, 44, 90, 340, 341, 342, 360, 361, 539, 542, 543, 545, 546, 550, 570, 793 Privacy Act 1988 (Cth) s 36 Workplace Relations Act 1996 (Cth)
Cases cited:	Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Australian & International Pilots Association v Qantas Airways Limited [2009] FCA 500 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Carter v Dennis Family Corporation [2010] VSC 406 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Commonwealth v Verwayen (1990) 170 CLR 394 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Dafallah v Fair Work Commission (2014) 225 FCR 559 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 King v PIA Mortgage Services Pty Ltd & Ors (No 2) [2019] FCCA 1460 King v PIA Mortgage Services Pty Ltd & Ors [2018] FCCA 3426 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 ; National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 R v Abbott (2007) 170 A Crim R 306 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 Tak Fat Wong v The Queen (2001) 207 CLR 584 The Environmental Group Ltd v Bowd [2019] FCA 951 Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448 Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468 Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 ; Irving M, The Contract of Employment (LexisNexis Butterworths, 2012)
Date of hearing:	20-21 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	219
Counsel for the Appellants/Cross-Respondents:	Mr J Kelly SC with Mr C Cassimatis
Solicitor for the Appellants/Cross-Respondents :	Rutland’s Law Firm
Counsel for the Respondent/Cross-Appellant:	Ms P Thew
Solicitor for the Respondent/Cross-Appellant:	Hicksons Lawyers

ORDERS

		NSD 51 of 2019
BETWEEN:	PIA MORTGAGE SERVICES PTY LTD First Appellant ; YUE (‘JUSTIN’) WANG Second Appellant
AND:	LEIGHTON KING Respondent
AND BETWEEN:	LEIGHTON KING Cross–Appellant
AND:	PIA MORTGAGE SERVICES PTY LTD (and another named in the Schedule) First Cross–Respondent

JUDGES:	RANGIAH, CHARLESWORTH AND SNADEN JJ
DATE OF ORDER:	24 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

2. The cross-appeal be allowed in part.

3. Within seven days, the parties are to confer and provide a draft minute of orders reflecting the reasons of the majority herein.

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

REASONS FOR JUDGMENT

RANGIAH AND CHARLESWORTH JJ:

1. We have had the considerable advantage of reading the reasons of Snaden J in draft. His Honour’s reasons make it unnecessary to describe the facts, issues and submissions in detail. We will generally adopt his Honour’s abbreviations.

2. The issues in the appeal and cross-appeal are whether the Federal Circuit Court erred in:

1. holding that Mr King’s employer, PIAMS, and its director, Mr Wang, contravened s 340(1) of the FW Act by dismissing Mr...