Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481

Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481

The primary judgment was affected by error as the findings of conspiracy and adverse findings against Messrs Heeney and Oates were not put to them, violating procedural fairness and the rule in Brown v Dunne; this resulted in a miscarriage of justice requiring the setting aside of liability findings under s 340 of the Fair Work Act and a limited retrial. The finding of contravention of s 352 FW Act was unsupported and must be set aside. The finding that workplace policies formed part of the employment contract was correctly rejected. The finding that valid written notice of termination was given was correct as to form, but payment in lieu of notice was not made before termination,...

Parties
First Appellant / First Cross Respondent: Southern Migrant and Refugee Centre Inc; Second Appellant / Second Cross Respondent: Brian Oates; Third Appellant / Third Cross Respondent: Travis Heeney; Respondent / Cross Appellant: Lai Shum; Fourth Cross Respondent: Despina Haralambopoulos; Fifth Cross Respondent: Champa Wattegamage; Sixth Cross Respondent: Aman Bindra
Jurisdiction
Australia
Judgment Date
04 May 2022
Procedural Posture
Employment/industrial Law Appeal / Appeal From Federal Circuit Court, Reasons for Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed in part; cross-appeal allowed in part; orders of primary judge set aside; limited retrial ordered on certain issues; other claims dismissed.
Legal Topics
Adverse Action, Workplace Rights, Dismissal, Procedural Fairness, Accessorial Liability, National Employment Standards, Notice of Termination, Redundancy Pay, Workplace Policies
Employment Law Industrial Relations Adverse Action Workplace Rights Dismissal Procedural Fairness Accessorial Liability National Employment Standards +3 more

Case Brief

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Parties

Southern Migrant and Refugee Centre Inc

First Appellant / First Cross Respondent

Brian Oates

Second Appellant / Second Cross Respondent

Travis Heeney

Third Appellant / Third Cross Respondent

Lai Shum

Respondent / Cross Appellant

Despina Haralambopoulos

Fourth Cross Respondent

Champa Wattegamage

Fifth Cross Respondent

Aman Bindra

Sixth Cross Respondent

Procedural Posture

Employment/industrial Law Appeal / Appeal From Federal Circuit Court, Reasons for Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether the dismissal of Ms Shum contravened s 340(1) of the Fair Work Act 2009 (Cth)
  2. 2 Whether the adverse findings and conspiracy finding against Messrs Heeney and Oates were open and procedurally fair
  3. 3 Whether Ms Shum was dismissed in contravention of s 352 of the Fair Work Act

Ratio Decidendi

The primary judgment was affected by error as the findings of conspiracy and adverse findings against Messrs Heeney and Oates were not put to them, violating procedural fairness and the rule in Brown v Dunne; this resulted in a miscarriage of justice requiring the setting aside of liability findings under s 340 of the Fair Work Act and a limited retrial. The finding of contravention of s 352 FW Act was unsupported and must be set aside. The finding that workplace policies formed part of the employment contract was correctly rejected. The finding that valid written notice of termination was given was correct as to form, but payment in lieu of notice was not made before termination,...

Court Disposition

Appeal allowed in part; cross-appeal allowed in part; orders of primary judge set aside; limited retrial ordered on certain issues; other claims dismissed.

Orders

  • The cross-appellant's application for leave to amend her notice of cross appeal be dismissed.
  • The appeal be allowed in part.