Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534

The first respondent contravened s 340(1) Fair Work Act 2009 by dismissing the applicant for a substantive or operative reason that included his exercise of a workplace right (making inquiries/complaints about bonuses). The employer failed to discharge the reverse onus, especially as the decision-maker did not give evidence. The first respondent also contravened s 44(1) by not paying notice and annual leave entitlements, and these breaches were not excused despite claimed misconduct or the supposed right to set-off. The second respondent was knowingly involved in both breaches. The contract did not entitle the applicant to further bonuses and no implied term of good faith was established;...

Jurisdiction
Australia
Judgment Date
19 December 2017
Procedural Posture
Originating Application / Post Hearing, Judgment
Outcome
Declarations and orders entered in favour of the applicant for breaches of the Fair Work Act; cross-claim dismissed.
Legal Topics
['adverse Action' 'workplace Rights' 'unfair Dismissal' 'employment Contract' 'bonuses and Remuneration' 'good Faith in Contracts' 'statutory Entitlements' 'misleading Representations in Employment']
['industrial Law' 'employment Law' 'contract Law' 'australian Consumer Law'] ['adverse Action' 'workplace Rights' 'unfair Dismissal' 'employment Contract' 'bonuses and Remuneration' 'good Faith in Contracts' 'statutory Entitlements' 'misleading Representations in Employment']

Case Brief

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Procedural Posture

Originating Application / Post Hearing, Judgment

Legal Issues

  1. 1 ['Whether section 340(1) of the Fair Work Act 2009 was contravened by adverse action against the applicant for exercising a workplace right' 'Whether complaint/inquiry about bonuses constituted a workplace right' 'Whether failure to pay notice and accrued leave contravened sections 44(1), 117(2), and 90(2) of the Fair Work Act 2009' 'Whether section 31 of the Australian Consumer Law was contravened by alleged misleading representations on employment' 'Whether the contract of employment was breached, including for non-payment of bonus and alleged implied term of good faith' 'Whether payment to applicant was a loan or discretionary bonus (cross-claim)' 'Assessment of compensation for loss, including non-economic loss']

Ratio Decidendi

The first respondent contravened s 340(1) Fair Work Act 2009 by dismissing the applicant for a substantive or operative reason that included his exercise of a workplace right (making inquiries/complaints about bonuses). The employer failed to discharge the reverse onus, especially as the decision-maker did not give evidence. The first respondent also contravened s 44(1) by not paying notice and annual leave entitlements, and these breaches were not excused despite claimed misconduct or the supposed right to set-off. The second respondent was knowingly involved in both breaches. The contract did not entitle the applicant to further bonuses and no implied term of good faith was established;...

Court Disposition

Declarations and orders entered in favour of the applicant for breaches of the Fair Work Act; cross-claim dismissed.

Orders

  • ['Declarations that first respondent contravened sections 340(1), 44(1), 117(2), and 90(2) of the Fair Work Act 2009' 'Declaration that second respondent was involved in those contraventions' 'Orders to pay applicant: $17,625.72 in lieu of notice; $17,160.40 for untaken accrued annual leave; $5,000 compensation for...