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

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.