Yu v ACT Education Directorate [2022] FCAFC 110

FEDERAL COURT OF AUSTRALIA Yu v ACT Education Directorate [2022] FCAFC 110 Appeal from: Yu v ACT Education Directorate (No 2) [2021] FedCFamC2G 267

File number(s): ACD 100 of 2021

Judgment of: THOMAS, SC DERRINGTON AND HALLEY JJ

Date of judgment: 30 June 2022

Catchwords: INDUSTRIAL LAW – adverse action – whether employee exercising a workplace right under s 343(1)(a) of the Fair Work Act 2009 (Cth) – where employee claimed to have been exercising her right to take reasonable care of her own health and safety under s 28(a) of the Work Health and Safety Act 2011 (ACT) when refusing the directions of her employer to prepare a Professional Pathways Plan, to teach under observation and to attend certain meetings INDUSTRIAL LAW – Enterprise Agreement – construction of – alleged contravention in breach of s 50 of the Fair Work Act 2009 (Cth) – whether breach of obligation to place permanent teachers in suitable positions – whether employer caused emotional distress – whether breach of procedural requirements relating to disciplinary process INDUSTRIAL LAW – National Employment Standards – whether contravention of s 44 were final entitlements not paid on date of termination but were subsequently paid in full PRACTICE AND PROCEDURE – trials – procedural fairness – where applicant gave oral evidence and was cross-examined before trial adjourned part-heard – where matter subsequently determined, at primary judge's suggestion, "on the papers" three and half years later – where primary judge indicated relevant findings could not be made in the absence of cross-examination of the respondent's witnesses – where no issue of procedural fairness raised by either party – whether primary judge erred in failing to make findings on evidence before him PRACTICE AND PROCEDURE – procedural fairness – where primary judge considered and made "observations" or purported preliminary findings adverse to the respondent on legal issues not raised by the parties – whether such observations and preliminary findings had any bearing on the primary judge's ultimate conclusions