Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133

Federal Court of Australia

Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 Appeal from: Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

File number: NSD 354 of 2024

Judgment of: SNADEN, HATCHER AND SHARIFF JJ

Date of judgment: 18 October 2024

Catchwords: INDUSTRIAL LAW – appeal from primary judgment dismissing various claims for adverse action, unreasonable work hours and breach of contract (save for one claim in relation to a conceded failure to pay accrued annual leave entitlements upon termination) – where claims arose out of events leading up to, and including, summary termination of appellant from his employment with respondent – where appellant had been simultaneously employed by respondent and Hong Kong-based entity within same corporate group – where primary judge held that many of appellant's claims related to his employment with other entity – where appellant's employment with both entities summarily terminated on basis of conduct toward subordinates – whether primary judge erred by finding that person put forward by respondent as having made termination decision was an agent of respondent and that, by virtue of his evidence, respondent had rebutted statutory presumption in s 361 of Fair Work Act 2009 (Cth), on basis that that person was not an employee or officer of respondent – whether primary judge erred by finding that alleged adverse action relating to "unfair scrutinisation" was not taken by respondent and that appellant was not injured in employment by reason of that conduct – whether primary judge erred by finding that asserted workplace rights in form of "unreasonable hours complaint" and "lack of support complaint" concerned employment with other entity and did not involve actual or proposed exercise of workplace rights – whether primary judge erred by finding no "adverse action by omission" – whether primary judge erred by finding that appellant had failed to establish that he worked excessive hours or that there was a request or requirement that he work those hours – whether primary judge erred by failing to calculate entitlement to payment of accrued annual leave upon termination on basis of combined remuneration from both entities – no errors established – appeal dismissed PRACTICE AND PROCEDURE – where Notice of Appeal filed in circumstances where proceedings at first instance had only determined questions of liability but not penalties and costs – Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196 applied – held that primary judgment interlocutory in nature and leave to appeal required – held that application for leave filed out of time and extension of time required – extension granted – where appellant sought leave to file an Amended Notice of Appeal – application granted – leave to appeal granted in circumstances where no prejudice to respondent and where all questions of penalties and costs arising from primary judgment had been finally determined by time of appeal