Laginha v Family Court of Australia [2000] FCA 275

FEDERAL COURT OF AUSTRALIA

Laginha v Family Court of Australia [2000] FCA 275 INDUSTRIAL LAW – termination of employment – whether termination of employment was unlawful – application under s 170EA of the Workplace Relations Act 1996 (Cth) – denial of procedural fairness Industrial Relations Act 1988 (Cth) ss 170DC, 170EA Public Service Act 1922 (Cth) Div 8C s 82AD Workplace Relations Act 1996 (Cth) s 377 Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Workplace Relations Regulations reg 30B

EDUARDO LAGINHA v FAMILY COURT OF AUSTRALIA

NI 2198 OF 1996

O'CONNOR J

SYDNEY

16 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 2198 OF 1996

BETWEEN: EDUARDO LAGINHA

APPLICANT

AND: FAMILY COURT OF AUSTRALIA

RESPONDENT

JUDGE: O'CONNOR J

DATE OF ORDER: 16 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI2198 OF 1996

BETWEEN: EDUARDO LAGINHA

APPLICANT

AND: FAMILY COURT OF AUSTRALIA

RESPONDENT

JUDGE: O'CONNOR J

DATE: 16 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter is before me because a Full Bench determined that Justice Wilcox in his Reasons for Judgment had come to a conclusion about a matter in issue between the parties without giving the applicant an opportunity to make submissions on that particular aspect of the case. Therefore, the only issue left in this matter for me to determine is the application for relief under s 170EA of the Workplace Relations Act 1996 (Cth). 2 His Honour Justice Wilcox set out in some detail the factual background to the application which is not in issue and I rely on his summary. The applicant, Eduardo Laginha, was employed by the respondent, the Family Court of Australia ("the Family Court"), during the period 17 August 1995 to 27 September 1996. His first appointment was in the Mediation Section of the Sydney Registry of the Family Court. The appointment was advertised as temporary and of some nine months in duration. 3 At the time of his appointment, Mr Laginha received a letter from the Registry Manager, Janice Musgrave, referring to his selection for the position. The letter stated that his employment would be for a period of eight months from 17 August 1995 to 12 April 1996. Ms Musgrave said the Court was required to specify a termination date before 12 April 1996 and his employment would cease on the date specified in the notice. 4 The temporary appointment was occasioned by the absence on leave of the usual occupant of the position, Peter Welsh. However, Mr Welsh decided not to resume full time employment, but returned to work on a part-time basis of three days per week. As a result, towards the end of his full-time service, Mr Laginha was engaged to work two days per week, as from 15 April 1996. On 16 April 1996 Ms Musgrave wrote to Mr Laginha terminating his full-time temporary employment, with effect from close of business on 12 April 1996. Shortly afterwards Mr Laginha was paid the balance of salary due to him together with the value of his accrued recreation leave. 5 On 19 April Ms Musgrave wrote a further letter to Mr Laginha stating: "In accordance with Section 82D of the Public Service Act 1922 you have been selected for part-time temporary employment as a Registrar at Sydney Registry, 2977.