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

FEDERAL COURT OF AUSTRALIA

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 File number: QUD 987 of 2015

Judge: COLLIER J

Date of judgment: 19 December 2017

Catchwords: INDUSTRIAL LAW – alleged contraventions of s 340(1) Fair Work Act 2009 – 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 – refusal to pay statutory entitlements – evidence that entitlements deliberately withheld – whether second respondent involved in contravention CONSUMER LAW – alleged contravention of s 31 Australian Consumer Law – whether misleading representations were made during offer of employment –whether alleged representations were reasonable CONTRACTS – contract of employment - whether term of good faith and reasonableness was implied in contract – whether contract breached by failing to pay bonuses and commissions – whether contract breached by failing to set budget targets – whether contract breached for failing to provide additional incentive bonus 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