Newton v Australian Postal Corporation (No 2) [2019] FCA 2192

FEDERAL COURT OF AUSTRALIA

Newton v Australian Postal Corporation (No 2) [2019] FCA 2192 File number: VID 876 of 2017

Judge: BROMBERG J

Date of judgment: 23 December 2019

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ("FW Act"), ss 340, 348 and 355 – where in reliance upon s 348 union representative alleged to have made threats to take action against employer with intent to coerce employer to engage in industrial activity, being removal of employee from position and cessation of a project ("project") – where in reliance upon s 355 union representative also alleged to have made threats to take action against employer with intent to coerce employer not to allocate employee duties of his position – where employee removed from his position and duties by his employer and project cancelled – discussion as to what constitutes a "threat" for purposes of ss 348 and 355 of FW Act – discussion of meaning of "intent to coerce" in ss 348 and 355 – discussion of 361(1) of FW Act: presumption that action taken for a particular reason or intent unless proven otherwise – to which elements or ingredients of a cause of action under ss 348 and 355 is s 361(1) applicable – the pre-conditions to the engagement of s 361(1) – whether s 361(1) can apply to a threat – discussion of standard of proof necessary for contravention of FW Act – whether pleading admissions made by one party can be used against another party in a joint trial – whether threats, as alleged, made by union representative – whether applicant engaged s 361(1) by making requisite allegation regarding union representative's intent – whether threat made with intent to coerce – discussion of pleadings deficiencies – whether applicant discharged his onus to establish use of unlawful, illegitimate or unconscionable means by union representative – whether employer and manager accessorily liable under s 550 of FW Act – adverse action – FW Act s 340: where alleged that employee removed from position for reasons that include that employee had a workplace right – applicable legal principles discussed – whether adverse actions (removal of employee from his position and exclusion of employee from work) taken including because of employee's workplace right to a safe working environment CONTRACTS – where employee contracted to be employed in specific position – where contract provided that employer may require employee to occupy alternative "suitable" position – where removed from contracted position – whether employer removing employee from contracted position without placing employee into a suitable alternative position was a breach of contract – discussion of meaning of suitable alternative position – whether suitable alternative position offered to employee – where direction that employee excluded from work pending medical clearance – whether direction in breach of contract DAMAGES – contractual claim: principles regarding damages for breach of contract – principles of causation – whether loss should be characterised as a loss of chance or loss of bargain – whether loss of remuneration claimed flowed from breach of contract found – whether intervening events broke chain of causation – principles of remoteness – whether "least burdensome principle" invoked by employer's contractual capacity to terminate contract on giving notice – discussion of contingencies – whether employer would have terminated contract by giving notice had it not been for breach – discussion of principles of mitigation – whether employee's attempts to gain employment following termination involved a failure to mitigate loss – whether failure to accept position from former employer was a failure to mitigate loss – whether employee entitled to general damages