Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481

FEDERAL COURT OF AUSTRALIA

Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 Appeal from: Lai Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214

File number: VID 127 of 2020

Judgment of: SNADEN J

Date of judgment: 4 May 2022

Catchwords: INDUSTRIAL LAW – employment – appeal from Federal Circuit Court of Australia ("FCCA") – adverse action – workplace rights – complaint or inquiry in relation to employment – temporary absence from work due to illness or injury – primary claim against employer respondent – accessorial claim against human respondents – FCCA partially upheld employee's claims – appeal by those respondents found to have contravened the Fair Work Act 2009 (Cth) ("FW Act") – adverse findings against party witnesses by primary judge – finding of conspiracy to contravene FW Act – whether matters on which adverse findings were based were put to witnesses – rule in Brown v Dunne – matters not put to witnesses – trial judge's conclusions on primary and accessorial claims affected by error – miscarriage of justice – cross appeal – incorporation of workplace policies into employment contract – National Employment Standards – whether notice of termination of employment validly given – payment in lieu of notice not coincident with notice of termination – contravention of s 117 of FW Act – appeal allowed in part – cross-appeal allowed in part – retrial ordered – scope of remittal confined

Legislation: Acts Interpretation Act 1901 (Cth) s 28A Electronic Transactions Act 1999 (Cth) ss 8, 9, 14A Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 44, 97, 117, 119, 340, 341, 342, 351, 352, 360, 361, 545, 550 Federal Court of Australia Act 1976 (Cth) s 28 Fair Work Regulations 2009 (Cth) reg 3.01