Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323

FEDERAL COURT OF AUSTRALIA Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323 Appeal from: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286

File number: WAD 86 of 2024

Judgment of: SHARIFF J

Date of judgment: 15 November 2024

INDUSTRIAL LAW – appeal from decision of Federal Circuit and Family Court of Australia (FCFCOA) in which primary judge found appellant liable for wrongful termination, adverse action contrary to s 340(1) of Fair Work Act 2009 (Cth) (FW Act) and a contravention of s 117(1) of FW Act – where appellant had summarily terminated employment of respondent for alleged serious misconduct arising from incident at after-hours gathering of work colleagues and subsequent investigation of incident – where primary judge found that appellant had not established serious misconduct on part of respondent – where primary judge found that respondent had exercised certain workplace rights and appellant failed to rebut presumption in s 361 of FW Act that appellant had terminated respondent's employment "because of" exercise of those rights – where primary judge found that appellant had contravened s 117(1) of FW Act by failing to give respondent notice of termination in authorised manner – consideration of principles of appellate review and remitter – whether primary judge erred in making various findings of fact, including that person identified by appellant as having made decision to dismiss respondent was not, in fact, person who made that decision; and that, where person who primary judge found had made decision to dismiss respondent was not called to give evidence, appellant had failed to rebut presumption in s 361 of FW Act – HELD: majority of alleged factual errors rejected; however, primary judge erred in specified respects; questions as to who was materially involved in decision to terminate respondent's employment and whether presumption in s 361 of FW Act rebutted to be remitted to different judge of FCFCOA – whether primary judge erred in deciding that respondent had not engaged in serious misconduct warranting summary dismissal – HELD: primary judge did not so err – whether primary judge erred in deciding that appellant took adverse action against respondent because it failed to call as witness person who primary judge determined had made decision to dismiss respondent – HELD: this question to be dealt with on remitter – whether primary judge erred in finding that appellant had contravened s 117(1) in way notice of termination was given to respondent – HELD: primary judge did not err in way contended for by appellant, but serious doubt expressed about correctness of finding of contravention for other reasons not advanced in appeal – whether primary judge denied appellant procedural fairness in proceedings below, including by reason of delay between proceedings and delivery of primary judgment – HELD: no denial of procedural fairness Catchwords: PRACTICE AND PROCEDURE – where outcome of appeal in large measure turned on forensic choices made by appellant in way it conducted proceedings below and on appeal – where no witnesses of fact to incident called other than respondent – where witness accounts and investigation report concerning incident tendered for non-hearsay purpose and relied upon for both hearsay and non-hearsay purposes – where appellant primarily relied on audio recording of part of incident – where appellant failed to engage with other substantial evidence in witness accounts which shed light on context in which incident occurred – where appellant alleged that respondent had engaged in conduct that was deliberately dishonest – where appellant failed to make out its case as to serious misconduct as pleaded and run in proceedings below PRACTICE AND PROCEDURE – application of Practice Note APP 2: Content of Appeal Books and Preparation for Hearing – expectations of parties in relation to compilation of Appeal Books