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CEO OF THE WE-DRIVE APP SEEKS FOR DAMAGES DUE TO HIS TERMINATION
Flageul v WeDrive Pty Ltd [2020] FCA 1666 (18 November 2020)
This case involves the former CEO of WeDrive app seeking for damages for his termination as CEO of the company due to his complaints or inquiries.
Facts:
The applicant (“Mr. Flageul”) was C.E.O. of the first respondent, WeDrive Pty Ltd (“WeDrive).
Mr. Flageul was also a shareholder in, and a director of, WeDrive.
On 21 December 2017, the second respondent (“Mr. Mace”) and another director of WeDrive, who is the third respondent (“Mr. Taylor”), terminated Mr. Flageul’s employment as C.E.O. Applicant contends that he was dismissed because of the complaints and/or inquiries he made.
Mr. Flageul seeks the payment of pecuniary penalties and damages. His causes of action comprise claims of adverse action, breach of s.358 of the F.W. Act, and claims of oppression and unconscionable conduct on the part of the respondents.
Issue: Have the respondents proven that Mr. Mace’s actual reasons for Mr. Flageul’s dismissal did not include the exercise by Mr. Flageul of a workplace right that comprises, individually or cumulatively, the alleged complaints/inquiries?
Law:
Analysis:
Respondents have displaced the presumption created by s.361 of the F.W. Act and have shown that Mr. Flageul was not dismissed because of the exercise by him of a workplace right.
First, there is the objective fact that, just days before his dismissal, Mr. Mace learned about Mr. Flageul’s failure to disclose Contact Point’s ownership of the relevant intellectual property. The court finds in the circumstances here that this relationship was unworkable because Mr. Mace and Taylor could no longer trust Mr. Flageul. Whether they felt that Mr. Flageul had lied to them about this issue was less clear; at the very least they felt he had neglected to address a vital issue for them, namely full ownership of the intellectual property. They had both been misled.
Secondly, the court does not accept that the intellectual property ownership issue was the only reason for Mr. Flageul’s dismissal, although it was a substantial reason. The very poor performance of the WeDrive business, and the failure of the app to perform adequately were, generally speaking, the other reasons for Mr. Flageul’s dismissal.
Thirdly, Mr. Taylor’s evidence corroborates that of Mr. Mace.
Fourthly, the court would have inferred, in any event, that the objective failure of the WeDrive business and Mr. Flageul’s serious mistake in not disclosing Contact Point’s ownership of the relevant intellectual property would have supplied Mr. Mace with obvious and compelling reasons to dismiss Mr. Flageul.
Fifthly, the cross-examination of Messrs. Mace, Taylor, Barker and Russell did not, with very great respect, cause the court to change its impression of the evidence they all gave. Strikingly, it was never put to Mr.Mace that the reason for Mr.Flageul’s dismissal was one of the complaints or inquiries as alleged, or all of them in aggregate.
Sixthly, the court is not persuaded that the failure to plead a reason for Mr. Flageul’s dismissal in the defence filed by the respondents results, in combination with an application of s.361 of the F.W. Act, in any necessary rejection of Mr. Mace’s evidence or to the inexorable failure of the respondents’ case.
Seventhly, the court does not think that the contention, which had never been pleaded, that Mr. Flageul was in a “quasi-partnership” with Mr. Mace and Taylor makes any difference to the outcome here. Whatever that term might mean, it does not bear upon my acceptance of Mr. Mace’s evidence.
Finally, it follows that the respondents have demonstrated that none of the reasons for Mr. Flageul’s dismissal included the making by him of alleged complaint/inquiry. If it matters, the court is also satisfied that the respondents have shown that the reasons for Mr. Flageul’s dismissal did not include, whether individually or in aggregate, the making of any of the other alleged complaints/inquiries relied upon by Mr. Flageul.
Conclusion: The court rejects Mr. Flageul’s claims. The proceeding is hereby dismissed.
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