Cai v Tiy Loy & Co Ltd [2015] FCCA 715 and Cai v Tiy Loy & Co Ltd (No. 3) [2016] FCCA 675

The principal solicitor of Lincoln Legal, Andrew Wong, and an accomplished barrister, represented Mr Cai in an employment dispute against his former employer Tiy Loy & Co Ltd (Tiy Loy). In 2016, the court ordered Tiy Loy to pay Mr Cai, the sum of $415,698.55. The efficacious result obtained in this case demonstrated the importance of having a formidable team to fight on your behalf in any disputes and litigations. The parties can almost be compared to ‘David and Goliath’ as Mr Cai was employed as a simple tea attendant at a large company.


Mr Cai commenced his employment with Tiy Loy in 1994 and on the evening of 7 January 2012 he suffered an injury at work. As a result of his injury sustained at work, Tiy Loy submitted a worker’s compensation claim for Mr Cai and later decided to unilaterally alter his employment.


The key issues of this case revolved around the following three questions:

  1. Which Award covered Mr Cai’s employment?
  2. Did Tiy Loy terminate Mr Cai’s employment?
  3. Did Tiy Loy terminate Mr Cai’s employment because he exercised his entitlement to benefits under the law?

Key Findings by the Judge

  • That Mr Cai worked 90 hours a week and that his employment required him to prepare meals, prepare tea, undertook general cleaning duties, allowing members to enter the premises after hours and miscellaneous errands as requested.
  • That the injury Mr Cai suffered happened at work on 7 January 2012 while he was transporting the company’s wheelie bin.
  • On 18 June 2012, the board of directors of Tiy Loy conducted a meeting and unilaterally decided to have Mr Cai’s role to be performed by two persons.
  • That Tiy Loy decided to alter Mr Cai’s employment because it believed it would help save Tiy Loy’s costs due to a downturn in revenue. It was believed that hiring two people on a part-time basis would cost less than having Mr Cai do the work on his own.
  • The Judge inferred that Tiy Loy had always known of such cost-saving measures by splitting Mr Cai’s position, but because Tiy Loy did not implement such measures between 2009 and 2011 where Tiy Loy made large losses, the Judge found that Tiy Loy would not have implemented the cost-saving measures in 2012.

The Judge declared that Tiy Loy had contravened s 340 of the Fair Work Act 2009 by deciding to change Mr Cai’s position. As a result of such contravention, Mr Cai suffered a significant loss of not earning the wage that he would have earned as a full-time employee.


In 2016, the court ordered Tiy Loy to pay Mr Cai $415,698.55 and a further sum of $49,500.00 as pecuniary penalties.

The decision from this case has definitely left its mark within the realm of employment law with many other court cases making references to its decision and reasoning, such as:

  • Fair Work Ombudsman v Ozkorea Pty Ltd [2018]
  • Lukies v S2 Consulting Pty Ltd [2018]
  • Carr v Empirical Works Pty Ltd [2017]
  • Gallagher v BHP Billiton Nickel West Pty Ltd [2016]

For Employees

Many Employees do not understand or are aware of their rights in the workplace. At times, it is even more difficult for Employees to deal with issues arising out of their employment with their Employers.

If you have any questions or concerns arising from your workplace such as your pay, entitlements, circumstances surrounding your dismissal or changes in your work arrangements, the team at Lincoln Legal can assist you by looking at your circumstances and answering those questions for you to help you achieve a fair outcome.

For Employers

Employers will need to be aware of their obligations under the Fair Work Act and any applicable Awards.

This case serves as a reminder that the court will impose heavy penalties on employers who contravenes employment requirements and legislation.

If you have any uncertainty as to whether your business is fulfilling their obligations, you should obtain legal advice to assess your current situation and be provided with solutions to any possible issues.

Disclaimer: The information above is intended to be general information only and it should not be relied upon it as legal advice. If you seek professional advice please feel free to contact the team at Lincoln Legal or make an enquiry.