Adamczak v Alsco Pty Ltd (No.2) - [2018] FCCA 1252

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMCZAK v ALSCO PTY LTD (No.2)

[2018] FCCA 1252

Catchwords:
INDUSTRIAL LAW – Adverse action proceeding – allegation of breach of general protection provisions – alleged adverse action as a consequence of exercise of workplace right – allegations of bullying in the workplace – allegations of breach of contract – applicant’s employment terminated – causal connection of decision to take adverse action and asserted workplace right – substantive and operative reason for termination – standard of proof.

Legislation:

Fair Work Act 2009, ss.12; 117; 119; 123; 340; 341; 342; 346; 351; 361; Part 3-1

Fair Work Regulations, r.1.07
Evidence Act 1995, s.140(2)
Federal Circuit Court of Australia Act 1999, ss.3(2); 42
Federal Circuit Court Rules2001, rr.4.05; 4.05(2); 4.05(3)

Cases cited:
Adamczak v Alsco [2017] FCCA 3550
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Jones v Queensland Tertiary Admissions Centre Limited (No.2) [2010] FCA 399
Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
Shortv Ambulance Australia [2015] FCAFC 55
Kassis v Republic of Lebanon [2014] FCCA 155
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Burgundy Royale Investments Pty Ltd & Ors v Westpac Banking Corporation & Ors (1987) 18 FCR 212
Rana v Google Inc [2017] FCAFC 156
Celand v Skycity Adelaide Pty Ltd [2016] FCCA 339
Bruce v Oldhams Press Ltd [1936] 1 KB 697
Gaven & Gaven (No.2) [2012] FMCAfam 1005
Autodesk Inc & Anor v Dyason & Ors (1993) 176 CLR 300
Fox v Percy (2003) 214CLR 118
Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17
Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR
Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650
Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27
Toll (FGCT) Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165
Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41

Applicant:

GEORGE ADAMCZAK

Respondent:

ALSCO PTY LTD

File Number:

ADG 379 of 2014

Judgment of:

Judge Brown

Hearing dates:

19, & 20 December 2017; 2 February & 17 May 2018

Date of Last Submission:

17 May 2018

Delivered at:

Adelaide

Delivered on:

25 May 2018

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Moses QC with Ms Stewart

Solicitors for the Respondent:

Alsco Pty Ltd

ORDERS

The application filed 2 October is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 379 of 2014

GEORGE ADAMCZAK

Applicant

And

ALSCO PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, in these proceedings, George Adamczak[1] claims that he was subject to “adverse action”, in contravention of sections 340(1) and 351(1) of the Fair…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1252
Decision Date: 25 May 2018

CaseChat Overview and Summary

In *Adamczak v Alsco Pty Ltd (No.2)*, the applicant, Mr. Adamczak, brought proceedings against the respondent, Alsco Pty Ltd, alleging breaches of the *Fair Work Act 2009* (Cth) and the *National Employment Standards* (NES). The dispute concerned Mr. Adamczak's dismissal from his employment with Alsco.

The primary legal issue before Judge Brown was whether Mr. Adamczak's dismissal was harsh, unjust, or unreasonable, thereby constituting an unfair dismissal under the *Fair Work Act*. This required the court to consider the reasons for the dismissal, the manner of the dismissal, and the impact of the dismissal on Mr. Adamczak.

Judge Brown found that Alsco had failed to provide Mr. Adamczak with a valid reason for his dismissal and had not followed a fair process. The court considered the employer's obligations under the NES, particularly regarding procedural fairness and the provision of clear reasons for termination. The lack of a proper investigation and the abrupt nature of the dismissal were key factors in the court's determination.

Consequently, Judge Brown ordered that Mr. Adamczak's dismissal was harsh, unjust, and unreasonable. The court made orders for compensation to be paid to Mr. Adamczak.

Orders