Allen v Allergan Australia Pty Ltd - [2019] FCCA 871

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLEN v ALLERGAN AUSTRALIA PTY LTD

[2019] FCCA 871

Catchwords:
INDUSTRIAL LAW – General protections – whether applicant’s employment terminated because the applicant exercised workplace right – applicant terminated for a reason other than because he exercised a workplace right – application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 341(1)(c)(ii), 342(1), 360, 361(1), 739

Cases cited:

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Briginshaw v Briginshaw [1938] HCA 34
Childs v Metropolitan Transport Trust (1981) 29 AILR 24
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Jones v Dunkel (1959) 101 CLR 298
Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271

Applicant:

KEVIN ALLEN

Respondent:

ALLERGAN AUSTRALIA PTY LTD
(ACN 000 612 831)

File Number:

SYG 278 of 2018

Judgment of:

Judge Manousaridis

Hearing dates:

3 September 2018 and 10 September 2018

Date of Last Submission:

10 September 2018

Delivered at:

Sydney

Delivered on:

5 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms A Power

Solicitors for the Applicant:

Lorne Havenstein Lawyers

Counsel for the Respondent:

Mr D Mahendra

Solicitors for the Respondent:

ORDERS

The application is dismissed.
The parties have liberty to apply within fourteen days in relation to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 278 of 2018

KEVIN ALLEN

Applicant

And

ALLERGAN AUSTRALIA PTY LTD (ACN 000 612 831)

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding the applicant, Mr Allen, claims the respondent (Allergan) contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him from his employment on 3 November 2017 because on 6 September 2017 Mr Allen made a complaint in relation to his employment. The complaint related to what Mr Allen claims was bullying and intimidation by his immediate manager, Mr Krishna Sai, in a telephone conversation on 5 September 2017.
Allergan accepts that on 6 September 2017 Mr Allen complained to Mr Muhle, who was employed by Allergan as Vice President and Managing Director of Australia and New Zealand, that Mr Allen had been bullied and harassed by Mr Sai and, for that reason, Mr Allen exercised a “workplace right” within the meaning of s.341(1)(c)(ii) of the FW Act. Allergan also accepts that on 3 November 2017 it summarily dismissed Mr Allen from his employment. Allergan denies, however, that it dismissed Mr Allen because he had made a complaint about Mr Sai. Allergan claims it dismissed Mr Allen because in the course of events that…

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: [2019] FCCA 871
Decision Date: 5 April 2019

CaseChat Overview and Summary

In *Allen v Allergan Australia Pty Ltd*, the applicant, Mr Allen, brought proceedings in the Federal Court of Australia against his former employer, Allergan Australia Pty Ltd, alleging that his employment had been terminated in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). Specifically, Mr Allen contended that the reason for his dismissal was that he had exercised a workplace right.

The central legal issue before the Court was whether the termination of Mr Allen's employment was substantially the reason for his dismissal, or whether it was for a reason other than the exercise of a workplace right. The Court was required to determine the true reason for the employer's decision to terminate the employment relationship.

His Honour Judge Manousaridis found that the evidence did not establish that the applicant's exercise of a workplace right was the substantial reason for his dismissal. Instead, the Court was satisfied that the employer had demonstrated that the termination was for a valid reason, unrelated to Mr Allen's exercise of any workplace right. Consequently, the application was dismissed.

Orders