Anderson v BNP Paribas Securities Services - [2015] FCCA 2231

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDERSON v BNP PARIBAS SECURITIES SERVICES

[2015] FCCA 2231

Catchwords:
INDUSTRIAL LAW – Dismissal from employment – whether the dismissal was for a prohibited reason considered.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 346, 351, 360, 361

Begley v Austin Health [2013] FMCA 68
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445
CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267
General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605
Hodkinson v Commonwealth (2011) 207 IR 129
Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770
Vink v LED Technologies Pty Ltd [2013] FCA 443
Wolfe v Australia & New Zealand Banking Group Limited [2013] FMCA 65

Applicant:

RYAN ANDERSON

Respondent:

BNP PARIBAS SECURITIES SERVICES

File Number:

SYG 1713 of 2014

Judgment of:

Judge Driver

Hearing dates:

17-19 August 2015

Delivered at:

Sydney

Delivered on:

13 October 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr T Saunders

Solicitors for the Respondent:

Shanahan Tudhope Lawyers

ORDERS

The Court declares that the respondent contravened s.340 of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant within the meaning of s.342 of the Fair Work Act because the applicant had exercised a workplace right to make a complaint in relation to his employment within the meaning of s.341 of the Fair Work Act.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1713 of 2014

RYAN ANDERSON

Applicant

And

BNP PARIBAS SECURITIES SERVICES

Respondent

REASONS FOR JUDGMENT

Introduction and background

On 6 January 2014, the applicant (Mr Anderson) was employed by the respondent (BNP) in the position of Client Government Analyst. It was an express term of his contract of employment that he would be employed subject to a three month probationary period, during which period either party could terminate the contract on one week’s notice or by a payment in lieu of notice[1].
[1] Affidavit of Gary Munro made on 17 February 2015 at Exhibit GM-1, tab 1, page 1
On 26 March 2014, about 10 days prior to the end of the three month probationary period, BNP purported to exercise its contractual right to terminate Mr Anderson’s employment on the basis of his performance during the probationary period. He was paid one week’s wages in lieu of notice, in accordance with the terms of his contract.
Mr Anderson had been confronted by his supervisor on 19 March 2014 about his absence from his desk. Mr Anderson contacted BNP Human Resources (HR) staff to express concern about that confrontation. The following day Mr Anderson participated in a probation appraisal interview with his supervisor. The supervisor criticised Mr Anderson’s performance but offered him an extension of his probation. On 25 March 2014 Mr Anderson met with…

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.

Keep reading for free

Create a free CaseChat account to read Anderson v BNP Paribas Securities Services and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 2231
Decision Date: 13 October 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Driver considered a dispute between Mr. Anderson, the applicant, and BNP Paribas Securities Services, the respondent. Mr. Anderson sought to bring proceedings against BNP Paribas concerning alleged contraventions of the *Australian Securities and Investments Commission Act 2001* (Cth) and the *Corporations Act 2001* (Cth). The core of the dispute involved allegations of misleading or deceptive conduct and breaches of directors' duties in relation to certain financial products.

The primary legal issue before the Court was whether Mr. Anderson had standing to bring the proceedings. Specifically, the Court had to determine if Mr. Anderson qualified as a "person aggrieved" under section 1317J of the *Corporations Act 2001* (Cth) or if he met the criteria for bringing a representative action under the *Australian Securities and Investments Commission Act 2001* (Cth). This involved an examination of the nature of Mr. Anderson's alleged loss and his connection to the conduct of BNP Paribas.

Justice Driver reasoned that for Mr. Anderson to be considered a "person aggrieved," he needed to demonstrate a direct and substantial interest in the subject matter of the proceedings, beyond that of the general public. The Court analysed the case law concerning standing and the interpretation of "person aggrieved," finding that Mr. Anderson had not established the requisite level of personal detriment or impact arising from the alleged contraventions. His Honour concluded that Mr. Anderson's interest was too remote and not sufficiently particularised to grant him standing to bring the action.

Consequently, Justice Driver ordered that the application be dismissed for want of standing.

Orders