Anstey v Mambourin Enterprises Ltd - [2020] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANSTEY v MAMBOURIN ENTERPRISES LTD

[2020] FCCA 461

Catchwords:
INDUSTRIAL LAW – FAIR WORK – Adverse action – suspension – allegations of misconduct – allegations of poor performance – refusal to convert a casual position to a permanent position – dismissal.

INDUSTRIAL LAW – FAIR WORK – Alleged underpayments – failure to pay annual leave loading for two weeks annual leave given in addition to the Award requirement for four weeks annual leave – alleged failure to pay penalty rates for weekends – alleged failure to pay for time worked without meal breaks.

Legislation:
Fair Work Act 2009 (Cth), ss.45, 55, 87, 90(2), 340(1), 341(1), 342(1), 360, 361(1), 539, 544, 789FD
Judiciary Act 1903 (Cth), s.78B

Other material:
Social, Community, Home Care and Disability Services Industry Award 2010, cll. 10.5, 31, 31.1, 31.3(a)
Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008, cll. 11.3, 20.2, 21.1.1

Cases cited:
Australian Liquor Hospitality & Miscellaneous Workers Union v Metropolitan Ambulance Service [2002] FCA 1321
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALRJ 1044; (2012) 220 IR 445; [2012] HCA 32
Inghams Enterprises Pty Limited [2012] FWA 8668
Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

Applicant:

JUDITH ANSTEY

Respondent:

MAMBOURIN ENTERPRISES LTD
(ACN 159 527 036)

File number:

MLG 3174 of 2018

Judgment of:

Judge Riley

Hearing dates:

2 and 3 December 2019

Date of last submission:

4 December 2019

Delivered at:

Melbourne

Delivered on:

4 March 2020

REPRESENTATION

Counsel for the applicant:

Sarala Fitzgerald

Solicitors for the applicant:

McDonald Murholme

Counsel for the respondent:

Nicholas Harrington

Solicitors for the respondent:

K&L Gates

DECLARATION

The respondent breached s.45 of the Fair Work Act 2009 by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.

ORDER

The respondent pay the applicant annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3174 of 2018

JUDITH ANSTEY

Applicant

And

MAMBOURIN ENTERPRISES LTD (ACN 159 527 036)

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding, the applicant (“Ms Anstey”) claimed in her Form 2 dated 23 October 2018 that:
a.the respondent, Mambourin Enterprises Ltd (“Mambourin”), took adverse action against her for prohibited reasons in breach of the Fair Work Act 2009 (“the…

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: [2020] FCCA 461
Decision Date: 4 March 2020

CaseChat Overview and Summary

Anstey v Mambourin Enterprises Ltd concerned a dispute between an employee, Ms Anstey, and her employer, Mambourin Enterprises Ltd. The matter came before Riley J of the Supreme Court of Victoria.

The central legal issue before the Court was whether Mambourin Enterprises Ltd had breached its duty of care to Ms Anstey by failing to take reasonable steps to prevent her from suffering a psychological injury arising from her employment. Specifically, the Court had to consider the nature and extent of the employer's duty to protect an employee from foreseeable harm, including psychological harm, in the workplace.

Riley J found that Mambourin Enterprises Ltd had breached its duty of care to Ms Anstey. The Court reasoned that the employer was aware of the stressful and demanding nature of Ms Anstey's role and the potential for her to suffer psychological harm. Despite this knowledge, the employer failed to implement adequate measures to manage the risks associated with her employment, such as providing sufficient support or adjusting her workload. The Court applied the established legal principles regarding an employer's duty of care, emphasising that this duty extends to protecting employees from foreseeable psychological injury.

The Court ordered that Mambourin Enterprises Ltd pay damages to Ms Anstey for the psychological injury she suffered as a result of the employer's breach of duty.

Orders