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AWU v Dee Vee

AWU v Dee Vee

Case [2012] FCA 988 3 September 2012

Unconscionable Conduct

Reinstatement

Interim Injunction

Adverse Action

Fair Work Act 2009 (Cth)

Employment & Labour Law

Type to search within this case.

FEDERAL COURT OF AUSTRALIA
Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988

Citation: Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988

Parties: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and WILLIAM JOHN DAMEN v DEE VEE PTY LTD (ACN 152 688 983)

File number: VID 607 of 2012

Judge: TRACEY J

Date of judgment: 3 September 2012

Date publication of reasons: 12 September 2012

Catchwords:
INDUSTRIAL LAW – allegation that termination constituted adverse action in contravention of the Fair Work Act 2009 (Cth)

PRACTICE AND PROCEDURE – application for interim injunction pending hearing – principles relevant to grant of interim injunction – whether serious issue to be tried – whether balance of convenience favours the granting of interim injunction – interim injunction granted

Legislation: Fair Work Act 2009 (Cth) ss 340, 346, 360, 545

Cases cited:
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 applied
ABC v O’Neill (2006) 227 CLR 57 referred to

Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 cited
Quinn v Overland (2010) 199 IR 40 cited

Date of hearing: 3 September 2012

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 31

Counsel for the First and Second Applicants: Mr M Harding

Solicitor for the First and Second Applicants: Maurice Blackburn

Counsel for the Respondent: Mr R Millar

Solicitor for the Respondent: K R Legal

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 607 of 2012

BETWEEN:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Applicant

WILLIAM JOHN DAMEN
Second Applicant

AND:
DEE VEE PTY LTD (ACN 152 688 983)
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

3 SEPTEMBER 2012

WHERE MADE:

MELBOURNE

UPON THE FIRST APPLICANT BY ITS COUNSEL UNDERTAKING to:
a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any communication (with or without variation) thereof;
b)pay the compensation referred to in (a) to the person there referred to:

THE COURT ORDERS THAT:
1. That until the hearing and determination of the application or further order, the respondent reinstate the second applicant to the position that he held as a parcel delivery driver immediately before 24 August 2012 and to the duties attaching to that position, on the same terms and conditions as those that applied to the position and to those duties prior to the termination of the contract between the second applicant and the respondent; and
2.The respondent, whether by itself, its servants or agents be restrained from dismissing or terminating the second applicant…

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.

Continue reading AWU v Dee Vee

Details

AGLC: AWU v Dee Vee [2012] FCA 988
Case: [2012] FCA 988
Decision Date

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia and William John Damen initiated legal proceedings against Dee Vee Pty Ltd in the Fair Work Division of the Federal Court of Australia, alleging that Mr Damen's termination of employment constituted adverse action under the Fair Work Act 2009 (Cth). Mr Damen, who was engaged by Dee Vee as a parcel delivery driver, claimed that his termination was influenced by his union membership and his assertion of entitlements, including superannuation payments and higher remuneration. The applicants sought interim relief, including reinstatement and an injunction to prevent further dismissal, pending the hearing and determination of their application.

The legal issues before the Court were whether the applicants had established a prima facie case of adverse action and whether the balance of convenience favoured the grant of interim relief. The Court had to determine whether the applicants had demonstrated a sufficient likelihood of success at trial and whether the potential injury to the applicants if relief was denied outweighed the injury to the respondent if relief was granted. The Court also considered the nature of the rights asserted and the practical consequences of the interlocutory order sought.

The Court found that there was a serious question to be tried regarding whether Mr Damen's termination was motivated by prohibited reasons, including his union membership and his assertion of entitlements. The termination letter provided no explanation, and evidence suggested that Mr Damen's involvement with the union and the union's claims about his entitlements may have contributed to Dee Vee's decision. The Court noted that even if part of the reason for termination was Mr Damen's alleged negligence, this did not preclude a finding of adverse action under the Act. The Court also found that the balance of convenience favoured granting interim relief due to Mr Damen's age, physical limitations, and dependence on his employment for livelihood. Dee Vee did not demonstrate significant inconvenience if required to continue employing Mr Damen pending trial.

The Court granted the applicants' request for interim relief, ordering Dee Vee to reinstate Mr Damen to his previous position and duties and to restrain Dee Vee from dismissing or terminating Mr Damen or preventing him from performing his duties. The Court also ordered the applicants to provide an undertaking regarding compensation to protect Dee Vee's position if it were successful at trial.

Orders