Badman v Grasshoppers Early Learning Centres Pty Ltd - [2009] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BADMAN v GRASSHOPPERS EARLY LEARNING CENTRES PTY LTD

[2009] FMCA 32

INDUSTRIAL LAW – Alleged unlawful termination of employment – matters to be proved by employee – whether applicant employee has proved that her temporary absence was within the meaning of the Regulations.

INDUSTRIAL LAW – Alleged unlawful termination of employment – onus on employer to prove that termination was not for a reason that includes a proscribed reason – whether reason for termination need be a valid reason – onus satisfied.

Workplace Relations Act 1996, ss.240, 659, 663, 664, 665, 666, 809, 824
Workplace Relations Regulations2006, Regulation 12.8
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules, Rule 13.10
Evidence Act1995, s.140

Hayward v Rohd Four Pty Ltd T/as CM Testing Service & Ors [2008] FMCA 1490
Galvin v Renito Pty Ltd [1999] FCA 1005
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546
Rojas v Esselte Australia Pty Limited [2008] FCA 1585
Johns v Gunns Ltd (1995) 60 IR 258
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
Stewart v Nickles [1999] FCA 888
Laz v Downer Group Ltd (2000) 108 IR 244
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
Ninatoca Pty Ltd ATF The Fagence Investment Trust & Anor v Kovari Professional Pty Ltd ATF The Kavar Professional Trust & Ors (No. 2) [2008] FMCA 947
Balding v Ten Talents Pty Ltd [2007] FMCA 145
Duong v Crown Ltd [1999] AIRC 748
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Briginshaw v Briginshaw (1936) 60 CLR 336
Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257
Re Ross; ex parte Crozier [2001] FCA 1665
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143

Applicant:

LOUISE IRENE BADMAN

Respondent:

GRASSHOPPERS EARLY LEARNING CENTRES PTY LTD

File Number:

BRG 743 of 2006

Judgment of:

Wilson FM

Hearing dates:

12, 13, 14 & 16 March 2007

Date of Last Submission:

16 March 2007

Delivered at:

Brisbane

Delivered on:

27 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr Rangiah

Solicitors for the Applicant:

Carne Reidy Herd

Counsel for the Respondent:

Mr Healy

Solicitors for the Respondent:

Macrossans Lawyers

ORDERS

The Application pursuant to s.663 Workplace Relations Act 1996 is dismissed.
The respondent’s application for summary termination of the initiating application is dismissed.
The applicant shall pay the respondent’s costs of and incidental to the proceedings to be taxed, save and except for the costs ordered to be paid by order 4 hereof.
The respondent shall pay the applicant’s taxed costs of and incidental to its application to summarily terminate the initiating application, and shall bear its own costs of and incidental to that application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 743 of 2006

LOUISE IRENE BADMAN

Applicant

And

GRASSHOPPERS EARLY LEARNING CENTRES PTY LTD

Respondent

REASONS FOR JUDGMENT

On 20 July 2006…

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: [2009] FMCA 32
Decision Date: 27 January 2009

CaseChat Overview and Summary

In the Fair Work Commission, Badman brought a claim against Grasshoppers Early Learning Centres Pty Ltd, alleging that she had been unlawfully terminated from her employment. The primary issue before the Commission was whether Badman had successfully demonstrated that her temporary absence from work was protected under the relevant regulations, and consequently, if her termination was unlawful. Another significant matter was determining the onus of proof when it came to the employer justifying the termination was not for a reason that included a proscribed reason. The employer argued that the termination was justified and not related to any protected reason.

The Commission examined the evidence and found that the employer had discharged its burden of proof. It was established that the reason for the termination was not connected to any prohibited reason, even if it was not a valid reason. The Commission determined that the employer had provided sufficient evidence to show that the termination was not for a reason that included a proscribed reason, even if the reason was not a valid one.

Consequently, the Commission dismissed the application for relief under the Workplace Relations Act 1996. The respondent's application for summary termination of the initiating application was also dismissed. The applicant was ordered to pay the respondent’s costs of and incidental to the proceedings, to be taxed, except for the costs ordered to be paid by order 4. The respondent was ordered to pay the applicant’s taxed costs of and incidental to its application to summarily terminate the initiating application, and to bear its own costs of and incidental to that application.

Orders

Orders of the court

The Application pursuant to s.663 Workplace Relations Act 1996 is dismissed.

The respondent’s application for summary termination of the initiating application is dismissed.

The applicant shall pay the respondent’s costs of and incidental to the proceedings to be taxed, save and except for the costs ordered to be paid by order 4 hereof.

The respondent shall pay the applicant’s taxed costs of and incidental to its application to summarily terminate the initiating application, and shall bear its own costs of and incidental to that application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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