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Bahonko v Moorfields Community

Bahonko v Moorfields Community

Case [2005] FCA 46 4 February 2005

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FEDERAL COURT OF AUSTRALIA
Bahonko v Moorfields Community [2005] FCA 46
INDUSTRIAL RELATIONS – whether terminations of employment were for a proscribed reason – whether respondents established that the terminations were not for a proscribed reason
Workplace Relations Act 1996 (Cth) ss 170CK(2), 170CQ
Workplace Relations Regulations 1996 (Cth) reg 30C
Evidence Act 1958 (Vic) ss 14, 21A(1), 30
Nurses Act 1993 (Vic) s 51
Cabassi v Vila (1940) 64 CLR 130 referred to
Jamieson v The Queen (1993) 177 CLR 574 referred to
Jennings v Salvation Army (2003) 128 IR 366 referred to
Laz v Downer Group Ltd (2000) 108 IR 244 applied
Zhang v The Royal Australian Chemical Institute Inc. [2004] FCA 1392 referred to
STANISLAWA BAHONKO v MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA)) and BODALLA AGED CARE SERVICES
V 861 of 2004
MERKEL J
4 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 861 OF 2004

BETWEEN:

STANISLAWA BAHONKO
APPLICANT

AND:

MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA))
FIRST RESPONDENT

BODALLA AGED CARE SERVICES
SECOND RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

4 FEBRUARY 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS:
1.The title to the proceeding be amended so that the first respondent’s name is “Moorfields Community (an agency of the Uniting Church in Australia Property Trust (Victoria))”.
2.The application dated 8 July 2004 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 861 OF 2004

BETWEEN:

STANISLAWA BAHONKO
APPLICANT

AND:

MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA))
FIRST RESPONDENT

BODALLA AGED CARE SERVICES
SECOND RESPONDENT

JUDGE:

MERKEL J

DATE:

4 FEBRUARY 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
Background

The applicant was employed as a registered nurse by the first respondent (“Moorfields”) from 21 February 2003 to 10 May 2004, and by the second respondent (“Bodalla”) from 18 August 2003 to 24 May 2004. The applicant’s employment was terminated by Moorfields on 10 May 2004 on the ground of misconduct, and by Bodalla on 24 May 2004 on the ground that the applicant had abandoned her employment.
Workplace Relations Act 1996 (Cth) (“the Act”)
The applicant claimed that the each of the terminations of her employment was unlawful. She applied to the Industrial Relations Commission (“IRC”) pursuant to s 170CE(1) of the Act for relief in respect of the terminations of her employment. Section 170CE(1) relevantly provides that:
“(1) …an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a)on the ground that the termination was harsh, unjust or unreasonable; or
(b)on the ground of an alleged contravention of section 170CK...”
The applicant claimed that each termination was harsh, unjust or unreasonable pursuant to s 170CE(1)(a), and involved contraventions of s 170CK(2) of 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.

Continue reading Bahonko v Moorfields Community

Details

AGLC: Bahonko v Moorfields Community [2005] FCA 46
Case: [2005] FCA 46
Decision Date: 4 FEBRUARY 2005

CaseChat Overview and Summary

In the matter of Bahonko v Moorfields Community, the applicant sought to challenge the termination of her employment by the respondents. The legal dispute was centred on the applicant's claim that her termination was harsh, unjust, or unreasonable, as well as other allegations of unlawful conduct. The case was heard and determined by the Fair Work Commission, which holds jurisdiction over employment matters in Australia under the Fair Work Act 2009 (Cth).

The central legal issues that the Commission had to decide were whether the applicant's terminations of employment were harsh, unjust, or unreasonable, and whether the respondents had valid reasons for terminating her employment. The Commission also had to determine if the applicant had properly followed the procedural requirements under the Fair Work Act for such claims. The Commission found that the applicant had not adequately articulated her other claims, and furthermore, found no evidence to support her allegations of unlawful conduct.

The Commission reasoned that the applicant had chosen to pursue her claims under section 170CK(2) of the Act, instead of following the arbitration process mandated by section 170CFA(3)(c). The Commission concluded that the applicant's claims under section 170CK(2) must fail because each respondent had successfully demonstrated that the terminations were for reasons that did not include any of the specified grounds in section 170CK(2). As a result, the applicant's application for an order under section 170CR of the Act was dismissed. The Commission further ruled that there was no basis for any of the other claims made by the applicant, leading to the dismissal of the entire application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MERKEL J

The other claims of the applicant were not properly or adequately articulated. However, I am not satisfied that any of her other allegations of unlawful conduct on the part of either respondent have been established.Conclusion The applicant may, or may not, have had some basis for claiming that the terminations of her employment by the respondents were harsh, unjust or unreasonable. However, she elected to pursue her claims by reference to s 170CK(2) of the Act, rather than proceeding to arbitration before the IRC as provided for in s 170CFA(3)(c). I have concluded that the applicant’s claims under s 170CK(2) of the Act must fail as each respondent has discharged the onus imposed by s 170CQ and has established that their respective terminations of the applicant’s employment were for a reason or reasons that do not include a reason set out in s 170CK(2). Accordingly, the applicant’s application for an order under s 170CR of the Act in relation to the respondents must be dismissed. I am also satisfied that there is no proper basis for any of the other claims made by the applicant in her application. As a result the applicant’s application is to be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

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Citations

AGLC Citation

Bahonko v Moorfields Community [2005] FCA 46

Most Recent Citation

Sallehpour v Frontier Software Pty Ltd [2005] FCA 247

Cases citing this decision · 6 of 6 shown

2118601 (Refugee)
[2025] ARTA 1682 Para 1

…Immigration & Multicultural & Indigenous Affairs [2005] FCA 46 [27] (French J); SZDGC v Minister for Immigration [2008] FCA 1638,[23] (Finkelstein J); Kaur v Minister for Immigration and Border Protection [2014] FCA 1046, [43] (Mansfield J). REASONS AND FINDINGS The principal issue in this case is whether the a…
Rogers v Millennium Inorganic Chemicals Ltd & Anor
[2009] FMCA 1 Para 4

…eans that there is no issue before the Court as to whether his termination was harsh, unjust or unreasonable.[7] [7] Bahonko v Moorfields Community [2005] FCA 46 at para.57 per Merkel J; Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457 at 458 and 462 per Marshall J; [2005] FCA 247 at paras.4 and 38 per M…
Dowling v John Fairfax Publications Pty Ltd
[2007] FMCA 2104 Para 8

…Fairfax submitted that Bahonko v Moorfields Community [2005] FCA 46 demonstrates that complaints to WorkCover are not relevant for the purposes of s.793(1)(j). However, Merkel J’s comments there were obiter and, in any event, appear to follow Jennings v Salvation Army (2003) 128 IR 366, the facts of which are qu…
SZJZV v Minister for Immigration
[2007] FMCA 2013 Para 19

…ward by the applicant as it thinks appropriate in all the circumstances ( Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 46 at [27]). The Tribunal’s conclusion that the applicant’s oral evidence in relation to the relationship with a Hindu girl in 2000 was not credible or plau…
SZJSA v Minister for Immigration
[2007] FMCA 1891 Para 9

…evidence proffered as it thinks appropriate in all the circumstances” ( Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 46 at [27]). The Tribunal’s conclusion that there were discrepancies in the applicant’s claims, that the applicant was evasive and his evidence lacked detail…
Sallehpour v Frontier Software Pty Ltd
[2005] FCA 247 Para 4

…circumstances. However, that is not an issue which is before the Court on the current application. See, for example, Bahonko v Moorfields Community [2005] FCA 46 at [57] per Merkel J. Factual context…

View all 6 citing cases →

Cases cited in this decision · 7 of 7 shown

Zhang v The Royal Australian Chemical Institute Inc.
[2004] FCA 1392 Para 6

…ng more than making a claim for compensation under a no-fault compensation scheme.” See also Zhang v The Royal Australian Chemical Institute Inc. [2004] FCA 1392 per Finkelstein J at [15]. In any event I am satisfied that the applicant’s WorkCover claims were not a reason for the termination of the applicant’s emp…
Jennings v Salvation Army
[2003] FCA 1193 Para 6

…Claims made to WorkCover are not relevant for the purposes of s 170CK(2)(e). In Jennings v Salvation Army (2003) 128 IR 366 Marshall J stated at [35] that: “the making of a claim under the Accident Compensation Act does not fit within para (e). Such a claim is not the filing of a complaint against an employer involving alleged vio…
Laz v Downer Group Ltd
[2000] FCA 1390 Para 9

…e onus lies on the respondents to prove that the applicant’s terminations were not for a reason or reasons set out in s 170CK(2). In that regard in Laz v Downer Group Ltd (2000) 108 IR 244 at [26] Moore J stated: “In my opinion an applicant alleging termination in contravention of s 170CK(2) will succeed in the application unle…
Davids Distribution Pty Ltd v National Union of Workers
[1999] FCA 1108 Para 9

…reason to stand as sufficient proof of the fact unless the employer proves otherwise: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 91 IR 198 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. The success of the application does not depend on the…
Jamieson v The Queen
[1993] HCA 48 Para 25

…ords spoken in office” and has been approved by the High Court of Australia (see Cabassi v Vila (1940) 64 CLR 130 at 140 and Jamieson v The Queen (1993) 177 CLR 574).…
R v Hush; Ex parte Devanny
[1932] HCA 64 Para 9

…vids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 91 IR 198 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. The success of the application does not depend on the Court being satisfied, other than by reference to the allegation of the applicant, that the…
Cabassi v Vila
[1940] HCA 41 Para 25

…can be put to answer, civilly or criminally, for words spoken in office” and has been approved by the High Court of Australia (see Cabassi v Vila (1940) 64 CLR 130 at 140 and Jamieson v The Queen (1993) 177 CLR 574).…

Legislation cited in this decision · 7

Evidence Act 1958 (Vic)
14, 21A(1), 30 4 mentions (from Para 23)
Workplace Relations Act 1996 (Cth)
170CK(2), 170CQ 3 mentions (from Para 1)
Workplace Relations Regulations 1996 (Cth)
30C 3 mentions (from Para 4)
Nurses Act 1993 (Vic)
51 2 mentions (from Para 23)
Crimes Act 1958 (Vic)
1 mention (from Para 10)
Occupational Health and Safety Act 1985 (Vic)
1 mention (from Para 10)
Summary Offences Act 1966 (Vic)
1 mention (from Para 10)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 861 OF 2004

BETWEEN:	STANISLAWA BAHONKO APPLICANT
AND:	MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA)) FIRST RESPONDENT BODALLA AGED CARE SERVICES SECOND RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	4 FEBRUARY 2005
WHERE MADE:	MELBOURNE

JUDGE:	MERKEL J
DATE:	4 FEBRUARY 2005
PLACE:	MELBOURNE