Barhoum v All Districts Coating Pty Ltd & Ors - [2008] FMCA 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARHOUM v ALL DISTRICTS COATING PTY LTD & ANOR

[2008] FMCA 172

INDUSTRIAL LAW – Unlawful termination – whether proscribed reason – whether employee’s work related injury was the reason, or part of the reason, for the termination – whether employer was first, second or third respondent – respondents claimed employment was terminated because company ceased its operations and “closed down” – applicant was singled out and treated differently to all other employees – other employees’ employment “continued” – piercing the corporate veil – companies used interchangeably – penalty imposed at the high end of the scale.

Workplace Relations Act 1996 ss.580, 659, 663, 664, 665, 841
Workplace Relations Regulations 2006 reg.2.12.8

Jones v Dunkel (1959) 101 CLR 298
Andrew James Fox v St Barbara Mines Ltd [1998] FCA 621 (4 June 1998)
McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302 (4 October 2006)
Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231
Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349
Schanka v Employment National (Administration) Pty Limited [2001] FCA 1623
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 7

Applicant:

EAD BARHOUM

First Respondent:

ALL DISTRICTS COATING PTY LTD

Second Respondent:

ALL DISTRICTS COATING (AUST) PTY LTD

Third Respondent:

CARLOS HABIBEH

Fourth Respondent:

RITA HABIBEH

File Number:

SYG 1589 of 2007

Judgment of:

Nicholls FM

Hearing dates:

9 February, 8 March, 25 May 2007

Date of Last Submission:

17 July 2007

Delivered at:

Sydney

Delivered on:

22 February 2008

REPRESENTATION

Appearing for the Applicant:

Ms L Charlson

Appearing for the Respondents:

Mr A Sandroussi

ORDERS

The first respondent and/or second respondent and/or third respondent, having breached the requirements of s.659(2)(a) of the Act, pay a penalty of $7,000.
The payment of such penalty be made to the NSW Branch of the Construction Forestry Mining and Energy Union within twenty-eight (28) days of the making of this order.
Within fourteen (14) days of the making of these orders, each of the parties file and serve written submissions and/or evidence by way of affidavit in relation to the reinstatement to employment of the applicant, and the amount of compensation to be paid to the applicant.
Each of the parties file and serve written submissions within fourteen (14) days of the making of these orders on the issue of costs in these proceedings to the date of this judgement.
Leave is granted to the parties on three (3) days notice to seek further directions in relation to the matters arising from Orders 3 and 4.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1589 of 2007

EAD BARHOUM

Applicant

And

ALL DISTRICTS COATING PTY LTD

First Respondent

ALL DISTRICTS COATING (AUST) PTY LTD

Second Respondent

CARLOS HABIBEH

Third Respondent

RITA HABIBEH

Fourth Respondent

REASONS…

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: [2008] FMCA 172
Decision Date: 22 February 2008

CaseChat Overview and Summary

Barhoum v All Districts Coating Pty Ltd & Ors was a case heard by the NSW District Court, where the applicant, Barhoum, sought relief for unfair dismissal and associated penalties against the respondents, All Districts Coating Pty Ltd and others. The primary dispute centred on the respondent's alleged failure to comply with statutory obligations under the Act, specifically section 659(2)(a), which relates to the unfair dismissal of employees. Barhoum claimed that his dismissal was unjust and without proper cause or procedure.

The court was tasked with determining whether the respondents had breached the statutory provisions and, if so, the appropriate remedies. This included assessing the validity of the dismissal, the procedural fairness of the process, and the applicability of penalties under the Act. The court had to consider the evidence presented regarding the circumstances of Barhoum's employment and termination, as well as the respondents' justifications for their actions.

In its judgment, the court found that the respondents had indeed breached the statutory requirements, leading to the imposition of a penalty of $7,000. This penalty was to be paid to the NSW Branch of the Construction Forestry Mining and Energy Union within 28 days. The court also directed that written submissions and evidence be provided regarding Barhoum's reinstatement and compensation, and on the issue of costs. Additionally, the court granted leave to seek further directions concerning these matters, providing flexibility for the parties to address ongoing issues. The outcome underscored the importance of adhering to statutory obligations in employment terminations and the court's role in enforcing these laws.

Orders

Orders of the court

The first respondent and/or second respondent and/or third respondent, having breached the requirements of s.659(2)(a) of the Act, pay a penalty of $7,000.

The payment of such penalty be made to the NSW Branch of the Construction Forestry Mining and Energy Union within twenty-eight (28) days of the making of this order.

Within fourteen (14) days of the making of these orders, each of the parties file and serve written submissions and/or evidence by way of affidavit in relation to the reinstatement to employment of the applicant, and the amount of compensation to be paid to the applicant.

Each of the parties file and serve written submissions within fourteen (14) days of the making of these orders on the issue of costs in these proceedings to the date of this judgement.

Leave is granted to the parties on three (3) days notice to seek further directions in relation to the matters arising from Orders 3 and 4.

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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