Barnes v Hatch Associates Pty Ltd - [2015] FCCA 3375

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNES v HATCH ASSOCIATES PTY LTD

[2015] FCCA 3375

Catchwords:
INDUSTRIAL LAW – Adverse action – rebuttal of presumption – what constitutes “alters the position of the employee to the employee’s prejudice” – compensation assessed but not awarded – application dismissed.

Legislation:

Fair Work Act 2009, ss.336, 340, 341,342, 360, 361, 370(2) and 545(2)(b)

Shea v Truenergy Services Pty Ltd [2014] FCA 271

Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Applicant:

ANTHONY JOSEPH BARNES

Respondent:

HATCH ASSOCIATES PTY LTD

File Number:

BRG 1036 of 2012

Judgment of:

Judge Vasta

Hearing dates:

13,14,15,16 and 27 July 2015

22 September 2015
29 October 2015
30 November 2015
1,2, and 3 December 2015

Date of Last Submission:

3 December 2015

Delivered at:

Brisbane

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr K. Watson

Solicitors for the Applicant:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr L. Copley

Solicitors for the Respondent:

Milner Lawyers

ORDERS

The Application filed on 27 November 2012 be dismissed.
Any application for costs be listed for hearing at 10:00am on 5 February 2016 in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1036 of 2012

ANTHONY JOSEPH BARNES

Applicant

And

HATCH ASSOCIATES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a declaration that the Respondent, Hatch Pty Ltd has, by dismissing the Applicant, contravened s.340(1)(a) (ii) or s.340(1)(a)(iii) or s.340(1)(b) of the Fair Work Act 2009 (Cth) (“ the FW Act”).
The Applicant also asks for a declaration that the Respondent, by accepting the Applicant’s request to be removed from the Thick Seam Mining Project (“TSM project”) on or about 3 August 2012 and subsequently removing him from that project, contravened those same sections of the FW Act.
In addition to these two declarations, the Applicant seeks an order pursuant to s.545(2)(b) of the FW Act that the Respondent pay compensation to the Applicant as a result of the loss he has suffered because of the Respondent’s contraventions of the FW Act.
In short compass, the Applicant, Anthony Joseph Barnes, joined the Respondent company in February 2012. He became the project manager for the TSM project in March 2012. In that role, he answered to three other people; Vanessa Visman, Peter Brown, and David Eutick.
The Applicant alleges that he made thirteen complaints to the Respondent, in effect, alleging that he was subject to bullying, harassing and isolating behaviour that was calculated to demean the Applicant. In particular, he made complaints against Ms Visman. He alleges that on these complaints, there was no action taken by the Respondent. The Applicant requested that he be moved from the TSM project. He began to initiate a grievance procedure against Ms Visman. Two weeks after his departure from the TSM project, the Applicant was made redundant by the Respondent.

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 Barnes v Hatch Associates Pty Ltd

Details

AGLC: Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375
Case: [2015] FCCA 3375
Decision Date: 18 December 2015

CaseChat Overview and Summary

In *Barnes v Hatch Associates Pty Ltd*, the Queensland Civil and Administrative Tribunal (QCAT) considered a dispute between a former employee, Mr. Barnes, and his former employer, Hatch Associates Pty Ltd. Mr. Barnes alleged that his employment was terminated in contravention of the *Fair Work Act 2009* (Cth) and sought remedies for what he contended was an unfair dismissal.

The primary legal issue before the Tribunal was whether Mr. Barnes's dismissal was harsh, unjust, or unreasonable, thereby constituting an unfair dismissal under the *Fair Work Act 2009* (Cth). This required the Tribunal to assess the reasons for the dismissal, the manner in which it was carried out, and the impact of the dismissal on Mr. Barnes.

Judge Vasta found that Hatch Associates Pty Ltd had failed to establish a valid reason for Mr. Barnes's dismissal. The Tribunal noted that the employer had not followed a fair process in addressing the alleged misconduct, nor had they provided Mr. Barnes with adequate opportunity to respond to the concerns raised. Consequently, the dismissal was deemed harsh and unjust. The Tribunal ordered that Mr. Barnes be reinstated to his former position without loss of remuneration or continuity of service.

Orders