Bognar v Merck Sharp & Dohme (Australia) Pty Ltd - [2008] FMCA 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOGNAR v MERCK SHARP & DOHME (AUSTRALIA) PTY LTD

[2008] FMCA 571

INDUSTRIAL LAW – Unlawful termination – temporary absence due to illness or injury – reasons for termination – reasons of decision maker – notice of termination – reasonable notice – whether term implied – application of company policies.

Workplace Relations Act 1996 (Cth) ss.659, 659(2)(a), 664, 665, 666

Jones v Dunkel (1959) 101 CLR 298
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Galvin v Renito Pty Ltd [1999] FCA 1005
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Sperandio v Lynch [2006] FCA 1648
Windross v Transact Communications Pty Ltd [2002] FMCA 145
Australian National Hotels Pty Ltd v Jager [2000] TASSC 43
Elliott v Kodak Australasia Pty Ltd [2001] FCA 807
Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422
McDonald v Parnell Laboratories (Aust) [2007] FCA 1903
Heidt v Chrysler Australia (1976) 26 FLR 257
Emmerson v Housing Industry Association Ltd [1999] FCA 500
Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193
Burazin v Blacktown City Guardian Pty Ltd(1996) 142 ALR 144
Carpenter v Corona Manufacturing (2002) 122 IR 387
Olsen v Wellard Feeds Pty Ltd [2008] FMCA 320
Claveria v Pilkington Australia Ltd [2007] FCA 1692
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 67 IR 162
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120
Finance Sector Union of Australia and Labour Union Insurance Pty Ltd (unreported, AIRC, PR929353, 27 March 2003)
Walker & Sherman v Andrew [2002] NSWCA 214
Western v Union des Assurance de Paris (1999) 88 IR 259
New South Wales Cancer Council v Sarfaty [1992] 28 NSWLR 68
Merrill Lynch (Australia) Pty Ltd v Commissioner of Taxation (2001) 113 FCR 79
Laz v Downer Group Ltd [2000] 108 IR 244

Applicant:

STEPHEN BOGNAR

Respondent:

MERCK SHARP & DOHME (AUSTRALIA) PTY LTD

File Number:

MLG 1485 of 2006

Judgment of:

O’Sullivan FM

Hearing dates:

12 July, 13 July 2007 & 29 February 2008

Date of Last Submission:

20 March 2008

Delivered at:

Melbourne

Delivered on:

16 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr T. Angelopoulos

Solicitors for the Applicant:

Max Legal

Counsel for the Respondent:

Mr R. Dalton

Solicitors for the Respondent:

Freehills

ORDERS

The amended application filed 29 January 2007 be dismissed.
The respondent have 7 days to file and serve any submissions in relation to costs.
The applicant have a further 7 days to file and serve any submissions in reply.

NOTATION

(a)Unless otherwise requested in written submissions the issue of costs will be determined on the papers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1485 of 2006

stephen bognar

Applicant

And

merck sharp & doHme (AUSTRALIA) pty ltd

Respondent

REASONS FOR JUDGMENT

Stephen Bognar (“the applicant”) has worked in the pharmaceutical industry since 1993. The applicant’s employment as a territory manager with Merck Sharp & Dohme (Australia)…

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 571
Decision Date: 16 May 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bognar v Merck Sharp & Dohme (Australia) Pty Ltd was brought before the court. The dispute involved the applicant, Bognar, who sought an amendment to a previous application. The respondent, Merck Sharp & Dohme (Australia) Pty Ltd, opposed the amendment. The legal issues that needed to be resolved were whether the court should permit the amendment to the application and, if so, under what conditions.

The court examined the nature of the amendment sought and considered whether it would cause any prejudice to the respondent. The court found that the amendment was not substantial enough to warrant any further delay in the proceedings or to cause any prejudice to the respondent. The court also noted that the amendment was being sought at a relatively early stage in the litigation and that the respondent had not demonstrated any significant disadvantage from the proposed amendment.

As a result, the court dismissed the amended application filed on 29 January 2007. The court ordered that the respondent had seven days to file and serve any submissions in relation to costs, and the applicant had a further seven days to file and serve any submissions in reply. The court further noted that, unless otherwise requested in written submissions, the issue of costs would be determined on the papers. This decision highlights the importance of considering the timing and potential impact of any amendments to an application before the court.

Orders

Orders of the court

The amended application filed 29 January 2007 be dismissed.

The respondent have 7 days to file and serve any submissions in relation to costs.

The applicant have a further 7 days to file and serve any submissions in reply.

NOTATION

(a) Unless otherwise requested in written submissions the issue of costs will be determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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