Brown v Action Industrial Catering Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Brown v Action Industrial Catering Pty Ltd [2023] FedCFamC2G 1157   

File number(s): SYG 372 of 2021
Judgment of: JUDGE OBRADOVIC
Date of judgment: 8 December 2023
Catchwords: FAIR WORK – General protections claim – Adverse action – Exercise of workplace right – Complaints and Inquiries – Whether investigation inadequate – Casual employment – Whether dismissal – Prohibited reason – Race – Disability – Family and Carer’s responsibility – Reverse Onus - Application dismissed  
Legislation:

Fair Work Act 2009 (Cth) ss 340, 342, 351, 361, 545, 546, 368, 370

Sex Discrimination Act 1984 (Cth) s 4A(1)

Cases cited:

Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (10 July 2020) [2020] FCA 947; 297 IR 151

Banque Commerciale SA, En Liquidation v Akhil Holdings Pty Ltd [1990] HCA 11, (1990) 169 CLR 279

CFMEU v Peabody Energy Australia Coal Pty Ltd [2014] FCA 394

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Cross v Harbour City Ferries t/as Harbour City Ferries [2017] FCCA 514

Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545

Hamzy v Tricon International Restaurants (2001) 115 FCR 78

Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171

Lamont v University of Queensland (No.2) [2020] FCA 720

Liu v Compuworld Pty Ltd [2020] FWC 2569

Martires v Endura Paint Pty Ltd (No 4) [2023] FedCFamC2G 218

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271

Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978

Walker v Cape Australia Onshore Pty Ltd [2019] FCCA 2397

WorkPac Pty Ltd v Rossato [2020] FCAFC 84

Division: Division 2 General Federal Law
Number of paragraphs: 151
Date of last submission/s: 9 November 2022
Date of hearing: 8-9 November 2022
Place: Parramatta
Solicitor for the Applicant: Mr Lynch of Gorval Lynch
Counsel for the Respondent: Mr Darams & Mr Meagher
Solicitor for the Respondent: FCB Lawyers and Consultants

ORDERS

SYG 372 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CHERRIE ANN BROWN

Applicant
AND:

ACTION INDUSTRIAL CATERING PTY LTD ACN 071 228 807

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Originating Application filed 10 March 2021 together with the Amended Statement of Claim filed 26 November 2021 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05

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Details
Case
[2023] FedCFamC2G 1157
Decision Date

CaseChat Overview and Summary

In the case of Brown v Action Industrial Catering Pty Ltd, the Fair Work Commission was called upon to adjudicate a general protections claim brought by Ms Brown against her former employer, Action Industrial Catering Pty Ltd. The dispute centred on whether Ms Brown had been subjected to adverse action by the employer for exercising her workplace rights, specifically in relation to complaints and inquiries. Further, the case examined whether the investigation conducted by the employer into the complaints was adequate, and whether Ms Brown’s dismissal was related to her race, disability, or family and carer’s responsibilities. Additionally, the matter considered whether the reverse onus provisions applied in this instance.

The primary legal issues before the Commission were the adequacy of the investigation carried out by the employer into the complaints made against Ms Brown, and whether her dismissal was a result of exercising her workplace rights or due to any of the prohibited reasons under the Fair Work Act. The court was also tasked with determining if the reverse onus applied, which would require the employer to prove that the dismissal was not related to the exercise of workplace rights.

The Fair Work Commission found that Ms Kale’s evidence regarding the reasons for sending the 16 December 2020 letter to Ms Brown was accepted. The Commission concluded that the letter was not sent for any prohibited reason and did not include any prohibited reason as part of its rationale. Consequently, the Commission rejected all of Ms Brown’s claims, finding that the investigation conducted by the employer was adequate and that her dismissal was not related to any prohibited reason. The Commission also determined that the reverse onus provisions did not apply in this case. As a result, the application was dismissed.

In conclusion, the Fair Work Commission dismissed Ms Brown’s claims against Action Industrial Catering Pty Ltd, finding that the investigation was adequate and that her dismissal was not related to any prohibited reason. The Commission also ruled that the reverse onus provisions did not apply in this matter. Consequently, the application was dismissed, and no orders were made in favour of Ms Brown.

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

The Court accepts Ms Kale’s evidence about the reasons for sending the 16 December 2020 letter to Ms Brown. The reason that the letter was sent was not for any prohibited reason and it did not include as part of the reason, any prohibited reason. CONCLUSION For reasons which have been explained, Ms Brown’s claims have all been rejected. The application will therefore be dismissed.

Ratio Decidendi

Legal Principle Established

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