FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN v PREMIER PET T/A BAY FISH | [2012] FMCA 1089 |
| INDUSTRIAL LAW – Termination of employment for proscribed reason – refusal to work additional hours – whether the additional hours are reasonable – onus of proof –dismissal – claim for reinstatement. |
| Fair Work Act2009, ss.12, 62(1), 62(2), 63(3), 340(1), 341, 342(1) Storage Services and Wholesale Award 2010 |
| Laz v Downer Group Pty Ltd (2000) 108 IR 244 Greater Dandenong City Council & Australian Municipal, Administrative, Clerical and Services Union (2001) FCA 349 Working Hours Case - July 2002 - PR072002 [2002] AIRC 857 MacPherson v Coal & Allied Mining Services Pty Ltd (No 2) (2009) 189 IR 50 Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32 Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 |
| Applicant: | ADAM RICHARD BROWN |
| Respondent: | PREMIER PET T/A BAY FISH |
| File Number: | BRG 753 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 6 November 2012 |
| Date of Last Submission: | 6 November 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 6 November 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Pratt, directly instructed by the respondent |
ORDERS
THE COURT DECLARES THAT:
The respondent Premier Pet T/A Bay Fish contravened section 340(1) of the Fair Work Act 2009 by dismissing the applicant Adam Richard Brown from his employment on 15 July 2007.
THE COURT ORDERS:
The respondent forthwith reinstate the applicant to his former employment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 753 of 2011
| ADAM RICHARD BROWN |
Applicant
And
| PREMIER PET T/A BAY FISH |
Respondent
REASONS FOR JUDGMENT
Ex tempore
Mr Brown was employed by the respondent, Premier Pet Pty Ltd, as a fish keeper or fish treater, as variously described in some of the material. He was employed on a full time permanent basis in the respondent’s Brisbane fish room. His employment commenced on 14 March 2011 and his employment was terminated on 15 July 2011.
Mr Brown alleges that his termination was adverse action, taken in contravention of s.340(1) of the Fair Work Act 2009 by his employer against him, because he had chosen to exercise a workplace right.
Having regard to the material before me and the submissions that have been made, there seems to be no issue that the respondent terminated the applicant’s employment and that that action is adverse action for the purposes of item 1 (a) of the table in s.342(1) of the Act.
Mr Brown says that there were two workplace rights that he was exercising or which he might be seen as having exercised and which were the reason, or part of the reason, for his termination. The first right was his right to refuse to work unreasonable overtime. The second was his right to take his dispute about being required to work overtime to Fair Work Australia.
I will deal with the second of those first. It…
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- Case
- [2012] FMCA 1089
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the respondent contravened section 340(1) of the Fair Work Act 2009 by dismissing the applicant. This section prohibits employers from dismissing an employee for reasons related to their engagement in protected industrial activities or their association with a trade union. The court had to determine whether the dismissal was related to such protected activities and, if so, whether it was justified under the Act.
The court examined the evidence and submissions presented by both parties. It concluded that the dismissal was indeed related to the applicant's engagement in protected industrial activities and found that the respondent failed to provide a valid reason for the dismissal that would justify it under the Fair Work Act. Consequently, the court determined that the respondent contravened section 340(1) of the Act by dismissing the applicant.
The court's orders reflect its findings, with the first order declaring that the respondent contravened the Act by dismissing the applicant. The second order mandates that the respondent reinstate the applicant to his former employment forthwith. This decision underscores the importance of employers adhering to the provisions of the Fair Work Act when dismissing employees to ensure compliance with labour laws.
Orders
Orders of the court
THE COURT DECLARES THAT:
1.
The respondent Premier Pet T/A Bay Fish contravened section 340(1) of the Fair Work Act 2009 by dismissing the applicant Adam Richard Brown from his employment on 15 July 2007.
THE COURT ORDERS:
2.
The respondent forthwith reinstate the applicant to his former employment.
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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