Brown v Premier Pet T/A Bay Fish - [2012] FMCA 1089

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…

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: [2012] FMCA 1089
Decision Date: 6 November 2012

CaseChat Overview and Summary

The case of Brown v Premier Pet T/A Bay Fish involves a dispute between the applicant, Adam Richard Brown, and the respondent, Premier Pet T/A Bay Fish, regarding the applicant's dismissal from his employment on 15 July 2007. The applicant sought relief under section 340(1) of the Fair Work Act 2009, alleging that his dismissal was contrary to the Act. The matter was heard in the Fair Work Commission.

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:

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.

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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