Burke v Serco Pty Ltd

[2012] FMCA 1134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE v SERCO PTY LTD [2012] FMCA 1134

INDUSTRIAL LAW – Termination of employment for proscribed reason – making a complaint or inquiry about workplace health and safety – s.361 engaged – onus not discharged by employer.

Fair Work Act2009, ss.340, 340(1), 341, 341(1)(c)(ii) 342(1)

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22
Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221

Applicant: DOMINIC BURKE

Respondent: SERCO PTY LTD

File Number: BRG 317 of 2011

Judgment of: Jarrett FM

Hearing date: 8 May 2012

Date of Last Submission: 8 May 2012

Delivered at: Brisbane

Delivered on: 29 November 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr McLeod

Solicitors for the Respondent: Baker & McKenzie

ORDERS

THE COURT DECLARES THAT:

1. Serco Pty Ltd contravened s.340 of the Fair Work Act2009 by taking adverse action against the applicant Dominic Burke when it terminated his employment on 25 January, 2011.

THE COURT ORDERS THAT:

1. The application be adjourned to 9.30 on 30 January, 2013 for hearing as to the relief to which the applicant is entitled by reason of the Court’s judgment delivered 29 November, 2012;

2. The applicant file and serve any further evidence upon which he intends to rely at such hearing no later than 4.00pm on 4 January, 2013;

3. The respondent file and serve any further evidence upon which it intends to rely at such hearing no later than 4.00pm on 18 January, 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 317 of 2011

DOMINIC BURKE

Applicant

And

SERCO PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Mr Burke was employed as a client services officer by Serco Pty Ltd from 30 August, 2010 until 25 January, 2011 when he was dismissed.  In these proceedings he claims that his dismissal was adverse action taken against him in contravention of the general protections contained in the Fair Work Act 2009 (Cth). He claims compensation and/or the imposition of a pecuniary penalty in the sum of $65,000.

2. Although it admits terminating Mr Burke’s employment without notice, Serco otherwise denies his claims.

3. Serco is a service company which manages facilities, projects and information technology systems for government and non-government entities in Australia.  It manages the day-to-day operations of immigration detention centres in Australia, including centres in Brisbane and Darwin.

4. It became apparent during the course of the hearing in this matter that what was critical for Mr Burke was that he had never been provided with a reason for his termination.  He has speculated as to the reasons for it, but prior to him commencing action in Fair Work Australia no reason had ever been given to him by Serco for his dismissal.  Since then, he says that their reasons have changed.

5. Mr Burke has represented himself in these proceedings.  His claims…