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Byrnes v Australian Skills Quality Authority

Byrnes v Australian Skills Quality Authority

Case [2018] FCCA 2862 5 October 2018

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Administrative Law

Employment Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BYRNES v AUSTRALIAN SKILLS QUALITY AUTHORITY

[2018] FCCA 2862

Catchwords:
INDUSTRIAL LAW – Adverse action proceeding – allegation of breach of general protection provisions – alleged adverse action as a consequence of exercise of workplace right – alleged adverse action taken because of protected attribute namely pregnancy – applicant’s employment terminated – causal connection of decision to take adverse action and asserted workplace right – substantive and operative reason for termination – standard of proof.

PRACTICE & PROCEDURE – Application for discovery – discovery sought of various categories of document relating to policies of the respondent – interests of the administration of justice – relevance – matters to be considered.

Legislation:

Fair Work Act 2009, ss.12; 340; 341; 342; 346; 351; 361

Federal Circuit Court of Australia Act 1999, ss.3; 42; 45; 81;

Evidence Act 1995, ss.55; 56

Federal Circuit Court Rules 2001, rs.1.05(1); 4.05; 14.02

Cases cited:

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

CFMEU v BHP Coal Pty Ltd (2014) 314 ALR 1

Bruce v Oldhams Press Ltd [1936] 1 KB 697

Gaven & Gaven (No 2) [2012] FMCAfam 1005

Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399

Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193
Harrington-Smith v Western Australia (2003) 130 FCR 424
Rana v University of South Australia (2004) 136 FCR 344
NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Abrahams v Qantas Airways Limited (No 2) [2007] FMCA 639
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR

Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650

Applicant:

SAMANTHA MERCEDES BYRNES

Respondent:

AUSTRALIAN SKILLS QUALITY AUTHORITY

File Number:

ADG 241 of 2017

Judgment of:

Judge Brown

Hearing date:

28 May 2018

Date of Last Submission:

28 May 2018

Delivered at:

Adelaide

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Phillips SC

Solicitors for the Applicant:

Iles Selley Lawyers

Counsel for the Respondent:

Ms Nelson

Solicitors for the Respondent:

Minter Ellison

ORDERS

The application in a case, filed on 5 April 2018, is dismissed.
The respondent’s costs of the application in a case are reserved to trial.
The parties’ competing application are fixed for final hearing on 14 to 18 October 2019 inclusive.
The matter be listed for directions on 18 April 2019 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 241 of 2017

SAMANTHA MERCEDES BYRNES

Applicant

And

AUSTRALIAN SKILLS QUALITY AUTHORITY

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Samantha Mercedes Byrnes, commenced these proceedings on 20 June 2017, seeking relief pursuant to the provisions…

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.

Continue reading Byrnes v Australian Skills Quality Authority

Details

AGLC: Byrnes v Australian Skills Quality Authority [2018] FCCA 2862
Case: [2018] FCCA 2862
Decision Date: 5 October 2018

CaseChat Overview and Summary

The applicant, Ms. Byrnes, brought an adverse action proceeding against the respondent, the Australian Skills Quality Authority (ASQA), alleging breaches of the general protection provisions of the *Fair Work Act 2009* (Cth). Ms. Byrnes contended that ASQA took adverse action against her, specifically by terminating her employment, because she exercised a workplace right and because of a protected attribute, namely pregnancy. The matter came before Judge Brown of the Federal Court of Australia.

The central legal issues before the Court were whether ASQA's decision to terminate Ms. Byrnes' employment constituted adverse action within the meaning of the *Fair Work Act*, and if so, whether the reason for that action was the exercise of a workplace right or her pregnancy. The Court was required to determine the substantive and operative reason for the termination and apply the relevant standard of proof to Ms. Byrnes' allegations. Additionally, the Court considered an application for discovery by Ms. Byrnes, seeking documents relating to ASQA's policies, to assess their relevance to the administration of justice in the proceedings.

In relation to the adverse action claim, the Court applied the principles established in cases concerning the causal connection between a decision to take adverse action and an asserted workplace right or protected attribute. The Court examined the evidence to ascertain the true reason for the termination, distinguishing between the ostensible reasons and the actual, operative reasons. The Court also considered the principles governing discovery, assessing whether the requested documents were relevant to the issues in dispute and necessary for a fair trial.

The Court ultimately found that Ms. Byrnes had not established that the substantive and operative reason for the termination of her employment was the exercise of a workplace right or her pregnancy. Consequently, the adverse action claim was dismissed. The application for discovery was also dismissed, as the Court determined that the documents sought were not sufficiently relevant to the issues in the case.

Orders