Cai v Tiy Loy & Co Ltd - [2015] FCCA 715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI v TIY LOY & CO LTD

[2015] FCCA 715

Catchwords:
INDUSTRIAL LAW – Adverse action claimed to have been taken in contravention of s.340 of the Fair Work Act 2009 (Cth) – whether employer took adverse action against employee – whether employer took adverse action against employee because the employee had or had exercised an entitlement to a benefit under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Compensation Act) – whether the Compensation Act was a “workplace law” – whether employer can prove it did not take adverse action because the employee had or had exercised an entitlement under the Compensation Act – whether employer suffered loss because of employer’s adverse action.

PROOF – Burden of proof – proof of negative proposition that action not taken for a particular reason or for reasons that include a particular reason (proscribed reason) – whether person who bears the burden of proving the negative proposition should articulate the reason or reasons for which action was taken which is inconsistent with the proscribed reason (asserted reason) – means of proving asserted reason – consequences of person who bears the burden of proving the negative proposition failing to adduce evidence which is capable of supporting a finding that the person acted for the asserted reason or for reasons that included the asserted reason as a substantial and operative factor.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 340, 340(1), 341(1), 342(1), 361(1), 535, 536, 545(2), 545(2)(b)

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss.3, 42(1), 45(1), 45(2), 46(1), 46(2)
Workplace Relations Act 1996 (Cth), s.836

Australian Energy Limited v Lennard Oil NL [1986] 2 Qd. R. 216
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721

Applicant:

REE BIN CAI

Respondent:

TIY LOY & CO LTD

File Number:

SYG 2817 of 2012

Judgment of:

Judge Manousaridis

Hearing dates:

7, 8, 9 and 19 May 2014

Delivered at:

Sydney

Delivered on:

27 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr K G Bennett

Solicitors for the Applicant:

Andrew Wong & Co

Counsel for the Respondent:

Ms J D Beck

Solicitors for the Respondent:

William Chan & Co Solicitors

DECLARATIONS

The respondent contravened s.340 of the Fair Work Act 2009 (Cth) (Act) by deciding on 18 June 2012 to alter the applicant’s position from a full time employee to a part time employee, and informing the applicant of that decision on that day.
Because of the respondent’s contravention of s.340 of the Act, the applicant suffered loss, that loss being his not earning the wages he would have earned as a full time…

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: [2015] FCCA 715
Decision Date: 27 March 2015

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered a claim brought by an employee, Mr. Cai, against his former employer, Tiy Loy & Co Ltd. Mr. Cai alleged that Tiy Loy & Co Ltd had taken adverse action against him in contravention of section 340 of the *Fair Work Act 2009* (Cth). The core of the dispute was whether the employer's actions were motivated by Mr. Cai having exercised or being entitled to exercise a benefit under the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) (the Compensation Act).

The court was required to determine several key legal issues. Firstly, it had to ascertain whether Tiy Loy & Co Ltd had indeed taken adverse action against Mr. Cai. Secondly, the court needed to decide if any such adverse action was taken because Mr. Cai had or had exercised an entitlement under the Compensation Act. This involved considering whether the Compensation Act qualified as a "workplace law" for the purposes of the *Fair Work Act*. Thirdly, the court had to assess whether the employer could discharge its burden of proof by demonstrating that it did not take adverse action for the proscribed reason. Finally, the court considered whether Mr. Cai had suffered any loss as a result of the alleged adverse action.

In addressing the burden of proof, the court acknowledged the difficulty in proving a negative proposition – that action was not taken for a particular proscribed reason. Judge Manousaridis held that the party bearing this burden must articulate a credible, asserted reason for their actions that is inconsistent with the proscribed reason. The court emphasised that the means of proving this asserted reason must involve adducing evidence capable of supporting a finding that the action was taken for that asserted reason, or for reasons that included the asserted reason as a substantial and operative factor. Failure to adduce such evidence would have significant consequences for the party bearing the burden.

Orders