Cauchi v Metal Coat - [2010] FMCA 971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAUCHI v METAL COAT

[2010] FMCA 971

INDUSTRIAL LAW – Alleged termination for prohibited reason – respondent alleging applicant resigned by walking off job – applicant submitting sickness certificate after final pay made up – respondent unaware of sickness at time of termination – consideration of reverse onus on employer.

Fair Work Act 2009, ss.352, 772, 783

Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191
Stevenson v Murdoch Community Services Inc [2010] FCA 648
Ngo v Link Printing Pty Ltd (1999) 94 IR 375
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Applicant:

PHILLIP CAUCHI

Respondent:

METAL COAT

File Number:

LNG 38 of 2009

Judgment of:

Burchardt FM

Hearing date:

5 November 2010

Date of Last Submission:

12 November 2010

Delivered at:

Melbourne (via Video Link to Hobart)

Delivered on:

17 December 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms J. Hanna

Solicitors for the Respondent:

Simmons Wolfhagen

ORDERS

The application be dismissed.
Any application for costs be submitted within seven days of the date of this Order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

LNG 38 of 2009

PHILLIP CAUCHI

Applicant

And

METAL COAT

Respondent

REASONS FOR JUDGMENT

Phillip Cauchi commenced employment as a fulltime production line worker with Launceston Glass and Aluminium Proprietary Limited, trading as Metal Coat, on or about 23 March 2009. His employment came to an end on 9 September 2009. Mr Cauchi says he was dismissed in contravention of the prohibition contained in the

Fair Work Act 2009
(Cth) (“the Act”) of dismissal because an employee is temporarily absent from work because of illness or injury. The employer denies that Mr Cauchi was dismissed and says further that illness was not the reason why employment came to an end.
For the reasons that follow, I think that Mr Cauchi was dismissed but not because of a temporary absence from work because of illness or injury.

The facts

There was some measure of controversy as to what was said and done on 9 September 2009. Such conflicts of evidence as there were were made more difficult by the fact that Mr Cauchi represented himself and very understandably put but little in the way of cross-examination. Nonetheless, I think that the pattern of events is fairly clear.
It is clear that early on 9 September 2009, probably at about 8 am or shortly thereafter, Peter McCormack, who is the managing director and business owner of the respondent, approached Mr Cauchi and they had a discussion. Although the affidavits filed by Mr Cauchi and

Mr McCormack put the conversation in slightly different terms, it is clear that there was a discussion between them about various aspects of Mr Cauchi’s employment performance that were thought not to be wholly satisfactory.
It is Mr Cauchi’s evidence that Mr McCormack swore at him and otherwise said things that caused him to feel humiliated.

Mr McCormack puts…

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: [2010] FMCA 971
Decision Date

CaseChat Overview and Summary

Phillip Cauchi, the applicant, brought a claim against Metal Coat, the respondent, in the Federal Magistrates Court of Australia. Mr Cauchi alleged that his dismissal from employment was unlawful as it was due to his temporary absence from work because of illness or injury, in contravention of the Fair Work Act 2009 (Cth). The respondent, Metal Coat, denied that Mr Cauchi was dismissed and argued that illness was not the reason for the termination of employment. The central issue before the Court was whether Mr Cauchi had been dismissed and, if so, whether the dismissal was for a prohibited reason as outlined in the Fair Work Act.

The Court found that although Mr Cauchi had not intended to resign and had indeed walked off the job due to being upset, the employer reasonably treated his departure as a resignation. This conclusion was based on the contemporaneous reactions of Mr Bird and Mr Harris, who both concluded that Mr Cauchi had abandoned his employment. The Court further determined that Mr Cauchi was dismissed by the employer when Mr McCormack had his final pay made up and did not request his return. However, the dismissal was not for a proscribed reason as Mr McCormack was unaware of Mr Cauchi's illness at the time of the termination.

The Court dismissed Mr Cauchi's application, finding that Metal Coat had discharged the reverse onus of proof cast upon it by the legislation. The Court certified that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

No application for costs be submitted within seven days of the date of this Order.

Orders