FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavanagh v Lexastar Pty Ltd [2021] FedCFamC2G 375
File number(s): BRG 292 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 22 December 2021 Catchwords: INDUSTRIAL LAW – Adverse action – whether employment converted to casual because of employee’s disability or use of personal, annual and temporary leave – whether employment terminated because employee suffered from a disability – whether adverse action taken because employee exercised a workplace right – whether employer discharged presumption imposed by section 361 (a) of the Fair Work Act 2009 (Cth) – whether employer contravened section 340 of Fair Work Act 2009 (Cth) – application dismissed. Legislation: Anti-Discrimination Act 1991 (Qld)
Disability Discrimination Act 1992 (Cth), ss.5(1), 5(2), 5(3), 6(1), 6(2), 6(3), 6(4)
Fair Work Act 2009 (Cth), ss.12, 13, 14, 44, 45, 65, 65(1), 65(1A), 65(3), 65(4), 87, 88, 96, 97, 117, 323, 335, 340, 340(1), 341(1), 341(1)(c)(ii), 342(1), 342(2), 342(3), 342(4), 351, 351(1), 351(2)(b) 352, 360, 361, 361(1), 536, 536(1), 536(3), 539, 772
Fair Work Regulations 2009 (Cth), r.3.01
Manufacturing and Associated Industries and Occupations Award 2010, cl.41.4, 41.5, 41.10, 42.5Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41; 253 CLR 243
Hodkinson v The Commonwealth [2011] FMCA 171
Ingersole v Castle Hill Country Club Limited [2014] FCCA 450
Jones v Dunkel (1959) 101 CLR 298
Kramer & Anor v Punthill Apartment Hotels Pty Ltd & Anor [2020] FCCA 1617 (19 June 2020)
Kubat v Northern Health [2015] FCCA 3050
Loukis v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281
McIlwain v Ramsey Food Packaging Pty Ltd[2006] FCA 828; (2006) 154 IR 111
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia[1998] HCA 30; (1998) 195 CLR 1
PLA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99
Qantas Airways Ltd v Christie [1998] HCA 18
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Reay v Fuel & Gas Haulage Pty Ltd & Anor [2019] FCCA 2473
Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
Sabapathy v Jetstar Airways [2021] FCAFC 25
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181Division: Division 2 General Federal Law Number of paragraphs: 260 Date of hearing: 20-22 September 2021 Place: Brisbane Counsel for the Applicant: Mr Latham Solicitor for the Applicant: Anderson Gray Lawyers Counsel for the Respondent: Mr Pratt Solicitor for the Respondent: Franklin Athanasellis Cullen ORDERS
BRG 292 of 2020
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Details
- AGLC
- Cavanagh v Lexastar Pty Ltd [2021] FedCFamC2G 375
- Case
- [2021] FedCFamC2G 375
- Decision Date
CaseChat Overview and Summary
In the matter of Cavanagh v Lexastar Pty Ltd, the applicant, James Cavanagh, sought relief under the Fair Work Act 2009 (Cth) alleging that his employment was converted to a casual position because of his disability and that his employment was terminated due to his disability and the exercise of his workplace rights. The respondents, Lexastar Pty Ltd and several of its directors and managers, denied these allegations. The court was required to determine whether the applicant's employment was converted to a casual position due to his disability or his use of personal, annual, and temporary leave, and whether his employment was terminated because of his disability or because he exercised a workplace right. The court also needed to decide if the employer had discharged the presumption imposed by section 361(a) of the Fair Work Act 2009 (Cth) and whether the employer contravened section 340 of the Fair Work Act 2009 (Cth).
The court examined the evidence and submissions from both parties, including medical certificates and witness statements. It considered the reverse onus of proof under the Fair Work Act 2009 (Cth), which places the burden on the employer to show that adverse action was not taken for a prohibited reason. The court found that the applicant did not provide sufficient evidence to support his claims, and the employer's actions were not motivated by the applicant's disability or the exercise of his workplace rights. The employer's decision to convert the employment to a casual position and to terminate it was based on legitimate business reasons unrelated to the applicant's disability or leave entitlements.
The court concluded that the applicant had not made out his claims and dismissed the application. The reasoning focused on the lack of direct evidence linking the employer's decisions to the applicant's disability or leave entitlements and the employer's satisfactory explanation for their actions. The court was not satisfied that the applicant had discharged the onus of proof required under the Fair Work Act 2009 (Cth).
In light of the findings, the court dismissed the application in its entirety. The decision was based on the applicant's failure to provide sufficient evidence to establish the alleged adverse actions and the employer's compliance with the relevant provisions of the Fair Work Act 2009 (Cth).
The court examined the evidence and submissions from both parties, including medical certificates and witness statements. It considered the reverse onus of proof under the Fair Work Act 2009 (Cth), which places the burden on the employer to show that adverse action was not taken for a prohibited reason. The court found that the applicant did not provide sufficient evidence to support his claims, and the employer's actions were not motivated by the applicant's disability or the exercise of his workplace rights. The employer's decision to convert the employment to a casual position and to terminate it was based on legitimate business reasons unrelated to the applicant's disability or leave entitlements.
The court concluded that the applicant had not made out his claims and dismissed the application. The reasoning focused on the lack of direct evidence linking the employer's decisions to the applicant's disability or leave entitlements and the employer's satisfactory explanation for their actions. The court was not satisfied that the applicant had discharged the onus of proof required under the Fair Work Act 2009 (Cth).
In light of the findings, the court dismissed the application in its entirety. The decision was based on the applicant's failure to provide sufficient evidence to establish the alleged adverse actions and the employer's compliance with the relevant provisions of the Fair Work Act 2009 (Cth).
Orders
Orders of the court
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Background
Background to the litigation
The applicant relied on an Amended Outline of Submissions filed on 13 September 2021 and written submissions filed on 28 April 2021. The respondents relied on an Amended Outline of Submissions filed on 16 September 2021 and written submissions filed on 14 May 2021.FACTS NOT DISPUTED The Applicant:(a)was employed by the First Respondent as a machinist, fitter and turner between 3 December 2018 and 3 February 2020 (“the Employment”);(b)was a national system employee of the First Respondent as that term is defined in section 13 of the FW Act;(c)was an employee as that term is defined in section 335 of the FW Act;(d)was entitled to the benefit of the National Employment Standards as contained within Part 2-2 of the FW Act at all times between 3 December 2018 and 3 February 2020; and(e)is a natural person with standing to sue pursuant to sections 539 and 540 of the FW Act. The First Respondent LEXASTAR PTY LTD:(a)is and was a “constitutional corporation” within the meaning of section 12 of the FW Act;(b)is and was a “national system employer” as that term is defined in section 14 of the FW Act;(c)is and was an “employer” as that term is defined in section 335 of the FW Act;(d)operated at the relevant time and continues to operate a manufacturing and engineering business in Toowoomba in the State of Queensland;(e)was required to comply with the FW Act and the Fair Work Regulations 2009 (“FW Regs”) in respect of Employment; (f)employed the applicant during the period of Employment; and(g)is a corporation duly incorporated in accordance with law, capable of suing and being sued; The Second Respondent RANALD CILENTO:(a)is and was employed by Lexastar as operational and sales manager;(b)was responsible for decision making in relation to the Employment; and(c)is a person capable of being sued. The Third Respondent PETER CILENTO:(a)is and was a Director of Lexastar;(b)at the relevant time was responsible for decision making in relation to the Employment;(c)is responsible for ensuring Lexastar complies with its obligations under the FW Act and FW Regs; and(d)is a person capable of being sued. The Fourth Respondent MARY CILENTO:(a)is and was employed by Lexastar as Financial Controller and Office Manager;(b)was responsible for decision making in relation to the Employment including the calculation of wages and entitlements; and(c)is a person capable of being sued. At all material times the Manufacturing and Associated Industries and Occupations Award 2010 was a workplace law within the meaning of section 341(1) of the FW Act. On 3 December 2018 the applicant and Lexastar entered into an agreement to employ the applicant as a machinist on a casual basis. On 28 March 2019 the applicant and Lexastar agreed to vary the agreement to employ the applicant on a full time basis as a machinist. At all material times during the applicant’s employment with Lexastar:(a)The Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) applied; (b)The applicant performed the work duties of an Engineering Manufacturing Tradesperson;(c)The FW Act stipulated minimum entitlements to annual and personal leave;(d)The Award stipulated minimum rates of pay for overtime;(e)The Award stipulated minimum rates of annual leave loading;(f)The applicant worked overtime;(g)The applicant took annual leave; and(h)Lexastar was required to comply with the FW Act and the Award.
Evidence
Evidence Before The Court
The reverse onus aims to assist employees overcome the difficult task of proving what is in the mind of the person alleged to have taken adverse action.[2] Further evidence that the decision maker acted for a non - prohibited reason may be rendered unreliable by the quality of their own evidence.[3][2] Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at 449 [3] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] Evidence James Cavanagh deposed in his affidavit filed 11 September 2020 that he was awarded a Certificate III (Trade) in Engineering from Southern Queensland Institute of TAFE in 2006 and awarded a Certificate IV in Engineering from Outsource Institute of Technology in 2014. He alleged that he was diagnosed with anxiety by Dr Lynne King in mid - August 2016 when he began to experience panic attacks and symptoms of anxiety after the breakdown of his marriage. He annexed to his affidavit a copy of a medical certificate dated 22 February 2017[4] from Dr King who diagnosed a temporary condition with onset of symptoms from 1 July 2016 of severe anxiety and some panic attacks and poor concentration. The prognosis was “likely to show considerable improvement within 2 years.” The certificate noted that the applicant was unfit for work/study from 20 February 2017 to 17 March 2017.[4] Applicant’s affidavit filed 11 September 2021 # JC 1.1 p.66 James annexed to his affidavit a copy of a medical record dated 9 January 2018 stating “this 38 year old man presents with recent increased anxiety and panic attacks. He has recently been in gaol. DV (domestic violence) charges. He was given Avanza there. He needs help to manage his distress, personal worries and anxiety.” It was noted that he had three daughters. Reference was made to prescriptions for Diazepam, Mirtanza and Prozac. He said Dr King referred him to a psychiatrist. He gave evidence that when he returned to Toowoomba he engaged with Dr McLaren and a psychologist. He did not allege that the respondents had been provided with any medical certificates or reports by him prior to commencing employment with Lexastar that confirmed he suffered from a disability and/or anxiety and depression. James said he returned to work with his previous employer in late November 2018. Around this time his friend Geoff Eldridge (“Geoff”) who was employed as a Product Design Research and Development officer with Lexastar contacted him enquiring whether he would be interested in working with Lexastar. Following the discussion with Geoff about working with Lexastar, he said Geoff undertook to talk to his bosses Ranald and Peter Cilento about a position for the applicant. He said he gave his friend permission “to advise his prospective employers about his pre-existing illness.” Peter Cilento gave evidence that he and Ranald were approached by Geoff who said he had a friend who had some experience as a machinist and was looking for employment. Geoff told them that James was a recovering drug addict who had recently been in prison and was having trouble returning to his former place of employment. Geoff said James felt that his old workmates were not accepting of him because he had been in prison and he was having some trouble adjusting to life outside prison. Peter said he thought this was “quite understandable given the circumstances.” He said Geoff did not mention anything about James suffering from a mental illness or physical or mental disability or anxiety and depression.
Decision
Reasons for decision
James did not press his claim for wrongful dismissal.CONCLUSION For the reasons stated about I am not satisfied that the applicant has made out his claims pursuant to the further amended statement of claim filed on 27 August 2021. The application is dismissed.
Ratio Decidendi
Legal Principle Established
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