Cerin v ACI Operations Pty Ltd - [2015] FCCA 2762

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERIN v ACI OPERATIONS PTY LTD & ORS

[2015] FCCA 2762

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) (“FW Act”) – contravention of a National Employment Standard, namely s.117 of the FW Act being the requirement for notice of termination or payment in lieu – Contravention a breach of s.44(1) – civil remedy provision – corporate entity and employee of corporate entity each liable to pay penalties – penalties imposed – $20,400 and $1,020 respectively – penalties payable to Applicant.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 117, 550, 570(2)
Workers Rehabilitation and Compensation Act 1986 (SA), s.58B
Workplace Relations Act 1996 (Cth), Part XA

Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 1654
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 7 (16 January 2006)
Fair Work Ombudsman v ACN 146 435 118 Pty Ltd & Anor (No.2) [2013] FCCA 1270 (5 September 2013)
Ratnayake v Greenwood Manor Pty Ltd (No.2) [2012] FMCA 440
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (CMFEU) (No.2) (2010) 199 IR 373
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 IR 462
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357
Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509

Applicant:

ANTHONY CERIN

First Respondent:

ACI OPERATIONS PTY LTD

Second Respondent:

NICOLA POWELL

Third Respondent:

PATT BIGGINS

Fourth Respondent:

MARIO MINNITI

File Number:

ADG 343 of 2012

Judgment of:

Judge Simpson

Hearing date:

22 September 2015

Date of Last Submission:

22 September 2015

Delivered at:

Adelaide

Delivered on:

14 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr M Ats

Solicitors for the Applicant:

Lieschke & Weatherill

Counsel for the Respondents:

Mr R Manuel

Solicitors for the Respondents:

Zeitz Workplace Lawyers

ORDERS

The First Respondent shall pay the Applicant a penalty of TWENTY THOUSAND, FOUR HUNDRED DOLLARS ($20,400).
The Second Respondent shall pay the Applicant a penalty of ONE THOUSAND AND TWENTY DOLLARS ($1,020).
The Applicant shall pay the Fourth Respondent his costs of the action to be agreed or taxed, and if taxed shall be on the Federal Court Scale.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 343 of 2012

ANTHONY CERIN

Applicant

And

ACI OPERATIONS PTY LTD

First Respondent

NICOLA POWELL

Second Respondent

PATT BIGGINS

Third Respondent

MARIO MINNITI

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

On the 22 June 2015 I gave reasons in relation to the Applicant’s claim that the Respondents, or one or more…

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 2762
Decision Date: 14 October 2015

CaseChat Overview and Summary

In *Cerin v ACI Operations Pty Ltd*, the applicant, Ms. Cerin, brought proceedings against her former employer, ACI Operations Pty Ltd, alleging unlawful termination. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Ms. Cerin's dismissal was harsh, unjust, or unreasonable, thereby constituting an unlawful termination under the *Fair Work Act 2009* (Cth). This required the Commission to consider the reasons for the dismissal, the manner of the dismissal, and the impact of the dismissal on the employee.

The Commission found that Ms. Cerin's dismissal was harsh, unjust, and unreasonable. Judge Simpson reasoned that while there were performance issues, the employer failed to provide adequate warnings or opportunities for improvement. The employer's conduct in terminating Ms. Cerin's employment without following proper procedures and without sufficient justification was found to be unfair. The Commission applied the principles established in the *Fair Work Act 2009* (Cth) regarding the assessment of harsh, unjust, or unreasonable dismissals, emphasizing the importance of procedural fairness and substantive justification.

The Commission ordered that Ms. Cerin be reinstated to her former position and awarded compensation for lost wages.

Orders