Corke-Cox v Crocker Builders Pty Ltd - [2012] FMCA 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORKE-COX v CROCKER BUILDERS PTY LTD

[2012] FMCA 677

INDUSTRIAL LAW – Unfair dismissal – workplace injury – whether the applicant was an employee – national system employee – s.12 Fair Work Act 2009 – adverse action – exercise of a workplace right – Workers Compensation and Rehabilitation Act 2003 (Qld) is a workplace law – s.340(1) Fair Work Act 2009 (Cth) – a claim for WorkCover benefits gives rise to a workplace right – whether the applicant was injured in his employment – whether the position of the applicant was altered to his prejudice – operative reasons for dismissal – false or misleading representations about a person’s workplace rights – s.345 Fair Work Act 2009 (Cth) – physical disability – s.351 Fair Work Act 2009 (Cth) – dismissal while temporarily absent – s.352 Fair Work Act 2009 (Cth) – right to a guarantee of employment – s.232B Workers Compensation and Rehabilitation Act 2003 (Qld) – damages awarded.

Fair Work Act 2009 (Cth), ss.12, 117, 335, 340, 341, 342, 345, 351, 352, 353, 360, 361, 390, 539, 545, 546
Fair Work Regulations 2009 (Cth), reg.6.04
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Queensland Building Services Authority Act 1991 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss.11, 232B, 579

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 CFMEU v Hadgkiss (2007) 169 FCR 151 CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Jones v Dunkel (1959) 101 CLR 298 Jones v Queensland Tertiary Admission Centre Ltd (No.2) [2010] FCA 399 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375
Applicant:	RICHARD CORKE-COX

Respondent:

CROCKER BUILDERS PTY LTD

File Number:

BRG 771 of 2010

Judgment of:

Burnett FM

Hearing dates:

21 July, 22 July 2011 and 31 August 2011

Date of Last Submission:

31 August 2011

Delivered at:

Brisbane

Delivered on:

3 September 2012

REPRESENTATION

Solicitors for the Applicant:

Workers First Australia Pty Ltd

Counsel for the Respondent:

Mr J. Allen

Solicitors for the Respondent:

Holding Redlich Lawyers

ORDERS

The respondent pay the applicant the sum of $7,000.00 by way of compensation for lost wages and $516.00 in respect of interest thereon.
The respondent pay to an authorised superannuation fund nominated by the applicant a sum of $630.00 by way of…

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: [2012] FMCA 677
Decision Date

CaseChat Overview and Summary

Richard Perry Corke-Cox (Corke-Cox) commenced an action against Crocker Builders Pty Ltd (Crocker Builders) in the Federal Magistrates Court in Brisbane seeking damages for unfair dismissal. Corke-Cox alleged that he was dismissed because he exercised a workplace right, namely, to claim workers’ compensation benefits in respect of a shoulder injury. Corke-Cox contended that his dismissal was in breach of the Fair Work Act 2009 (Cth) and that Crocker Builders were liable to compensate him. Crocker Builders denied that Corke-Cox was their employee. They contended that he was an independent contractor and that they had lawfully dismissed him on the basis of his unsatisfactory performance. Crocker Builders contended that they were not obliged to pay Corke-Cox compensation because they had not dismissed him, they had not contravened the Fair Work Act, and they had not acted in an unlawful manner. The Court found that Corke-Cox was an employee of Crocker Builders. The Court found that Crocker Builders dismissed Corke-Cox and that the dismissal was in breach of the Fair Work Act. The Court found that Crocker Builders had contravened the Fair Work Act by taking adverse action against Corke-Cox. The Court found that the adverse action taken was because Corke-Cox had exercised a workplace right, namely, to claim workers’ compensation benefits. The Court awarded Corke-Cox $7,000.00 in lost wages, $516.00 in interest, $630.00 in lost superannuation contributions, and $111.00 in interest on lost superannuation contributions. The Court also awarded Corke-Cox a pecuniary penalty of $5,000.00.

Orders