Daw v Schneider Electric (Australia) Pty Ltd - [2013] FCCA 1341

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAW v SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

[2013] FCCA 1341

Catchwords:
INDUSTRIAL LAW – Claim alleging dismissal in contravention of general protection – where employee dismissed for failing to follow directions – where directions would cause employee to act contrary to State law – where employee constructively dismissed for failing to follow directions – whether employee’s entitlement to refuse to follow direction a workplace right – no workplace right established – adverse action taken against employee not taken in contravention of Fair Work Act2009 (Cth).

WORDS AND PHRASES – Workplace law.

Legislation:

Crimes Act 1914, s.4AA
Fair Work Act 2009, ss.12, 340(1), 341, Item 1 of s.342(1), 361, 361(1), 539(1), 539(2), 540(1), 545(1), 545(2)(b), 546(1), 546(2)(b), 546(3)(c), 546(5), 547(1), 547(2), 547(3)

Professional Engineers Act 2002 (Qld), ss.115, 115(1), 115(2)

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526
Barnett v Territory Insurance Office (2011) 196 FCR 116
Bayford v Maxxia Pty Ltd (2011) 207 IR 50
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
O’Meara v Stanley Works Pty Ltd [2006] AIRC 496
R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1938) 60 CLR 601
Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341
Power v Robot Trading Company Pty Limited TA Robot Building Supplies [2013] FCCA 21

Applicant:

SAMI DAW

Respondent:

SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

File Number:

BRG 524 of 2012

Judgment of:

Judge Jarrett

Hearing date:

14, 15 November 2012

Date of Last Submission:

15 November 2012

Delivered at:

Brisbane

Delivered on:

17 September 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr McLeod

Solicitors for the Respondent:

Baker McKenzie

ORDERS

The application filed on 8 June, 2012 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 524 of 2012

SAMI DAW

Applicant

And

SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Between 1 March, 2011 and 15 March, 2012 Mr Daw worked for Schneider Electric (Australia) Pty Ltd. He claims that he was dismissed from his employment with Schneider on 15 March, 2012. Schneider argues that Mr Daw was not dismissed, but rather he chose to bring his employment to an end on that day.
In these proceedings Mr Daw claims that his dismissal was in contravention of a number of general protections provided for in the Fair Work Act 2009. He seeks orders for compensation and the imposition of a pecuniary penalty upon Schneider for its alleged breaches of the Fair Work Act.
Mr Daw alleges that he was dismissed from his employment because in two instances, he exercised a workplace right. In particular he alleges that he was dismissed:
a)because he exercised a workplace right to refuse to perform work that would expose him to liability said to arise under s.115 of the Professional Engineers Act2002 (Qld) (“the Engineers Act”); and/or
b)because he lodged a complaint against his managers Mr Robert Pine…

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: [2013] FCCA 1341
Decision Date: 17 September 2013

CaseChat Overview and Summary

In *Daw v Schneider Electric (Australia) Pty Ltd*, the applicant, Mr. Daw, alleged that his dismissal by the respondent, Schneider Electric (Australia) Pty Ltd, constituted adverse action taken in contravention of the *Fair Work Act 2009* (Cth). Mr. Daw contended that he was constructively dismissed after being directed to perform tasks that he believed would contravene state law, and that his subsequent refusal to follow these directions was a protected workplace right.

The central legal issue before the court was whether Mr. Daw possessed a "workplace right" within the meaning of the *Fair Work Act* that entitled him to refuse the directions given by his employer. Specifically, the court had to determine if his asserted entitlement to act in accordance with state law, or to refuse to act contrary to state law, constituted a workplace right for the purposes of the general protections provisions of the Act.

Judge Jarrett found that Mr. Daw had not established that he possessed a workplace right that would render his dismissal unlawful under the *Fair Work Act*. The court reasoned that the general protections provisions do not confer a right to refuse a lawful direction from an employer simply because the employee believes, even if correctly, that compliance might lead to a breach of state law. The court held that the adverse action taken against Mr. Daw was not taken in contravention of the *Fair Work Act*.

Orders