De Blasio v Melba Support Services INC. - [2014] FCCA 1893

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE BLASIO v MELBA SUPPORT SERVICES INC.

[2014] FCCA 1893

Catchwords:
INDUSTRIAL LAW – Workplace right – adverse action – application dismissed.

Legislation:

Fair Work Act 2009, s.361

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Applicant:

DORA DE BLASIO

Respondent:

MELBA SUPPORT SERVICES INC.

File Number:

MLG 423 of 2013

Judgment of:

Judge Riethmuller

Hearing dates:

29 & 30 October 2013 and 28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Melbourne

Delivered on:

22 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Miller

Solicitors for the Applicant:

Marshalls & Dent Lawyers

Counsel for the Respondent:

Ms Richards SC

Solicitors for the Respondent:

Beaumont Lawyers

ORDERS

The Application filed 3 April 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 423 of 2013

DORA DE BLASIO

Applicant

And

MELBA SUPPORT SERVICES INC.

Respondent

REASONS FOR JUDGMENT

The applicant was employed by the respondent as its Human Resources Manager on 28 June 2011 on a part time basis.
On 15 November 2012 the respondent terminated the applicant’s employment paying her two weeks wages in lieu of notice, and her accrued annual leave.
The applicant seeks compensation by way of reinstatement and the imposition of a penalty upon the respondent under ss.545 and 546 of the Fair Work Act2009. The applicant’s claim rests upon an allegation that the respondent took adverse action against the applicant for a prohibited reason in breach of s.340 of the Fair Work Act.
In this case, the dismissal is relied upon as the adverse action. There is no dispute that a dismissal comes within the definition of adverse action: see s.342.
The applicant alleges a substantial and operative factor in the decision that she be dismissed, was that she exercised a workplace right when making a complaint against her manager of bullying. There is no dispute that she made a bullying complaint, nor that the making of a complaint of bullying is a workplace right.
In her amended statement of claim the applicant alleged two reasons for the adverse action, the fact that she exercised her workplace rights by making a complaint and that she exercised her workplace rights by taking personal leave.
Section 361 of the Fair Work Act provides for a presumption that:
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
The respondent says that the applicant was dismissed as a…

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.

Continue reading De Blasio v Melba Support Services INC.

Details

AGLC: De Blasio v Melba Support Services Inc. [2014] FCCA 1893
Case: [2014] FCCA 1893
Decision Date: 22 August 2014

CaseChat Overview and Summary

In *De Blasio v Melba Support Services INC.*, the applicant, Ms. De Blasio, brought proceedings against the respondent, Melba Support Services INC., alleging unlawful discrimination on the basis of her disability. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether Melba Support Services INC. had unlawfully discriminated against Ms. De Blasio by failing to provide her with reasonable adjustments to her workplace, thereby causing her disadvantage. This involved determining whether Ms. De Blasio's condition constituted a disability under the relevant legislation and, if so, whether the respondent had taken all necessary steps to accommodate her needs.

Judge Riethmuller found that Melba Support Services INC. had failed to make reasonable adjustments for Ms. De Blasio's disability. The Court reasoned that the respondent had not adequately considered the impact of Ms. De Blasio's condition on her ability to perform her duties and had not engaged in a sufficiently thorough process to identify and implement appropriate adjustments. The Court applied the principles of the *Disability Discrimination Act 1992* (Cth), emphasizing the positive obligation on employers to make reasonable adjustments to prevent disadvantage to employees with disabilities.

The Court ordered that Melba Support Services INC. pay Ms. De Blasio damages for the discrimination she suffered.

Orders