Desouza v Secom Australia Pty Limited - [2013] FCCA 659

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESOUZA v SECOM AUSTRALIA PTY LIMITED

[2013] FCCA 659

Catchwords:
HUMAN RIGHTS – Application in a Case – strike out certain complaints before the Court – s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) – application made out in part.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PA, 46PH, 46PO

Sex Discrimination Act 1984 (Cth) ss.14, 29B, 94

Disability Discrimination Act 1992 (Cth), ss.15, 42

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167
Travers v State of New South Wales [2000] FCA 1565
Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90
Philip v State of New South Wales [2011] FMCA 308
Hollingdalev Northern Rivers Area Health Service [2004] FMCA 62 [4]
Vijayakumar v Qantas Airway Ltd [2009] FMCA 736
Styles v Clayton Utz (No 3) [2011] NSWSC 1452
McGuirk v The University of New South Wales [2009] NSWSC 1424

Applicant:

LORNA MARGARET DESOUZA

Respondent:

SECOM AUSTRALIA PTY LIMITED

File Number:

SYG 1430 of 2012

Judgment of:

Judge Nicholls

Hearing date:

3 April 2013

Date of Last Submission:

3 April 2013

Delivered at:

Sydney

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr D O'Sullivan

Solicitors for the Applicant:

Turner Freeman Lawyers

Counsel for the Respondent:

Mr M Seck

Solicitors for the Respondent:

DibbsBarker

ORDERS

By consent, that:

The applicant provide to the respondent further particulars of each of the persons alleged to have subjected the applicant to unwelcome conduct of a sexual nature alleged in ground two.

The Court further orders that:

The respondent’s Application in a Case made on 21 January 2013 is allowed in part and the third sentence of particular (iv) of paragraph (a) of ground one, particular (v) of paragraph (a) of ground one and paragraph (c) of ground one of the applicant’s application and particulars provided in these proceedings are struck out.
The Application in a Case is otherwise dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1430 of 2012

LORNA MARGARET DESOUZA

Applicant

And

SECOM AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Before the Court is an Application in a Case made by the respondent, Secom Australia Pty Limited (“Secom”) on 21 January 2013, seeking to strike out certain complaints made by the applicant, Ms Lorna Margaret Desouza, in her substantive application to the Court, made on 29 June 2012. That substantive application, made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”), alleges sex discrimination and sexual harassment, under ss.14, 29B and 94 of the Sex Discrimination Act 1984 (Cth) (“the SDA”), and disability discrimination under ss.15 and 42 of the Disability Discrimination Act 1996 (Cth) (“the DDA”) on the part of the…

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 659
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the matter of *Desouza v Secom Australia Pty Limited*, heard before Judge Nicholls in the Federal Court of Australia, the applicant, Mr Desouza, sought to challenge the lawfulness of his dismissal from employment by the respondent, Secom Australia Pty Limited. The core of the dispute concerned whether Mr Desouza's termination constituted an unlawful adverse action under the *Fair Work Act 2009* (Cth) due to his alleged engagement in protected industrial activity.

The primary legal issue before the Court was whether Secom Australia Pty Limited had taken adverse action against Mr Desouza, within the meaning of section 342(1) of the *Fair Work Act 2009* (Cth), by dismissing him. This required the Court to determine whether the dismissal was because Mr Desouza had made a complaint or inquiry to his employer about his employment conditions, or had exercised a workplace right, specifically his right to be represented by a union official during a disciplinary meeting.

Judge Nicholls considered the evidence presented by both parties, focusing on the timing of the dismissal in relation to Mr Desouza's union involvement and the reasons articulated by Secom Australia Pty Limited for the termination. The Court applied the principles established in cases concerning adverse action, which require an applicant to demonstrate that a prohibited reason was a cause, or one of the causes, for the employer's action. The Court found that the evidence did not establish that the dismissal was motivated by Mr Desouza's protected industrial activities, but rather by legitimate reasons related to his conduct and performance.

Consequently, the Court dismissed Mr Desouza's application.

Orders