Eliana Construction and Developing Group Pty Ltd v Moghimi

FEDERAL COURT OF AUSTRALIA

Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113

Appeal from:	Eliana Construction and Developing Group Pty Ltd v Moghimi [2015] FWCFB 7476
File number(s):	VID 233 of 2016
Judge(s):	NORTH, KATZMANN AND BROMBERG  JJ
Date of judgment:	18 August 2016
Legislation:	Fair Work Act 2009 (Cth) ss 400(1), 570(2)(a)
Date of hearing:	18 August 2016
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	No Catchwords
Number of paragraphs:	26
Solicitor for the Applicant:	Ms K Bramham of Eliana Construction and Developing Group Pty Ltd
Counsel for the Respondents:	Mr M Felman and Mr A Pollock (Pro Bono)
Solicitor for the Respondents:	Job Watch

ORDERS

VID 233 of 2016

BETWEEN:

ELIANA CONSTRUCTION AND DEVELOPING GROUP PTY LTD (ABN 64 132 817 362)

Applicant

AND:

LEYLA MOGHIMI

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGES:	NORTH, KATZMANN AND BROMBERG  JJ
DATE OF ORDER:	18 AUGUST 2016

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the costs of the first respondent fixed in the amount of $30,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. The applicant, Eliana Construction and Developing Group Pty Ltd, applies for judicial review under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) for relief in respect of two decisions of the Fair Work Commission (FWC).

2. The first decision was made by Commissioner Roe on 23 July 2015.  He ordered that the applicant pay the first respondent, Leyla Moghimi, $27,500 compensation for unfair dismissal.  The second decision was made by a Full Bench of the FWC (Vice President Watson, Deputy President Hamilton and Commissioner Johns).  The Full Bench refused the applicant permission to appeal from the Commissioner’s decision.

3. The application advanced six grounds of which the first two challenged the Commissioner’s decision, and the remaining four grounds challenged the Full Bench decision. 

4. The first respondent was employed by the applicant as an architectural draftsperson.  Her partner was also employed by the applicant in the same office.  In the early hours of the morning of 19 January 2015, the first respondent was the victim of domestic violence at the hands of her partner.  On 20 January 2015, the police applied to the Ringwood Magistrates’ Court which granted an intervention order inter alia prohibiting the partner from approaching nearer than three metres to the first respondent.  This unusually close contact regime was arrived at in order to allow both to continue working in the same office. 

5. The Commissioner held at [36] that the first respondent was dismissed by the applicant and rejected the applicant’s argument that she had resigned. 

6. Ground two of the application alleged that:

   Commissioner Roe erred given that both husband and wife work in an open space and a serious allegation was made against the ex-partner and concluded that “this is effectively telling the Respondent that she can no longer work for Eliana” which…