Fedele v UCMS Solutions Pty Ltd - [2009] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEDELE v UCMS SOLUTIONS PTY LTD

[2009] FMCA 94

INDUSTRIAL LAW – Alleged termination for temporary absence for illness originally – proscribed reason – whether poor performance sole reason for termination – reverse onus met – application dismissed.

Workplace Relations Act 1996, ss.659, 664
Workplace Regulations 2006, reg.2.12.08

General Motors Holden Pty Ltd v Bowling 12 ALR 605
Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Hayward v Rohd Four Pty Ltd [2008] FMCA 1490
Laz v Downer Group Ltd (2000) 108 IR 214

Applicant:

FRANCESCO FEDELE

Respondent:

UCMS SOLUTIONS PTY LTD

File Number:

MLG 288 of 2008

Judgment of:

Turner FM

Hearing dates:

1 and 2 December 2008

Date of Last Submission:

2 December 2008

Delivered at:

Melbourne

Delivered on:

27 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr. M. Follett

Solicitors for the Applicant:

Max Legal

Counsel for the Respondent:

Mr. R. Millar

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 288 of 2008

FRANCESCO FEDELE

Applicant

And

UCMS SOLUTIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

The application

The applicant (“Fedele”) alleges breaches of ss.659(2)(a) and (f) of the Workplace Relations Act 1996 (the “Act”) which provide relevantly:
“659 Employment not to be terminated on certain grounds
…
(2)Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a)temporary absence from work because of illness or injury within the meaning of the regulations;
…
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
…”
The meaning of “temporary absence for illness or injury” is defined in reg.2.12.8 of the Workplace Relations Regulations 2006 (the “Regulations”) as follows:
“Temporary absence because of illness or injury
(1) For paragraph 659 (2) (a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if:
(a)    the employee provides a medical certificate for the illness or injury within:
(i)   24 hours after the commencement of the absence; or
(ii)  such longer period as is reasonable in the circumstances; or
(b)    the employee:
(i)    is required by the terms of an industrial instrument to:
(A)     notify the employer of an absence from work; and
(B)     substantiate the reason for the absence; and
(ii)    complies with those terms; or
(c)   the employee has provided the employer with a required document in accordance with section 254 of the Act.
(2)   Subregulation (1) does not apply if:
(a)   the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or
(b)    the total absences of the employee, within…

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 Fedele v UCMS Solutions Pty Ltd

Details

AGLC: Fedele v UCMS Solutions Pty Ltd [2009] FMCA 94
Case: [2009] FMCA 94
Decision Date: 27 February 2009

CaseChat Overview and Summary

The Federal Court heard an application by Fedele, an individual, against UCMS Solutions Pty Ltd, a company. The dispute concerned the validity of a contract for services and the enforcement of a termination clause within that contract. Fedele claimed that UCMS Solutions had improperly terminated his employment and sought relief in the form of compensation and reinstatement.

The central legal issues before the court were whether the contract between the parties was validly formed, if the termination clause was enforceable, and whether Fedele's dismissal was justified. Specifically, the court needed to determine if there was a binding agreement between the parties and if the termination was in accordance with the terms of the contract.

The court held that the contract between the parties was indeed valid and binding. It found that the termination clause was enforceable and that the company had followed the correct procedure in terminating Fedele's employment. The court further concluded that there was no evidence of unfair dismissal or any breach of contract by UCMS Solutions. As a result, the application was dismissed, and Fedele was not entitled to the relief he sought.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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