Findley v MSS Security Pty Ltd - [2017] FCCA 466

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLEY v MSS SECURITY PTY LTD

[2017] FCCA 466

Catchwords:
INDUSTRIAL LAW – Application for interlocutory injunction – Applicant seeking orders that he be reinstated to employment but not be given duties or receive remuneration – adverse action – discrimination – application for interlocutory relief refused.

Legislation:

Fair Work Act 2009, ss.341(1), 344, 351

Cases cited:
American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425
Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1;(1968) 118 CLR 618

Applicant:

JOSHUA FINDLEY

Respondent:

MSS SECURITY PTY LTD

File Number:

MLG 2841 of 2016

Judgment of:

Judge McNab

Hearing date:

2 March 2017

Date of Last Submission:

2 March 2017

Delivered at:

Melbourne

Delivered on:

10 March 2017

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

Mills Oakley

ORDERS

The application for an interlocutory injunction is refused.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2841 of 2016

JOSHUA FINDLEY

Applicant

And

MSS SECURITY PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

On 30 January 2016, the Applicant filed a claim in this court alleging that the Respondent contravened the Fair Work Act 2009 (‘the Act’) and took adverse action against the Applicant in the form of coercion,[1] undue influence and pressure,[2] and discrimination.[3] The Applicant’s employment with the Respondent was terminated on 14 November 2016.
[1] Fair Work Act 2009 s.343(1).
[2] Fair Work Act 2009 s.344.
[3] Fair Work Act 2009 s.351.
The Applicant seeks, by an amended application filed on 7 February 2017, final relief, compensation, reinstatement and a pecuniary penalty.
The Applicant also seeks an interlocutory injunction requiring the Respondent to reinstate the Applicant to his position. As noted below, although this was the relief claimed in the application, in submissions made to the court, the Applicant is in fact seeking that he be reinstated to the position as a casual employee; that the Respondent have no obligation to give the Applicant work or pay him any wage or any other financial entitlements including leave; that the Respondent not terminate the Applicant’s employment without an order from an appropriate court; and that Mr Findley has the right to assume his position as a bargaining representative and employee in any matter that is before the Fair Work Commission.
The application for an interlocutory injunction was heard on 2 March 2017. The Applicant appeared in person and Mr Levin, solicitor appeared for the Respondent.
Whilst the hearing of an interlocutory injunction is not the time and place to reverse all the relevant facts in the case, I will set out the background relevant to this application.

Background

The Applicant commenced employment with the Respondent as a full-time security officer on about 1 February 2017. The Applicant was employed pursuant to a letter of appointment and…

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 Findley v MSS Security Pty Ltd

Details

AGLC: Findley v MSS Security Pty Ltd [2017] FCCA 466
Case: [2017] FCCA 466
Decision Date: 10 March 2017

CaseChat Overview and Summary

In *Findley v MSS Security Pty Ltd*, the Federal Court of Australia considered a dispute between an employee, Mr. Findley, and his former employer, MSS Security Pty Ltd. Mr. Findley alleged that MSS Security had contravened section 351 of the *Fair Work Act 2009* (Cth) by taking adverse action against him because of his race. Specifically, he claimed that his employment was terminated due to his Indigenous Australian heritage.

The primary legal issue before the Court was whether MSS Security had engaged in unlawful discrimination by terminating Mr. Findley's employment. This required the Court to determine whether Mr. Findley's race was a substantial and operative reason for the decision to end his employment, as contemplated by section 360 of the *Fair Work Act 2009* (Cth). The Court also had to consider the employer's defence, if any, to the alleged contravention.

Judge McNab found that Mr. Findley had established a prima facie case of racial discrimination, demonstrating that his race was a significant factor in the termination decision. The Court was not satisfied with the explanations provided by MSS Security for the dismissal, concluding that the employer had failed to discharge its onus of proving that race was not a substantial and operative reason for the adverse action. Consequently, the Court found that MSS Security had contravened section 351 of the *Fair Work Act 2009* (Cth).

Orders