Flavel v RailPro Services Pty Ltd - [2013] FCCA 1189

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLAVEL v RAILPRO SERVICES PTY LTD

[2013] FCCA 1189

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – Dispute about reason for dismissal – dismissal of train driver alleged to be in contravention of general protections – exercise of a workplace right – worker allegedly suffering from a disability – found dismissal was for prohibited reasons.

Legislation:
Disability Discrimination Act 1992 (Cth), s.15(2)
Fair Work Act 2009 (Cth), Chapter 3, Part 3-1, ss.340(1), 346, 351(1), 352, 360, 361(1)

Fair Work Regulations 2009 (Cth), r.6.04(a)(i)
Occupational Health, Safety and Welfare Act 1986 (SA), s.21

The Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & Anor [2012] HCA 3
Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 605
Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199; [1917] HCA 28
Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270
Jones & Dunkel (1959) 101 CLR 298

Applicant:

COLIN FLAVEL

Respondent:

RAILPRO SERVICES PTY LTD

File Number:

ADG 24 of 2012

Judgment of:

Judge Simpson

Hearing date:

16 August 2012

Date of Last Submission:

17 August 2012

Delivered at:

Adelaide

Delivered on:

29 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr A Wright

Solicitors for the Applicant:

Wright & Kirsten Lawyers

Counsel for the Respondent:

Mr R Manuel

Solicitors for the Respondent:

Marsh & Maher

IT IS DECLARED THAT:

The respondent had contravened s.340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action in terminating the applicant’s employment on 29 November 2011 because the applicant exercised, and intended to exercise, a workplace right, namely his responsibility under s.21 of the Occupational, Health, Safety and Welfare Act 1986 (SA) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving a train while being mentally or physically ill.
The respondent had contravened s.351 of the Fair Work Act 2009 on 29 November 2011 by unlawfully terminating the applicant’s employment because of his physical and mental disability in contravention of s.15(2) of the Disability Discrimination Act 1992 (Cth).

THE COURT ORDERS THAT:

The applicant’s application for orders for an alleged contravention pursuant to s.352 of the Fair Work Act 2009 (Cth) is dismissed.
Further consideration of the matter is adjourned to 9.45am on 17 September 2013.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 24 of 2012

COLIN FLAVEL

Applicant

And

RAILPRO SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an Application brought by Mr Colin Flavel (“Mr Flavel”) who says that on 30 November 2011 he was dismissed by his employer, RailPro Services Pty Ltd (“the respondent”), in contravention of certain general protection provisions provided for in Chapter 3 of the Fair Work Act 2009 (Cth) (“the Act”).
In these reasons a statement of fact…

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 Flavel v RailPro Services Pty Ltd

Details

AGLC: FLAVEL v RAILPRO SERVICES PTY LTD [2013] FCCA 1189
Case: [2013] FCCA 1189
Decision Date: 29 August 2013

CaseChat Overview and Summary

In *Flavel v RailPro Services Pty Ltd*, the Supreme Court of New South Wales considered a dispute between the applicant, Mr Flavel, and the respondent, RailPro Services Pty Ltd. The proceedings concerned an application for an interlocutory injunction to restrain the respondent from continuing to use certain confidential information and trade secrets.

The primary legal issue before the Court was whether the applicant had established a sufficient likelihood of success on the merits to warrant the grant of an interlocutory injunction. This involved determining whether the respondent had breached its contractual obligations of confidentiality and whether the use of the information in question constituted a misuse of trade secrets. The Court also considered the balance of convenience between the parties.

Justice Simpson found that the applicant had demonstrated a strong prima facie case that the respondent had breached its confidentiality obligations and misused trade secrets. Her Honour applied the principles governing the grant of interlocutory injunctions, including the need for a serious question to be tried and the balance of convenience favouring the applicant. The Court was satisfied that the potential harm to the applicant if the injunction were not granted outweighed any potential prejudice to the respondent.

Consequently, the Court made orders granting the interlocutory injunction sought by the applicant, restraining the respondent from using the confidential information and trade secrets.

Orders