Fox v Stowe Australia Pty Ltd - [2012] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOX v STOWE AUSTRALIA PTY LIMITED

[2012] FMCA 976

PRACTICE AND PROCEDURE – Court forms do not define the relief which may be sought – in an industrial proceeding in the Federal Magistrates Court of Australia an applicant may file and rely on both a Form 2 claim form and a Form 4 claim form.

PRACTICE AND PROCEDURE – Fair Work Act 2009 – the motivation for adverse action said to be in contravention of the Fair Work Act 2009 must be clearly and specifically alleged and particularised.

STATUTORY INTERPRETATION – Fair Work Act 2009 – the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is a workplace law for the purposes of the Fair Work Act 2009.

INDUSTRIAL LAW – Fair Work Act 2009 – if one party takes adverse action against another because the latter has rights under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), such action is taken for a reason prohibited by the Fair Work Act 2009 and is actionable under that Act.

Constitution, s.109
Fair Work Act 2009, ss.12, 340, 341, 351, 352, 361, 369, 371, 545
Workers Compensation Act 1987 (NSW), s.151A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s.49
Federal Court Rules2011, rr.9.01, 30.11
Federal Magistrates Court Rules2001, rr.1.05, 2.04, 45.06, 45.08

Bishop v Bridgelands Securities (1990) 25 FCR 311
Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Applicant:

CIARAN FOX

Respondent:

STOWE AUSTRALIA PTY LIMITED

File Number:

SYG 1648 of 2012

Judgment of:

Cameron FM

Hearing date:

23 October 2012

Date of Last Submission:

23 October 2012

Delivered at:

Sydney

Delivered on:

26 October 2012

REPRESENTATION

Solicitors for the Applicant:

Hugh & Associates

Counsel for the Respondent:

Mr G. Boyce

Solicitors for the Respondent:

Moray & Agnew

ORDERS

The applicant have leave to file his Form 4 claim form dated 25 July 2012.
The applicant be refused leave to rely for the purposes of his Form 4 claim on paras.18, 19, 20 and 25(a) of the points of claim.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1648 of 2012

CIARAN FOX

Applicant

And

STOWE AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant alleges that he was employed by the respondent on 15 January 2008. He says that on 5 February 2008 he suffered an injury to his left wrist which caused physical disability and in respect of which he lodged a workers compensation claim. He further alleges that he was dismissed by the respondent on 28 March 2012 with effect from that day. In the points of claim annexed to his Form 2 claim form filed with the application initiating this proceeding the applicant alleges that his dismissal was adverse action, as defined by the Fair Work Act 2009 (“FWA”), taken in contravention of ss.340, 351 and 352 of the FWA. He claims compensation in…

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: [2012] FMCA 976
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Fox initiated proceedings against Stowe Australia Pty Ltd. The dispute arose from allegations that Stowe had taken adverse action against Fox, in contravention of the Fair Work Act 2009. Fox sought relief under both Form 2 and Form 4 claim forms, which led to a consideration of whether such dual filings were permissible in industrial proceedings. The court was required to determine whether the forms could be used in conjunction and whether the allegations against Stowe were sufficiently particularised to warrant relief.

The court examined the procedural aspect of whether an applicant could rely on both a Form 2 and a Form 4 claim form in an industrial proceeding. It also considered the necessity for the motivation behind adverse action to be clearly and specifically alleged under the Fair Work Act 2009. Additionally, the court needed to interpret whether the Workplace Injury Management and Workers Compensation Act 1998 (NSW) qualified as a workplace law under the Fair Work Act 2009, and if adverse action motivated by rights under the former constituted prohibited conduct under the latter.

The court found that it was permissible for an applicant to file and rely on both a Form 2 and a Form 4 claim form in industrial proceedings. However, it also ruled that the motivation for adverse action must be clearly and specifically alleged. The court further interpreted that the Workplace Injury Management and Workers Compensation Act 1998 (NSW) was indeed a workplace law for the purposes of the Fair Work Act 2009, and that adverse action taken due to rights under this Act was actionable. Consequently, the court granted Fox leave to file the Form 4 claim form but denied leave to rely on certain paragraphs of the points of claim.

The court's final orders were that Fox be granted leave to file the Form 4 claim form dated 25 July 2012, but denied leave to rely on paras. 18, 19, 20, and 25(a) of the points of claim.

Orders

Orders of the court

The applicant have leave to file his Form 4 claim form dated 25 July 2012.

The applicant be refused leave to rely for the purposes of his Form 4 claim on paras.18, 19, 20 and 25(a) of the points of claim.

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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