Galvin v Renito Pty Ltd

[1999] FCA 1005

FEDERAL COURT OF AUSTRALIA

Galvin v Renito Pty Ltd [1999] FCA 1005

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - unlawful termination - proscribed reason - onus of proof - whether employment terminated for reasons including physical and mental disability;  performance as a reason for termination

Workplace Relations Act 1996 ss170CE, 170CK, 170CM, 170CQ
Industrial Relations Act 1988 ss170DF, 170EDA
Conciliation and Arbitration Act 1904 s5(4)

Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 applied
Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 applied

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257cited
Johns v Gunns Ltd (1995) 60 IR 258 followed
Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 cited
Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995) applied
General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 cited

JOSHUA GALVIN v RENITO PTY LTD
VG 729 of 1998

RYAN JR
MELBOURNE
26 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 OF 1998

BETWEEN:	JOSHUA GALVIN Applicant
AND:	RENITO PTY LTD Respondent
JUDICIAL REGISTRAR:	RYAN
DATE OF ORDER:	26 JULY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application and claim of unlawful termination of the employment is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 OF 1998

BETWEEN:	JOSHUA GALVIN Applicant
AND:	RENITO PTY LTD Respondent

JUDICIAL REGISTRAR:	RYAN
DATE:	26 JULY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Application

   On 17 September 1998 the applicant applied in the Australian Industrial Relations Commission for relief in respect of termination of employment and identified the grounds on which the application was based as

   · s170CE(1) - harsh, unjust or unreasonable termination

   · s170CK - discrimination or other prohibited reasons

   · s170CM - failure to give statutory notice.

2. On 14 December 1998 Senior Deputy President Watson issued a certificate to the effect that attempts to settle the matter by conciliation had been or were likely to be unsuccessful. On 15 December the applicant's solicitors issued a notice electing to begin proceedings in the Court for an order under s170CR in respect of alleged contravention of s170CK.

3. On 23 December the applicant signed and his solicitors filed a claim of unlawful termination of employment under s170CP.  The claimant sought as remedy

   ·    compensation

   ·    written reference

   ·    penalty.

4. The claim was accompanied by a Form 5 application which gave details of claim as follows:

   "On the grounds stated in the accompanying Claim of Unlawful Termination of Employment in accordance with Form 5A, the applicant claims:

   1.        An order imposing on the employer a penalty under s170CR(1)(a);

   2.An order requiring the employer to pay the applicant an amount of compensation under s170CR(1)(c)."

5. Grounds for Claim of Unlawful Termination

   The claim, the accompanying claim Form 5A, did not in fact state grounds.  The first indication or hint of a…