FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEE v MACMAHON UNDERGROUND PTY LTD (No.2) | [2019] FCCA 2398 |
| Catchwords: INDUSTRIAL – Alleged dismissal from employment in contravention of a general protection. |
| Legislation: Fair Work Act 2009 (Cth), Pts.3-1, 3-2, ss.340, 341, 342, 361, 389, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Applicant: | CRAIG ADAM GEE |
| Respondent: | MACMAHON UNDERGROUND PTY LTD |
| File Number: | PEG 22 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 7 April 2015 and 12 May 2015 |
| Date of Last Submission: | 12 May 2015 |
| Delivered at: | Perth |
| Delivered on: | 30 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr S Heathcote |
| Solicitors for the Applicant: | APX Law Pty Ltd |
| Counsel for… |
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Details
- AGLC
- Gee v Macmahon Underground Pty Ltd (No.2) [2019] FCCA 2398
- Case
- [2019] FCCA 2398
- Decision Date
CaseChat Overview and Summary
In *Gee v Macmahon Underground Pty Ltd (No.2)*, heard by Judge Antoni Lucev, the dispute concerned whether Mr Gee's termination constituted a dismissal by reason of redundancy, as asserted by Macmahon Underground Pty Ltd, or whether the adverse action and dismissal arose from the decision not to redeploy Mr Gee.
The court was required to determine whether the non-selection of Mr Gee for a position constituted adverse action, and if so, whether this, or the redundancy itself, was the operative cause of his dismissal. The court considered the principles established in *Rowland v Alfred Health* and *Dutta v Telstra Corporation Ltd* regarding what constitutes adverse action under the relevant legislation.
The court reasoned that adverse action includes any alteration to an employee's position to their prejudice. It was accepted that the termination of Mr Gee's employment was adverse action. Drawing on *Rowland*, the court noted that subjecting an employee to a situation where they must re-apply for their position, with the risk of redundancy, constitutes an adverse affection of their employment. Furthermore, referencing *Dutta*, the court acknowledged that both the decision to select an employee for redundancy and the decision not to redeploy them to an alternative position can constitute adverse action. The central issue remained whether the redundancy was the genuine reason for dismissal or if the failure to redeploy was the operative adverse action.
The court was required to determine whether the non-selection of Mr Gee for a position constituted adverse action, and if so, whether this, or the redundancy itself, was the operative cause of his dismissal. The court considered the principles established in *Rowland v Alfred Health* and *Dutta v Telstra Corporation Ltd* regarding what constitutes adverse action under the relevant legislation.
The court reasoned that adverse action includes any alteration to an employee's position to their prejudice. It was accepted that the termination of Mr Gee's employment was adverse action. Drawing on *Rowland*, the court noted that subjecting an employee to a situation where they must re-apply for their position, with the risk of redundancy, constitutes an adverse affection of their employment. Furthermore, referencing *Dutta*, the court acknowledged that both the decision to select an employee for redundancy and the decision not to redeploy them to an alternative position can constitute adverse action. The central issue remained whether the redundancy was the genuine reason for dismissal or if the failure to redeploy was the operative adverse action.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Macmahon’s position was that Mr Gee was dismissed or “terminated by reason of redundancy” as his position was no longer required. Mr Gee suggests that the redundancy was not a dismissal, rather it was the decision not to redeploy which was the adverse action and dismissal. In Rowland v Alfred Health [2014] FCA 2 (“Rowland”) the Federal Court was required to determine if the non-selection of the applicant under a restructure amounted to adverse action. The applicant in Rowland was made redundant upon not being selected by the selection panel for a position under the new structure. In Rowland at [47]-[48] per Marshall ACJ stated as follows:Did the decision to restructure the Unit constitute adverse action?47 Mr Rinaldi submits that the decision of Alfred Health to restructure the Unit did not constitute adverse action with respect to Mr Rowland. He contends that the decision to restructure the Unit involved non-discriminatory action in which all six employees subject to the restructure were in the same position, having to apply for a position in the Unit, with the potential of adverse action. The Court does not accept that submission. Adverse action includes, in s 342(1) of the Act, an alteration of an employee’s position to his or her prejudice. In accordance with Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4], subjecting an employee to a situation where he or she is compelled to re-apply for his or her position, with the threat of redundancy looming is an “… adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The decision to restructure the Unit constituted adverse action against all employees employed in the Unit whose continued employment was put at risk by the “spill and fill” process. The position of all existing employees in the Unit was made less secure by having to re-apply for their jobs. Mr Rowland was one such employee.Did the non-selection of Mr Rowland for a position in the restructured Unit constitute adverse action?48 Counsel for Alfred Health submits that the non-selection of Mr Rowland for a position in the Unit was not adverse action but rather “inaction” in that there was a failure to appoint him. The Court rejects the submission that inaction cannot constitute adverse action. For example, an employee may be denied a promotion notwithstanding that he or she satisfied established criteria while others (who do not) are promoted. The non-selection of Mr Rowland was adverse action, but this issue is not one of consequence. That is because the parties agree and the Court accepts that the termination of Mr Rowland’s employment constituted adverse action. The decision of Mr Way to accept the selection panel’s recommendation and not select Mr Rowland for a position in the Unit had the logical flow-on effect that he was made redundant. In this matter it is also accepted that the adverse action was the termination of Mr Gee, however the issue is whether Mr Gee was dismissed for reason of redundancy, or a decision not to redeploy him. While a judgment delivered sometime after the Court had heard the parties in this case, it is relevant to note the remarks made in Dutta v Telstra Corporation Ltd [2018] FCA 1994 at [193] per Raniagh J:Telstra’s dismissal of Mr Dutta from his employment was plainly adverse action. The decision to select Mr Dutta for redundancy altered his position to his prejudice. The decision not to redeploy Mr Dutta to an alternative position within Telstra injured him in the course of his employment. There is no difficulty in finding that each of these actions was adverse action within s 342(1).
Ratio Decidendi
Legal Principle Established
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