Gordon v Express Gas Operations Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GORDON v EXPRESS GAS OPERATIONS PTY LTD [2007] FMCA 1059

INDUSTRIAL LAW – Unlawful termination – alleged contravention of s.659 of the Workplace Relations Act 1996 (Cth) proved – compensation for applicant – penalty imposed on respondent.

Workplace Relations Act 1996 (Cth), ss.659, 659(2)(a), 661, 665, 655(3), 655(4)
Workplace Relations Regulations 2006 (Cth), reg.12.8

Jones v Dunkel (1959) 101 CLR 298
Briginshaw v Briginshaw (1938) CLR 336
Sperandio v Lynch (No. 2) (2006) FCA 1838
Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21

Applicant: AARON GORDON

Respondent: EXPRESS GAS OPERATIONS PTY LTD

File number: MLG 1643 of 2006

Judgment of: Burchardt FM

Hearing date: 14 June 2007

Date of last submission: 14 June 2007

Delivered at: Melbourne

Delivered on: 17 August 2007

REPRESENTATION

Counsel for the Applicant: Mr A. McDonald

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondent: Mr S.G.R. Wilmoth

Solicitors for the Respondent: Maitland Lawyers

ORDERS

1. That the Respondent pay to the Applicant $5,600.00 pursuant to s.665(1)(c) of the Workplace Relations Act 1996 (Cth) (“the Act”).

2. That a penalty of $8,000.00 be imposed on the Respondent pursuant to s.665(1)(a) of the Act, and that such sum be paid to the Applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1643 of 2006

AARON GORDON

Applicant

And

EXPRESS GAS OPERATIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 13 November 2006 in which the Applicant seeks remedies, including the imposition of a penalty on the Respondent employer, arising out of what is asserted to be a contravention of s.659 of the Workplace Relations Act 1996 (Cth) ("the Act"). Although the application also raised a possible contravention of s.661 of the Act, that matter is no longer in issue.

2. Likewise, although the case originally involved assertions that the Respondent might have contravened sub-s.659(2)(a) or (f) of the Act, as matters have developed it is apparent that the Applicant asserts only a contravention of sub-s.659(2)(a) which is relevantly in these terms:

   An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

   (a)     temporary absence from work because of illness or injury within the meaning of the regulations.  (my emphasis)

3. It is common cause that the Applicant started to work for the Respondent as a plant operator in about December of 2003.  He had been employed previously as a casual for about four months while finishing his last year of school.

4. The company's business at its Dandenong plant, where the Applicant worked in a workforce comprising, it would appear, seven employees, was concerned with filling and maintaining gas bottles of various sizes which it tested, repainted and maintained.  The Applicant's duties included testing gas bottles, filling gas bottles, driving forklifts, painting gas bottles and loading heavy bottles on the dock.

5. At para.3 of his first affidavit filed on 7 May 2007 the Applicant asserted that he was performing…