Green v Preston Motors Pty Ltd - [2022] FedCFamC2G 205

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Green v Preston Motors Pty Ltd [2022] FedCFamC2G 205

File number(s):	MLG 2653 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	25 March 2022
Catchwords:	INDUSTRIAL LAW – adverse action – workplace rights – whether complaints or inquiries made fall with section 341(1)(c)(ii) of the Fair Work Act 2009 – held certain complaints or inquiries are workplace rights for the purposes of the Act INDUSTRIAL LAW - adverse action – termination of employment and stand down from employment conceded to be adverse action – where other forms of adverse action alleged including CEO allegedly avoiding the applicant in the workplace – where evidence not sufficient to demonstrate CEO avoided applicant – where workplace investigation alleged to be adverse action – held workplace investigation not adverse action in the circumstances INDUSTRIAL LAW – adverse action – where decision to terminate employment taken by the CEO and where decision to stand down employees taken by the Board –alleged adverse action taken for an unlawful reason – where CEO gave evidence of reasons for decision to terminate employment – where CEO conferred with human resources manager about the termination decision – where CEO conferred with human resources manager before advising the Board about stand down and the Board relied on the CEO’s advice – whether failure to call the human resources manager to give evidence meant the onus in section 361 of the Fair Work Act could not be discharged in respect of the decision to stand down and the decision to terminate employment – held human resources manager not a decision maker – reverse onus discharged INDUSTRIAL LAW – adverse action – whether failure to give notice of termination under the Fair Work Act 2009 and the contract of employment constituted adverse action – held adverse action not taken against an employee whose employment is terminated for breaching the contract - breach of contract disentitles employee to notice under the Fair Work Act and the contract – held no breach of contract.
Legislation:	Fair Work Act 2009 ss 44(1), 117, 123, 340, 340(1) 341(1), 341(1)(c)(ii), 342, 342(1), 360, 361, 524, 526, 793 Occupational Health and Safety Act 2004 (Vic)
Cases cited:	Alam v National Australia Bank Ltd [2021] FCAFC 178 Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 Bartolo v Doutta Galla Aged Services Ltd (No 2) [2015] FCCA 345 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 CFMEU v Endeavour Coal (2015) 231 FCR CFMEU v Piblara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Hansen v Mt Martha Community Learning Centre Inc (2015) 254 IR 1 Jones v Dunkel [1959]…

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: [2022] FedCFamC2G 205
Decision Date

CaseChat Overview and Summary

Chris Green, the former General Manager of Porsche Centre Brighton, brought claims against his employer Preston Motors Pty Ltd. Mr Green claimed that he had been subjected to unlawful adverse action by Preston Motors and that his employment was terminated without the requisite notice of termination. The claims were denied by Preston Motors. The Federal Circuit and Family Court of Australia (Division 2) dismissed all claims brought by Mr Green. Mr Green was not subject to any unlawful adverse action by Preston Motors. Mr Green was dismissed for breaching his employment contract by disclosing confidential information to Porsche Cars Australia Pty Ltd. The breach of contract disentitles Mr Green to notice under the Fair Work Act 2009 and the contract. The decision to stand down Mr Green from employment was a decision made by the Board of Preston Motors. The decision was made for business reasons relating to the COVID 19 pandemic and not for any reason proscribed by section 340 of the Act.

Orders