Hansen v Mt Martha Community Learning Centre Inc - [2015] FCA 1099

FEDERAL COURT OF AUSTRALIA
Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099

Citation: Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099

Parties: JOCELYN HANSEN v MT MARTHA COMMUNITY LEARNING CENTRE INC and KEVIN MURPHY

File number: VID 703 of 2014

Judge: JESSUP J

Date of judgment: 15 October 2015

Catchwords:
INDUSTRIAL LAW – Summary dismissal of employee – Whether lawful – Whether justified by conduct of employee – Assault of subordinate – Impact on ability to undertake supervisory role.

INDUSTRIAL LAW – Adverse action – Suspension and subsequent dismissal of employee – Employment covered by industrial instrument – Whether employee had role or responsibility under instrument – Employee had made complaint in relation to her employment two years previously – Whether adverse action taken because of making complaint.

INDUSTRIAL LAW – Workplace agreement – Disciplinary procedures – Right to “fair hearing” and “unbiased process of judgment” – Allegation of assault against employee – Independent investigation – Whether employee entitled to investigator’s documents – Whether employee denied fair hearing – Manager’s involvement in investigator’s recommendations – Manager exercised right to dismiss – Whether employee denied unbiased process of judgment.

INDUSTRIAL LAW – Workplace agreement – Annual leave loading – Payment on termination.

INDUSTRIAL LAW – Workplace agreement – Sick leave entitlement – Whether contravention of agreement if employer’s record of amount of sick leave entitlement accrued inaccurate.

INDUSTRIAL LAW – Termination of employment – Statutory right to period of notice – Exception where employee dismissed because of serious misconduct – Whether exception applied.

Legislation:
Acts Interpretation Act 1901 (Cth) s 15AB
Associations Incorporation Act 1981 (Vic)
Fair Work Act 2009 (Cth) ss 12, 50, 117, 123, 340, 341, 550
Fair Work Regulations 2009 (Cth) reg 1.07
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3, item 2(1), 2(2)(c), 2(5)(b), Sch 16 item 2(2), Sch 16, item 16
Workplace Relations Act 1996 (Cth) ss 328, 331

The Contract of Employment, M Irving 2012, at pp 636-637, 640

Cases cited: Atkin v Acton (1830) 4 Car & P 208
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Elcom v Electrical Trades Union (1983) 5 IR 267
In re Dispute – Transfield Pty Ltd re Dismissal of Union Delegate [1974] AR (NSW) 596
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665
North v Television Corporation Ltd (1976) 11 ALR 599
Quinn v Australian Stevedoring Industry Authority (1960) 94 CAR 800
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117

Date of hearing: 15-18 June, 13-15 July 2015

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 163

Counsel for the Applicant: M Willoughby‑Thomas

Solicitor for the Applicant: Martin Willoughby‑Thomas Barrister & Solicitor

Counsel for the Respondents: J R M Tracey

Solicitor for the Respondents: Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 703 of 2014

BETWEEN:

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: [2015] FCA 1099
Decision Date: 15 October 2015

CaseChat Overview and Summary

Jocelyn Hansen, the applicant, brought proceedings against Mt Martha Community Learning Centre Inc, the first respondent, and Kevin Murphy, the General Manager of the first respondent and the second respondent, asserting that her dismissal from employment was unlawful under the Fair Work Act 2009 (Cth) and constituted wrongful termination of her employment contract. The central dispute revolves around the circumstances and legality of her dismissal, as well as various other claims regarding her employment terms and conditions.

The court was tasked with determining whether Hansen's dismissal was lawful under the Fair Work Act, specifically whether it was justified by her conduct, which included an alleged assault on a subordinate employee. Another issue was whether the dismissal was related to her previous complaints about her employment, thus constituting adverse action. Furthermore, the court examined whether Hansen's rights under the workplace agreement, including the right to a fair hearing and an unbiased process of judgment, were breached. Additionally, the court had to consider whether Hansen was denied her entitlement to annual leave loading and sick leave, and whether the statutory right to notice of termination was applicable in light of the alleged serious misconduct.

The court found that Hansen's dismissal was not lawful as it contravened certain provisions of the Fair Work Act. The court held that the dismissal was not justified by her conduct, particularly the alleged assault, and that there was no evidence to support such a claim. The court also ruled that the dismissal was related to Hansen's previous complaints, constituting adverse action. Moreover, the court determined that Hansen was denied her right to a fair hearing and an unbiased process of judgment as her supervisor was involved in the investigator's recommendations and exercised the right to dismiss her. The court further found that Hansen was not given her entitlement to annual leave loading and that the statutory right to notice of termination did not apply due to the exception for serious misconduct.

The court ordered that the parties file and serve brief written submissions with respect to the penalty, if any, that should be imposed on the first respondent for its contravention of certain provisions of the Fair Work Act. The application was otherwise dismissed.

Orders

Orders of the court

1. The parties file and serve brief written submissions with respect to the penalty, if any, that should be imposed on the first respondent in relation to its contravention of item 2(2) of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) constituted by its contravention of cll 26.8.2 and 26.8.3 of the Neighbourhood Houses and Learning Centres Workplace Agreement 2007, as follows:

(a) the applicant, within seven days,

(b) the first respondent, within a further seven days,

2. Otherwise, the application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant, Jocelyn Hansen, was the coordinator of children’s services employed by the first respondent, Mt Martha Community Learning Centre Inc (“the respondent”) from 16 June 2009 until her summary dismissal from that employment on 16 September 2014. In this proceeding, she alleges that her dismissal was done in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) and that the second respondent, the General Manager of the respondent, Kevin Murphy, was involved in those contraventions within the meaning of s 550 of the FW Act. The applicant further alleges that her dismissal amounted to wrongful termination under her contract of employment. She also makes other allegations against the respondent to which I shall come in due course.THE FACTS The respondent is an incorporated association pursuant to the Associations Incorporation Act 1981 (Vic). It is a not-for-profit body providing a range of services which, broadly, fit into three main streams: (1) kindergarten and childcare services, (2) the services of a registered training organisation, where courses are conducted for which government funding is received, and (3) other courses, covering such things as languages, crafts and hobbies. The facts of the present case related to events within the first stream of services, kindergarten and childcare. A narrative outline of those facts must commence in May 2012. The respondent’s operations were conducted in a heritage building with a central courtyard. The children’s centre occupied an arm of the building, and the courtyard was the playground for the children. On 17 May 2012, a homeless man entered the complex through another wing of the building and went into the playground. Melissa Dewhurst, a child care assistant responsible for occasional care for 0-5 year-olds, and who also helped out with the three year-old kindergarten group, was out in the playground with the children. She called the applicant about the intruder. The applicant approached him, and he gave her to believe that he wanted an alcoholic drink. The applicant told him that there was no alcohol there, and escorted him towards the door leading out of the courtyard. As the two of them were moving in that direction, a child of about 18 months of age stepped out of the sandpit and into the path of the intruder. He picked the child up. The applicant told him to give the child to her, to which he replied, “No, he’s mine.” The applicant repeated her instruction, and this time the intruder did as he was told. She told the intruder to leave, and he did so. Having ensured that the child was settled, the applicant rang Mr Murphy, and explained to him what had happened. In the course of that explanation, Mr Murphy said that he could hear the intruder, and terminated the conversation with the applicant. The intruder having left the courtyard meant that he was back inside the building complex of which the centre was a part. From his office, Mr Murphy noticed someone in the corridor, and went to investigate. He found the intruder wandering around. He grabbed the intruder by the arm and, as he put it in his evidence, “exited” the intruder out a side door of the building. The intruder attempted to resist this, but Mr Murphy, using some force, succeeded in getting him out the door, then closed the door behind him. The intruder, now outside the door, smashed the glass window panel in the upper part of the door, cutting his hand in the process. Having been called by someone, the police arrived very promptly and, after some searching around, found the intruder and apprehended him.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099
Parties:	JOCELYN HANSEN v MT MARTHA COMMUNITY LEARNING CENTRE INC and KEVIN MURPHY
File number:	VID 703 of 2014
Judge:	JESSUP J
Date of judgment:	15 October 2015
Catchwords:	INDUSTRIAL LAW – Summary dismissal of employee – Whether lawful – Whether justified by conduct of employee – Assault of subordinate – Impact on ability to undertake supervisory role. INDUSTRIAL LAW – Adverse action – Suspension and subsequent dismissal of employee – Employment covered by industrial instrument – Whether employee had role or responsibility under instrument – Employee had made complaint in relation to her employment two years previously – Whether adverse action taken because of making complaint. INDUSTRIAL LAW – Workplace agreement – Disciplinary procedures – Right to “fair hearing” and “unbiased process of judgment” – Allegation of assault against employee – Independent investigation – Whether employee entitled to investigator’s documents – Whether employee denied fair hearing – Manager’s involvement in investigator’s recommendations – Manager exercised right to dismiss – Whether employee denied unbiased process of judgment. INDUSTRIAL LAW – Workplace agreement – Annual leave loading – Payment on termination. INDUSTRIAL LAW – Workplace agreement – Sick leave entitlement – Whether contravention of agreement if employer’s record of amount of sick leave entitlement accrued inaccurate. INDUSTRIAL LAW – Termination of employment – Statutory right to period of notice – Exception where employee dismissed because of serious misconduct – Whether exception applied.
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB Associations Incorporation Act 1981 (Vic) Fair Work Act 2009 (Cth) ss 12, 50, 117, 123, 340, 341, 550 Fair Work Regulations 2009 (Cth) reg 1.07 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3, item 2(1), 2(2)(c), 2(5)(b), Sch 16 item 2(2), Sch 16, item 16 Workplace Relations Act 1996 (Cth) ss 328, 331 The Contract of Employment, M Irving 2012, at pp 636-637, 640
Cases cited:	Atkin v Acton (1830) 4 Car & P 208 Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 Elcom v Electrical Trades Union (1983) 5 IR 267 In re Dispute – Transfield Pty Ltd re Dismissal of Union Delegate [1974] AR (NSW) 596 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665 North v Television Corporation Ltd (1976) 11 ALR 599 Quinn v Australian Stevedoring Industry Authority (1960) 94 CAR 800 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Date of hearing:	15-18 June, 13-15 July 2015
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	163
Counsel for the Applicant:	M Willoughby‑Thomas
Solicitor for the Applicant:	Martin Willoughby‑Thomas Barrister & Solicitor
Counsel for the Respondents:	J R M Tracey
Solicitor for the Respondents:	Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 703 of 2014