Herbert v Star Aviation Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Herbert v Star Aviation Pty Ltd [2019] FCAFC 136

Appeal from: Herbert v Star Aviation Services Pty Ltd [2019] FCA 239
File number: NSD 439 of 2019
Judges: KATZMANN, COLVIN & THAWLEY JJ
Date of judgment: 14 August 2019
Catchwords: INDUSTRIAL LAW — adverse action — whether action taken against appellant because of his family or carer responsibilities — whether primary judge erred in various respects
Legislation:

Fair Work Act 2009 (Cth) ss 351, 360, 361(1), Part 3–1

Racial Discrimination Act 1975 (Cth)
Cases cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Branir v Owston Nominees (No 2) Pty Ltd (2001) 2001 FCR 424

Fox v Percy (2003) 214 CLR 118
Date of hearing: 14 August 2019
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 41
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondents: Ms L Saunders
Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS

NSD 439 of 2019
BETWEEN:

STEPHEN NOEL HERBERT

Appellant
AND:

STAR AVIATION SERVICES PTY LTD (ACN 160 093 630) AS TRUSTEE FOR THE STAR AVIATION TRUST

First Respondent

PETER GEORGIOU

Second Respondent

PETER CORNELL

Third Respondent

JUDGES:

KATZMANN, COLVIN & THAWLEY JJ

DATE OF ORDER:

14 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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


REASONS FOR JUDGMENT
(Revised from transcript)

THE COURT:

  1. Subject to certain exceptions, s 351 of the Fair Work Act 2009 (Cth) prohibits an employer from taking adverse action against an employee or prospective employee for various reasons, including race and family or carer responsibilities. “Adverse action” is defined in s 342 of the Act to include dismissing an employee and refusing to employ a prospective employee. A person takes action for a particular reason if the reasons for the action include that reason (s 360). These provisions appear in Chapter 3 Part 3–1 of the Act. If, in an application in relation to a contravention of this Part, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention of the Part, then it is presumed that the action was taken for that reason unless the person who took the action proves otherwise (s 361(1)).

  2. Stephen Herbert sued Star Aviation Services Pty Ltd (Star) and two others claiming that he had been dismissed from his employment with Star in contravention of s 351.

  3. In November 2017, Mr Herbert applied for a position as a part-time fleet presentation officer with Star.  He found out about the position because his daughter Elizabeth was working for Star and she told him that Star was recruiting new employees.  On 17 November 2017, Mr Herbert met with Peter…

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Details
Case
[2019] FCAFC 136
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Herbert, brought a claim against Star Aviation Pty Ltd, alleging that he was dismissed due to his family or carer responsibilities. The Federal Circuit Court found in favour of the respondent, and the appellant appealed to the Full Court of the Federal Court. The primary judge's findings included that the appellant was dismissed for poor performance and that his family or carer responsibilities were not a factor in the decision. The appellant argued that the primary judge erred in various respects, including in the evaluation of the evidence and in the application of the law.

The primary legal issue before the court was whether the appellant's dismissal was due to his family or carer responsibilities, which would constitute adverse action under the Fair Work Act 2009. The court had to determine if the primary judge's findings were correct and whether there were any errors in the application of the law or evaluation of the evidence. The court also had to consider if the primary judge's conclusions were open to the court on the evidence before it.

The court found that the primary judge's findings were supported by the evidence and that there were no errors in the application of the law or evaluation of the evidence. The court held that the appellant's dismissal was not due to his family or carer responsibilities but rather for poor performance. The court found that the primary judge's conclusions were open to the court on the evidence before it and dismissed the appeal. The court held that the primary judge's findings were reasonable and that the appeal should be dismissed. The court did not find any errors in the primary judge's reasoning or application of the law.

Orders

Orders of the court

1. The appeal be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

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

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