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Hudston v Activ Foundation Inc

Hudston v Activ Foundation Inc

Case [2017] FCCA 699 21 June 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HUDSTON v ACTIV FOUNDATION INC

[2017] FCCA 699

Catchwords:
INDUSTRIAL LAW – Adverse action – dismissal from employment – reason for the dismissal – dismissal following an investigation into disciplinary allegations which were confirmed – application dismissed.

Legislation:

Evidence Act 1995 (Cth), s.140

Fair Work Act 2009 (Cth), ss.340, 341, 342, 346, 351, 361, 387

Cases cited:

Bendigo Regional Institute of Technology and Further Education v Barclay (No 1) (2012) 248 CLR 500

Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399
Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Ltd [2013] FCA 267

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) FCA 399

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
Manolakis v Carter [2008] FCAFC 183
Picos v HealthEngine Pty Ltd & Anor [2015] FCCA 1983
Rojas v Esselte Australia Pty Ltd (No. 2) [2008] FCA 1585
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Short v Ambulance Australia [2015] FCAFC 55
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
United Firefighters Union of Australia v Easy [2013] FCA 763
Wood v City of Melbourne Corporation (1979) 26 ALR 430

Applicant:

MARGARET HUDSTON

Respondent:

ACTIV FOUNDATION INC

File Number:

PEG 210 of 2015

Judgment of:

Judge Driver

Hearing dates:

9-10 February, 20-21 March 2017

Date of Last Submission:

19 April 2017

Delivered at:

Sydney, via telephone to Perth

Delivered on:

21 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms R Airey of HWL Ebsworth Lawyers

ORDERS

The application lodged on 15 May 2015 and filed on 18 May 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 210 of 2015

MARGARET HUDSTON

Applicant

And

ACTIV FOUNDATION INC

Respondent

REASONS FOR JUDGMENT

Introduction and background

By application lodged with the Perth registry on 15 May 2015 and filed on 18 May 2015, Ms Hudston seeks relief under the Fair Work Act 2009 (Cth) (Fair Work Act) for alleged adverse action, being her dismissal from employment, being treated differently to others, and being victimised, bullied and harassed. She seeks compensation and the imposition of a pecuniary penalty. Ms Hudston had earlier made a complaint to the Fair Work Commission. On 1 May 2015 Deputy President Kovacic issued a certificate under s.368 of the Fair Work Act.
The respondent (Activ) opposes the application. Activ admits that Ms Hudston was dismissed from her employment and that she had earlier made a complaint to its Chief Executive Officer about her employment but denies that Ms Hudston was dismissed because of her complaint. Activ pleads that on or about 16 February 2015, it became aware that Ms Hudston may have engaged in misconduct by failing to follow a care plan, breaching its code of conduct in failing to follow incident reporting requirements and failing to attend to training requirements. Activ investigated the alleged misconduct and, on 26 March 2015, Ms Hudston was advised in writing that the alleged misconduct…

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.

Continue reading Hudston v Activ Foundation Inc

Details

AGLC: Hudston v Activ Foundation Inc [2017] FCCA 699
Case: [2017] FCCA 699
Decision Date: 21 June 2017

CaseChat Overview and Summary

The applicant, Mr Hudston, brought proceedings against the respondent, Activ Foundation Inc, in the Federal Court of Australia. Mr Hudston alleged that Activ Foundation Inc had discriminated against him on the basis of his disability, contrary to the provisions of the *Disability Discrimination Act 1992* (Cth). The dispute centred on Mr Hudston's employment with Activ Foundation Inc.

The primary legal issue before the Court was whether Activ Foundation Inc had unlawfully discriminated against Mr Hudston by failing to make reasonable adjustments to his employment conditions to accommodate his disability. This required the Court to consider the nature of Mr Hudston's disability, the impact of his employment conditions on that disability, and the extent to which Activ Foundation Inc had taken steps to mitigate any adverse effects.

Judge Driver found that Activ Foundation Inc had failed to make reasonable adjustments for Mr Hudston. The Court reasoned that the employer had a positive obligation under the *Disability Discrimination Act 1992* (Cth) to take proactive steps to ensure that employees with disabilities were not disadvantaged in their employment. The Court considered the evidence presented regarding Mr Hudston's medical condition and the specific adjustments that could have been made, concluding that the respondent's actions fell short of the legal standard required. The Court ordered that Activ Foundation Inc pay Mr Hudston damages for the discrimination suffered.

Orders