Kavassilas v Migration Training Australia Pty Ltd - [2012] FMCA 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAVASSILAS v MIGRATION TRAINING AUSTRALIA PTY LTD

[2012] FMCA 22

INDUSTRIAL LAW – Unlawful termination – dismissal because of temporary absence because of illness – whether absence ‘of a kind prescribed’ in relation to sick leave – effect of reverse onus of proof – assessment of evidence of employer – unsubstantiated reasons given for dismissal – uncertainty as to true reasons – finding of liability – entitlement to compensation for period out of work – further hearing on penalty and costs.

Evidence Act 1995 (Cth), s.140
Fair Work Act 2009 (Cth), ss.96, 97, 107, 352, 360, 361, 545(2)(b), 546, 547, 551
Fair Work Regulations 2009 (Cth), reg.3.01
Federal Magistrates Act 1999 (Cth), s.76
Workplace Relations Act 1996 (Cth), ss.644, 659(2)(a), 809

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333
Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32
Bahonko v Sterjov (2007) IR 43, [2007] FCA 1244
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Sperandio v Lynch (2006) 160 IR 360

Applicant:

DAPHNE KAVASSILAS

Respondent:

MIGRATION TRAINING AUSTRALIA PTY LTD

File Number:

SYG 2419 of 2010

Judgment of:

Smith FM

Hearing dates:

1 & 2 June 2011

15 & 16 November 2011

Delivered at:

Sydney

Delivered on:

27 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr T Saunders

Solicitors for the Applicant:

Eakin McCaffery Cox Solicitors

Counsel for the Respondent:

Mr A Britt

Solicitors for the Respondent:

Christopher Levingston & Associates

ORDERS

The matter is adjourned for further hearing in accordance with the reasons for judgment published today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2419 of 2010

DAPHNE KAVASSILAS

Applicant

And

MIGRATION TRAINING AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Mr Levingston and Mrs Ross (also known as Ms Allan) are directors of Migration Training Australia Pty Ltd (“MTA”), Christopher Levingston and Associates Pty Ltd (“CLA”), and Visacorp Pty Ltd (“Visacorp”). These companies conduct separate businesses which provide, respectively, migration agent education services, legal services, and migration visa services. From 17 May 2010 the directors of MTA employed Ms Kavassilas in a newly created position of Group General Manager on an initial base salary of $150,000.
The position presented various managerial challenges. On Monday 9 August 2010, after a particularly stressful previous week, Ms Kavassilis’ sister telephoned her workplace to inform her employers that Ms Kavassilas was taking personal leave covered by a medical certificate for the whole week, but hoped to return on the Wednesday. Mr Levingston and Mrs Ross received this message, but proceeded to terminate her employment summarily. They served a letter of termination on Ms Kavassilas at about 4pm on Wednesday 11 August 2010. Among other reasons, the letter said: “you have failed to keep the Directors aware of your absences.” Ms Kavassilas had no other record of unexplained absences, and two medical certificates covering Ms Kavassilas’…

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: [2012] FMCA 22
Decision Date: 27 January 2012

CaseChat Overview and Summary

In the case of Kavassilas v Migration Training Australia Pty Ltd, the applicant, Mr Kavassilas, brought proceedings against Migration Training Australia Pty Ltd, the respondent, alleging contravention of certain provisions of the Fair Work Act 2009 (Cth). The dispute primarily revolves around the shifting onus of proof in relation to the satisfaction of the elements constituting a contravention of section 352 of the Act. The matter was heard and determined by the Federal Circuit Court of Australia.

The central legal issue before the court was the application and interpretation of the shifting onus of proof provisions under sections 360 and 361 of the Fair Work Act 2009 (Cth). Specifically, the court had to determine at what point section 361 operates to shift the burden of proof onto the respondent when the applicant alleges contravention of section 352. This issue was examined in light of the relevant case law and the statutory framework governing contraventions based on an employer's reasons for taking adverse action.

In delivering the judgment, the court thoroughly reviewed the statutory provisions and relevant case law. The court noted that under section 361, there is a presumption that an action was taken for a particular reason or with a particular intent if such an allegation is made in proceedings arising from an application for contravention of the Fair Work Act. This presumption applies unless the respondent can prove otherwise. The court referred to the decision in Badman v Grasshoppers Early Learning Centres Pty Ltd, where the Federal Magistrates Court considered a similar provision and concluded that the onus of proof shifts to the respondent once the applicant alleges a contravention based on a particular reason or intent. The court agreed with this reasoning and held that the onus of proof shifts under section 361 when the applicant alleges a contravention based on a specific reason or intent.

The court ultimately determined that the matter needed further hearing to allow for a comprehensive examination of the evidence and arguments from both parties. This decision underscores the importance of the proper application of the shifting onus of proof provisions in proceedings related to contraventions of the Fair Work Act.

Orders

Orders of the court

The matter is adjourned for further hearing in accordance with the reasons for judgment published today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The legislation imposes a shifting onus of proof on the parties in relation to satisfaction of the elements constituting a contravention of s.352. Under s.551:551.Civil evidence and procedure rules for proceedings relating to civil remedy provisionsA court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision. It was common ground that the word ‘because’ in s.352 carries with it the application of general provisions governing contraventions turning upon an employer’s reasons for taking adverse action (see also Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14 at [24]). These include ss.360 and 361. Section 360, addresses the not uncommon situation where an employer might act for concurrent or mixed reasons:360.Multiple reasons for actionFor the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. Absent a specific provision showing an intention otherwise, the applicant would have the burden of proving all the necessary facts to establish the essential elements of a contravention, and of doing so according to the standard provided under s.140 of the Evidence Act 1995 (Cth), i.e. “on the balance of probabilities” taking into account the matters set out in s.140(2). However, s.361 provides:361.Reason for action to be presumed unless proved otherwise(1)If:(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and(b) taking that action for that reason or with that intent would constitute a contravention of this Part;it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.(2)Subsection (1) does not apply in relation to orders for an interim injunction. The point at which s.361 operates to shift the burden of proof onto the respondent where the applicant alleges contravention of s.352 was touched upon in submissions before me. Both counsel referred me to the helpful discussion of Wilson FM in Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32, where his Honour considered the previous contravention provision in s.659(2)(a) of the Workplace Relations Act 1996 (Cth) as in force from 27 March 2006 which is equivalent to s.352 of the Fair Work Act, and applied the relevant ‘reverse’ onus of proof provision then found in s.664 of that Act. Wilson FM noted that s.644 was in the same terms as previous s.170CQ of the Workplace Relations Act, which Jessup J in Bahonko v Sterjov (2007) IR 43, [2007] FCA 1244 at [95]-[100] explained as carrying an established jurisprudence “which made it part of the prosecutor’s (or applicant’s) case to prove as an objective fact the circumstances alleged to constitute the basis of the “reason” to which the reverse onus section applied.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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