Kavassilas v Migration Training Australia Pty Ltd (No.2) - [2012] FMCA 208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAVASSILAS v MIGRATION TRAINING AUSTRALIA PTY LTD (No.2)

[2012] FMCA 208

INDUSTRIAL LAW – Unlawful termination – dismissal because of temporary absence for illness – penalty of $20,000 imposed – baseless grounds of termination maintained and then abandoned in course of hearing – partial costs award against respondent employer.

Fair Work Act 2009 (Cth), ss.352, 361, 545(2)(b), 546(1), 546(3), 547, 570, 570(2), 570(2)(b), 570(2)(c)

Federal Magistrates Court Rules 2001 (Cth), r. 21.02(2)(c), Sch.1

Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560, [2008] FCAFC 8
Kavassilas v Migration Training Australia Pty Ltd [2012] FMCA 22
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357, [2008] FCAFC 170
Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949

Applicant:

DAPHNE KAVASSILAS

Respondent:

MIGRATION TRAINING AUSTRALIA PTY LTD ACN 093 932 337

File Number:

SYG 2419 of 2010

Judgment of:

Smith FM

Hearing and Orders date:

7 March 2012

Delivered at:

Sydney

Reasons published on:

29 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr T Saunders

Solicitors for the Applicant:

Eakin McCaffery Cox

Counsel for the Respondent:

Mr A Britt

Solicitors for the Respondent:

Christopher Levingston & Associates

ORDERS

A penalty of $20,000 is imposed on the respondent, Migration Training Australia Pty Ltd under s.546(1) of the Fair Work Act 2009 (Cth) (‘the Act’), for its contravention of s.352 of the Act by dismissing the applicant on 11 August 2010 because she was temporarily absent from work because of illness of a kind prescribed by the regulations.
Pursuant to s.546(3) of the Act, the penalty must be paid to the applicant.
The respondent must pay to the applicant compensation awarded under s.545(2)(b) of the Act in the amount of $33,706.21, plus interest under s.547 on that award in the amount of $4,605.74.
Pursuant to s.570(2)(b) of the Act, the respondent must pay one half of the costs of the applicant in the proceedings, as agreed or taxed by a Registrar under the Federal Court Rules.
Execution under orders 2 and 3 of these orders is stayed until 28 March 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2419 of 2010

DAPHNE KAVASSILAS

Applicant

And

MIGRATION TRAINING AUSTRALIA PTY LTD
ACN 093 932 337

Respondent

REASONS FOR JUDGMENT

On 27 January 2012 I delivered my reasons for finding that Migration Training Australia Pty Ltd (‘MTA’) contravened s.352 of the Fair Work Act 2009 (Cth) (‘the Act’) by dismissing Ms Kavassilas from her employment as Group General Manager of that company and two other related companies on 11 August 2010 (see Kavassilas v Migration Training Australia Pty Ltd [2012] FMCA 22). I arrived at that conclusion because the evidence did not satisfy me that the termination of her employment did not occur because she was temporarily absent from work for an illness for which she was claiming sick leave and which was of a kind prescribed by the regulations.
Under s.361 of the Act,…

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.

Keep reading for free

Create a free CaseChat account to read Kavassilas v Migration Training Australia Pty Ltd (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 208
Decision Date: 7 March 2012

CaseChat Overview and Summary

The case of Kavassilas v Migration Training Australia Pty Ltd (No.2) involved the applicant, Ms. Kavassilas, who sought relief against her employer, Migration Training Australia Pty Ltd, for alleged unlawful dismissal. The proceedings took place in the Fair Work Commission, an Australian federal statutory body established by the Fair Work Act 2009 (Cth). Ms. Kavassilas claimed that she was dismissed by her employer on 11 August 2010 while she was temporarily absent from work due to illness, which was a breach of her employment rights under the Act. The employer contested the claim, asserting that the dismissal was lawful.

The central legal issue in this case was whether the dismissal of Ms. Kavassilas by her employer was unlawful under s.352 of the Act, which prohibits termination of employment due to an employee's absence from work for illness of a kind prescribed by regulations. The court also had to determine the appropriate remedy for the contravention of the Act, including whether a penalty should be imposed on the employer under s.546 of the Act and if the employer should compensate Ms. Kavassilas under s.545 of the Act.

The Fair Work Commission found that the employer had contravened s.352 of the Act by dismissing Ms. Kavassilas due to her absence from work caused by illness. The Commission held that the employer's actions constituted an unfair dismissal. Consequently, the Commission imposed a penalty of $20,000 on the employer and ordered that this penalty be paid to Ms. Kavassilas. Furthermore, the employer was required to compensate Ms. Kavassilas in the amount of $33,706.21, plus interest. The employer was also ordered to pay one half of the applicant's costs of the proceedings. The Commission stayed the execution of the compensation and penalty orders until 28 March 2012, allowing for a period of time during which the employer could potentially appeal the decision.

Orders

Orders of the court

A penalty of $20,000 is imposed on the respondent, Migration Training Australia Pty Ltd under s.546(1) of the Fair Work Act 2009 (Cth) (‘the Act’), for its contravention of s.352 of the Act by dismissing the applicant on 11 August 2010 because she was temporarily absent from work because of illness of a kind prescribed by the regulations.

Pursuant to s.546(3) of the Act, the penalty must be paid to the applicant.

The respondent must pay to the applicant compensation awarded under s.545(2)(b) of the Act in the amount of $33,706.21, plus interest under s.547 on that award in the amount of $4,605.74.

Pursuant to s.570(2)(b) of the Act, the respondent must pay one half of the costs of the applicant in the proceedings, as agreed or taxed by a Registrar under the Federal Court Rules.

Execution under orders 2 and 3 of these orders is stayed until 28 March 2012.

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

Full text does not contain this section.