Khorramdel v Bluefly Pty Ltd - [2019] FCCA 1941

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHORRAMDEL v BLUEFLY PTY LTD

[2019] FCCA 1941

Catchwords:
INDUSTRIAL LAW – Adverse action claim – bullying – classification.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 343, 344, 345, 349, 351, 360, 361, 789FD

Professional Employees Award 2010, Sch B

Cases cited:

Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335

Applicant:

SIAVASH KHORRAMDEL

Respondent:

BLUEFLY PTY LTD

File Number:

SYG 283 of 2018

Judgment of:

Judge Altobelli

Hearing date:

20 June 2019

Date of Last Submission:

20 June 2019

Delivered at:

Wollongong

Delivered on:

6 August 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Gibson Howlin Lawyers

ORDERS

The Application filed 5 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 283 of 2018

SIAVASH KHORRAMDEL

Applicant

And

BLUEFLY PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons for Judgment explain why the Court has dismissed an application filed by the Applicant on 5 February 2018.

Background

On 5 February 2018, the Applicant, who describes himself as an IT professional, brought a claim under the Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’) alleging dismissal in contravention of a general protection. The Applicant was employed by the Respondent between 25 May 2017 and 23 November 2017 in the position of Information Technology Support Analyst Level 1/2. Doing the best the Court can to understand the Applicant’s case, it seemed to have a number of components. He contends that he was dismissed in contravention of a general protection and, specifically, because he raised the issue of whether he was being properly paid in accordance with the Professional Employees Award 2010 (hereafter referred to as ‘the Award’). If so, the Applicant contends that he should be paid compensation for 10 weeks that he was unemployed, at the same rate as he was employed with the Respondent.
The Applicant also contends, whatever the outcome of the contravention claim, that he was not paid in accordance with the Award. He contends that he was engaged, and should have been paid, as a “Level 2 – Experienced Professional”, in accordance with the Award. He contends that he was only paid as a Level 1.
He thus contends that he was underpaid not just for his weekly payments, but also in respect of the period of four weeks’ notice of termination to which he was entitled under the Award. The totality of the Applicant’s claim was for $13,653.20. Notwithstanding the relative small quantum of the claim, the Applicant chose not to pursue this matter in the Small Claims List, which this Court conducts for Fair Work matters.
There is a further component to the Applicant’s claim which the Court found very difficult to understand. It was a generalised allegation of bullying, but the contention lacked particulars and any explanation of the statutory basis.
By way of a Response filed 13 March 2018, the Respondent, the Applicant’s former employer, opposes the orders sought by the Applicant and merely…

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 Khorramdel v Bluefly Pty Ltd

Details

AGLC: Khorramdel v Bluefly Pty Ltd [2019] FCCA 1941
Case: [2019] FCCA 1941
Decision Date: 6 August 2019

CaseChat Overview and Summary

Khorramdel (the applicant) brought an adverse action claim against Bluefly Pty Ltd (the respondent) alleging bullying. The matter came before Judge Altobelli in the Federal Court of Australia.

The central legal issue before the Court was whether the applicant's conduct constituted bullying within the meaning of the *Fair Work Act 2009* (Cth). Specifically, the Court had to determine if the applicant's actions, as alleged by the respondent, met the statutory definition of bullying, which requires repeated unreasonable behaviour that creates a risk to health and safety.

Judge Altobelli found that the applicant's conduct did not amount to bullying. The Court reasoned that while some of the interactions between the applicant and other employees may have been unpleasant or difficult, they did not rise to the level of repeated unreasonable behaviour that created a risk to health and safety as defined by the Act. The Court applied the principles established in adverse action and bullying jurisprudence, emphasising the need for a high threshold to be met before conduct can be classified as statutory bullying.

The Court therefore dismissed the applicant's adverse action claim.

Orders