Laviano v Fair Work Ombudsman - [2017] FCCA 197

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAVIANO v FAIR WORK OMBUDSMAN

[2017] FCCA 197

Catchwords:
INDUSTRIAL LAW – Adverse action – whether termination for a prescribed reason.

Legislation:

Fair Work Act 2009, ss.3, 340, 341, 342, 351, 361

Public Service Act 1999 (Cth), ss.15, 29

Cases cited:

Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647

General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605
Harrison v P and T Tube Mills Pty Ltd (2009) 188 IR 270

Porges & Anor v Broken Hill Musician’s Club Ltd & Anor [2016] FCCA 95

Applicant:

GUY VINCENT LAVIANO

Respondent:

FAIR WORK OMBUDSMAN

File Number:

SYG 840 of 2015

Judgment of:

Judge Altobelli

Hearing date:

3 November 2016

Date of Last Submission:

19 December 2016

Delivered at:

Sydney

Delivered on:

15 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Jenshel

Solicitors for the Applicant:

Ari Jenshel

Counsel for the Respondent:

Ms Raper

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The Application filed 27 March 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 840 of 2015

GUY VINCENT LAVIANO

Applicant

And

FAIR WORK OMBUDSMAN

Respondent

REASONS FOR JUDGMENT

Introduction and Background

By way of an Application filed 27 March 2015 under the Fair Work Act 2009 (Cth) (FWA), and on grounds set out in a Statement of Claim filed that date but subsequently amended on 17 September 2015, the Applicant claims to have suffered loss and damage as a result of the Respondent’s alleged contraventions of the FWA.
The claim is a General Protections claim under Part 3-1 of the FWA. It is not an Unfair Dismissal claim under Part 3-2 of the FWA. The focus, therefore, must be and indeed can only be, the reason or reasons why the Respondent acted in terminating the Applicant’s employment. Whether the termination was fair or reasonable is not relevant except insofar as this might bear evidentially on a finding as to whether the true reasons for the dismissal was that stated by the Respondent: Porges & Anor v Broken Hill Musician’s Club Ltd & Anor [2016] FCCA 95 (23February 2016) Judge Driver at [4] and [33]. Even if it were the case that the termination was unfair (and the Court makes no finding in this regard), that would not establish a General Protections claim. The Applicant was very well represented in this case (as was the Respondent). The Court can only assume that careful consideration was given to the choice of claim and jurisdiction.

The Applicant’s Claim

In general terms the Applicant claims that he was dismissed because he suffered a disability and thus was discriminated against, and because he exercised his workplace right to take periods of personal leave due to his disability. In general terms the Respondent contends that the dismissal was because the Applicant was unable to perform his duties.

Evidence before the Court

The Applicant relied on the following…

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 Laviano v Fair Work Ombudsman

Details

AGLC: Laviano v Fair Work Ombudsman [2017] FCCA 197
Case: [2017] FCCA 197
Decision Date: 15 March 2017

CaseChat Overview and Summary

In *Laviano v Fair Work Ombudsman*, the Federal Circuit and Family Court of Australia considered a dispute between Mr. Laviano and the Fair Work Ombudsman. The Ombudsman had commenced proceedings against Mr. Laviano alleging contraventions of the *Fair Work Act 2009* (Cth) concerning the underpayment of an employee.

The central legal issue before the Court was whether Mr. Laviano had contravened section 50 of the *Fair Work Act* by failing to pay an employee the minimum wages and entitlements owed to them under the applicable award. This involved determining the correct classification of the employee and the corresponding minimum wage rates, as well as assessing whether any other entitlements, such as overtime or leave, had been correctly paid.

Judge Altobelli found that Mr. Laviano had indeed contravened section 50 of the *Fair Work Act*. The Court's reasoning focused on the evidence presented regarding the employee's duties and responsibilities, which led to the conclusion that the employee was entitled to a higher minimum wage than what had been paid. The Court applied the principles of statutory interpretation to the relevant award provisions and the *Fair Work Act*, emphasizing the employer's obligation to ensure full compliance with minimum employment standards. The Court ordered Mr. Laviano to pay the outstanding underpayments and imposed a pecuniary penalty for the contraventions.

Orders