Lee v Hills Before & After School Care Pty Ltd - [2007] FMCA 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v HILLS BEFORE & AFTER SCHOOL CARE

[2007] FMCA 4

INDUSTRIAL LAW – Termination of employment − casual employee − preliminary matter to be determined − where applicant dismissed from the respondent’s employ after periods of absence due to injury − where applicant in receipt of Workers Compensation benefits at the time of dismissal − whether the applicant’s absence was a temporary absence on paid sick leave because of injury or illness within the meaning of Regulation 2.12.8 Workplace Relations Regulations 2006

STATUTORY INTERPRETATION − Legislative intention − International conventions − where Article 6 of the International Labour Convention 158, embodied in s.659 Workplace Relations Act 2006, prohibits dismissal of an employee temporarily absent from work due to illness or injury − whether Article 6 intended to include workers temporarily absent due to workplace injury.

Workplace Relations Regulations 2006, 2.12.8, 30C
Workplace Relations Act 2006, s.659
Federal Magistrates Court Rules 2001, 17
Workplace Relations Act 1996, s.170CK
Industrial Relations Act 1988, s.170DF
Industrial Relations Reform Act 1993

Termination of Employment Convention 1982 (Recommendation No.166), Article 6

Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
CFMEU and Cooks Construction Pty Ltd
Ryan Stringer v Holden Limited
Nominal Defendant v GLG Australia Pty Ltd & Ors [2006] HCA 11
QAAH of 2004 [2006] HCA 53
Konrad v Victoria Police (State of Victoria); Glasgow v State of Victoria; Orchard v State of Victoria; Gehrig v State of Victoria [1999] FCA 988
Griffin v Australian Postal Corporation (1988) 155 ALR 369
Andrew Phillips v State of Victoria (Department of Education and Training) (Unreported, Australian Industrial Relations Commission, 6 December 2005)
Ex parte Master Builders (1971) (1) (NSWLR) 655
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151
Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369
Potter v Minahan (1908) 7 CLR 277
Coleman v Power (2004) 209 ALR 182

Sixty-seventh session, Record of Proceedings (International Labour Conference) (Geneva, 1981)
Sixty-eighth session, Record of Proceedings (International Labour Conference) (Geneva, 1982)
Report VIII(1) Termination of Employment at the Initiative of the Employer (1980) (International Labour Conference, 67^th Session 1981)
Report VIII(2) Termination of Employment at the Initiative of the Employer (1980) (International Labour Conference, 67^th Session 1981)
Report V(1) Termination of Employment at the Initiative of the Employer (1981) (International Labour Conference, 68^th Session 1982)
Report V(2) Termination of Employment at the Initiative of the Employer (1982) (International Labour Conference, 68^th Session 1982)

Applicant:

JANE LEE

Respondent:

HILLS BEFORE AND AFTER SCHOOL CARE PTY LTD

File Number:

SYG2211 of 2006

Judgment of:

Raphael FM

Hearing date:

20 November 2006

Date of Last Submission:

20 November 2006

Delivered at:

Sydney

Delivered on:

15 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr J Nolan

Solicitors for the Applicant:

Liquor, Hospitality and Miscellaneous Union

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: [2007] FMCA 4
Decision Date: 15 January 2007

CaseChat Overview and Summary

The applicant, Lee, brought a claim against Hills Before & After School Care Pty Ltd for unfair dismissal. Lee was a casual employee who was dismissed following absences from work due to injury. At the time of dismissal, Lee was receiving Workers Compensation benefits. The central issue was whether Lee's absence was considered a temporary absence on paid sick leave due to injury or illness under Regulation 2.12.8 of the Workplace Relations Regulations 2006.

The court had to determine if Lee's absence qualified as a temporary absence on paid sick leave because of injury or illness, as protected by Article 6 of the International Labour Convention 158, incorporated into the Workplace Relations Act 2006. This required an interpretation of the legislative intent behind Article 6, specifically whether it was meant to cover employees absent due to workplace injuries.

The court found that the absence due to a workplace injury did not constitute a temporary absence on paid sick leave within the meaning of Regulation 2.12.8. Consequently, the dismissal was not unfair. The court concluded that the legislative intent behind Article 6 was to protect employees from dismissal during temporary absences due to illness or injury, but it did not cover workplace injuries. Therefore, the dismissal did not contravene the statutory protections.

The court ordered that the application for unfair dismissal be dismissed.

Orders