Loukis v Compaction & Soil Testing Services Pty Ltd

Case [2021] FCCA 281


FEDERAL CIRCUIT COURT OF AUSTRALIA

Loukis v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281

File number(s): SYG 505 of 2020
Judgment of: JUDGE DRIVER
Date of judgment: 8 July 2021
Catchwords: INDUSTRIAL LAW – Fair Work – General Protections – adverse action – dismissal from employment – consideration of the reason or reasons for dismissal
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 352, 360, 361, 370

Fair Work Regulations 2009 (Cth)

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648

Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17

McGarva v Enghouse Australia Pty Ltd [2014] FCCA 1522

Hodkinson v Commonwealth (Department of Human Services) (2011) 248 FLR 409

Reay v Fuel & Gas Haulage Pty Ltd [2019] FCCA 2473

Rees v Worthington Services Pty Ltd (No 3) [2019] FCCA 2785

Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250

Short v Ambulance Victoria [2015] FCAFC 55

Number of paragraphs: 239
Dates of hearing: 9, 10, 16, 17 December 2020, 17 February 2021
Place: Sydney
Counsel for the Applicant: Ms U Okereke-Fisher
Solicitors for the Applicant: Australian Workers Union (NSW) Branch
Counsel for the Respondent: Ms J Steele, SC
Solicitors for the Respondent: Kennedys Law

ORDERS

SYG 505 of 2020
BETWEEN:

STEPHANIE LOUKIS

Applicant

AND:

COMPACTION & SOIL TESTING SERVICES PTY LTD
ACN 106 976 738

Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS THAT:

1.The application filed on 3 March 2020 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

  1. By an application and Form 2 statement filed on 3 March 2020 (Claim), the applicant (Ms Loukis) seeks relief under the Fair Work Act 2009 (Cth) (Fair Work Act) in consequence of her dismissal from employment, allegedly in contravention of a general protection. Ms Loukis alleges that the respondent, Compaction & Soil Testing Services Pty Ltd (the Company) dismissed her from her employment because she was temporarily absent from work due to illness or injury and for a reason that is, or reasons that are, prohibited by s 340(1) of the Fair Work Act.

  2. In essence, Ms Loukis claims that she had a workplace right because as an employee, she was able to make a complaint or inquiry in relation to her employment.[1]  Ms Loukis claims she exercised her workplace right in that she made a complaint or enquiry to the Company in respect of her wages on 17 October 2019 and 22 October 2019.

    [1] Fair Work Act, s 341(1)(c)(ii)

  3. In the alternative, Ms Loukis asserts that she had a workplace right, because as an employee, she was entitled to the benefit of a workplace law and a workplace instrument.[2]  The relevant benefit is said to be the right to personal leave under the National Employment Standards.…

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Loukis v Compaction and Soil Testing Services Pty Ltd [2021] FCCA 281
Case
[2021] FCCA 281
Decision Date

CaseChat Overview and Summary

In this matter before Driver J of the Federal Court of Australia, Ms Loukis alleged that Compaction & Soil Testing Services Pty Ltd contravened section 340 of the *Fair Work Act 2009* (Cth) by taking adverse action against her. The dispute centred on Ms Loukis' dismissal from her employment on 30 October 2019, which she contended was for impermissible reasons, specifically due to complaints she made about her wages or her exercise of a workplace right to take personal leave.

The court was required to determine whether the Company engaged in adverse action against Ms Loukis, as defined by section 342(1) of the *Fair Work Act*, and if so, whether it was for a prohibited reason or reasons that included a prohibited reason. Central to this determination was the application of section 361 of the *Fair Work Act*, which creates a statutory presumption that reverses the onus of proof. This presumption requires the employer to prove that the adverse action taken was for a reason other than a reason proscribed by the Act.

Driver J reasoned that the task was to ascertain, on the balance of probabilities, the true reason for Ms Loukis' dismissal. The court noted that section 360 of the *Fair Work Act* clarifies that action is taken for a particular reason if that reason is included among the employer's reasons. Applying the principles from *Cummins South Pacific Pty Ltd v Keenan*, the court understood the Company's burden to be negating the alleged prohibited reason as a "substantial and operative" reason for the dismissal. Despite the statutory presumption, the Company was able to satisfy the court that the reason for Ms Loukis' dismissal was not a prohibited reason under the *Fair Work Act*.

Ultimately, Ms Loukis failed to establish the necessary elements of her claim. The court found that the Company had discharged its onus of proving that the dismissal was not for a prohibited reason and did not involve a breach of the *Fair Work Act*. Accordingly, the application was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 30 October 2019, the Employment was terminated on the basis of Ms Loukis’ lateness and performance history (discussed further below).THE EVIDENCE AND SUBMISSIONS The parties provided a court book (CB) containing the documents relied upon. Ms Loukis relies upon her own affidavits filed on 2 July 2020 and 8 December 2020 and affidavits by Stacey Ann Walker filed on 6 July 2020 and 8 December 2020. Ms Loukis and Ms Walker were both cross-examined on their affidavits. The Company relies upon the affidavits of Neil Brodrick Groat filed on 7 May 2020 and 2 December 2020 and the affidavits of Shanan Jon McManus made on 7 May 2020 and 2 December 2020. Mr Groat and Mr McManus were both cross-examined on their affidavits. I also received the following documents tendered as exhibits:·A1 – attachment to Ms Loukis’ second affidavit;·A2 – docket, record of site works, 22.10.2019;·R1 – emails from Ms Walker;·R2 – timesheets;·R3 – phone bill; and·R4 – letter from Kennedys to the Australian Workers Union.CONSIDERATIONMs Loukis’ caseThe legislative framework At the heart of this proceeding is Ms Loukis’ allegation that the Company contravened s 340 of the Fair Work Act. Under the Fair Work Act, employees in the national workplace relations system have defined rights and are protected from adverse action in breach of those rights. “Adverse action” is defined in s 342(1) of the Fair Work Act. The provision sets out circumstances in which a person takes adverse action against another person. The task of the court in a proceeding alleging adverse action is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.[16][16] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] Ms Loukis alleges that she was dismissed for an impermissible reason. There is said to be evidence before the Court to support a conclusion that the adverse action in the form of dismissal occurred because of the complaints or inquiries that Ms Loukis has made to the Company about her wages and in the alternative because of the exercise of her workplace right to take personal leave. Section 360 of the Fair Work Act relevantly makes clear that a person takes action for a particular reason if his or her reasons for the action include that reason. Hence, where such a circumstance is alleged to have occurred, the statutory presumption in s 361 is engaged. The action of dismissing Ms Loukis is therefore to be presumed to have been taken for the prohibited reasons she alleges unless the Company proves otherwise. Section 361 of the Fair Work Act essentially reverses the onus of proof and requires the Company to prove that the adverse action taken against an employee was taken for a reason other than a reason proscribed by the Fair Work Act. In Cummins South Pacific Pty Ltd v Keenan[17] at [83], Bromberg J explained:The statutory presumption created by s 361 places an onus on a respondent to establish the fact that the reason alleged was not a reason which actuated the adverse action taken by the respondent: BHP Coal at [192]. Given that, for s 340(1) to be engaged, the reason which actuated the adverse action must be a “substantial and operative” reason, the respondent’s burden is that of negating the alleged reason as a “substantial and operative” reason for the taking of the adverse action in question. A failure to displace the statutory presumption enables the allegation by an applicant that the adverse action was taken for a particular reason to stand as sufficient proof of the fact: Short at [56].[17] [2020] FCAFC 204

Decision

Reasons for decision

It is not obvious that anything of substance flows from this finding. The termination letter does not make any reference to the probation period and it was not a reason for the dismissal. Under her contract of employment, Ms Loukis was entitled to one week’s notice or pay in lieu of notice whether or not she remained under probation. Ms Loukis might have made a claim of unfair dismissal, having regard to the dismissal process and the expiry of her probation period but such a claim would have been a matter for the Fair Work Commission to consider, not this Court.CONCLUSION Ms Loukis has failed to establish the necessary elements of her claim. The Company has established to my satisfaction that the reason for Ms Loukis’ dismissal was not a prohibited reason and the dismissal did not involve a breach of the Fair Work Act. I will order that the application be dismissed.

Ratio Decidendi

Legal Principle Established

I also received the following documents tendered as exhibits:·A1 – attachment to Ms Loukis’ second affidavit;·A2 – docket, record of site works, 22.10.2019;·R1 – emails from Ms Walker;·R2 – timesheets;·R3 – phone bill; and·R4 – letter from Kennedys to the Australian Workers Union.CONSIDERATIONMs Loukis’ caseThe legislative framework At the heart of this proceeding is Ms Loukis’ allegation that the Company contravened s 340 of the Fair Work Act. Under the Fair Work Act, employees in the national workplace relations system have defined rights and are protected from adverse action in breach of those rights. “Adverse action” is defined in s 342(1) of the Fair Work Act. The provision sets out circumstances in which a person takes adverse action against another person. The task of the court in a proceeding alleging adverse action is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.[16][16] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] Ms Loukis alleges that she was dismissed for an impermissible reason. There is said to be evidence before the Court to support a conclusion that the adverse action in the form of dismissal occurred because of the complaints or inquiries that Ms Loukis has made to the Company about her wages and in the alternative because of the exercise of her workplace right to take personal leave. Section 360 of the Fair Work Act relevantly makes clear that a person takes action for a particular reason if his or her reasons for the action include that reason. Hence, where such a circumstance is alleged to have occurred, the statutory presumption in s 361 is engaged. The action of dismissing Ms Loukis is therefore to be presumed to have been taken for the prohibited reasons she alleges unless the Company proves otherwise. Section 361 of the Fair Work Act essentially reverses the onus of proof and requires the Company to prove that the adverse action taken against an employee was taken for a reason other than a reason proscribed by the Fair Work Act. In Cummins South Pacific Pty Ltd v Keenan[17] at [83], Bromberg J explained:The statutory presumption created by s 361 places an onus on a respondent to establish the fact that the reason alleged was not a reason which actuated the adverse action taken by the respondent: BHP Coal at [192]. Given that, for s 340(1) to be engaged, the reason which actuated the adverse action must be a “substantial and operative” reason, the respondent’s burden is that of negating the alleged reason as a “substantial and operative” reason for the taking of the adverse action in question. A failure to displace the statutory presumption enables the allegation by an applicant that the adverse action was taken for a particular reason to stand as sufficient proof of the fact: Short at [56].[17] [2020] FCAFC 204