Mak v Zest Brasserie Pty Ltd

[2015] FCCA 1644

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAK v ZEST BRASSERIE PTY LTD [2015] FCCA 1644

Catchwords:
INDUSTRIAL LAW – Whether breach of workplace agreement – adverse action – whether the respondent took adverse action against the applicant because of the applicant’s sexual orientation and relationship status – application dismissed.

Legislation:  
Fair Work Act 2009 ss. 336, 340, 351, 361, 566

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Applicant: FELIX MAK

Respondent: ZEST BRASSERIE PTY LTD

File Number: SYG 566 of 2015

Judgment of: Judge Street

Hearing date: 15 June 2015

Date of Last Submission: 15 June 2015

Delivered at: Sydney

Delivered on: 15 June 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr D. O’Sullivan

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 566 of 2015

FELIX MAK

Applicant

And

ZEST BRASSERIE PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.566 of the Fair Work Act 2009 in which the applicant alleges a contravention of s.351 and/or s.340 of the Fair Work Act 2009 in respect of a dismissal that occurred on 15 December 2014 from a position which the applicant had been employed as business manager since 25 August 2014.  The applicant’s case was that his termination was, he believed, due to his sexual orientation or relationship status, and it was in those circumstances that he alleged the dismissal was adverse action. 

2. Ms Pek Ly Ung gave evidence by way of affidavit that was not challenged in relation to the making of the decision to terminate Mr Felix Mak which deposed to problems in the workplace involving the applicant. Ms Pek Ly Ung disputed the taking of any action based on the sexual orientation or relationship status of the applicant.  It is clear from the evidence of the applicant that there were difficulties that he encountered in the administration in running the brasserie and that by October 2014 before the end of what he understood to be the trial period, he had communicated to the director that he was looking for work elsewhere and had agreed to give as much notice as possible.  It is clear from the applicant’s own evidence that within the trial period that there was an agreement reached that the applicant would not be retained as a permanent employee. 

3. I find that the reason why the applicant’s employment was terminated was because of the respondent’s concern as to his work performance, and it was not for any prohibited reason under the Fair Work Act. I take into account the object identified by s.336 and the scheme of the legislation including the statutory presumption under s.361 as well as the principles identified in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [5], [15]-[21], [41]-[45] and [127]-[129]. I find that the termination of the applicant was not due to any proscribed reason and that the respondent did not breach any provision of the Fair Work Act2009 and specifically the respondent did not breach s.340 or s.351.

4. To the extent relevant, where in conflict, I prefer the evidence of Mr Stephen Ung and Ms Pek Ly Ung to that of the applicant.  In making this credit finding I take into account the text message of 14 December 2015.  The evidence given by the applicant is that that this was not in response to a termination of the employment.  The terms of that text are as follows:

   In relation to the $5000 payout figure, I didn’t want to create uneasiness whilst talking to you to face to fact, so I will do this via sms. I hope you can understand that from my experiences last 4 months, that I now have trust issues with you and Uncle Theng. Therefore, I would like this $5000 with the final week’s $1200, totalling $6200, to be paid as cash next Friday please. Thanks

5. It is clear from the language in relation to the “payout figure” and the reference to the “final week” that this was a text sent in the context of termination of employment.  However, the applicant maintained to the contrary in his evidence.  The applicant was unable to explain, , the use of the term “final week”. 

6. The applicant’s evidence in that regard was unsatisfactory as was his evidence in relation to the reason why he was seeking in his application for relief a “projected loss of income of $30,000 across 48 months, allegedly as a direct result to the unlawful termination of employment resulting in diminishing career promotion opportunities”.  That claim was advanced in circumstances where on 25 December 2014 the applicant commenced full-time employment at a salary of $70,000 whereas he had been working for the respondent at a salary of $50,000.  The applicant’s explanation for that claim for loss was unsatisfactory and unconvincing.  It is in these circumstances that I prefer the evidence of Ms Pek Ly Ung and Mr Stephen Ung to that of the applicant in relation to the areas of conflict in making the findings of fact that I have made above.  The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 June 2015