McCormack v Chandler Macleod Group Limited - [2012] FMCA 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCCORMACK v CHANDLER MACLEOD GROUP LIMITED

[2012] FMCA 231

INDUSTRIAL LAW – Small claim – general protections court application – alleged adverse action in relation to workplace right – complaint to Fair Work Ombudsman – alleged dismissal on basis of temporary absence – casual employee.

Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth), ss.335, 340, 341, 342, 352, 361(1), 365,369, 548, 681, 682, 696, 706, 712
Fair Work Regulations 2009 (Cth)

Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186
Poole v Rod Baker & Co (2011) 207 IR 264; [2011] FMCA 357

JJ Macken, The Employment Revolution (Sydney: Federation Press, 1992)

Applicant:

KEVIN MAURICE MCCORMACK

Respondent:

CHANDLER MACLEOD GROUP LIMITED

File Number:

PEG 259 of 2011

Judgment of:

Lucev FM

Hearing date:

17 November 2011

Date of Last Submission:

17 November 2011

Delivered at:

Perth

Delivered on:

18 May 2012

REPRESENTATION

For the Applicant:

In person

For the Respondent:

Mr Yeatman

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 259 of 2011

KEVIN MAURICE MCCORMACK

Applicant

And

CHANDLER MACLEOD GROUP LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 19 September 2011,[1] the applicant, Kevin McCormack,[2] brings small claims proceedings in the Fair Work Division of this Court against the respondent, Chandler Macleod Group Limited.[3] The Application is supported by a Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection.[4] The Claim Form also alleges other contraventions of the Fair Work Act 2009 (Cth)[5] by Chandler Macleod in relation to Mr McCormack.
[1] “Application”.
[2] “Mr McCormack”.
[3] “Chandler Macleod”.
[4] “Claim Form”.
[5] “FW Act”.
Until the alleged dismissal, Mr McCormack was working at a commercial printing and binding operation, PMP Limited.[6]

Claim Form

[6] “PMP”.

Employment

In the Claim Form, Mr McCormack states that he was employed by Ready Workforce/Chandler Macleod as a Bindery Assistant from 28 June 2009 to 25 July 2011.

Contravention alleged

Under the heading “Contravention(s) alleged”, the Claim Form refers to an attachment entitled “Part G Contraventions” in which Mr McCormack claims as follows:
Part G Contraventions
340Protection
(1)A person must not take adverse action against another person because that other person
(a) (ii)has exercised a workplace right (contacting the ombudsman in regards to pay).
342   Adverse Action
(1)    (a)    dismiss the employee
(c)     alters the position of the employee to the employee’s prejudice (by trying to roster me on the press for several weeks)
(d)    discriminates between the employee and other employees of the employer (taking on new casuals while at the same time telling me that there was no work for me at PMP).
352   Temporary Absence – Illness or injury
(I was off work with a medical certificate from Fremantle Hospital for three days and kept Chandler Macleod informed of my progress).[7]
[7] Typed from…

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: [2012] FMCA 231
Decision Date

CaseChat Overview and Summary

In McCormack v Chandler Macleod Group Limited, the applicant, Kevin McCormack, sought to bring small claims proceedings against his employer, Chandler Macleod Group Limited, alleging contraventions of the Fair Work Act 2009 (Cth) in relation to his dismissal. McCormack claimed that he was dismissed in contravention of workplace rights protections, and for taking sick leave. The Court had to determine whether McCormack's dismissal was indeed in contravention of the Act, and whether he was dismissed due to his temporary absence from work due to illness or injury.

The Court found that McCormack's allegations were not substantiated. The evidence showed that McCormack's employment was terminated not because of his exercise of a workplace right or his temporary absence due to illness or injury, but because PMP requested Chandler Macleod to stop rostering McCormack for work at PMP. Chandler Macleod complied with this request, and continued to offer McCormack other work which he declined. The Court accepted the evidence that PMP had the authority to request the removal of specific employees from their rosters, and that Chandler Macleod acted upon such requests. Therefore, the Court found that McCormack was not dismissed by Chandler Macleod, and consequently, the alleged contraventions of the Fair Work Act were not made out.

The Court dismissed the application and made an order accordingly.

Orders