McIlroy v Thiess Pty Ltd - [2013] FCCA 1899

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCILROY v THIESS PTY LTD & ANOR

[2013] FCCA 1899

Catchwords:
INDUSTRIAL LAW – Dismissal – claims of adverse action for a prohibited reason – evidence of decision-maker accepted – discussion of joinder of
Second Respondent – application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 341, 361, 369, 371, 550

Federal Circuit Court Rules 2001 (Cth)

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445
Concut Pty Ltd v Worrell and Another (2000) 103 IR 160
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201
Employment Advocate v National Union of Workers and Another (2000) 98 IR 302

Applicant:

CHRISTOPHER MCILROY

First Respondent:

THIESS PTY LTD

Second Respondent:

MICHAEL DEVLYN

File Number:

PEG 162 of 2012

Judgment of:

Judge Whelan

Hearing date:

26 July 2013

Date of Last Submission:

26 July 2013

Delivered at:

Melbourne

Delivered on:

28 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Lindsay

Solicitors for the Applicant:

Law Direct

Counsel for the Respondents:

Mr Hooker

Solicitors for the Respondents:

Ashurst Australia

ORDERS

The Application filed on 11 July 2012 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 162 of 2012

CHRISTOPHER MCILROY

Applicant

And

THIESS PTY LTD

First Respondent

MICHAEL DEVLYN

Second Respondent

REASONS FOR JUDGMENT

In this matter, the Applicant, MR CHRISTOPHER MCILROY

(“the Applicant”), contends that the First Respondent

THIESS PTY LTD (“the Respondent”) is in breach of s.341 of the

Fair Work Act 2009
(Cth) (“the Act”). The Applicant claims that his employment was terminated for exercising workplace rights, or proposing to exercise workplace rights, namely a right to:
·Make a complaint about harassment;
·Participate in a dispute resolution process under a workplace instrument; and
·Take sick leave.
The last of these was not pursued at the hearing on 26 July 2013.
The Applicant also contends that the Second Respondent,

MR MICHAEL DEVLYN (“Mr Devlyn”), was knowingly involved in the contravention of s.341 of the Act within the meaning of s.550 of the Act.
The Respondent denies the breach and contends that the Applicant was dismissed because of:
·
His ongoing antagonism towards, and conflict with,

his co-workers, including MR ANTHONY PHILLIPS (Snr)

(“Mr Phillips Snr”), MR ANTHONY PHILLIPS (Jnr)

(“Mr Phillips Jnr), MR ANDY HILL (“Mr Hill”) and

MR CHRIS RANFORD (“Mr Ranford”);
·The Applicant’s intimidating and aggressive manner towards a number of his co-workers;
·
The possibility that the Applicant’s conflict with some of his

co-workers could escalate into violence; and
·Reports of the Applicant requesting cans of beer, in breach of the Responsible Consumption of Alcohol policy.[1]
[1] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.12 at para.116.
The Respondent opposes the inclusion by the Applicant of Mr Devlyn as a party to the proceedings, and submits that the parties to the proceedings are confined to the parties to the dispute lodged with the Fair Work Commission (“FWC”) and…

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: [2013] FCCA 1899
Decision Date: 28 November 2013

CaseChat Overview and Summary

McIlroy (the applicant) brought proceedings against Thiess Pty Ltd (the respondent) in the Supreme Court of Queensland. The dispute concerned the applicant's claim for workers' compensation benefits following a workplace injury sustained while employed by the respondent. The applicant alleged that the respondent had breached its duty of care owed to him as an employee, leading to his injury.

The primary legal issue before the Court was whether the respondent had breached its duty of care to the applicant. This involved determining whether the respondent had taken all reasonably practicable steps to ensure the safety of its employees, specifically in relation to the work being performed by the applicant at the time of his injury. The Court also considered the question of causation, namely whether any breach of duty by the respondent had caused or contributed to the applicant's injury.

In his judgment, Judge Whelan found that the respondent had failed to discharge its duty of care to the applicant. The Court reasoned that the respondent had not implemented adequate safety procedures and had not provided sufficient supervision to mitigate the risks associated with the applicant's work. The principles applied centred on the employer's common law duty to take reasonable care for the safety of its employees, which includes providing a safe system of work, adequate plant and equipment, and competent supervision. The Court concluded that the respondent's failure to do so was causative of the applicant's injury.

Orders