McLoughlin v Randstad Pty Ltd (No 3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223

File number(s):	SYG 2985 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	19 February 2021
Catchwords:	INDUSTRIAL LAW – application alleging contraventions of ss 340 and 351 of the Fair Work Act 2009 (Cth) – application alleging the third and fourth respondents were knowingly involved in the contraventions within the meaning of s 550 of the Act – termination of the applicant’s employment was adverse action within the meaning of s 342(1) of the Act ­– the applicant’s mental illness or disability was not a substantial and operative reason for the adverse action in the dismissal of the applicant – the adverse action presumption under s 361 of the Act as to a proscribed reason rebutted by the respondents – no contravention of ss 340 or 351 of the Act has been made out – no contravention under s 550 of the Act is made out against the third respondent or the fourth respondent –application dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 4, 340, 341, 342, 351, 360, 361, 366, 545, 550, 793, 789FC
Number of paragraphs:	99
Date of last submission/s:	22 December 2020
Date of hearing:	19 – 20, 22 October 2020
Place:	Sydney
Counsel for the Applicant:	Ms K Edwards
Counsel for the Applicant:	Ms B Byrnes
Solicitor for the Applicant:	Danny King Legal
Counsel for the Respondents:	Mr M Seck
Solicitor for the Respondents:	Holding Redlich

ORDERS

SYG 2985 of 2018

BETWEEN:

BEVERLY MCLOUGHLIN

Applicant

AND:

RANDSTAD PTY LTD

First Respondent

PAUL STEWART

Second Respondent

BROOKE O'KEEFE (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	19 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for relief under the Fair Work Act 2009 (Cth) (“the Act”) in respect of alleged contraventions of ss 340 and 351 of the Act in respect of the adverse action constituting the dismissal of the applicant from her employment by her employer, the first respondent. The third and fourth respondents were allegedly knowingly involved in the contraventions within the meaning of s 550 of the Act. The third respondent was the human resource manager who was involved in events leading up to the dismissal of the applicant. The fourth respondent was the person who made the ultimate dismissal decision and signed the dismissal letter. On 22 October 2020, the second respondent was removed as a party to the proceedings.

2. The applicant was suspended form work on 19 July 2018 by a Notice of Suspension of Employment, followed by a letter dated 23 July 2018 entitled “Notice of Suspension and concerns relating to misconduct Detail of concerns and opportunity to respond” signed by the third respondent. That letter dated 23 July 2018 made express reference to the applicant’s post on LinkedIn published on 17 July 2018, which post was attached to the letter…