Moody v Great Ocean Road Real Estate Pty Ltd
[2009] FMCA 403
•12 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOODY v GREAT OCEAN ROAD REAL ESTATE PTY LTD | [2009] FMCA 403 |
| INDUSTRIAL LAW – Whether termination of employment for proscribed reason – application for summary judgement. |
| Federal Magistrates Act 1999, s.17A Workplace Relations 1996, ss.659, 664 |
| Applicant: | MEGAN MOODY |
| Respondent: | GREAT OCEAN ROAD REAL ESTATE PTY LTD |
| File Number: | MLG 1092 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 30 April 2009 |
| Date of Last Submission: | 30 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2009 |
REPRESENTATION
| The Applicant: | Appearing on her own behalf |
| Counsel for the Respondent: | Mr. Rutherford |
| Solicitors for the Respondent: | Harwood Andrews |
ORDERS
The application for summary judgment is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1092 of 2008
| MEGAN MOODY |
Applicant
And
| GREAT OCEAN ROAD REAL ESTATE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the respondent for summary judgment as to the applicant’s claim under s.659 of the Workplace Relations Act 1996 (the “WR Act”).
The application for summary judgment is made pursuant to s.17A of the Federal Magistrates Act 1999 which provides:
“Summary judgment
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
The applicant claims that her employment by the respondent was terminated unlawfully, because it was terminated for reason that she suffers from dyslexia.
Section 664 of the WR Act provides:
“Proof of issues in relation to alleged contravention of section 659
In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).”
The applicant has applied to the Court under s.659 of the WR Act alleging that her employment was terminated in breach of s.659(2)(f) by reason of physical or mental disability.
By reason of s.664(a) of the WR Act it is not necessary for the applicant to prove that her employment was terminated because of, or for reasons including the reason that she suffers from dyslexia. Once she alleges that to be a reason for termination, the employer has the onus of proving that the termination “was for a reason, or reasons that do not include” physical or mental disability (s.664(b)).
The applicant therefore must prove the facts bringing her within the jurisdiction of the Court under s.659. The onus then shifts to the respondent to prove the reason or reasons for termination do not include the reason alleged.
For summary judgment to be given under s.17A(2), the Court must be “satisfied that the other party (the applicant) has no reasonable prospect of successfully prosecuting the proceeding…”. It is not possible for the Court to be so satisfied without hearing the evidence, and cross examination, of the respondent’s witnesses.
The application for summary judgment is dismissed.
The applicant did not incur any legal costs in defending the application and made no application for costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 12 May 2008
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