Moore v Slondia Nominees Pty Ltd - [2012] FMCA 273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE v SLONDIA NOMINEES PTY LTD

[2012] FMCA 273

INDUSTRIAL LAW – General protections application relating to dismissal - reversal of onus of proof – whether reason advanced by respondent the real reason for dismissal.

Fair Work Act 2009 (Cth), ss.340, 341, 360, 361, 369, 371, 539, 545 & 546
Workplace Relations Act 1996 (Cth), ss.298V & 809
Conciliation and Arbitration Act 1904 (Cth), s.5
Evidence Act 1995 (Cth), s.140

Barclay and Another v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC14
General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
Rojasv Esselte Australia Pty Limited (No. 2) [2008] FCA 1585
Briginshaw & Briginshaw [1938] HCA 34
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Ors (1992) 110 ALR 449
Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170

Applicant:

SANDY MOORE

Respondent:

SLONDIA NOMINEES PTY LTD

File Number:

ADG 44 of 2011

Judgment of:

Lindsay FM

Hearing date:

5 December 2011

Date of Last Submission:

5 December 2011

Delivered at:

Adelaide

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Colgrave

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondent:

Mr Manuel

Solicitors for the Respondent:

Fox Tucker Lawyers

UPON NOTING that the Court is satisfied that the respondent has contravened the civil remedy provisions referred to in s.539 of the Fair Work Act 2009 in the manner specified in the Application filed on 24 February 2011

ORDER

The question of whether a pecuniary penalty order pursuant to s.546 of the Act should be made and whether and if so what order awarding the applicant compensation for loss pursuant to s.545(2)(b) of the Act is adjourned to a date to be fixed by the Court in consultation with Counsel for the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 44 of 2011

SANDY MOORE

Applicant

And

SLONDIA NOMINEES PTY LTD

Respondent

REASONS FOR JUDGMENT

This is a civil remedies application pursuant to Part 4-1 of the Fair Work Act 2009 (“the Act”). It is a general protections court application in which the applicant alleges that the respondent took adverse action against her contrary to s.340 of the Act.
The applicant seeks a penalty in respect of the contravention in accordance with s.539 of the Act and also seeks compensation pursuant to s.545 of the Act.
The contravention involves a dismissal and no issue arises as to compliance with s.371 of the Act. Fair Work Australia has issued a certificate under s.369 of the Act which is annexed to the application.
Subject to one minor aspect of the evidence presented on behalf of the respondent, no issue arises as to whether or not the applicant was dismissed from her employment.
She claims that she was dismissed on account of her exercising a workplace…

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 273
Decision Date: 4 April 2012

CaseChat Overview and Summary

This case involves an application under Part 4-1 of the Fair Work Act 2009, specifically a general protections application where the applicant, Sandy Moore, alleges that the respondent, Slondia Nominees Pty Ltd, took adverse action against her contrary to s.340 of the Act. The applicant seeks a penalty for the contravention and compensation for loss pursuant to s.545(2)(b) of the Act. The primary issue to be determined is whether the applicant was dismissed because she made an application to the relevant State court for monies owed to her under her contract of employment, which involved the exercise of a workplace right. The respondent contends that the dismissal was due to a downturn in business. The court must decide whether the applicant was dismissed for exercising her workplace right or for other reasons, in light of the reversal of the onus of proof under s.361 of the Act. After considering the evidence, the court found that the respondent had not satisfied the onus of proving that the applicant was dismissed for reasons other than exercising her workplace right. The court determined that the temporal proximity of the dismissal to the filing and service of the proceedings, the isolated nature of the dismissal, and the absence of other evidence of cost-cutting measures all point to the dismissal being related to the applicant's exercise of her workplace right. Consequently, the court concluded that the applicant was dismissed because she exercised her workplace right. The question of whether a pecuniary penalty order should be made and whether compensation should be awarded is adjourned to a later date to allow the parties to make further submissions.

Orders