Motufoua v Diamond Communications Pty Ltd - [2019] FCCA 2818

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOTUFOUA v DIAMOND COMMUNICATIONS PTY LTD

[2019] FCCA 2818

Catchwords:
INDUSTRIAL LAW – Dismissal – whether in contravention of a general protection – whether adverse action – whether as a result of complaints made.

Legislation:

Fair Work Act 2009 (Cth), pt.3.1, ss.340, 341, 342, 361, 570
Federal Circuit Court of Australia Act 1999 (Cth), s.75
Federal Circuit Court Rules 2001 (Cth), r.21.02
Occupational Safety and Health Act 1984 (WA)

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No.2) [2017] FCCA 1713
Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287
General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285

Applicant:

IMOGENE JAZZ MOTUFOUA

Respondent:

DIAMOND COMMUNICATIONS PTY LTD

File Number:

PEG 406 of 2014

Judgment of:

Judge Antoni Lucev

Hearing dates:

7 and 8 March 2017

Date of Last Submission:

8 March 2017

Delivered at:

Sydney (by video-link to Perth)

Delivered on:

3 October 2019

(by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr R Wade

Solicitors for the Respondent:

Ashurst Australia

ORDERS

That the originating application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 406 of 2014

IMOGENE JAZZ MOTUFOUA

Applicant

And

DIAMOND COMMUNICATIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Imogene Jazz Motufoua (“Mr Motufoua”) filed an Originating Application on 15 December 2014 against the respondent, Diamond Communications Pty Ltd (“Diamond Communications”), alleging dismissal in contravention of a general protection under the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Motufoua, who was employed as a Field Worker by Diamond Communications, alleges that he suffered various adverse actions either because he made workplace complaints or reports, or because he exercised workplace rights, in particular by lodging a workers' compensation claim.
The alleged adverse actions culminated in the termination of Mr Motufoua’s employment during October 2014, something Mr Motufoua attributes to him having made an earlier complaint or a workers' compensation claim.
The Court acknowledges that these…

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: [2019] FCCA 2818
Decision Date: 3 October 2019

CaseChat Overview and Summary

The applicant, Mr. Motufoua, brought proceedings against his former employer, Diamond Communications Pty Ltd, alleging that his dismissal constituted adverse action in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). The dispute centred on whether the employer's decision to terminate Mr. Motufoua's employment was a consequence of his having made complaints or inquiries about his employment. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was to determine whether Diamond Communications Pty Ltd had taken adverse action against Mr. Motufoua for a prohibited reason, specifically, for exercising his workplace rights by making complaints or inquiries about his employment. This required the Court to assess the causal connection between Mr. Motufoua's actions and the employer's decision to dismiss him.

Judge Lucev found that Mr. Motufoua had indeed made complaints and inquiries regarding his employment, which constituted the exercise of a workplace right. Crucially, the Court determined that these actions were a substantial and operative reason for the employer's decision to terminate his employment. The employer's stated reasons for dismissal were found to be a pretext, and the true reason was the applicant's exercise of his workplace rights. Consequently, the Court concluded that adverse action had been taken against Mr. Motufoua in contravention of the general protections provisions.

Orders