Pavolvich and Atlantic Contractors Pty Ltd - [2012] FMCA 1080

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAVOLVICH & ATLANTIC CONTRACTORS PTY LTD

[2012] FMCA 1080

INDUSTRIAL LAW – Claim alleging dismissal in contravention of a general protection – applicant claims terminated because of temporary absence from work because of illness – default hearing – termination in breach of general protection – fixing of pecuniary penalty.

Federal Magistrates Court Rules 2001, rr.4.01, 13.03A(2), 13.03B(2)(c), 13.03B(2)(d), 45.06
Fair Work Act 2009, ss.351, 352, 361, 539, 546
Fair Work Regulations 2009, reg.3.01

Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Limited [2007] FMCA 7
National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481

Applicant:

PAUL M PAVOLVICH

Respondent:

ATLANTIC CONTRACTORS PTY LIMITED

File Number:

BRG 343 of 2012

Judgment of:

Jarrett FM

Hearing date:

26 October 2012

Date of Last Submission:

26 October 2012

Delivered at:

Brisbane

Delivered on:

26 October 2012

REPRESENTATION

Representative for the Applicant:

Mr Crank

Representatives for the Applicant:

Construction, Forestry, Mining and Energy Union

The Respondent appeared by its director, Mr Brites

ORDERS

THE COURT ORDERS DECLARES THAT:

Atlantic Contractors Pty Ltd contravened:
a.s.351 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he had a physical disability which made the applicant temporarily unable to perform work;
b.s.352 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he was temporarily absent from work by reason of that disability.

THE COURT ORDERS THAT:

The respondent pay a pecuniary penalty of $16,500.00 for its contravention of the Fair Work Act 2009 such penalty to be paid to the Construction, Forestry, Mining and Energy Union within three (3) months of the date of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

No. BRG 343 of 2012

PAUL M PAVOLVICH

Applicant

And

ATLANTIC CONTRACTORS PTY LTD

Respondent

REASONS FOR JUDGMENT

Ex tempore

In this matter the application was filed on 24 April, 2012. The application and the form 2 claim that accompanied it were served by post whereby the relevant documents were sent to 832 Beaudesert Road, Coopers Plains, Queensland. That address is the registered office of Atlantic Contractors Pty Ltd. The affidavit of Michelle Claire filed by leave on 24 May, 2012 appends to it a search of the relevant database maintained by ASIC which indicates that at the relevant time, the current registered office of the company was 832 Beaudesert Road, Coopers Plains.
This morning a person appears on behalf of the respondent claiming to be a director of that company – Mr Brites. Mr Brites confirms that 832 Beaudesert Road, Coopers Plains, is the registered office of the respondent company. I am satisfied in those circumstances that the company was properly served and that the relevant documents were brought to the attention of the respondent as provided for in both the rules of the Federal Magistrates Court and the Corporations Act 2011.
Since the proceedings were filed, the matter has been before this Court on three…

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 1080
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the Federal Circuit Court, Pavolvich brought a claim against Atlantic Contractors Pty Ltd, alleging wrongful dismissal due to his physical disability. The dispute arose when Pavolvich, who had a temporary physical disability, was dismissed by Atlantic Contractors, leading him to believe that his dismissal was directly related to his disability and temporary absence from work. This case required the court to determine whether Atlantic Contractors had contravened specific sections of the Fair Work Act 2009 in dismissing Pavolvich.

The court was tasked with deciding whether Atlantic Contractors had contravened sections 351 and 352 of the Fair Work Act 2009. Section 351 prohibits dismissal due to a person’s physical disability that makes them temporarily unable to perform work. Section 352 prohibits dismissal due to temporary absence from work because of that disability. The central issue was whether Pavolvich’s dismissal was causally linked to his disability and the resulting temporary absence from work.

The court found that Atlantic Contractors did indeed contravene sections 351 and 352 of the Fair Work Act 2009. The evidence presented demonstrated that Pavolvich's dismissal was directly connected to his temporary disability and absence from work. Consequently, the court declared that Atlantic Contractors had violated the Act. Additionally, the court ordered Atlantic Contractors to pay a pecuniary penalty of $16,500.00, to be paid to the Construction, Forestry, Mining and Energy Union within three months of the order.

Orders

Orders of the court

THE COURT ORDERS DECLARES THAT:

Atlantic Contractors Pty Ltd contravened:

a. s.351 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he had a physical disability which made the applicant temporarily unable to perform work;

b. s.352 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he was temporarily absent from work by reason of that disability.

THE COURT ORDERS THAT:

The respondent pay a pecuniary penalty of $16,500.00 for its contravention of the Fair Work Act 2009 such penalty to be paid to the Construction, Forestry, Mining and Energy Union within three (3) months of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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