Popovic v Downer EDI Engineering Electrical Pty Ltd - [2020] FCCA 607

FEDERAL CIRCUIT COURT OF AUSTRALIA

POPOVIC v DOWNER EDI ENGINEERING ELECTRICAL PTY LTD

[2020] FCCA 607

Catchwords:

INDUSTRIAL LAW – Termination of employment – no age discrimination held – no adverse action – no exercising of a workplace right – no coercion – no reasonable prospects of success – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 343, 351
Federal Circuit Court Rules 2001 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), s.31A
Occupational Safety and Health Act 1984 (WA), s.26
Work Health Safety Act 2011 (Cth)

Cases cited:

Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499
Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233

Applicant:

IGNAC POPOVIC

Respondent:

DOWNER EDI ENGINEERING ELECTRICAL PTY LTD

File Number:

PEG 30 of 2019

Judgment of:

Judge McNab

Hearing date:

16 March 2020

Date of Last Submission:

16 March 2020

Delivered at:

Perth

Delivered on:

16 March 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Ms Cosentino

Solicitors for the Respondent:

Minter Ellison

ORDERS

The Application filed on 1 February 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 30 of 2019

IGNAC POPOVIC

Applicant

And

DOWNER EDI ENGINEERING ELECTRICAL PTY LTD

Respondent

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT – DELIVERED EX-TEMPORE)

Introduction

By an Application filed on 1 February 2019 the Applicant seeks a declaration that the dismissal of his employment with the Respondent on 15 November 2018 involved a breach of:
a)section 351 of the Fair Work Act 2009 (Cth) (‘the Act’) (‘age discrimination claim’);
b)section 340 of the Act because the Applicant exercised a workplace right; and
c)section 343 of the Act by taking adverse action against the Applicant (dismissal) because the Respondent allegedly subjected the Applicant to coercion.
The Application is supported by a Form 2 Claim in which there are three attachments. Attachment A sets out the letter of termination, Appendix B is a statement of the Applicant relevant to his age discrimination claim and Appendix C is a statement of 64 paragraphs in relation to the adverse action claims and the coercion claims.
In addition to the claim, the Applicant filed an affidavit in support of an Application in a Case for Orders for discovery and Orders for the transfer of the proceedings to Victoria.
The Applicant has filed two submissions, the first being on the 1 November 2019 and the second on 30 December 2019. Additionally he has filed an affidavit sworn on 1 November 2019 and a further affidavit sworn on 7 February 2020.
The 7 February 2020 affidavit is in the nature of submissions although it does exhibit a document called a Stop Work Authority. The Applicant swore by his affidavit on 7 February 2020 that he and all other workers on Chevron’s Wheatstone Project had a Stop Work Authority, and that was said to authorise…

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.

Continue reading Popovic v Downer EDI Engineering Electrical Pty Ltd

Details

AGLC: Popovic v Downer EDI Engineering Electrical Pty Ltd [2020] FCCA 607
Case: [2020] FCCA 607
Decision Date: 16 March 2020

CaseChat Overview and Summary

In *Popovic v Downer EDI Engineering Electrical Pty Ltd*, the applicant, Mr Popovic, brought proceedings against his former employer, Downer EDI Engineering Electrical Pty Ltd, alleging unlawful termination of employment. The matter was heard by Judge McNab in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Mr Popovic had been subjected to adverse action under the *Fair Work Act 2009* (Cth) by his employer. Specifically, the court considered whether the termination of his employment was because he had exercised a workplace right, or because of his age, or whether the employer had engaged in coercion. The court also assessed whether Mr Popovic had reasonable prospects of success in his claim.

Judge McNab found that Mr Popovic had not established that the termination of his employment was adverse action. The court concluded that there was no evidence to suggest that the employer's actions were motivated by Mr Popovic exercising a workplace right, nor was there any indication of age discrimination or coercion. Consequently, the court determined that Mr Popovic did not have reasonable prospects of success in his application.

The application brought by Mr Popovic was dismissed.

Orders