FEDERAL COURT OF AUSTRALIA
Ramos v Good Samaritan Industries [2013] FCA 30
Citation: Ramos v Good Samaritan Industries [2013] FCA 30 Appeal from: Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 Parties: AGUSTIN RAMOS v GOOD SAMARITAN INDUSTRIES File number: WAD 377 of 2011 Judge: BARKER J Date of judgment: 30 January 2013 Catchwords: INDUSTRIAL LAW – appeal from Federal Magistrates Court following dismissal of application alleging contravention of s 340(1) of the Fair Work Act 2009 (Cth) – nature of appeal by way of rehearing – approach to determining whether adverse action is taken “because” of a proscribed reason – whether adverse action allegedly suffered by appellant was “because” of a workplace right Legislation: Fair Work Act 2009 (Cth) s 340(1); s 340(1)(a); s 340(1)(a)(i); s 340(1)(b); s 340(2); s 341; s 341(1)(b); s 341(1)(c)(ii); s 342(1); s 342(2); s 346; s 347; s 361; s 386(1)(b)
Federal Court of Australia Act 1976 (Cth) s 24(1)(d); s 25(1AA); s 27; s 28Cases cited: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044
Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
General Motors‑Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341
Whitaker v Child Support Registrar [2010] FCAFC 112Date of hearing: 12 October 2012 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 143 Counsel for the Applicant: Mr TJ Hammond (Pro Bono) Counsel for the Respondent: Mr S Kemp Solicitor for the Respondent: Jackson McDonald
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 377 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AGUSTIN RAMOS
AppellantAND: GOOD SAMARITAN INDUSTRIES
Respondent
JUDGE:
BARKER J
DATE OF ORDER:
30 JANUARY 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 377 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: AGUSTIN RAMOS
AppellantAND: GOOD SAMARITAN INDUSTRIES
Respondent
JUDGE:
BARKER J
DATE:
30 JANUARY 2013
PLACE:
PERTH
APPEAL AGAINST FAIR WORK DECISION
On 22 July 2010, the appellant gave the respondent four weeks notice in writing of his intention to resign from his employment as the store manager of the Good Samaritan Industries store at Dianella, Western Australia.
On 23 July 2010, the respondent accepted…
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Details
- Case
- [2013] FCA 30
- Decision Date
CaseChat Overview and Summary
In the matter of Ramos v Good Samaritan Industries, the appellant brought an application in the Federal Magistrates Court alleging that his employer had contravened section 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against him because he had exercised a workplace right by making a complaint under section 341 of the Act. The respondent denied the allegations and the Federal Magistrates Court dismissed the application, finding that the employer had not contravened the Act. The appellant appealed the decision to the Federal Court. The appeal was allowed, and the matter was remitted to the Federal Magistrates Court for rehearing.
The appeal involved determining whether the employer had taken adverse action against the appellant because he had exercised a workplace right. The court considered whether the employer's actions were "because" of the appellant's exercise of his workplace right, as required by section 340(1) of the Act. The court found that the Federal Magistrates Court had applied an incorrect test in determining whether the employer's actions were "because" of the appellant's exercise of his workplace right. The court held that the correct test was whether the adverse action was "because of" the exercise of a workplace right, rather than whether the exercise of the workplace right was a "contributing factor" in the adverse action. The court found that the Federal Magistrates Court had not considered all of the relevant evidence and had not applied the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right.
The Federal Court held that the appeal should be allowed and the matter should be remitted to the Federal Magistrates Court for rehearing. The court found that the appellant had made out a prima facie case that the employer had taken adverse action against him because he had exercised a workplace right. The court held that the Federal Magistrates Court should reconsider the evidence and apply the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right.
The appeal was allowed and the matter was remitted to the Federal Magistrates Court for rehearing. The Federal Magistrates Court was directed to reconsider the evidence and apply the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right. The court did not make any orders as to costs.
The appeal involved determining whether the employer had taken adverse action against the appellant because he had exercised a workplace right. The court considered whether the employer's actions were "because" of the appellant's exercise of his workplace right, as required by section 340(1) of the Act. The court found that the Federal Magistrates Court had applied an incorrect test in determining whether the employer's actions were "because" of the appellant's exercise of his workplace right. The court held that the correct test was whether the adverse action was "because of" the exercise of a workplace right, rather than whether the exercise of the workplace right was a "contributing factor" in the adverse action. The court found that the Federal Magistrates Court had not considered all of the relevant evidence and had not applied the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right.
The Federal Court held that the appeal should be allowed and the matter should be remitted to the Federal Magistrates Court for rehearing. The court found that the appellant had made out a prima facie case that the employer had taken adverse action against him because he had exercised a workplace right. The court held that the Federal Magistrates Court should reconsider the evidence and apply the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right.
The appeal was allowed and the matter was remitted to the Federal Magistrates Court for rehearing. The Federal Magistrates Court was directed to reconsider the evidence and apply the correct test in determining whether the employer's actions were "because of" the appellant's exercise of his workplace right. The court did not make any orders as to costs.
Orders
Orders of the court
1. The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Federal Magistrates Court dismissed the proceeding finding that the respondent did not contravene the FW Act: see Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341. DECISION OF THE FEDERAL MAGISTRATES COURT In the Federal Magistrates Court, in summary, the appellant claimed that: ·at material times he exercised a workplace right by making a complaint to his employer, pursuant to s 341 of the FW Act; ·subsequent to his complaint, he had been the subject of adverse action and discrimination in the workplace, contrary to s 342(1) and s 352 of the FW Act; and·the adverse action and discrimination suffered by him caused him to resign. His points of claim in the Federal Magistrates Court relevantly claimed : 4.On 6 April 2010, the Applicant submitted a complaint addressed to the Human Resources Manager of the Respondent. The complaint was against the Respondent’s Divisional Operations Manager and the Retail Operations Manager to whom the Applicant reported to.5.The Applicant claims that all adverse action taken by the Respondent against the Applicant referred to in subsequent paragraphs was taken because the Applicant submitted the complaint referred to in paragraph 4.6.The Applicant claims that in a letter from the Respondent dated 23 April 2010 the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)The Respondent threatened the Applicant with disciplinary action without any or any sufficient reason.b)The Respondent discriminated against the Applicant by choosing to side with the other employees Gordon and Cameron instead of the Applicant without any or any sufficient evidence or reason.7.The Applicant claims that in a letter from the Respondent dated 3 May 2010 the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)The Respondent decided to demote the Applicant from a level 1 store to a level 3 store and transfer the Applicant to the Armadale Store (a store which the Respondent intended to close) which was extremely inconvenient to the Applicant and would ultimately have lead to the Respondent being made redundant.8.The Applicant claims that in a letter from the Respondent dated 12 May 2010, the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)The Respondent threatened the Applicant with dismissal without any or any sufficient reason. b)The Respondent required the Applicant to sign a Performance Management Framework contract in order for the Applicant to retain his position of employment as the Dianella Store Manager.9.The Applicant claims that in the same letter from the Respondent dated 12 May 2010 the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)The Respondent threatened the Applicant again with disciplinary action in respect of vehicle allowance claims, a banking shortfall and sick leave taken on 1 May 2010, without any or any sufficient reason.10.The Applicant claims that on the 20 May 2010 the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)Joy Wilson Retail Operations Manager for the Respondent threatened the Applicant by waiving the Performance Management Framework contract in his face in an act of intimidation and insinuated what would happen if the Applicant did not adhere to the requirements expected of him and stated in the PMF contract which the Applicant signed.11.The Applicant claims that on the 3 June 2010, the Respondent took adverse action against the Applicant in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.Particularsa)The Respondent suspended the Applicant from his employment as Dianella Store Manager without any or any sufficient reason.b)The Respondent discriminated between the Applicant and other employees of the Respondent by accepting a complaint made against the Applicant by those other employees without any or any sufficient evidence or reason and/or without affording the Applicant natural justice in relation to the complaint.12.The Applicant claims that in the letter from the Respondent dated 16 June 2010, the Respondent threatened the Applicant with a final warning and a threat of disciplinary action and another threat of dismissal, in each case without any or any sufficient reason. In doing so the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the Act.13.The Applicant claims that in the letter from the Respondent dated 23 June 2010 the Respondent threatened the Applicant by canceling his employment income payment. In doing so the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2), section 340 and section 352ment [sic] of the Act.14.The Applicant claims that in the email from the Respondent dated 9 July 2010 the Respondent threatened the Applicant by denying the Applicant the payment of the Applicant's annual leave entitlements. In doing so the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2), section 340 and section 352 of the Act.15.The Applicant claims that the actions referred to in paragraphs 6 to 14 above further or alternatively constituted a constructive dismissal of the Applicant, by making his position untenable thereby forcing or giving him strong inducement to resign his employment, which he did on 22 July 2010. This constructive dismissal is itself adverse action contrary to the Act.
Ratio Decidendi
Legal Principle Established
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