Reynolds v Bunnings Warehouse

[2006] FCA 333

FEDERAL COURT OF AUSTRALIA

Reynolds v Bunnings Warehouse [2006] FCA 333

DAVID REYNOLDS v BUNNINGS WAREHOUSE

VID 15 OF 2006

NORTH J
20 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 15 OF 2006

BETWEEN:	DAVID REYNOLDS APPLICANT
AND:	BUNNINGS WAREHOUSE RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	20 MARCH 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Insofar as the application relied on s 170CK of the Workplace Relations Act 1996 (Cth), the application is dismissed on the ground that no reasonable cause of action is disclosed.

2. Insofar as the application relied on s 170CM of the Workplace Relations Act 1996 (Cth), the application is struck out.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 15 OF 2006

BETWEEN:	DAVID REYNOLDS APPLICANT
AND:	BUNNINGS WAREHOUSE RESPONDENT

JUDGE:	NORTH J
DATE:	20 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is a motion for summary judgment by Bunnings Warehouse, the respondent, which is brought in an application by Mr Reynolds, the applicant, under s 170CK and s 170CM of the Workplace Relations Act 1996 (Cth) (the Act). The applicant was dismissed by the respondent on 4 May 2005. He did not receive payment in lieu of notice and in his application, he has made a claim for it under s 170CM of the Act. After filing of the application and before today, the respondent has paid an amount in conformity with the Act in lieu of notice of termination. The applicant accepts that this part of his claim has been met. Consequently, the appropriate order is that his claim in that regard is struck out.

2. The applicant claimed that he had been dismissed because he informed the respondent that he had applied to join a union, the Shop, Distributive & Allied Employees’ Association, which he claimed was unlawful under s 170CK of the Act. The respondent’s motion for summary judgment was filed on the basis that the respondent believed that the applicant had claimed that his dismissal was unlawful under s 170CK(2)(b) of the Act. That subsection provides that employment is not to be terminated on the ground of trade union membership. Consequently, the respondent adduced evidence before the Court to show that on the date of termination the applicant was not a member of the union.

3. After some difficulty with the form of proof provided by the respondent, Mr Michael Donovan, the Victorian Branch Secretary/Treasurer of the Shop, Distributive and Allied Employees’ Association gave evidence that the applicant was not a member of the union on 4 May 2005. Thus, to the extent that the applicant’s claim depended on s 170CK(2)(b) of the Act, it was bound to fail and judgment should be entered for the respondent on that cause of action.

4. Faced with this circumstance, the applicant contended that his claim was also based on the suggestion that he had been dismissed because he was not a member of the union under s 170CK(2)(c) of the Act. In affidavits filed by him outlining the circumstances of his termination, no such allegation is made. Indeed, it seems that the applicant misapprehended the scope of the subsection. The subsection applies only where the real reason for the termination is that a person has not joined a union. That is not the way the applicant puts his case.

5. In order to avoid the consequence of judgment, the applicant contended that his real complaint was that he had been dismissed because he had applied to join the union. Such a cause of action cannot be made out because s 170CK of the Act does not make the act of applying to become a member of the union a prohibited reason for termination. Consequently, the application, insofar as it relies on s 170CK of the Act, is dismissed on the ground that no reasonable cause of action is disclosed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:            20 March 2006

Counsel for the Applicant:	Appeared in Person
Solicitor for the Respondent:	Lander and Rogers
Date of Hearing:	20 March 2006
Date of Judgment:	20 March 2006