FEDERAL COURT OF AUSTRALIA
Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585
INDUSTRIAL LAW – termination of employment of applicant – applicant participated in industrial action – applicant delegate of industrial organisation – whether applicant’s employment was terminated for a proscribed reason – whether respondent has discharged the reverse onus imposed in unlawful termination matters – whether respondent has provided an explanation of the real reason for termination of applicant’s employment – appropriate remedy in the circumstances – whether a civil penalty should be imposed – appropriate recipient of any penalty imposed
Workplace Relations Act 1996 (Cth), ss 448, 792, 793, 807, 809
Federal Court of Australia Act 1976 (Cth), s 23Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
CPSU v Telstra Corporation Ltd (2001) 108 IR 228
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 641
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170
Rojas v Esselte Australia Pty Limited [2007] FCA 1506
Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452
Shanka v Employment National (administration) Pty Ltd (No 2) (2001) 114 FCR 379
Victoria University of Technology v Australian Education Union (1999) 91 IR 96DAVID ROJAS v ESSELTE AUSTRALIA PTY LTD ACN 002 407 936
NSD 1875 OF 2007MOORE J
24 OCTOBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1875 OF 2007
BETWEEN:
DAVID ROJAS
ApplicantAND:
ESSELTE AUSTRALIA PTY LTD
ACN 002 407 936
Respondent
JUDGE:
MOORE J
DATE OF ORDER:
24 OCTOBER 2008
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1.The respondent, Esselte Australia Pty Ltd, contravened s 792(1)(a) of the Workplace Relations Act1996 (Cth) by dismissing the applicant, David Rojas, on 12 September 2007, for reasons including the reason stated in s 793(1)(a) of the Workplace Relations Act1996 (Cth), namely, that he was a delegate of the National Union of Workers.
THE COURT ORDERS THAT:
1.The applicant be reinstated.
2.Pursuant to s 807(1)(b) of the Workplace Relations Act1996 (Cth), the respondent pay to the applicant, within 28 days of the date of this Order, the sum of $1792.72 by way of compensation for damage suffered by him as a result of the contravention of Div 4 of Pt 16 of the Workplace Relations Act1996 (Cth) by the respondent.
3.Pursuant to s 807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty of $12,000 is imposed on the respondent.
4.The penalty is to be paid into the Consolidated Revenue Fund within 28 days of the date of this Order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court…
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- Case
- [2008] FCA 1585
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to resolve were whether the dismissal was an unfair labour practice under the Workplace Relations Act 1996 (Cth) and whether the dismissal was procedurally unfair. Specifically, the court had to determine if the dismissal was genuinely for reasons other than those related to his union activities, and if the process leading to the dismissal was fair.
The court examined the evidence and found that Mr Rojas had been employed by Esselte for over 16 years and had become a delegate of the NUW in 1998. The employment conditions were governed by the Esselte Enterprise Agreement 2005, which expired in April 2006. Negotiations for a new agreement began in 2006, but the discussions were fraught with tension as the company sought a more flexible agreement, while the union demanded significant wage increases and a comprehensive agreement. The union's opposition to the adoption of Australian Workplace Agreements (AWAs) by the company further complicated the negotiations. Ultimately, the court concluded that the respondent failed to establish that Mr Rojas' dismissal was unrelated to his union activities.
The court found that the dismissal was likely related to his union membership and role, and that the process leading to the dismissal was unfair. Consequently, the court ordered Mr Rojas' reinstatement, awarded him compensation for the contravention of the Workplace Relations Act 1996 (Cth), and imposed a penalty on the respondent for the unfair labour practice. The respondent was also ordered to pay the sum of $1792.72 to Mr Rojas within 28 days of the order date.
Orders
Orders of the court
1. The applicant be reinstated.
2. Pursuant to s 807(1)(b) of the Workplace Relations Act 1996 (Cth), the respondent pay to the applicant, within 28 days of the date of this Order, the sum of $1792.72 by way of compensation for damage suffered by him as a result of the contravention of Div 4 of Pt 16 of the Workplace Relations Act 1996 (Cth) by the respondent.
3. Pursuant to s 807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty of $12,000 is imposed on the respondent.
4.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MOORE J
Full text does not contain this section.