Ross v R.C. MacKenzie and Sons Pty Ltd - [2013] FMCA 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROSS v R.C. MACKENZIE AND SONS PTY LTD

[2013] FMCA 31

INDUSTRIAL LAW – Alleged termination of employment in contravention of section 340(1) of the Fair Work Act 2009 (Cth) – Respondent failed to displace onus under section 361 of the Act – adverse action taken against the Applicant.

Fair Work Act 2009 (Cth), ss.12, 123, 340, 361, 539, 545, 570
Fair Work Regulations 2009 (Cth), reg.1.07

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32
Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21

Applicant:

DARREN JOHN ROSS

Respondent:

R.C. MACKENZIE AND SONS PTY LTD

File Number:

MLG 1259 of 2011

Judgment of:

Hartnett FM

Hearing dates:

7 & 8 November 2012

Delivered at:

Melbourne

Delivered on:

1 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr Flower

Solicitors for the Applicant:

Arnold Dallas McPherson

Counsel for the Respondent:

Mr Tracey

Solicitors for the Respondent:

Cosgriff Orchard Legal

THE COURT DECLARES THAT:

The Respondent took adverse action against the Applicant in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (‘the Act’).

THE COURT ORDERS THAT:

Pursuant to s.545 of the Act the Respondent pay compensation to the Applicant for loss suffered by him because of the contravention in the sum of $32,872.87.
Pursuant to s.570 of the Act there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1259 of 2011

DARREN JOHN ROSS

Applicant

And

R.C. MACKENZIE AND SONS PTY LTD

Respondent

REASONS FOR JUDGMENT

These proceedings commenced by Application and Form 2 Claim under the Fair Work Act 2009 (Cth) (‘the Act’) and alleged termination of the Applicant’s employment in contravention of the “general protections provisions” of the Act. The proceedings were filed on 5 September 2011. The remedy sought by the Applicant is for compensation and damages.
The contraventions alleged in the Form 2 Claim filed are as follows:
“1. On 4 July 2011 the Applicant was summarily terminated from his employment by the Respondent’s Managing Director, Mr Rob Mackenzie.
2. No reason was given to the Applicant for the termination of his employment save for a statement by Mr Mackenzie to the effect: “Things are going to get quiet out here and someone has to go”.
3. The Applicant was terminated without being given notice of termination of employment or payment in lieu of notice of termination of employment in contravention of section 117 of the Fair Work Act 2009.
4. The Applicant was terminated on the ground of redundancy and has not been paid a redundancy entitlement in contravention of section 119 of the Fair Work Act 2009.
5. The Applicant was terminated without payment of his annual leave entitlements due to him pursuant to Division 6 of Part 2.2 of the Fair Work Act 2009.
6. The Applicant was terminated whilst he was exercising his right under sections 104-106 of the Fair Work Act 2009 to take compassionate leave.”
The…

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: [2013] FMCA 31
Decision Date

CaseChat Overview and Summary

In the case of Ross v R.C. MacKenzie and Sons Pty Ltd, the Federal Magistrates Court was required to determine whether the respondent, R.C. MacKenzie and Sons Pty Ltd, had taken adverse action against the applicant, Darren John Ross, in contravention of section 340(1) of the Fair Work Act 2009 (Cth). The applicant alleged that the respondent terminated his employment because he was seeking to exercise a workplace right to take compassionate leave, in contravention of the Act. The respondent, on the other hand, argued that the termination was due to the applicant's alleged serious misconduct in bringing his child into the workplace, which posed a safety risk.

The court found that the evidence provided by the respondent, Mr Mackenzie, was unreliable and contradicted by other evidence. The court concluded that the adverse action taken against the applicant was indeed due to the exercise of his workplace right to take compassionate leave, and not due to any misconduct or safety concerns. As a result, the court found in favour of the applicant and ordered the respondent to pay compensation to the applicant for the loss suffered due to the contravention of the Act. The amount of compensation was calculated based on the applicant's lost remuneration, deductions for earnings since termination, and a discount for potential lawful dismissal and taxation. The final amount awarded to the applicant was $32,872.87.

Orders