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…
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- Case
- [2013] FMCA 31
- Decision Date
CaseChat Overview and Summary
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.
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