FEDERAL COURT OF AUSTRALIA
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
INDUSTRIAL LAW – application for unlawful termination on grounds of temporary absence from work, mental disability and national extraction – whether termination “unfair” not a relevant consideration – stated reasons for termination not designed to disguise a prohibited reason – no basis for finding termination for a prohibited reason
Workplace Relations Act 1996(Cth) ss 170CK, 170CP, 170CQ, 170CR and 170CS
Bahonko v Moorfields Community [2005] FCA 46 referred to
Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595 referred to
MOHAMMADALI SALLEHPOUR v FRONTIER SOFTWARE PTY LTD
V13 OF 2003
MARSHALL J
15 MARCH 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V13 OF 2003
BETWEEN:
MOHAMMADALI SALLEHPOUR
APPLICANTAND:
FRONTIER SOFTWARE PTY LTD
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
15 MARCH 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Costs be reserved with submissions on the question of costs to be filed by the respondent on or before 24 March 2005.
3.In the event that the respondent does file submissions on the question of costs, the applicant is to file submissions in response by 8 April 2005.
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
V13 OF 2003
BETWEEN:
MOHAMMADALI SALLEHPOUR
APPLICANTAND:
FRONTIER SOFTWARE PTY LTD
RESPONDENT
JUDGE:
MARSHALL J
DATE:
15 MARCH 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mr Mohammadali Sallehpour, has applied to the Court pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”) for an order under s 170CR in respect of alleged contraventions of s 170CK(2)(a) and (f).
Mr Sallehpour alleged that his employment was terminated by the respondent, Frontier Software Pty Ltd (“Frontier”) for reasons which included the following:
·temporary absence from work because of illness within the meaning of the Workplace Relations Regulations (“the regulations”);
· mental disability; and
· national extraction.
The issues for determination in this matter are whether Frontier terminated Mr Sallehpour’s employment for reasons which included any of those referred to in the preceding paragraph.
This case is a sad one. As will be seen from the factual context below, Mr Sallehpour suffers from a depressive illness. The illness manifested itself during his employment with Frontier. It affected his ability to perform his duties in a timely manner and his ability to respond to reasonable requests by Frontier to help him overcome or at least manage his illness whilst preserving his employment. Ultimately, Mr Sallehpour lost his job. He claimed that this occurred by reasons proscribed by s 170CK. Unfortunately for Mr Sallehpour, as will be seen by the consideration of the issues set out below, it is the view of the Court that Frontier did not dismiss him for reasons which include the proscribed reasons alleged by him. Reasonable minds might differ about whether the reasons which actually moved…
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- Case
- [2005] FCA 247
- Decision Date
CaseChat Overview and Summary
The Court found that Frontier had provided evidence to support the reasons given for Mr Sallehpour's dismissal. The reasons included an incident on 10 July 2002, a failure to engage in a facilitative process, and below-par work performance. The Court was particularly sceptical of the credibility of some of these reasons but concluded that they did not appear to be a cover for prohibited reasons. The Court accepted that Frontier genuinely attempted to address Mr Sallehpour's performance issues and accommodate his health problems. Mr Sallehpour's failure to cooperate with these efforts meant that the issues could have been resolved if he had chosen to do so. The Court was satisfied that Frontier had discharged the onus of proving that Mr Sallehpour's mental health was not a factor in the termination decision.
In summary, the Court found that Frontier's reasons for dismissing Mr Sallehpour were not based on prohibited grounds such as national extraction, mental health, or unjustified absence from work. Consequently, the Court dismissed the application and reserved the question of costs, with the respondent to file submissions by a specified date. If the respondent filed submissions, the applicant was to respond by a later date.
Orders
Orders of the court
1. The application be dismissed.
2. Costs be reserved with submissions on the question of costs to be filed by the respondent on or before 24 March 2005.
3. In the event that the respondent does file submissions on the question of costs, the applicant is to file submissions in response by 8 April 2005.
Background
Background to the litigation
Full text does not contain this section.
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: MARSHALL J
The Court has serious doubts whether it was reasonable for Frontier to terminate Mr Sallehpour’s employment on the basis of the other issues relied upon by Mr Ebb. This especially applies to the alleged incident on 10 July 2002, the question of the failure of the facilitative process and the alleged below par work performance. The latter two issues may have been capable of being addressed had Mr Sallehpour co-operated with Ms Howard’s reasonable requests for further discussions.Consideration Most importantly, I do not consider that Mr Ebb’s stated reasons for Mr Sallehpour’s termination to be reasons designed to disguise prohibited reasons. To paraphrase, and adapt for current purposes the observations of Mansfield J in Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595 at [53], they are more in accord with an employer being genuinely concerned about the employee’s performance and genuinely trying to improve that performance. The prohibited reasons alleged by Mr Sallehpour are his national extraction, his mental disability and his temporary absence from work because of illness. The evidence in the proceeding does not support a finding that Mr Sallehpour’s national extraction had any bearing on Mr Ebb’s decision to dismiss him. Mr Sallehpour is from Iran but he made no suggestion to Mr Ebb, in cross-examination, that Mr Ebb took his national extraction into account in the termination decision. Mr Ebb denied that he did take that consideration into account. I accept that denial. The next question which arises is whether the termination occurred in part because of Mr Sallehpour’s temporary absence from work within the meaning of the regulations. Regulation 30C(1) deems an absence from work to be temporary if the employee provides a medical certificate within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances. However, Regulation 30C(2) provides that:Subregulation (1) does not apply if:“(a)the employee’s absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or(b)the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.” Mr Sallehpour’s absence extended for in excess of three months; during a time at which he did not have the benefit of paid sick leave. Consequently the prohibited reason based on Mr Sallehpour’s leave of absence cannot be established. Whilst there is no basis upon which it could be alleged that Mr Sallehpour’s absence from his employment or his national extraction formed any part of Frontier’s reasons for the termination, Mr Dalton conceded that his client bore the onus under s 170CQ of disproving that the “mental health reason” was a reason for the termination. I am satisfied that Frontier has discharged that onus. Mr Ebb gave evidence, which I accept, that Mr Sallehpour’s mental health was not a reason for the termination. That evidence is consistent with Frontier’s general approach to Mr Sallehpour’s work problems. In particular, Ms Howard attempted to accommodate Mr Sallehpour’s health issues and safeguard his continued employment. In that regard Mr Sallehpour was his own worst enemy. He failed to reasonably cooperate with Ms Howard or discuss with her issues concerning his employment when she was genuinely trying to help him. The Court accepts that Frontier, certainly at management level, was a caring employer which did its best to try to help an employee who was experiencing difficult health issues. It defies reality to contend that Mr Sallehpour was terminated for the reason of his mental health, or because of or on account of his mental health. Consequently, it is unnecessary to decide the correctness of Mr Dalton’s alternative submission that it was an inherent requirement of Mr Sallehpour’s job that he not suffer from mental health problems.Order