Sapula v ResMed Ltd

[2007] FCA 438

FEDERAL COURT OF AUSTRALIA

Sapula v ResMed Ltd [2007] FCA 438

INDUSTRIAL RELATIONS – Unlawful termination of employment by employer – period of notice of termination of employment – no complaint to external organisation – proceedings commenced without reasonable cause – costs awarded.

Federal Court of Australia Act 1976 (Cth) s 31A
Workplace Relations Act 1996 (Cth) s 659, s 661 and s 666

Zhang v Royal Australian Chemical Institute Inc [2005] 144 FCR 347 – followed

MAREK SAPULA v RESMED LTD
NSD2303 OF 2006

BUCHANAN J
19 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2303 OF 2006

BETWEEN:	MAREK SAPULA Applicant
AND:	RESMED LTD Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	19 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2303 OF 2006

BETWEEN:	MAREK SAPULA Applicant
AND:	RESMED LTD Respondent

JUDGE:	BUCHANAN J
DATE:	19 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. By an application, filed in this court on 22 November 2006, the applicant, Marek Sapula, sought remedies in respect of his termination of employment. The claim was based upon the provisions of alleged contraventions of ss 659 and 661 of the Workplace Relations Act 1996 (Cth). The particular provision of s 659, which was sought to be engaged, was subs 659(2)(e), which makes it unlawful to terminate employment for a reason, which includes:

   ‘The filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.’

2. The allegation concerning s 661 was that Mr Sapula had not been afforded the period of notice of termination of employment, which that section requires, which, in his case, being a person of more than 45 years of age, is a period of notice of at least five weeks.

3. It became clear, during the course of the directions hearings, which have so far taken place, and Mr Sapula accepts, that in fact he had not made any complaint to an organisation outside his employment.  His complaint was to his employer as to matters which he perceived required attention within the employment setting.

4. In addition, although at one time he had thought that he was entitled to six weeks' notice of termination of employment, he accepts and has repeated to me this morning that he received five weeks' notice of the termination of his employment.

5. This morning, Mr Vernier, with respect to the first complaint, has drawn my attention to a judgment of a Full Court of this Court in Zhang v Royal Australian Chemical Institute Inc [2005] 144 FCR 347, particularly, at [25] and [26] in the judgment of Lander J, with whom Spender and Kenny JJ agreed. That decision seems to me to be directly on point and adds further…