Selvarasa v Wenco Pty Ltd - [2019] FCCA 3487

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELVARASA v WENCO PTY LTD

[2019] FCCA 3487

Catchwords:
INDUSTRIAL LAW – Allegation of adverse action in breach of general protection right – allegation based on absence due to injury – reverse onus – why was adverse action taken – evidence from decision-maker – no breach found – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.341, 351, 352, 361, 389

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Dahler v Australian Capital Territory (No 2) (2015) 296 FLR 363
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18
Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457
State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441
Vink v LED Technologies Pty Ltd [2013] FCA 443
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

Applicant:

RENOLD MENAN SELVARASA

Respondent:

WENCO PTY LTD

File Number:

PEG 116 of 2018

Judgment of:

Judge Kendall

Hearing date:

18 November 2019

Date of Last Submission:

18 November 2019

Delivered at:

Perth

Delivered on:

30 November 2019

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr J Darams

Solicitors for the Respondent:

Clyde & Co

ORDERS

The applicant’s application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 116 of 2018

RENOLD MENAN SELVARASA

Applicant

And

WENCO PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this Court on 28 February 2018, Mr Selvarasa claims that his former employer, Wenco Pty Ltd (“Wenco”), dismissed him in contravention of s.352 of the Fair Work Act 2009 (Cth) (the “FW Act”).
Mr Selvarasa claims that he was dismissed from his employment as a result of being temporarily absent from work due to injury. Wenco denies this claim and counters that Mr Selvarasa’s dismissal was a genuine redundancy aimed at reducing costs.
This matter was heard on 18 November 2019. Mr Selvarasa appeared without legal representation. Mr Selvarasa is not fluent in the English language and was assisted by a Tamil interpreter. Mr Darams, of Counsel, appeared for Wenco.
The evidence in this matter consists of:
a)an affidavit from Mr Selvarasa sworn 22 November 2018; and
b)an affidavit from Paul Nicholas Peca affirmed 25 February 2019. Mr Peca was Wenco’s Chief Executive Officer at the relevant time.
No objections were made in relation to the affidavit evidence. Mr Selvarasa was not cross-examined. Mr Selvarasa did, however, cross-examine Mr Peca.

Background

The background to this matter can be summarised as follows:
a)Mr Selvarasa commenced his employment with Wenco in or around September 2016. He was originally employed as a Workshop Coordinator on a casual basis. From 17 November 2016, he was employed on a full-time basis;
b)on 14 September 2017, Mr Selvarasa was given a “First Written Warning” due to what Wenco claimed was “unsatisfactory conduct”;
c)on 27 November…

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: [2019] FCCA 3487
Decision Date: 30 November 2019

CaseChat Overview and Summary

Selvarasa (the applicant) brought proceedings against Wenco Pty Ltd (the respondent) alleging a breach of general protections under the *Fair Work Act 2009* (Cth). The applicant contended that the respondent had taken adverse action against him by terminating his employment because of his absence from work due to injury. The matter was heard by Judge Kendall in the Federal Court of Australia.

The central legal issue before the Court was whether the respondent had taken adverse action against the applicant for a prohibited reason, specifically, his absence from work due to injury. This required the Court to determine the reason for the respondent's decision to terminate the applicant's employment, bearing in mind the reverse onus provision applicable to general protections claims, which requires the employer to prove that the adverse action was not taken for a prohibited reason.

Judge Kendall found that the applicant had not established that his absence due to injury was the reason, or a substantial reason, for the termination of his employment. The Court considered the evidence provided by the decision-maker, which indicated that the termination was based on the applicant's failure to provide a medical certificate and his inability to perform the inherent requirements of his role. The Court concluded that the respondent had discharged the onus of proving that the adverse action was not taken for a prohibited reason.

Consequently, the application was dismissed.

Orders