Short v Ambulance Victoria

FEDERAL COURT OF AUSTRALIA

Short v Ambulance Victoria [2014] FCA 3

Citation:

Short v Ambulance Victoria [2014] FCA 3

Parties:

DARREN SHORT v AMBULANCE VICTORIA (ABN 50 373 327 705)

File number:

VID 1227 of 2011

Judge:

MARSHALL ACJ

Date of judgment:

15 January 2014

Catchwords:

INDUSTRIAL LAW – adverse action – exercise of workplace right – making of complaint or inquiry in relation to employment – discrimination – mental disability – whether the withdrawal of an offer of interview for a higher duties position constitutes “adverse action” – whether adverse action taken for a prohibited reason – respondent’s onus of proof discharged.

INDUSTRIAL LAW – whether breach of an enterprise agreement – failure to refer disciplinary dispute to Fair Work Commission.

CONTRACT – whether conduct of respondent breached implied term of mutual trust and confidence in contract of employment – content of duty.

Legislation:

Fair Work Act 2009 (Cth) ss 50, 340, 341, 342, 351, 360, 361
Public Administration Act 2004 (Vic)

Cases cited:

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Commonwealth Bank of Australia v Barker (2013) 214 FCR 450

Dates of hearing:

14, 15, 16, 17 and 18 October 2013

Date of last submissions:

13 December 2013

Place:

Melbourne

Division:

FAIR WORK DIVISION

Category:

Catchwords

Number of paragraphs:

91

Counsel for the Applicant:

Mr P Wheelahan with Ms E Tueno

Solicitor for the Applicant:

Ms K Moorhouse-Perks

Counsel for the Respondent:

Mr S Moore

Solicitor for the Respondent:

Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1227 of 2011

BETWEEN:	DARREN SHORT Applicant
AND:	AMBULANCE VICTORIA (ABN 50 373 327 705) Respondent

JUDGE:	MARSHALL ACJ
DATE OF ORDER:	15 JANUARY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1227 of 2011

BETWEEN:	DARREN SHORT Applicant
AND:	AMBULANCE VICTORIA (ABN 50 373 327 705) Respondent

JUDGE:	MARSHALL ACJ
DATE:	15 JANUARY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. On 14 July 2011 the respondent, Ambulance Victoria, terminated the employment of the applicant, Mr Short. At that time, Mr Short was employed as a qualified ambulance paramedic at the Lakes Entrance branch of Ambulance Victoria. Mr Short contends that, in terminating his employment, Ambulance Victoria contravened s 340(1) of the Fair Work Act 2009 (Cth) (“the Act”) by taking adverse action against him because he “vigorously” exercised his workplace rights by making inquiries and/or complaints in relation to his employment. Mr Short also submits that Ambulance Victoria breached s 340(1) of the Act by taking adverse action against him by the following conduct:

   ·its refusal to allow him to perform higher duties on 8 July 2010;

   ·its issuing of a formal warning to him on 9 November 2010; and

   ·its standing down of him on 20 February 2011.

   Mr…