Sinclair v All About Pumps and Pipes Pty Ltd - [2020] FCCA 479

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINCLAIR v ALL ABOUT PUMPS & PIPES PTY LTD & ANOR

[2020] FCCA 479

Catchwords:
INDUSTRIAL LAW – Dismissal in contravention of general protection – whether applicant made a bona fide complaint under s.341(1)(c)(ii) – whether applicant took “sick leave” – applicant failed to establish that she made a complaint or took “sick leave” – “what if I’m wrong” test considered – respondent proved that adverse action not taken for a prohibited reason – application dismissed.

Legislation:

Fair Work Act 2009, ss.341(1)(c)(ii), 342(1)(c)(ii), 352, 361

Fair Work Regulations 2009, reg.3.01

Cases cited:

Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271
Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167
TheEnvironmental Group v Bowd [2019] FCA 951

Applicant:

VICTORIA SINCLAIR

Respondents:

ALL ABOUT PUMPS & PIPES PTY LTD & ANOR

File Number:

BRG 324 of 2019

Judgment of:

Judge Vasta

Hearing dates:

20 and 21 February 2020

Date of Last Submission:

21 February 2020

Delivered at:

Brisbane

Delivered on:

5 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr P. Jeffrey

Solicitors for the Applicant:

Adams Wilson Lawyers

Counsel for the Respondents:

Mr T. Spence

Solicitors for the Respondents:

O’Reilly Workplace Law

ORDERS

That the Application filed 3 April 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 324 of 2019

VICTORIA SINCLAIR

Applicant

And

ALL ABOUT PUMPS & PIPES PTY LTD & ANOR

Respondents

REASONS FOR JUDGMENT

Introduction

Victoria Sinclair began working for All About Pumps & Pipes Pty Ltd on 23 February 2017. Neil Heaton, is, in effect, the boss and the person who runs this company. Ms Sinclair was dismissed from that employment on 30 January 2019. On 3 April 2019, she launched action, in this Court, alleging that her dismissal constituted adverse action as she exercised a workplace right to make a complaint, she took sick leave and she was discriminated against.

The employment of the Applicant

The Applicant gave evidence that she was employed as a shop assistant. Her duties involved opening and closing the store, managing stock and serving customers and assisting them with their enquiries regarding irrigation and water pump matters. She said that she first worked at the Nerang store of the Respondent company and then went to the Bundall store.
The Applicant gave evidence that, notwithstanding that there was a policy expressly prohibiting this practice, it was commonplace for the Respondent company to treat staff and regular customers in a different way when it came to irrigation works. She said that such persons were allowed to take goods from the store, figure out which goods were actually needed and then to bring back the goods that they did not use and pay for the ones that they did need.
The Applicant said that she allowed that to happen with a regular customer but that she saw other employees do the same thing. She identified those other employees as Peter Willoughby and…

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: [2020] FCCA 479
Decision Date: 5 March 2020

CaseChat Overview and Summary

In *Sinclair v All About Pumps and Pipes Pty Ltd*, the applicant, Ms Sinclair, brought proceedings against her former employer, All About Pumps and Pipes Pty Ltd, alleging that her dismissal constituted adverse action taken in contravention of general protections provisions under the *Fair Work Act 2009* (Cth). The applicant contended that her dismissal was a consequence of making a complaint or inquiry to the employer about her employment conditions, or alternatively, that she had taken sick leave.

The primary legal issues before the Court were whether Ms Sinclair had established that she made a bona fide complaint or inquiry under section 341(1)(c)(ii) of the *Fair Work Act 2009* (Cth), and whether she had taken "sick leave" as contemplated by the legislation. The Court was also required to determine whether the respondent had discharged its onus of proving that the adverse action taken against Ms Sinclair was not for a prohibited reason.

The Court found that Ms Sinclair had failed to establish that she had made a complaint or inquiry to her employer regarding her employment conditions, nor had she adduced sufficient evidence to demonstrate that she had taken "sick leave" in a manner that would attract the protections of the Act. Applying the principles established in cases concerning the "what if I'm wrong" test, the Court concluded that the respondent had successfully proven that the adverse action taken against Ms Sinclair was not motivated by any prohibited reason.

Consequently, the application was dismissed.

Orders