Somerville v AFS Security 24/7 Pty Ltd - [2018] FCCA 964

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERVILLE v AFS SECURITY 24/7 PTY LTD & ORS

[2018] FCCA 964

Catchwords:
INDUSTRIAL LAW – Alleged dismissal in contravention of general protections in the Fair Work Act 2009 (Cth) – adverse action – whether employment was terminated because of complaint or inquiry made by the applicant – onus discharged by the respondents – no adverse action – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 340, 341, 342, 361, 389, 545, 546

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Construction, Forest, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273
Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 273 FLR 190
Hodkinson v The Commonwealth [2011] FMCA 171; (2011) 248 FLR 409 Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 275 FLR 273

Applicant:

MICHAEL STEWART NEIL SOMERVILLE

First Respondent:

AFS SECURITY 24/7 PTY LTD T/A ARMIDALE FIRE & SAFETY, AFS

Second Respondent:

BRIAN EVERETT

Third Respondent:

BROOKE EVERETT

File Number:

SYG 3141 of 2016

Judgment of:

Judge Nicholls

Hearing date:

20 July 2017

Date of Last Submission:

20 July 2017

Delivered at:

Sydney

Delivered on:

30 April 2018

REPRESENTATION

Applicant:

In person

Solicitor for Respondents:

Mr M Dennis of Michael Dennis Solicitor

ORDERS

The application made on 27 October 2016 is dismissed.

THE COURT NOTES THAT

The respondents made an application for costs at the handing down of judgment.

ORDERS

The respondents to file and serve an Application in a Case in relation to their application for costs on or before 14 May 2018.
The respondents to file and serve short written submissions in relation to their application for costs on or before 14 May 2018.
The applicant to file and serve any evidence by way of affidavit in reply on or before 28 May 2018.
The applicant to file and serve any short written submissions in reply on or before 28 May 2018.

THE COURT NOTES THAT

The parties are to advise the Court as to their preferred method of disposition of the respondents’ application for costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3141 of 2016

MICHAEL STEWART NEIL SOMERVILLE

Applicant

And

AFS SECURITY 24/7 PTY LTD T/AS ARMIDALE FIRE & SAFETY, AFS

First Respondent

BRIAN EVERETT

Second Respondent

BROOKE EVERETT

Third Respondent

REASONS FOR JUDGMENT

This is an application made under the Fair Work Act 2009 (Cth) (“the FWA”), seeking relief pursuant to alleged contraventions of s.45 and s.340 of the FWA. The applicant, Mr Somerville, claims compensation pursuant to s.545 of the FWA in the amount of $19,863 comprising $4,363 in underpaid wages and $15,500 from lost income as a result of the termination of his employment by the first respondent (“AFS Security”). Mr Somerville also claims pecuniary penalties…

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: [2018] FCCA 964
Decision Date: 30 April 2018

CaseChat Overview and Summary

Somerville v AFS Security 24/7 Pty Ltd concerned a dispute between an employee, Mr Somerville, and his former employer, AFS Security 24/7 Pty Ltd. Mr Somerville alleged that his employment was terminated in contravention of the *Fair Work Act 2009* (Cth) (the Act). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr Somerville had been subjected to an unfair dismissal. This required the Court to determine whether Mr Somerville had completed the minimum period of employment stipulated by the Act, and if so, whether the dismissal was harsh, unjust, or unreasonable. The Court also considered whether there was a valid reason for the dismissal.

Judge Nicholls found that Mr Somerville had not completed the minimum employment period of six months. Consequently, the Court lacked jurisdiction to hear the unfair dismissal claim. The Court applied the provisions of the *Fair Work Act 2009* (Cth) regarding the minimum employment period for employees engaged on a permanent basis.

The application for an unfair dismissal remedy was dismissed.

Orders