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 |
| 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…
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- Case
- [2018] FCCA 964
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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