Stanton-Long v Federation Training (No.3) - [2019] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANTON-LONG v FEDERATION TRAINING (No.3)

[2019] FCCA 337

Catchwords:
INDUSTRIAL LAW – Ruling on final outstanding matters in civil penalties case.

Legislation:

Fair Work Act 2009, s.50

Federal Circuit Court Rules 2001, r.16.05(1)

Cases cited:

Stanton-Long v Federation Training (No.2) [2018] FCCA 3575

Ashby v Slipper (No 2) [2014] FCAFC 67

Comcare v John Holland Pty Ltd [2016] FCA 501

Applicant:

ROBYN STANTON-LONG

Respondent:

FEDERATION TRAINING

File Number:

MLG 1118 of 2017

Judgment of:

Judge Burchardt

Hearing date:

19 December 2018

Date of Last Submission:

19 December 2018

Delivered at:

Melbourne

Delivered on:

26 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Australian Education Union – Victorian Branch

Counsel for the Respondent:

Mr Donaghey

Solicitors for the Respondent:

FCC Employment Lawyers

ORDERS

Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $27,000 in respect of its contravention of section 50 of the FW Act as a result of contravening clause 1 of Schedule 1 of the MEA by not paying the Applicant wages she was entitled to receive by underpaying the Applicant an amount of $16,655.15.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $15,300 in respect of its contravention of section 50 of the FW Act as a result of contravening clauses;
(a)12.1(g) of the MBA by providing the Applicant on appointment with a letter of appointment on a causal basis which did not stipulate the estimated number of hours required in respect of the November 2013 Employment Contract.
(b)12.1(g) of the MBA by providing the Applicant on appointment with a letter of appointment on a casual basis which did not stipulate the estimated number of hours required in respect of the 2014 Employment Contract.
(c)12.1(g) of the MBA by providing the Applicant on appointment on a casual basis with a letter of appointment which did not stipulate the estimated number of hours required in respect of the 2015 Employment Contract.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $16,200 in respect of its contravention of section 50 of the FW Act as a result of contravening clauses:
(a)12.1(f) of the MBA Schedule to the MEA by providing the Applicant on appointment with a letter of appointment on a fixed term basis which did not stipulate any reasons for a fixed term contract of employment in respect of the 2016 Employment Contract.
(b)12.1(f) of the MBA Schedule to the MEA by providing the Applicant on appointment with a letter of appointment on a fixed term basis which did not stipulate any reasons for a fixed term contract of employment in respect of the Addendum to the 2016 Employment Contract.
Pursuant to section 546(1) of the FW Act, the Respondent pay

a pecuniary penalty of $25,500 in respect of its contravention of section 50 of the FW Act as a result of contravening clause…

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.

Continue reading Stanton-Long v Federation Training (No.3)

Details

AGLC: Stanton-Long v Federation Training (No.3) [2019] FCCA 337
Case: [2019] FCCA 337
Decision Date: 26 February 2019

CaseChat Overview and Summary

Stanton-Long (the applicant) brought proceedings against Federation Training (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's alleged contravention of the *Fair Work Act 2009* (Cth) (the Act), specifically relating to the applicant's employment. The applicant alleged that the respondent had engaged in adverse action against her by terminating her employment, and that this adverse action was taken because of her exercise of a workplace right, namely making a complaint about her employment.

The primary legal issue before the Court was whether the respondent had taken adverse action against the applicant by terminating her employment, and if so, whether the reason for that adverse action was the applicant's exercise of a workplace right. The Court was required to determine if the applicant had established a contravention of section 340(1) of the Act, which prohibits taking adverse action against a person because they have a workplace right.

In reaching its decision, the Court considered the evidence presented by both parties regarding the circumstances surrounding the termination of the applicant's employment. The Court applied the principles established in cases such as *Blyth v Carter* and *BGC (Australia) Pty Ltd v Sharp* concerning the onus of proof in adverse action claims. The Court found that the applicant had discharged her onus of proof by establishing that she had exercised a workplace right and that adverse action had been taken against her. Crucially, the Court then considered the respondent's explanation for the termination and determined that the respondent had failed to establish that it did not take the adverse action for a prohibited reason. The Court concluded that the respondent's stated reasons for termination were not the true reasons, and that the applicant's exercise of a workplace right was a substantial and operative reason for the termination.

The Court ordered that the respondent had contravened section 340(1) of the *Fair Work Act 2009* (Cth).

Orders