Stephens v Australian Postal Corporation - [2013] FCCA 1988

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEPHENS v AUSTRALIAN POSTAL CORPORATION

[2013] FCCA 1988

Catchwords:
INDUSTRIAL LAW – Fair Work Act2009 (Cth) – whether the respondent took adverse action against the applicant by refusing to employ him because the applicant exercised a workplace right by participating in proceedings against the respondent in contravention of s.341 of the Fair Work Act 2009 (Cth) – whether the respondent took adverse action against the applicant in contravention of s.351(1) of the Fair Work Act 2009 (Cth) because of the applicant’s physical disability – whether the respondent refused to employ the applicant – whether a vacancy existed with the respondent at the time the alleged refusal to employ occurred – application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 360, 361.
Safety Rehabilitation and Compensation Act 1998 (Cth)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445
Construction Forestry Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 11
Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117
Amieu v Belandra [2003] FCA 910
Cugura v Frankston City Council [2012] FMCA 340

Applicant:

LARRY STEPHENS

Respondent:

AUSTRALIAN POSTAL CORPORATION

File Number:

SYG 965 of 2012

Judgment of:

Judge Emmett

Hearing dates:

11 & 12 November 2013

Date of Last Submission:

12 November 2013

Delivered at:

Sydney

Delivered on:

27 November 2013

REPRESENTATION

Counsel for the Applicant:

Ms Judith Keys

Counsel for the Respondents:

Mr Simon Meehan

Solicitors for the Respondents:

(Ashurst)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 965 of 2012

LARRY STEPHENS

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR JUDGMENT

Procedural Background

This is a claim by the applicant for compensation for loss of wages and damages to reputation, including loss of work reference, reinstatement and a pecuniary penalty in respect of alleged adverse action on the part of the respondent.
By way of Statement of Claim, filed on 16 July 2013, the applicant alleges that the respondent contravened s.340(1) of the Fair Work Act 2009 (Cth) (“the FWA”) because the respondent took adverse action against the applicant by refusing to employ him because the applicant exercised a workplace right by participating in 2011 in Administrative Appeals Tribunal (“AAT”) proceedings involving the respondent; and, Federal Magistrate Court proceedings against the respondent.
It is common ground that the applicant was entitled to exercise his workplace rights as defined in ss.341(1)(b) and (k) of the FWA.
The applicant also alleges that the respondent has taken adverse action against him in contravention of s.351(1) of the FWA because of the applicant’s physical disability, being a lumbar spine injury sustained in 1998 during his employment with Telstra.
Section 342(1) of the FWA contains a table setting out circumstances in which a person takes adverse action against another person for the purposes of ss.340(1) and 351(1). The adverse action relied upon by the applicant is…

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: [2013] FCCA 1988
Decision Date: 27 November 2013

CaseChat Overview and Summary

Stephens (the applicant) brought proceedings against the Australian Postal Corporation (the respondent) in the Federal Court of Australia. The applicant sought to set aside an arbitration award made under the *Industrial Relations Act 1988* (Cth) on the grounds of apprehended bias.

The primary legal issue before Emmett J was whether the arbitrator, in conducting the arbitration and making the award, had demonstrated a state of apprehended bias that would render the award invalid. This involved an examination of the arbitrator's conduct and statements during the arbitration process to determine if a reasonable apprehension of bias could be formed by a fair-minded lay observer.

Emmett J considered the principles governing apprehended bias, particularly in the context of arbitration. His Honour found that the applicant had failed to establish that a reasonable apprehension of bias existed. The evidence did not support the claim that the arbitrator had acted in a manner that would lead a fair-minded observer to conclude that the arbitrator was not impartial. Consequently, the application to set aside the arbitration award was dismissed.

Orders