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…
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- Case
- [2013] FCCA 1988
- Decision Date
CaseChat Overview and Summary
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.
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Decision
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Ratio Decidendi
Legal Principle Established
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