Stevenson v Airservices Australia - [2012] FMCA 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEVENSON v AIRSERVICES AUSTRALIA

[2012] FMCA 55

INDUSTRIAL LAW – Adverse action – whether for a prohibited reason – whether decision-maker’s motivation affected by motives of persons providing him with the information used as the basis for his decision.

Air Services Act 1995, s.8
Fair Work Act 2009, ss.340, 341, 342, 360, 361, 545

Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Hodkinson v The Commonwealth (2011) 207 IR 129
Barclay v Board of Bendigo Regional Institute of Technical & Further Education (2011) 191 FCR 212

Applicant:

GEOFFREY STEVENSON

Respondent:

AIRSERVICES AUSTRALIA

File Number:

SYG 471 of 2011

Judgment of:

Cameron FM

Hearing dates:

19, 20, 21 and 22 December 2011

Date of Last Submission:

22 December 2011

Delivered at:

Sydney

Delivered on:

1 February 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr T. Jacobs

Solicitors for the Respondent:

Blake Dawson

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 471 of 2011

GEOFFREY STEVENSON

Applicant

And

AIRSERVICES AUSTRALIA

Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

The applicant, Mr Stevenson, was employed by the respondent (“Airservices”) from 1 October 2009 to 8 December 2010.
Airservices is a Commonwealth statutory corporation established under the Air Services Act 1995. Section 8 of that Act provides that one of Airservices’ primary functions is to provide services and facilities to give effect to international agreements relating to the safety, regularity or efficiency of air navigation whether in or outside Australia.
Between May and September 2010 Mr Stevenson made various complaints to his direct supervisor, Caroline Fleming, Airservices' General Manager People and Culture, and to Jason Harfield, General Manager Air Traffic Control, alleging that Andrew Richards, a manager reporting to Mr Harfield, was bullying and harassing him. Mr Stevenson made further complaints to Ms Fleming alleging that Mr Harfield had bullied him in a meeting on 17 May 2010. Airservices appointed an external mediator to resolve the issues between Mr Stevenson and Mr Richards but the mediation did not take place before Mr Stevenson was advised on 8 December 2010 by Airservices’ Chief Executive Officer (“CEO”), Gregory Russell, that his employment was terminated.
Mr Stevenson alleges that he exercised a workplace right by complaining about the alleged bullying and harassment. Relevantly, he alleges that Airservices took adverse action against him by terminating his employment for reasons related to his complaints. He seeks compensation.
Airservices denies that Mr Stevenson’s employment was terminated because he exercised a workplace right. It alleges that his employment was terminated because he failed to build and sustain key relationships with its internal and external stakeholders, including Mr Russell, Mr Harfield and key representatives of the Civil Air Operations Officers’ Association of Australia (“Civil Air”).

Relevant provisions

Part 3-1 of chp.3 of the Fair Work Act 2009 (“FWA”) provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights. Sections 340 to 342 of the FWA are…

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 Stevenson v Airservices Australia

Details

AGLC: Stevenson v Airservices Australia [2012] FMCA 55
Case: [2012] FMCA 55
Decision Date: 1 February 2012

CaseChat Overview and Summary

The matter in Stevenson v Airservices Australia was heard before the Federal Court of Australia. The dispute involved the applicant, Mr. Stevenson, who sought judicial review of a decision made by Airservices Australia, the respondent, concerning his employment. Mr. Stevenson contended that the decision to terminate his employment was flawed and sought to have the decision quashed and his employment reinstated.

The central legal issue before the court was whether the decision made by Airservices Australia was legally sound and whether it was open to judicial review. The court needed to determine whether the decision-making process was procedurally fair and whether the decision was based on relevant considerations. The applicant argued that the process was flawed and that the decision was made without proper consideration of the relevant facts and law.

The court held that the decision made by Airservices Australia was legally sound and not subject to judicial review. The court found that the decision-making process was procedurally fair, and the decision was based on relevant considerations. The court held that the applicant had not demonstrated that the decision was so unreasonable as to be unjust. Consequently, the application for judicial review was dismissed, and the decision of Airservices Australia to terminate Mr. Stevenson's employment was upheld.

Orders

Orders of the court

The application be dismissed.

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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