Szabo v St Michael's Association Inc - [2018] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZABO v ST MICHAEL’S ASSOCIATION INC

[2018] FCCA 1547

Catchwords:
INDUSTRIAL LAW – Adverse action – termination of employment – protected workplace rights – reverse onus of proof.

Legislation:

Fair Work Act 2009, ss.12, 340, 341, 342, 343, 360, 361

Workers Rehabilitation and Compensation Act 1988 (Tas), ss.143D, 143E, 143L

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v

Barclay (2012) 248 CLR 500

Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited (2014) 253 CLR 243

Ermel v DuluxGroup (Australia) Pty Ltd (No.2) [2015] FCA 17 [48]
Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114
Mikulic v Ecolab Pty Ltd [2017] FCCA 146
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Victoria v Grant [2014] FCAFC 184

Applicant:

CHRISTINE SZABO

Respondent:

ST MICHAEL'S ASSOCIATION INC

File Number:

LNG 71 of 2016

Judgment of:

Judge Baker

Hearing dates:

15 February 2018, 16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Hobart

Delivered on:

26 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Szabo in Person

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Mr Green

Solicitors for the Respondent:

Dobson Mitchell Allport

ORDERS

The Application filed 17 November 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 71 of 2016

CHRISTINE SZABO

Applicant

And

ST MICHAEL'S ASSOCIATION INC

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant commenced employment with the respondent on 17 March 2015. The respondent terminated the applicant’s employment on 13 July 2016. The respondent is a not-for-profit non-government organisation which provides accommodation and support for people with intellectual and physical disabilities.
The applicant was employed as a Level 3 Disability Support Worker (Team Leader) on a full-time basis of 38 hours per week. Her position description indicates that her key tasks and duties were as follows:
·Lead staff to comply with procedures and policies of the organisation
·Provision of support services to clients in line with their personal care plans
·Taking overall responsibility for the personal care of clients; training, co-ordinating and supervising other employees and scheduling work programs; and assisting in liaison and co-ordination with other services and programmes.
·Ensure, through leadership, that the service provided is in keeping with the rules of the community, the Disability Service Standards and the policies and procedures of the Organisation.
·Development of program of daily activities for clients that provide the opportunity for the clients to meet their goals documented in their personal care plans
·Identification and management of staff needs, skills and performance
·Documenting, monitoring and updating client car plans and assessing whether clients are achieving their documented goals.[1]
[1] Applicant’s Additional Documents filed 21 November 2016, Annexure B.

The Applicant’s Case

In summary, the applicant claimed that, in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (‘FW Act’), she was dismissed by the…

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: [2018] FCCA 1547
Decision Date: 26 June 2018

CaseChat Overview and Summary

In *Szabo v St Michael's Association Inc*, the County Court of Victoria considered a dispute between the applicant, Mr Szabo, and the respondent, St Michael's Association Inc. The applicant sought to recover damages for personal injuries sustained as a result of a fall on the respondent's premises. The core of the dispute concerned the respondent's alleged breach of duty of care owed to the applicant as an invitee.

The central legal issue before the court was whether the respondent had taken reasonable steps to ensure the safety of its premises, specifically in relation to the condition of a particular step where the applicant fell. This involved determining whether the respondent had notice, actual or constructive, of the defect that allegedly caused the fall and, if so, whether it had taken appropriate measures to rectify the defect or warn visitors of its presence.

Judge Baker found that the respondent had failed to discharge its duty of care. The court reasoned that the evidence established that the step was in a defective condition, and that this defect was of a nature that could reasonably have been foreseen to cause injury. Crucially, the court determined that the respondent ought to have known of the defect through reasonable inspection and maintenance of its premises. The respondent's failure to address the defect or provide adequate warning meant it had breached its duty to the applicant.

Consequently, the court found in favour of the applicant and ordered that the respondent pay damages to Mr Szabo for the personal injuries he suffered.

Orders