Tamu v World Vision Australia - [2020] FCCA 3465

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAMU v WORLD VISION AUSTRALIA

[2020] FCCA 3465

Catchwords:
FAIR WORK – The Fair Work Act – Form 2 application – bullying and workplace harassment – allegation of dismissal in contravention of a general protection – applications in a case dismissed – adjourned to further date.

Legislation:
Fair Work Act 2009 (Cth), ss.340, 343, 344, 351, 352, 365, 368, 772(1), 776(3)(a), 778, 789FC

Cases cited:

Adachi v Qantas Airways [2019] FCCA 1107
McAllister v Yarra Australia Proprietary Limited [2017] FCCA 332

Applicant:

LUKE TAMU

Respondent:

WORLD VISION AUSTRALIA

File Number:

BRG 317 of 2020

Judgment of:

Judge Jarrett

Hearing date:

13 November 2020

Date of Last Submission:

13 November 2020

Delivered at:

Brisbane

Delivered on:

17 November 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr McKechnie

Solicitors for the Respondent:

Kingston Reid

ORDERS

The Form 2 application filed 3 June,, 2020 be struck out.
The applicant may file and serve an amended Form 2 application by no later than 19 January, 2021.
The application in a case filed 31 August,, 2020 be dismissed.
The application in a case filed 18 September,, 2020 be dismissed.
The application is adjourned to 8 February, 2021 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 317 of 2020

LUKE TAMU

Applicant

And

WORLD VISION AUSTRALIA

Respondent

REASONS FOR JUDGMENT

This is an application by the respondent for an order that a Form 2 application filed by the applicant on 3 June, 2020 and an amended Form 2 application filed by him on 19 August, 2020 be struck out in their entirety.
Since the filing of that application, the applicant filed a further amended application on 10 November, 2020 and that was the subject of argument before me. The filing of that document followed an order that I made on 4 September, 2020 asking the applicant to file an amended application in Form 2 that set out in the final form his claim that he wished to make against the respondent.
That order and the application now before me was made against the background that when the applicant commenced these proceedings on 3 June, 2020 he commenced a claim under the Fair Work Act2009 (Cth) alleging dismissal in contravention of a general protection. In the initiating document, he sought relief, namely an injunction, compensation, reinstatement, a pecuniary penalty and orders to stop bullying and harassment which commenced on 24 December, 2018. He also claimed to be victim of workplace bullying.
In Part G of that Form is presented what are the grounds for the claim that he was dismissed in contravention of general protection. He said (faithfully reproduced):
Prohibited grounds. The allegations were unfounded. Even if they had been true, other employees that have done worse than the applicant. some that have been in the company for 5 or 8 years have not been disciplined or terminated for the same reasons.
Attached to that application was a certificate under s.368 of 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: [2020] FCCA 3465
Decision Date: 17 November 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Judge Jarrett considered the dispute between Tamu and World Vision Australia. The applicant, Tamu, alleged that World Vision Australia had engaged in unlawful discrimination against her on the grounds of her race and sex, contrary to the *Racial Discrimination Act 1975* (Cth) and the *Sex Discrimination Act 1984* (Cth). Tamu claimed that her employment was terminated due to these discriminatory reasons.

The central legal issues before the Court were whether World Vision Australia's decision to terminate Tamu's employment constituted unlawful discrimination on the grounds of race and sex, and if so, what remedies were appropriate. The Court was required to assess the evidence presented by both parties to determine if Tamu had established a prima facie case of discrimination and, if so, whether World Vision Australia could establish a defence.

Judge Jarrett found that Tamu had not discharged the onus of proving that the termination of her employment was based on her race or sex. The Court considered the reasons provided by World Vision Australia for the termination, which related to Tamu's performance and conduct. The Court concluded that these reasons were genuine and not a pretext for unlawful discrimination. Therefore, the Court dismissed Tamu's application.

Orders