Toppo v P & J Harris & Sons (A Partnership) - [2024] FCA 257

FEDERAL COURT OF AUSTRALIA
Toppo v P & J Harris & Sons (A Partnership) [2024] FCA 257

File number: NSD 219 of 2024

Judgment of: PERRAM J

Date of judgment: 19 March 2024

Catchwords: INDUSTRIAL LAW – where Applicant alleges that termination by Respondent was adverse action taken for prohibited reasons – interlocutory application for interim reinstatement – where Applicant’s visa requires ongoing employment by sponsoring employer – whether serious question to be tried – whether balance of convenience favours making of interim order

Legislation:
Fair Work Act 2009 (Cth) s 545(1)

Federal Court Act 1976 (Cth) s 23

Migration Regulations 1994 (Cth)

Cases cited:
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726; 184 IR 333

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243

Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173

Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151

Yusuf v Minister for Immigration and Multicultural Affairs [2002] FCA 737

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 16

Date of hearing: 15 March 2024

Counsel for the Applicant: C Parkin

Solicitor for the Applicant: WorkLawyers

Counsel for the Respondent: M Elliott SC

Solicitor for the Respondent: Horton Rhodes

ORDERS

NSD 219 of 2024

BETWEEN:
CHRISTOPHER TOPPO

Applicant

AND:
BALLANDOOL PTY LIMITED & BREWON PTY LIMITED & KRUIGLENROY PTY LIMITED & MOOMIN PTY LIMITED & P.J. HARRIS & J.M. HARRIS PTY LTD & THE TRUSTEE FOR PETER & JANE HARRIS FAMILY TRUST TRADING AS P & J HARRIS & SONS (A PARTNERSHIP)

Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

19 MARCH 2024

PENAL NOTICE – Rule 41.06 of the Federal Court Rules 2011 (Cth)

TO: BALLANDOOL PTY LIMITED & BREWON PTY LIMITED & KRUIGLENROY PTY LIMITED & MOOMIN PTY LIMITED & P.J. HARRIS & J.M. HARRIS PTY LTD & THE TRUSTEE FOR PETER & JANE HARRIS FAMILY TRUST TRADING AS P & J HARRIS & SONS (A PARTNERSHIP)

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON THE APPLICANT, BY HIS COUNSEL, PROFFERING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:
1.Until further order, the Respondent reinstate the Applicant to his former employment on the same terms…

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: [2024] FCA 257
Decision Date: 19 March 2024

CaseChat Overview and Summary

In the matter of Toppo v P & J Harris & Sons (A Partnership), the Federal Court was asked to consider an interlocutory application by the applicant, Toppo, who sought interim reinstatement into his employment following his termination by the respondent, P & J Harris & Sons. Toppo alleged that his termination was adverse action taken for prohibited reasons under the Fair Work Act 2009 (Cth). The applicant's visa conditions necessitated his ongoing employment by the respondent, his former employer. The court was tasked with determining whether a serious question to be tried existed and if the balance of convenience favoured the making of an interim order for reinstatement.

The court identified that the primary legal issues were whether Toppo's termination constituted adverse action and if there was a serious question to be tried on that point. Additionally, the court had to consider the balance of convenience in favour of making an interim order for reinstatement and whether it was appropriate to restrain the respondent from withdrawing its sponsorship of Toppo's visa. The court found that the applicant had raised a serious question to be tried regarding the alleged adverse action, and the balance of convenience favoured granting the interim order. This decision was influenced by the impact on Toppo's visa and employment stability.

The Federal Court ruled in favour of Toppo, ordering his interim reinstatement to his former employment with P & J Harris & Sons on the same terms and conditions as before his dismissal. The court also restrained the respondent from withdrawing its sponsorship of Toppo's visa until further order. The matter was expedited, and there was no order as to costs. The decision underscored the importance of the applicant's visa and employment stability in determining the balance of convenience. The matter was docketed to a docket judge for further proceedings.

Orders

Orders of the court

1. Until further order, the Respondent reinstate the Applicant to his former employment on the same terms and conditions that applied immediately prior to his dismissal on 30 January 2024.

2. Until further order, the Respondent be restrained from withdrawing its sponsorship of the Applicant’s visa.

3. The matter be expedited.

4. There be no order as to costs.

5. The matter be docketed to a docket judge.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 219 of 2024
Judgment of:	PERRAM J
Date of judgment:	19 March 2024
Catchwords:	INDUSTRIAL LAW – where Applicant alleges that termination by Respondent was adverse action taken for prohibited reasons – interlocutory application for interim reinstatement – where Applicant’s visa requires ongoing employment by sponsoring employer – whether serious question to be tried – whether balance of convenience favours making of interim order
Legislation:	Fair Work Act 2009 (Cth) s 545(1) Federal Court Act 1976 (Cth) s 23 Migration Regulations 1994 (Cth)
Cases cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726; 184 IR 333 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173 Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 Yusuf v Minister for Immigration and Multicultural Affairs [2002] FCA 737
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	16
Date of hearing:	15 March 2024
Counsel for the Applicant:	C Parkin
Solicitor for the Applicant:	WorkLawyers
Counsel for the Respondent:	M Elliott SC
Solicitor for the Respondent:	Horton Rhodes

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	19 MARCH 2024