Vong v Sika Australia Pty Ltd - [2011] FMCA 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VONG v SIKA AUSTRALIA PTY LTD

[2011] FMCA 276

INDUSTRIAL LAW – Application under ss.807 and 841 of the Workplace Relations Act 1996 (Cth) for alleged contraventions of s.792 – termination for reasons that included a prohibited reason – contravention established.

REINSTATEMENT, COMPENSATION & PENALTY – The parties were directed to file written submissions addressing these issues – agreement on reinstatement of the applicant together with all of his accumulated employment benefits – quantum of penalty agreed – this Court directs penalty to be paid to the National Union of Workers to cover costs of proceedings.

Workplace Relations Act 1996 (Cth), ss.792, 807(1)(a), 807(1)(b), 807(1)(c), 807(3)(b), 841(b)

Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council(No.2) [2001] FCA 1076
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations (No.2) (1999) 94 IR 231
CPSU v Telstra Corporation Ltd (2001) 108 IR 228
Financial Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462
Finance Sector Union v Australian & New Zealand Banking Group Ltd [2002] FCA 1035
Rojas v Esselte Australia Pty Ltd (No.2) [2008] FCA 1585
Vong v Sika Australia Pty Ltd [2010] FMCA 1021
White v Construction, Forestry, Mining & Energy Union [2011] FCA 192

Lexis Nexis, Workplace Relations Australia, Vol 1, s.807.95

Applicant:

PAULO VONG

Respondent:

SIKA AUSTRALIA PTY LTD
(ACN 001 342 329)

File Number:

SYG 2401 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

18 April 2011

Delivered at:

Sydney

Delivered on:

18 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Joseph

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Warren

Solicitors for the Respondent:

Carroll & O’Dea Lawyers

ORDERS

Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the applicant be reinstated in his former position with the respondent, effective 18 April 2011.
Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the applicant’s employment with the respondent be treated as continuous and not be taken as broken by the dismissal on 1 June 2009.
Pursuant to s.807(1)(b) of the Workplace Relations Act 1996 (Cth) that the respondent pay to the applicant an amount of $15,810.73 (minus appropriate tax) as compensation for lost wages.
Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the respondent re-credit the applicant with all leave entitlements held by the applicant in his employment immediately prior to his dismissal on 1 June 2009.
Pursuant to s.807(1)(a) that the respondent pay a penalty of penalty of $11,000 for contravening s.792 of the Workplace Relations Act 1996 (Cth).
Pursuant to s.841(b) that the penalty be paid to the National Union of Workers, New South Wales Branch.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2401 of 2009

PAULO VONG

Applicant

And

SIKA AUSTRALIA PTY LTD (ACN 001 342 329)

Respondent

REASONS FOR JUDGMENT

On 24 December 2010, I gave judgment in favour of the applicant in the decision Vong v Sika Australia Pty Ltd [2010] FMCA 1021. At…

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: [2011] FMCA 276
Decision Date: 18 April 2011

CaseChat Overview and Summary

The case of Vong v Sika Australia Pty Ltd involved an application by the applicant, seeking relief under sections 807 and 841 of the Workplace Relations Act 1996 (Cth) for alleged contraventions of section 792 of the same Act. The applicant contended that his termination by the respondent was, in part, due to a prohibited reason, and sought reinstatement, compensation, and a penalty. The court was required to determine whether the respondent had indeed contravened section 792 by terminating the applicant’s employment for a prohibited reason, and if so, what remedies were appropriate.

The court examined the evidence presented and concluded that the respondent had contravened section 792 of the Act by terminating the applicant for a reason that included a prohibited reason. The applicant’s termination was partly motivated by his membership in a trade union, which is a prohibited reason under the Act. Given this finding, the court then considered the appropriate remedies under section 807, including reinstatement, compensation, and a penalty. Both parties were directed to file written submissions addressing these issues. The court noted that the parties had reached an agreement on the reinstatement of the applicant, along with all accumulated employment benefits, and had also agreed on the quantum of the penalty.

In its decision, the court ordered the respondent to reinstate the applicant to his former position effective from 18 April 2011, and to treat the applicant’s employment as continuous, disregarding the dismissal on 1 June 2009 as a break in service. The respondent was also directed to pay the applicant $15,810.73 in compensation for lost wages, minus appropriate tax, and to re-credit the applicant with all leave entitlements held prior to the dismissal. Additionally, the court ordered the respondent to pay a penalty of $11,000 for contravening section 792, to be paid to the National Union of Workers, New South Wales Branch, to cover the costs of the proceedings.

Orders

Orders of the court

Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the applicant be reinstated in his former position with the respondent, effective 18 April 2011.

Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the applicant’s employment with the respondent be treated as continuous and not be taken as broken by the dismissal on 1 June 2009.

Pursuant to s.807(1)(b) of the Workplace Relations Act 1996 (Cth) that the respondent pay to the applicant an amount of $15,810.73 (minus appropriate tax) as compensation for lost wages.

Pursuant to s.807(1)(c) of the Workplace Relations Act 1996 (Cth) that the respondent re-credit the applicant with all leave entitlements held by the applicant in his employment immediately prior to his dismissal on 1 June 2009.

Pursuant to s.807(1)(a) that the respondent pay a penalty of penalty of $11,000 for contravening s.792 of the Workplace Relations Act 1996 (Cth).

Pursuant to s.841(b) that the penalty be paid to the National Union of Workers, New South Wales Branch.

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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