Vukovic v Myer Pty Ltd - [2014] FCCA 985

FEDERAL CIRCUIT COURT OF AUSTRALIA

VUKOVIC v MYER PTY LTD

[2014] FCCA 985

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – dismissal – adverse action – whether for a prohibited reason.

INDUSTRIAL LAW – Fair Work Act 2009 – Disability Discrimination Act 1992, Sex Discrimination Act 1984, Australian Human Rights Commission Act 1986 not workplace laws.

Legislation:

Fair Work Act 2009, ss.340, 341, 342, 351, 352, 360, 361, 539, 545, 546

Work Health & Safety Act 2011(NSW), s.28
Crimes Act 1914, s.4AA
Workers Compensation Act 1987 (NSW), s.9
Workplace Injury Management & Workers Compensation Act 1998 (NSW), ss.65, 66

Cases Cited:
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131
Randall v Greyhound Australia Pty Ltd[2008] FMCA 1191
United Firefighters Union of Australia v Easy [2013] FCA 763
Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 Hodkinson v Commonwealth (2011) 248 FLR 409

Applicant:

MITCHELL VUKOVIC

Respondent:

MYER PTY LTD

File Number:

SYG 1758 of 2013

Judgment of:

Judge Cameron

Hearing dates:

5 and 6 May 2014

Date of Last Submission:

6 May 2014

Delivered at:

Sydney

Delivered on:

2 June 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr J. McLeod

Solicitors for the Respondent:

Lander & Rogers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1758 of 2013

MITCHELL VUKOVIC

Applicant

And

MYER PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

From 3 April 2013 until 13 June 2013, when he was dismissed, the applicant, Mr Vukovic, was employed by the respondent (“Myer”) as a sales manager at its Macquarie Centre store at North Ryde in Sydney. On 29 July 2013 Mr Vukovic commenced this proceeding alleging that as a result of his sex, a disability from which he suffered, his exercise of workplace rights and his proposal to exercise his workplace rights, Myer had taken adverse action against him, principally by terminating his employment, in breach of ss.340 and 351 of the Fair Work Act 2009 (“FW Act”).

Allegations

Mr Vukovic’s allegations were contained in his Form 2 form filed with his application and in his points of claim filed on 4 October 2013.

Issues raised by the pleadings

Mr Vukovic alleged that he suffered from anxiety, which had manifested itself on a number of occasions at work, and that this amounted to a disability for the purposes of s.351 of the FW Act. He also relied on the fact that he was a male. He further alleged that during his employment he had raised certain issues of concern with his superior.

Alleged contraventions

Mr Vukovic alleged that as a result of the above facts he had…

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.

Continue reading Vukovic v Myer Pty Ltd

Details

AGLC: Vukovic v Myer Pty Ltd [2014] FCCA 985
Case: [2014] FCCA 985
Decision Date: 2 June 2014

CaseChat Overview and Summary

In *Vukovic v Myer Pty Ltd*, heard before Judge Cameron in the Federal Court of Australia, the applicant, Ms Vukovic, alleged that Myer Pty Ltd had taken adverse action against her for a prohibited reason, contrary to the *Fair Work Act 2009* (Cth). The dispute centred on Ms Vukovic's dismissal from her employment.

The primary legal issue before the Court was whether the adverse action taken against Ms Vukovic was for a prohibited reason under the *Fair Work Act 2009*. Specifically, the Court was required to determine if her dismissal was motivated by a reason prohibited by the Act, such as discrimination or exercising a workplace right. The Court also considered whether the *Disability Discrimination Act 1992* (Cth), the *Sex Discrimination Act 1984* (Cth), and the *Australian Human Rights Commission Act 1986* (Cth) constituted "workplace laws" for the purposes of the *Fair Work Act 2009*.

Judge Cameron reasoned that the *Disability Discrimination Act 1992*, the *Sex Discrimination Act 1984*, and the *Australian Human Rights Commission Act 1986* are not workplace laws within the meaning of the *Fair Work Act 2009*. The Court found that the adverse action taken against Ms Vukovic was not for a prohibited reason under the *Fair Work Act 2009*.

Consequently, the Court dismissed Ms Vukovic's application.

Orders