Walker v Cape Australia Onshore Pty Ltd - [2019] FCCA 2397

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALKER v CAPE AUSTRALIA ONSHORE PTY LTD

[2019] FCCA 2397

Catchwords:
INDUSTRIAL LAW – Alleged dismissal in contravention of a general protection – alleged adverse action – various complaints or inquiries in relation to employment – physical disability – dismissal from employment.

Legislation:

Disability Discrimination Act 1992 (Cth), s.6

Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 360, 361, 550

Federal Circuit Court of Australia Act 1999 (Cth), s.75
Federal Circuit Court Rules 2001 (Cth), r.21.02(1)

Liquor Control Act 1988 (WA)

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911
Construction, Forestry, Mining & Energy Union vBHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268

Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422

Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659
Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No 2) [2017] FCCA 1713
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892
Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287
General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605

Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 230 IR 452; (2013) 273 FLR 190; (2013) 65 AILR 101-866
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67
Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
Ramos v Good Samaritan Industries [2013] FCA 30
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346
Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310
Walsh v Greater Metropolitan Cemeteries…

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: [2019] FCCA 2397
Decision Date: 29 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

In *Walker v Cape Australia Onshore Pty Ltd*, the applicant, Mr. Walker, alleged that the respondent, Cape Australia Onshore Pty Ltd, had taken adverse action against him by dismissing him from his employment in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). Mr. Walker contended that his dismissal was motivated by his physical disability and his engagement in various protected workplace activities, including making complaints and inquiries in relation to his employment. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Cape Australia Onshore Pty Ltd had engaged in adverse action against Mr. Walker, specifically by dismissing him, for a prohibited reason under section 340(1) of the *Fair Work Act 2009* (Cth). This required the Court to determine whether Mr. Walker's physical disability or his protected workplace conduct were reasons for his dismissal.

Judge Lucev found that Mr. Walker had not established that his physical disability was a reason for his dismissal. However, the Court determined that Mr. Walker had engaged in protected workplace conduct by making complaints and inquiries regarding his employment. Crucially, the Court found that these protected activities were indeed reasons for the dismissal. Applying the principles of adverse action, the Court concluded that Cape Australia Onshore Pty Ltd had taken adverse action against Mr. Walker for a prohibited reason.

The Court ordered that the dismissal of Mr. Walker was a contravention of the general protections provisions of the *Fair Work Act 2009* (Cth).

Orders