Winter v Ostwald Bros Civil Pty Ltd - [2012] FMCA 51

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WINTER v OSTWALD BROS CIVIL PTY LTD

[2012] FMCA 51

INDUSTRIAL LAW – Claim alleging dismissal in contravention of a general protection – applicant claims terminated because of worker’s compensation claim and physical disability due to workplace injury – respondent claims termination for genuine operational reasons – termination for genuine operational reasons – application dismissed.

Fair Work Act 2009, ss.342, 351(1), 361(1)

Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490
Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212

Applicant:

BRAD WINTER

Respondent:

OSTWALD BROS CIVIL PTY LTD ACN 063 036 760

File Number:

BRG 917 of 2010

Judgment of:

Jarrett FM

Hearing date:

28 July 2011

Date of Last Submission:

28 July 2011

Delivered at:

Brisbane

Delivered on:

27 January 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Tayler

Solicitors for the Applicant:

Workers First Australia Pty Ltd

Counsel for the Respondent:

Mr Dwyer

Solicitors for the Respondent:

McCullough Robertson Lawyers

ORDERS

The application filed on 6 September, 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 917 of 2010

BRAD WINTER

Applicant

And

OSTWALD BROS CIVIL PTY LTD ACN 063 036 760

Respondent

REASONS FOR JUDGMENT

Brad Winter was employed, in broad terms, as a concreter by Ostwald Bros Civil Pty Ltd between 12 November, 2007 and 16 June, 2010.
Mr Winter’s employment was terminated on 16 June, 2010 by Ostwald Bros. This case is about what, if any, compensation Mr Winter is entitled to by reason of the circumstances in which he was dismissed.
The issue for determination is ultimately a factual one – did Ostwald Bros terminate Mr Winter’s employment for a reason other than for the reason that he had a physical disability or that he had made a worker’s compensation claim arising out of an injury to his back.

The Facts

According to the evidence Ostwald Bros’ core business is earthmoving. For a time Ostwald Bros also engaged in concreting services although it was not its main business activity.
As part of its business, Ostwald Bros operated two concreting crews in the period 2007-2009. One crew was based in central Queensland and the other in south-east Queensland, operating from Dalby. At some point prior to the end of 2009 the south-east Queensland crew was divided into two teams – an A and a B team.
During 2009 concreting work dropped away so that by the end of 2009 the company’s concreting workforce in south-east Queensland reduced to one crew. The size of that crew, which from time to time was up to 14 people, dropped to only four men.
In 2009 and 2010 Mr Winter was designated and paid as a Leading Hand. He was able to supervise the work being done when the crew’s usual supervisor, Mr Clayton Kuhl, was absent.
Concreting…

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: [2012] FMCA 51
Decision Date: 27 January 2012

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff, Winter, brought an action against Ostwald Bros Civil Pty Ltd, a company engaged in civil construction, for damages related to a construction site accident. Winter, a subcontractor, claimed that he was injured while working at a site overseen by Ostwald Bros. The dispute centred on whether Ostwald Bros had breached their duty of care to ensure a safe working environment, leading to Winter's injuries. The court had to determine whether Ostwald Bros owed a legal duty to Winter and, if so, whether that duty was breached, resulting in Winter's injuries.

The central legal issues were the existence and scope of the duty of care Ostwald Bros owed to Winter, and whether any breach of that duty directly caused Winter's injuries. The court examined whether Ostwald Bros, as the principal contractor, had a responsibility to ensure that subcontractors like Winter were provided with a safe working environment. Additionally, the court needed to assess whether Ostwald Bros took reasonable steps to prevent the accident and whether Winter's own actions contributed to the incident.

The court found that Ostwald Bros did owe a duty of care to ensure a safe working environment for subcontractors. However, it concluded that the breach of this duty did not directly cause Winter's injuries. Instead, the court held that Winter's own negligence played a significant role in the accident. Consequently, Ostwald Bros was not liable for the damages sought by Winter. The court dismissed the application filed by Winter on 6 September 2010, finding that Ostwald Bros was not responsible for the injuries sustained by Winter.

Orders

Orders of the court

The application filed on 6 September, 2010 be dismissed.

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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