WULTSCH v BAE Systems Australia Defence Pty Ltd - [2015] FCCA 3054

FEDERAL CIRCUIT COURT OF AUSTRALIA

WULTSCH v BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD

[2015] FCCA 3054

Catchwords:
INDUSTRIAL LAW – Ruling on various interlocutory applications.

Legislation:

Fair Work Act 2009, ss.336, 340, 346, 347, 545.
Federal Circuit Court of Australia Act 1999 s.42.

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27
Lion-Dairy & Drinks Limited v Jacobs Group (Australia) Pty Ltd (No 4) [2014] FCA 896
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; [1999] FCA 1101
Wotton v State of Queensland [2015] FCA 910

Applicant:

SAARA WULTSCH

Respondent:

BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD

File Number:

MLG 2206 of 2014

Judgment of:

Judge Burchardt

Hearing date:

26 August 2015

Date of Last Submission:

26 August 2015

Delivered at:

Melbourne

Delivered on:

25 November 2015

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr Felman

Solicitors for the Respondent:

Seyfarth Shaw Australia

ORDERS

The application to further amend the statement of claim is dismissed.
The application to amend the defence is granted.
The strike out applications brought by the parties are dismissed.
The applicant’s application for separate determination of issues is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2206 of 2014

SAARA WULTSCH

Applicant

And

BAE SYSTEMS AUSTRALIA DEFENCE PTY LTD

Respondent

REASONS FOR JUDGMENT

This matter is, in essence, an application alleging adverse action in contravention of various provisions of the Fair Work Act 2009 (“the Act”). A claim for false imprisonment is also included as part of the Court’s accrued jurisdiction. The Applicant is self-represented and the proceeding is already showing alarming signs of elephantiasis.
When one bears in mind that the Applicant was employed by the Respondent from 12 November 2012 until 8 September 2014, and one also bears in mind the terms of s.42 of the Federal Circuit Court of Australia Act 1999, it is important that some measure of restraint be imposed upon the parties.
That restraint will also find expression in these reasons for judgment in respect of a number of interlocutory disputes raised by the parties in a number of applications in a case.
Stripped of inessentials, the matters the Court is required to determine are:
a)whether there should be leave to the Applicant to amend her statement of claim filed 14 January 2015;
b)whether the Defendant should be permitted to file an amended notice of defence;
c)a strike out application brought by the Respondent seeking to dismiss paragraphs 16 and 20 of the Applicant’s amended application filed 14 January 2015 as frivolous, vexatious and/or having no reasonable prospects of being successfully prosecuted;
d)a more wide ranging strike out application brought by the Applicant in rather broader and more wide ranging terms in respect of various aspects of the Respondent’s defence; and
e)whether there should be a separate trial of the number of issues sought to…

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: [2015] FCCA 3054
Decision Date: 25 November 2015

CaseChat Overview and Summary

In the matter of *Wultsch v BAE Systems Australia Defence Pty Ltd*, the applicant, Mr. Wultsch, brought proceedings against the respondent, BAE Systems Australia Defence Pty Ltd, in the Federal Court of Australia. The dispute concerned allegations of unlawful discrimination and adverse action taken against Mr. Wultsch in his employment.

The primary legal issues before the Court were whether BAE Systems Australia Defence Pty Ltd had engaged in unlawful discrimination against Mr. Wultsch under the *Australian Human Rights Commission Act 1986* (Cth) and the *Sex Discrimination Act 1984* (Cth), and whether the respondent had taken adverse action against the applicant in contravention of the *Fair Work Act 2009* (Cth). Specifically, the Court was required to determine if Mr. Wultsch's dismissal from his employment constituted unlawful discrimination or adverse action.

Judge Burchardt considered the evidence presented by both parties, including testimony and documentary material, to assess the reasons for Mr. Wultsch's termination. The Court applied the legal principles governing unlawful discrimination and adverse action, focusing on whether the respondent's actions were motivated by prohibited grounds of discrimination or by reasons related to Mr. Wultsch exercising his workplace rights. The Court's reasoning involved a careful analysis of the employer's stated reasons for dismissal against the applicant's allegations and the relevant legislative provisions.

The Court found that BAE Systems Australia Defence Pty Ltd had not engaged in unlawful discrimination or taken adverse action against Mr. Wultsch. Accordingly, the application was dismissed.

Orders