Court to hear adverse action claim by "Australian" employee

Federal Court denies FWO access to documents

Court to hear adverse action claim by "Australian" employee

A sacked employee whose adverse action claims against his former company include that being Australian- born, a qualified tradesperson and holding a higher technical standards than his "foreign" colleagues all caused problems in his workplace will have his day in court.

Federal Magistrate Toni Lucev this week rejected an application by RUC Cementation Mining Contractors Pty Ltd to dismiss the claims against it, holding that despite the allegations of the self-represented man being at times difficult to follow and "barely" made out, it could not be argued that they had no reasonable prospect of success.

RUC summarily dismissed the man last year after a complaint about his behaviour from a dealership he had visited to get information about a machine he was involved in repairing.

Among the adverse action claims the employee subsequently lodged was that he was subject to "undue pressure", in breach of s344 of the Fair Work Act, when told while in a room with two company representatives that he was required to sign a letter terminating his employment.

While RUC argued the claim had no reasonable prospect of success, Federal Magistrate Lucev said: "Whether or not what was said to [the employee] in relation to the signing of the Termination Letter amounted to undue pressure is a question which might take its colour or content from the precise circumstances as they ultimately emerge in the evidence. However, at this stage of proceedings, there is, albeit barely, sufficient in what is alleged by [the employee] to have been said or done at the time of termination to make an arguable case that there was undue pressure applied to [the employee] to sign the Termination Letter."

The employee also argued that in being subjected to undue influence to sign the letter, which in effect denied him the right to work out a notice period, the employer breached s344(e), as the pressure applied was "in relation to the performance of work".

Federal Magistrate Lucev again found the employee could have an arguable case. "It does not necessarily appear to be a strong case, but it is nevertheless a case in relation to which the facts as they emerge in the evidence will give colour and content to the allegation, and in respect of which there appear to be arguable issues of law concerning the proper construction of s344(e) of the FW Act."

The employee also alleged that the company didn't investigate the complaint against him, and was therefore knowingly or recklessly false or misleading. Federal Magistrate Lucev said while the argument was "a little difficult to follow", it appeared to suggest that a "thorough investigation" was a "workplace right" under the relevant enterprise agreement, and it was on this basis arguable that there had been a breach of s345.

The employee also claimed adverse action under s351(1) alleging, as outlined by Federal Magistrate Lucev - who again said the argument was "a little difficult to follow" - that the fact that he was an "Australian", qualified as a tradesperson in WA, and had higher technical standards than those of RUC's foreign workers all caused problems in the workplace, leading to his dismissal.

"There is not a lot of content to [the employee's] s351(1) claim, and the factual material in support of it is sparse, but such material as there is lends itself to an argument along the above lines. The assertion of adverse action because of race is disputed by RUC, but that forms the basis for a factual dispute, which in the Court's view ought to be determined in a hearing. Furthermore, Counsel for RUC did not deal specifically, or even generally, with the s351(1) claim at hearing," Federal Magistrate Lucev said.

"In the circumstances, the Court considers that it has not been established that the s351(1) claim under the FW Act has no reasonable prospects of success, and the matter ought to go to hearing to be determined."

Federal Magistrate Lucev also held there was an arguable case that RUC failed to provide a notice period, or make a payment in lieu of notice, to the employee.

While RUC argued that the former employee hadn't complied with court orders on filing documents, Federal Magistrate Lucev found there were "exceptional circumstances", including that it would be "futile" to insist of a further amended claim form given his level of written English was not of a high standard.

Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 2) [2012] FMCA 459 (8 June 2012)

Federal Court denies FWO access to documents

The Federal Court has rejected a bid by FWO to access documents it says are relevant to an Odco-style sham contracting case it has launched.

The FWO is alleging Quest South Perth Pty Ltd breached the Fair Work Act when it converted its workers to independent contractors with Contracting Solutions, which has an agreement with Odco Contracting Solutions to use its independent contracting system.

A trial is set down for later this year.

In the meantime, the FWO sought documents from both Quest and Contracting Solutions during the discovery process, but then adjourned the Quest proceedings.

Justice Neil McKerracher, however, has this week held that the documents it wanted from Contracting Solutions were covered by legal privilege.

Fair Work Ombudsman v Quest South Perth Pty Ltd [2012] FCA 608 (12 June 2012)