Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726

Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726

The applicants established a sufficient likelihood of success at trial and the balance of convenience favoured interlocutory reinstatement. The dismissals occurred four days after Brown and Coombs gave evidence in proceedings under an industrial law; there was evidence they were satisfactory workers; Mr Walsh's remark to Brown supported an inference of concern about his court attendance; and Blue Star did not file evidence from the actual decision-maker explaining the reasons for selecting Brown and Coombs for termination or denying that their evidence in the CEPU proceeding was an operative reason. The availability of the s 809(1) presumption at trial strengthened the applicants' case,...

Jurisdiction
Australia
Judgment Date
06 July 2009
Procedural Posture
Industrial Law Proceeding Concerning Alleged Prohibited Dismissal Under the Workplace Relations Act 1996 (cth) / Application for Interim or Interlocutory Reinstatement
Outcome
Interlocutory reinstatement ordered for Craig Brown and David Coombs; costs of the motion reserved.
Legal Topics
['prohibited Reason Dismissal' 'freedom of Association' 'interlocutory Injunction' 'interlocutory Reinstatement' 'reverse Onus Presumption' 'participation and Giving Evidence in Proceedings Under an Industrial Law']
['industrial Law' 'employment Law'] ['prohibited Reason Dismissal' 'freedom of Association' 'interlocutory Injunction' 'interlocutory Reinstatement' 'reverse Onus Presumption' 'participation and Giving Evidence in Proceedings Under an Industrial Law']

Case Brief

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Procedural Posture

Industrial Law Proceeding Concerning Alleged Prohibited Dismissal Under the Workplace Relations Act 1996 (cth) / Application for Interim or Interlocutory Reinstatement

Legal Issues

  1. 1 ['Whether the applicants established a sufficient likelihood of success that Blue Star dismissed Craig Brown and David Coombs for a prohibited reason, namely that each had participated in or given evidence in a proceeding under an industrial law.' 'Whether the presumption in s 809(1) of the Workplace Relations Act 1996 (Cth) could be considered when assessing an application for interlocutory relief notwithstanding s 809(2).' 'Whether the balance of convenience, adequacy of damages and other discretionary factors favoured interlocutory reinstatement.' "Whether Blue Star's evidence adequately identified the actual decision-maker and the reasons for terminating the employment of Craig Brown and David Coombs."]

Ratio Decidendi

The applicants established a sufficient likelihood of success at trial and the balance of convenience favoured interlocutory reinstatement. The dismissals occurred four days after Brown and Coombs gave evidence in proceedings under an industrial law; there was evidence they were satisfactory workers; Mr Walsh's remark to Brown supported an inference of concern about his court attendance; and Blue Star did not file evidence from the actual decision-maker explaining the reasons for selecting Brown and Coombs for termination or denying that their evidence in the CEPU proceeding was an operative reason. The availability of the s 809(1) presumption at trial strengthened the applicants' case,...

Court Disposition

Interlocutory reinstatement ordered for Craig Brown and David Coombs; costs of the motion reserved.

Orders

  • ['Until the hearing and final determination of this matter or earlier order, the respondent reinstate the second applicant, Craig Brown, in the position he held prior to the termination of his employment on 19 June 2009 on the terms and conditions of that employment.' 'Until the hearing and final determination of...