Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001

Although the applicants had a substantial prima facie case that the investigation and suspension may constitute adverse action under the Fair Work Act because they related to the exercise of a workplace right, the balance of convenience did not favour interlocutory relief in light of the respondents' undertakings to complete the investigation promptly, not implement any disciplinary outcome without further opportunity to apply for relief, the short-term nature of the suspension, and the context that the employee's presence could affect the investigation. Accordingly, the application for interlocutory relief was dismissed.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Interlocutory Application / Application for Interlocutory Relief (dismissed at Hearing)
Outcome
Application for interlocutory relief dismissed, with procedural orders following undertakings by respondents; costs reserved.
Legal Topics
['interlocutory Injunction' 'adverse Action' 'workplace Rights' 'occupational Health and Safety' 'suspension of Employee']
['industrial Law' 'employment Law'] ['interlocutory Injunction' 'adverse Action' 'workplace Rights' 'occupational Health and Safety' 'suspension of Employee']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Application for Interlocutory Relief (dismissed at Hearing)

Legal Issues

  1. 1 ["Whether the employer's investigation and suspension of the employee constituted unlawful adverse action under the Fair Work Act 2009 (Cth) due to the exercise of a workplace right under occupational health and safety legislation" 'Whether there was a serious question to be tried and whether the balance of convenience favoured the grant of interlocutory relief']

Ratio Decidendi

Although the applicants had a substantial prima facie case that the investigation and suspension may constitute adverse action under the Fair Work Act because they related to the exercise of a workplace right, the balance of convenience did not favour interlocutory relief in light of the respondents' undertakings to complete the investigation promptly, not implement any disciplinary outcome without further opportunity to apply for relief, the short-term nature of the suspension, and the context that the employee's presence could affect the investigation. Accordingly, the application for interlocutory relief was dismissed.

Court Disposition

Application for interlocutory relief dismissed, with procedural orders following undertakings by respondents; costs reserved.

Orders

  • ['The application for interlocutory relief is dismissed.' 'Applicants to file and serve statement of claim by 9 September 2011.' 'Respondents to file and serve defence by 7 October 2011.' 'Applicants to file and serve any reply by 21 October 2011.' 'Matter listed for directions in November 2011.' 'Liberty to apply...