Bahonko v Sterjov [2007] FCA 1244

Procedural Posture

Consolidated Proceeding Under S 170 Cp(1) of the Workplace Relations Act 1996 (cth) Alleging Unlawful Termination and Under S 46 Po(1) of the Human Rights and Equal Opportunity Act 1996 (cth) Alleging Unlawful Discrimination Under the Racial Discrimination Act 1975 (cth), With Accrued Claims Including Contract and Defamation / Final Judgment After Trial; Applicant's Notice of Motion Dated 4 May 2007 Also Determined

Legal Issues

1. 1 ["Whether La Kosta terminated the applicant's employment for a proscribed reason under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth), including religion, political opinion, national extraction, social origin or physical or mental disability described by the applicant as imputed social disability." 'Whether s 170CQ of the Workplace Relations Act 1996 (Cth) required the respondents to prove that termination was for reasons that did not include a proscribed reason, and whether the applicant first had to prove the objective facts said to constitute some alleged proscribed reasons.' 'Whether the applicant was guilty of serious misconduct within s 170CM(1)(c) of the Workplace Relations Act 1996 (Cth) so that notice of termination was not required.' 'Whether La Kosta was entitled at common law summarily to dismiss the applicant, defeating her claim for payment in lieu of notice.' 'Whether the respondents engaged in unlawful racial discrimination under s 9 or other provisions of the Racial Discrimination Act 1975 (Cth).' "Whether publication of Ms McEwan's report to Commissioner Grainger in the AIRC defamed the applicant and, if so, what damages should be awarded." "Whether the applicant's notice of motion dated 4 May 2007 should be granted."]

Ratio Decidendi

The applicant's employment was terminated because of her misconduct toward Ms Matthew and related matters recorded by Ms McEwan, not because of any proscribed reason under s 170CK(2)(f) or any race-related ground under the Racial Discrimination Act. Her abusive and racist language toward a subordinate in front of children constituted serious misconduct and justified both termination without statutory notice and summary dismissal at common law. The discrimination claims and other accrued claims failed, except that La Kosta defamed the applicant by publishing Ms McEwan's report to the AIRC Commissioner; because no harm was proved, only nominal damages of $50 were awarded.

Court Disposition

The applicant succeeded only on the defamation claim against the fourth respondent and was awarded nominal damages of $50; the application was otherwise dismissed and the notice of motion dated 4 May 2007 was dismissed.

Orders

• ['To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed.' 'The fourth respondent pay the applicant damages in the sum of $50.' 'The application otherwise be dismissed.' 'The parties have leave to file and serve, (a) on or before 22 August 2007,...