Herbert v Star Aviation Pty Ltd [2019] FCAFC 136

Herbert v Star Aviation Pty Ltd [2019] FCAFC 136

The appeal was dismissed because Mr Herbert did not demonstrate appealable error in the primary judge's acceptance of Mr Cornell's evidence that Star withdrew the employment offer for reasons unrelated to Mr Herbert's alleged family or carer responsibilities. Since Star discharged the reverse onus under s 361(1) by establishing that the adverse action was not taken for a prohibited reason, Mr Herbert's s 351 claim could not succeed whether he was an employee or a prospective employee.

Jurisdiction
Australia
Judgment Date
14 August 2019
Procedural Posture
Industrial Law Appeal Concerning Alleged Adverse Action Under S 351 of the Fair Work Act 2009 (cth) / Appeal From Herbert V Star Aviation Services Pty Ltd [2019] FCA 239
Outcome
Appeal dismissed; no order as to costs.
Legal Topics
['adverse Action' 'family or Carer Responsibilities' 'reverse Onus of Proof' 'appellate Review of Factual Findings' 'costs in Fair Work Proceedings']
['industrial Law' 'employment Law' 'anti Discrimination Law'] ['adverse Action' 'family or Carer Responsibilities' 'reverse Onus of Proof' 'appellate Review of Factual Findings' 'costs in Fair Work Proceedings']

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

Industrial Law Appeal Concerning Alleged Adverse Action Under S 351 of the Fair Work Act 2009 (cth) / Appeal From Herbert V Star Aviation Services Pty Ltd [2019] FCA 239

Legal Issues

  1. 1 ['Whether Star Aviation Services Pty Ltd took adverse action against Mr Herbert because of his family or carer responsibilities within s 351 of the Fair Work Act 2009 (Cth).' "Whether the primary judge erred in accepting Mr Cornell's evidence about the reasons for withdrawing the employment offer." "Whether the primary judge erred in relation to race discrimination, procedural fairness, evidentiary or rules issues, contract formation, unreasonableness, bias, or Mr Georgiou's attendance and evidence." 'Whether costs should be ordered on the appeal under s 570 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

The appeal was dismissed because Mr Herbert did not demonstrate appealable error in the primary judge's acceptance of Mr Cornell's evidence that Star withdrew the employment offer for reasons unrelated to Mr Herbert's alleged family or carer responsibilities. Since Star discharged the reverse onus under s 361(1) by establishing that the adverse action was not taken for a prohibited reason, Mr Herbert's s 351 claim could not succeed whether he was an employee or a prospective employee.

Court Disposition

Appeal dismissed; no order as to costs.

Orders

  • ['The appeal be dismissed.' 'There will be no order as to costs.']