McMaster v Qube Ports Pty Ltd [2015] FCA 1385

McMaster v Qube Ports Pty Ltd [2015] FCA 1385

Mr McMaster exercised workplace rights by complaining about safety and by refusing to upgrade as a protest about unresolved safety issues, but Qube proved that the operative and immediate reason for dismissal was not those safety complaints. The reason for dismissal was Mr McMaster's refusal to upgrade. On the proper construction of the Enterprise Agreement and the incorporated Award, Qube had no legal right to require a Grade 3 employee to upgrade to Grade 5, and Mr McMaster was entitled to refuse. Because Qube dismissed him for that refusal, it dismissed him because he exercised a workplace right. It was immaterial that Mr Sousa believed, as a matter of law, that Mr McMaster had no...

Jurisdiction
Australia
Judgment Date
04 December 2015
Procedural Posture
Fair Work Adverse Action Proceeding / Separate Liability Hearing on Whether Qube Contravened S 340(1)(a) of the Fair Work Act 2009 (cth); Relief Adjourned
Outcome
Qube contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth); the proceeding was adjourned for directions on relief.
Legal Topics
['adverse Action' 'dismissal' 'workplace Rights' 'safety Complaints' 'occupational Health and Safety Duties' 'enterprise Agreement and Award Construction' 'reasonable and Lawful Directions' 'reverse Onus of Proof' 'mistake of Law']
['industrial Law' 'employment Law' 'occupational Health and Safety'] ['adverse Action' 'dismissal' 'workplace Rights' 'safety Complaints' 'occupational Health and Safety Duties' 'enterprise Agreement and Award Construction' 'reasonable and Lawful Directions' 'reverse Onus of Proof' 'mistake of Law']

Case Brief

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Procedural Posture

Fair Work Adverse Action Proceeding / Separate Liability Hearing on Whether Qube Contravened S 340(1)(a) of the Fair Work Act 2009 (cth); Relief Adjourned

Legal Issues

  1. 1 ['Whether Mr McMaster exercised a workplace right to complain about safety under s 341(1)(c) of the Fair Work Act 2009 (Cth).' 'Whether Mr McMaster exercised a workplace right under s 25 of the Occupational Health and Safety Act 2004 (Vic) by taking reasonable care for his own health and safety.' 'Whether Qube dismissed Mr McMaster because he exercised workplace rights to complain about safety or to take reasonable care for his own health and safety.' 'Whether, by dismissing Mr McMaster because he refused to upgrade from Grade 3 to Grade 5, Qube took adverse action because he exercised a workplace right.' 'Whether Mr McMaster had a right under the Enterprise Agreement and Award to refuse to upgrade.' 'Whether an employer avoids liability under s 340(1)(a)(ii) where the decision maker mistakenly believes as a matter of law that the employee had no workplace right.']

Ratio Decidendi

Mr McMaster exercised workplace rights by complaining about safety and by refusing to upgrade as a protest about unresolved safety issues, but Qube proved that the operative and immediate reason for dismissal was not those safety complaints. The reason for dismissal was Mr McMaster's refusal to upgrade. On the proper construction of the Enterprise Agreement and the incorporated Award, Qube had no legal right to require a Grade 3 employee to upgrade to Grade 5, and Mr McMaster was entitled to refuse. Because Qube dismissed him for that refusal, it dismissed him because he exercised a workplace right. It was immaterial that Mr Sousa believed, as a matter of law, that Mr McMaster had no...

Court Disposition

Qube contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth); the proceeding was adjourned for directions on relief.

Orders

  • ['The hearing is adjourned to a directions hearing fixed for Wednesday 3 February 2016, at 10.15am.']