United Voice v MDBR123 Pty Ltd [2014] FCA 1344

United Voice v MDBR123 Pty Ltd [2014] FCA 1344

MDBR dismissed Ms Smith, which was adverse action. Ms Smith proposed to exercise a workplace right by proposing to make an enterprise agreement and engaged or proposed to engage in industrial activity by encouraging employees to join the Union, participating in the process of making an enterprise agreement, and advancing the Union's interests. Although complaints about false or misleading statements and prior parent complaints formed part of the reasons for dismissal, the evidence of the decision-makers and Mr Hinton was not accepted insofar as they denied concern about increased union involvement. The Court found that Ms Smith's attempts to recruit staff as Union members were an...

Jurisdiction
Australia
Judgment Date
11 December 2014
Procedural Posture
Fair Work Division Proceeding Alleging General Protections Adverse Action Contraventions Under the Fair Work Act 2009 (cth) / Judgment on Liability; Compensation and Penalty Stood Over for Further Submissions and Hearing
Outcome
The Court found that MDBR contravened ss 340 and 346 of the Fair Work Act 2009 (Cth) and that Denis Hinton, by operation of s 550, was taken to have contravened those provisions. Questions of compensation and penalty were reserved for further submissions and hearing.
Legal Topics
['general Protections' 'adverse Action' 'workplace Rights' 'industrial Activity' 'union Recruitment' 'dismissal' 'accessorial Liability' 'reverse Onus']
['industrial Law' 'employment Law'] ['general Protections' 'adverse Action' 'workplace Rights' 'industrial Activity' 'union Recruitment' 'dismissal' 'accessorial Liability' 'reverse Onus']

Case Brief

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Procedural Posture

Fair Work Division Proceeding Alleging General Protections Adverse Action Contraventions Under the Fair Work Act 2009 (cth) / Judgment on Liability; Compensation and Penalty Stood Over for Further Submissions and Hearing

Legal Issues

  1. 1 ['Whether Ms Smith proposed to exercise a workplace right by proposing to make an enterprise agreement.' "Whether Ms Smith engaged or proposed to engage in industrial activity by recruiting employees to join United Voice and advancing the Union's interests." 'Whether MDBR dismissed Ms Smith because she proposed to exercise a workplace right or engaged or proposed to engage in industrial activity.' 'Whether the pleaded reasons for dismissal were the real reasons for dismissal.' "Whether Denis Hinton was involved in MDBR's contraventions under s 550 of the Fair Work Act 2009 (Cth)."]

Ratio Decidendi

MDBR dismissed Ms Smith, which was adverse action. Ms Smith proposed to exercise a workplace right by proposing to make an enterprise agreement and engaged or proposed to engage in industrial activity by encouraging employees to join the Union, participating in the process of making an enterprise agreement, and advancing the Union's interests. Although complaints about false or misleading statements and prior parent complaints formed part of the reasons for dismissal, the evidence of the decision-makers and Mr Hinton was not accepted insofar as they denied concern about increased union involvement. The Court found that Ms Smith's attempts to recruit staff as Union members were an...

Court Disposition

The Court found that MDBR contravened ss 340 and 346 of the Fair Work Act 2009 (Cth) and that Denis Hinton, by operation of s 550, was taken to have contravened those provisions. Questions of compensation and penalty were reserved for further submissions and hearing.

Orders

  • ['The applicant file and serve written submissions on the questions of compensation and penalty by 4.00 pm on 14 January 2015.' 'The respondents file and serve written submissions in response by 4.00 pm on 28 January 2015.' 'The matter be set down for further hearing on the questions of compensation and penalty at...