Parry v University of South Australia [2022] FCAFC 168

Federal Court of Australia

Parry v University of South Australia [2022] FCAFC 168 Appeal from: Parry v University of South Australia [2022] FCA 49

File number(s): SAD 52 of 2022

Judgment of: BANKS-SMITH, O'SULLIVAN AND FEUTRILL JJ

Date of judgment: 29 September 2022

Catchwords: EMPLOYMENT LAW – appeal from orders dismissing an application alleging contravention of s 340 of the Fair Work Act 2009 (Cth) (FWA) – where primary judge found that the respondent terminated the applicant's employment for reasons that did not include his possession or exercise of a workplace right to protect his health and safety in the workplace – where primary judge found that the respondent terminated the applicant's employment because of his failure to perform his duties – where primary judge found the applicant's failure to perform his duties did not constitute the exercise of a workplace right – whether primary judge erred in concluding that the reason for the employee's dismissal was his failure to attend his duties and did not include any reason sanctioned by s 340 of the FWA – whether the primary judge had a conflict of interest or displayed actual or apprehended bias – whether the primary judge misused her advantage when making findings of fact based on the credibility of the applicant – no conflict of interest established – no actual or apprehended bias established – the primary judge did not misuse her advantage when making findings of fact based on the credibility of the applicant – appeal dismissed

Legislation: Fair Work Act 2009 (Cth), ss 340, 342(1), 361

Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32; (2012) 248 CLR 500 Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Parry v University of South Australia [2022] FCA 49 R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 R v Rich (Ruling No. 21) [2009] VSC 32 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 160 ALR 588 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505 Zaltni v Minister for Immigration and Multicultural Affairs [2000] FCA 399