Sallehpour v Frontier Software Pty Ltd [2005] FCA 247

FEDERAL COURT OF AUSTRALIA

Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 INDUSTRIAL LAW – application for unlawful termination on grounds of temporary absence from work, mental disability and national extraction – whether termination "unfair" not a relevant consideration – stated reasons for termination not designed to disguise a prohibited reason – no basis for finding termination for a prohibited reason

Workplace Relations Act 1996(Cth)ss 170CK, 170CP, 170CQ, 170CR and 170CS

Bahonko v Moorfields Community [2005] FCA 46 referred to

Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595 referred to MOHAMMADALI SALLEHPOUR v FRONTIER SOFTWARE PTY LTD V13 OF 2003 MARSHALL J 15 MARCH 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V13 OF 2003

BETWEEN: MOHAMMADALI SALLEHPOUR

APPLICANT

AND: FRONTIER SOFTWARE PTY LTD

RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 15 MARCH 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. Costs be reserved with submissions on the question of costs to be filed by the respondent on or before 24 March 2005. 3. In the event that the respondent does file submissions on the question of costs, the applicant is to file submissions in response by 8 April 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V13 OF 2003

BETWEEN: MOHAMMADALI SALLEHPOUR

APPLICANT

AND: FRONTIER SOFTWARE PTY LTD

RESPONDENT

JUDGE: MARSHALL J

DATE: 15 MARCH 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Mr Mohammadali Sallehpour, has applied to the Court pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) ("the Act") for an order under s 170CR in respect of alleged contraventions of s 170CK(2)(a) and (f). 2 Mr Sallehpour alleged that his employment was terminated by the respondent, Frontier Software Pty Ltd ("Frontier") for reasons which included the following: · temporary absence from work because of illness within the meaning of the Workplace Relations Regulations ("the regulations"); · mental disability; and · national extraction. 3 The issues for determination in this matter are whether Frontier terminated Mr Sallehpour's employment for reasons which included any of those referred to in the preceding paragraph. 4 This case is a sad one. As will be seen from the factual context below, Mr Sallehpour suffers from a depressive illness. The illness manifested itself during his employment with Frontier. It affected his ability to perform his duties in a timely manner and his ability to respond to reasonable requests by Frontier to help him overcome or at least manage his illness whilst preserving his employment. Ultimately, Mr Sallehpour lost his job. He claimed that this occurred by reasons proscribed by s 170CK. Unfortunately for Mr Sallehpour, as will be seen by the consideration of the issues set out below, it is the view of the Court that Frontier did not dismiss him for reasons which include the proscribed reasons alleged by him. Reasonable minds might differ about whether the reasons which actually moved Frontier to terminate Mr Sallehpour's employment were justified in the circumstances. However, that is not an issue which is before the Court on the current application. See, for example, Bahonko v Moorfields Community [2005] FCA 46 at [57] per Merkel J.