Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452

FEDERAL COURT OF AUSTRALIA

Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 UNION DELEGATES – Redundancy and retrenchment – Dismissal for prohibited reasons – Reverse onus of proof – Presumption not displaced – Reinstatement.

Workplace Relations Ac 1996 (Cth) s 792, s 807, s 809. Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 93 FCR 34 referred to R v GK (2001) 53 NSWLR 317 distinguished TONY SEYMOUR AND JEFF GEARIN v SAINT-GOBAIN ABRASIVES PTY LTD NSD 1923 OF 2006

BUCHANAN J

8 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1923 OF 2006

BETWEEN: TONY SEYMOUR

First Applicant

JEFF GEARIN

Second Applicant

AND: SAINT-GOBAIN ABRASIVES PTY LTD

Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 8 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. It is declared that on 27 September 2006 the respondent, Saint-Gobain Abrasives Pty Ltd (ACN 068 931420) contravened s 792 of the Workplace Relations Act 1996 (Cth) by dismissing the applicants, Mr Tony Seymour and Mr Jeff Gearin, from their employment with the respondent. 2. The respondent reinstate the applicants in their employment on and from 27 September 2006. 3. Service of the applicants with the respondent be regarded as continuous with the earlier period of their employment. 4. The respondent pay to the applicants the wages which they would have earnt in accordance with the rosters being worked by them at 27 September 2006. 5. Order 2 is conditional upon the applicants repaying to the respondent the net amount paid to them as severance pay as a result of the dismissal on 27 September 2006, less the net amount of any wages due to them under order 4 above. 6. The hearing is adjourned to a date to be fixed to hear evidence and submissions as to whether a penalty should be imposed upon the respondent under s 807 of the Workplace Relations Act 1996 (Cth) and, if so, the amount of such penalty. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.