Johnson v Celik Investments Pty Ltd [2007] FCA 846

FEDERAL COURT OF AUSTRALIA

Johnson v Celik Investments Pty Ltd [2007] FCA 846 ANITA JOHNSON v CELIK INVESTMENTS PTY LTD T/AS CAFE REMA VID 1536 OF 2007

GORDON J

11 MAY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1536 OF 2007

BETWEEN: ANITA JOHNSON

Applicant

AND: CELIK INVESTMENTS PTY LTD T/AS CAFE REMA

Respondent

JUDGE: GORDON J DATE OF ORDER: 11 MAY 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. A penalty of $1,000 be imposed on the respondent. 2. The $1,000 penalty be paid to the applicant. 3. The respondent pay the applicant compensation in the sum of $8,878.80. 4. The respondent pay the penalty and the compensation to the applicant within 28 days of this order. 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 VID 1536 OF 2007

BETWEEN: ANITA JOHNSON

Applicant

AND: CELIK INVESTMENTS PTY LTD T/AS CAFE REMA

Respondent

JUDGE: GORDON J

DATE: 11 MAY 2007

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT 1 Anita Johnson, the applicant, was employed at the Café Rema from about May 2004 until 15 September 2005 when the applicant's employment was terminated. The circumstances in which her employment was terminated were described by her in the following terms: "2. I was employed at the Café Rema from about May 2004 until the date my employment was terminated on 15 September 2005. … 5. …The business was a small city restaurant that employed about 6 or 7 people mainly casuals. … 7. On or about 30 August 2005 I informed Anna [a director of the respondent] that I was pregnant. Anna replied "I thought so. You should have told me earlier." 8. Because of Anna's remark, I felt it necessary to disclose to her that I had had a miscarriage with my last pregnancy, and that this time I had wanted to see how the pregnancy developed for a while before telling people about it. 9. Anna said, "Ok, sorry, but you still should have told me because if you injured yourself you could sue us." I said that I was healthy and that I would continue working until Christmas, then less hours after that, if possible. 10. Anna replied, "We'll see." 11. On Thursday, 15 September 2005, I was ill with gastroenteritis. I rang work and spoke to another employee, Chelsea, who had answered the phone. I left a message with her to say that I had gastroenteritis and would not be able to attend work that day. 12. Chelsea subsequently called me from work, and told me I had to speak to Ali [another director of the respondent]. I then rang Ali. 13. Ali was very aggressive about the fact that they were short staffed, and that I had spoken to Chelsea and not to him. I said I knew they were busy, but there was nothing I could do. He told me I had to come in to work, and I said I couldn't because of my health. We argued back and forth. I became emotionally upset, possibly due to the pregnancy and the gastroenteritis, and I didn't want to risk another miscarriage. 14. Ali terminated my employment. He said "Come in today, or don't come back." I said "I can't, I'm just not well enough." 15. Early the next week I tried to get my job back. On the Monday I rang work. I had a doctor's certificate for two days off (15 and 16 September 2005). I arranged to come and see Ali on the Tuesday. 16. When I arrived on Tuesday Ali was sweeping the floor. I said "Can we talk about this out the back?" He kept sweeping. I gave him the medical certificate. I tried to reason with him, but he would not give me my job back. I said "You can't sack me for that – it's illegal." Ali responded by saying, "I don't care." He refused to give me even one week's notice." 2 In its defence, the respondent has admitted that it was the owner of the café at the time the applicant's employment was terminated and that, during the course of her employment, she worked approximately 28 hours per week. 3 The applicant asserts that the termination of her employment on 15 September 2005 was in contravention of s 170CK(2)(a) and (2)(f) of the Workplace Relations Act 1996 (Cth) (the "Act"), as it was on 25 November 2005, being the date of the application to this Court under s 170CP of the Act. 4 Before turning to the facts in this matter, it is necessary to set out the provisions of the Act which are relevant to the Court's consideration of the application.