Yousif v Commonwealth Bank of Australia [2009] FCA 657

FEDERAL COURT OF AUSTRALIA

Yousif v Commonwealth Bank of Australia [2009] FCA 657

INDUSTRIAL LAW – whether employment terminated for a prohibited reason or reasons that include a prohibited reason – whether termination occurred for reason of temporary absence from work because of illness – whether termination occurred for reasons of participation in proceedings against employer Held: application dismissed

Workplace Relations Act 1996 (Cth) ss 659(2)(a), 659(2)(e), 664 LINDA YOUSIF v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

VID 122 of 2009

NORTH J

19 JUNE 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 122 of 2009

BETWEEN: LINDA YOUSIF

Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Respondent

JUDGE: NORTH J

DATE OF ORDER: 19 JUNE 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The respondent's costs are reserved. 3. Any application by the respondent for costs is to be filed and served by 24 June 2009. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 122 of 2009

BETWEEN: LINDA YOUSIF

Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Respondent

JUDGE: NORTH J

DATE: 19 JUNE 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Linda Yousif, filed this application on 20 February 2009 following the termination of her employment by the respondent, the Commonwealth Bank of Australia (the Bank) which occurred on 8 December 2008. 2 Ms Yousif alleges that the Bank terminated her employment contrary to s 659(2)(a) and/or (e) of the Workplace Relations Act 1996 (Cth) (the Act) which provides that: an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) temporary absence from work because of illness or injury within the meaning of the regulations; … (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; 3 Proof of the case is governed by s 664 which, relevantly, provides: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason… 4 The only issue in dispute is whether the Bank has established a defence under s 664(b). 5 The Bank contended that the reason for the termination was as expressed in the letter of termination as follows: As you are aware, the Bank recently wrote to you regarding your return to work. During the court proceedings on 7 November 2008, you confirmed through your evidence to the Court that you did not trust the Bank and senior managers in the Bank. Further, you confirmed that you therefore could not return to work with the Bank. As you must appreciate, your employment with the Bank cannot continue in circumstances where there is no longer a relationship of mutual trust and confidence and you have clearly indicated that you do not wish to return to work. In these circumstances, the Bank has also come to the view that your return to work is no longer a viable option given the employment relationship between yourself and the Bank has irretrievably broken down.