Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

FEDERAL COURT OF AUSTRALIA

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Citation: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Parties: STEVEN ERMEL v DULUXGROUP (AUSTRALIA) PTY LTD (ACN 000 049 427)

File number: VID 792 of 2013

Judge: BROMBERG J

Date of judgment: 28 January 2015

Catchwords: INDUSTRIAL LAW – whether applicant dismissed because of temporary absence due to illness in contravention of s 352 of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken against the applicant in contravention of s 340 of the FW Act because the applicant exercised various workplace rights – whether s 21 of the Occupational Health and Safety Act 2004 (Vic) conferred a "workplace right" upon the applicant – whether the making of complaints was an operative factor in the decision to dismiss the applicant – whether the applicant's absence from work due to illness was an operative factor in the decision to dismiss him – whether a contravention of s 352 of the FW Act, and of s 340(1) in combination with s 97(a) of the FW Act, requires satisfaction that a reason for the adverse action (or dismissal) was the employee's absence due to illness, or whether absence per se is a sufficient reason – whether Jones v Dunkel inference should be drawn by respondent's failure to call witness to corroborate direct testimony from decision-maker – application dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 12, 97(a), 340(1), 340(1)(a), 340(1)(c)(ii), 341(1), 342, 352, 360, 361, 361(1) Industrial Relations Act 1988 (Cth) ss 170CA(1), 170DF(1) Occupational Health and Safety Act 2004 (Vic) s 21 Workplace Relations Act 1996 (Cth) ss 170CK(2)(a), 659(2)(a)