Federal Court of Australia
Federal Court of Australia
Han v St Basil's Homes [2023] FCA 1010 File number: NSD 1226 of 2020
Judgment of: RARES J
Date of judgment: 25 August 2023
Catchwords: INDUSTRIAL LAW – whether employer took adverse action in issuing first and final warning and or terminating employee because employee exercised workplace right to make a complaint or inquiry in relation to employment in contravention of ss 340(1)(a)(ii) and 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) or her race in contravention of s 351(1) – where multiple decision-makers took adverse action to terminate employee's employment – whether any decision-maker had any proscribed substantial and operative reason for taking adverse action – whether s 793(2) or (3) attributed state of mind of one or more decision-makers to employer in relation to negating presumption in ss 360 and 361(1) of Act – where evidence by employer's decision-makers not negate presumption that adverse action of termination of employee taken because employee exercised workplace right to make complaint or inquiry or because of employee's race – Held: adverse action taken for proscribed reason in terminating applicant but not in issuing warning
Legislation: Fair Work Act 2009 (Cth) ss 340(1)(a), 341(1)(c), 342(1), 351(1), 360, 361(1), 793(2), (3)
Cases cited: Alam v National Australia Bank Ltd (2021) 288 FCR 301 Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239 Australian Red Cross Society v Queensland Nurses' Union of Employees (2019) 273 FCR 332 Berry v CCL Secure Pty Ltd [2017] FCA 1546 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 Wong v National Australia Bank Ltd (2022) 318 IR 148
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