Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

FEDERAL COURT OF AUSTRALIA

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 File number: NSD 271 of 2022

Judgment of: RAPER J

Date of judgment: 29 February 2024

Catchwords: INDUSTRIAL LAW – employment – adverse action – whether the applicant was subjected to adverse action in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) – applicant dismissed from his employment purportedly by reason of complaints received from other employees about his conduct – whether applicant made complaints or enquiries amounting to the exercise of "workplace rights" pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant had exercised a workplace right – operation of the statutory presumption in s 361 of the FW Act – whether the person who took the adverse action did so on behalf of the respondent – whether the relevant decision-maker was actuated by the applicant's exercise of workplace rights – whether the respondent breached s 90(2) of the FW Act by failing to pay annual leave in full on termination – whether the respondent breached s 62 of the FW Act – whether the respondent wrongfully terminated the employment contract – misconduct - application allowed in part CONTRACT LAW – summary dismissal – whether the respondent may rely on after acquired knowledge to justify the termination – whether there was condonation or waiver – whether the respondent failed to pay contractual notice and annual leave entitlements upon termination – whether the respondent breached its contractual obligation to take reasonably practicable steps to protect the applicant from a risk to his health and safety in the workplace – application allowed in part

Legislation: Fair Work Act 2009 (Cth) ss 22, 22(5), 22(7), 22(7)(a), 22(7)(b), 22(8)(b), 44, 62, 62(1), 62(1)(a), 62(1)(b), 62(3), 64, 90, 90(2), 340, 340(1)(a), 341, 341(1)(a), 341(1)(b), 341(1)(c), 342, 342(1) 361, 539, 545(2)(b), 550, 789FD, 793 Work Health and Safety Act 2011 (Cth) s 19(2)