Ross v R.C. Mackenzie and Sons Pty Ltd [2013] FMCA 31

The Federal Magistrates Court has awarded an employee over $30,000 in compensation for unfair dismissal in the case of Ross v R.C. Mackenzie and Sons Pty Ltd [2013] FMCA 31. The court found that the employer had dismissed the employee (R) because he had accessed compassionate leave which is a workplace entitlement.

The Facts

Prior to the termination, R had taken a number of compassionate leave days to care for his two children as a result of his wife’s urgent travels to Melbourne to care for a seriously ill father. R claimed that it was on these grounds that the company had dismissed him. The company, however, claimed that it had dismissed R on grounds of serious misconduct.

The company argued that on one occasion, R had brought his eight-year-old daughter to work, leaving her in the car, while he completed his work. The car was in close proximity to industrial machines and a high volume of grain truck traffic, which the company argued constituted a gross violation of OHS rules.

The Decision

After carefully weighing up the evidence on both sides, the Federal Magistrate's Court found that the company had failed to discharge the onus placed on it by s 361 of the Fair Work Act relating to presumptions about reasons for action.

The court agreed with R and found that he had been dismissed as a result of his access of workplace entitlements.

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