Adamczak v Alsco Pty Ltd (No.2)
[2018] FCCA 1252
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADAMCZAK v ALSCO PTY LTD (No.2) | [2018] FCCA 1252 |
| Catchwords: INDUSTRIAL LAW – Adverse action proceeding – allegation of breach of general protection provisions – alleged adverse action as a consequence of exercise of workplace right – allegations of bullying in the workplace – allegations of breach of contract – applicant’s employment terminated – causal connection of decision to take adverse action and asserted workplace right – substantive and operative reason for termination – standard of proof. |
| Legislation: Fair Work Act 2009, ss.12; 117; 119; 123; 340; 341; 342; 346; 351; 361; Part 3-1 Fair Work Regulations, r.1.07 |
| Cases cited: Adamczak v Alsco [2017] FCCA 3550 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Jones v Queensland Tertiary Admissions Centre Limited (No.2) [2010] FCA 399 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500 Shortv Ambulance Australia [2015] FCAFC 55 Kassis v Republic of Lebanon [2014] FCCA 155 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Burgundy Royale Investments Pty Ltd & Ors v Westpac Banking Corporation & Ors (1987) 18 FCR 212 Rana v Google Inc [2017] FCAFC 156 Celand v Skycity Adelaide Pty Ltd [2016] FCCA 339 Bruce v Oldhams Press Ltd [1936] 1 KB 697 Gaven & Gaven (No.2) [2012] FMCAfam 1005 Autodesk Inc & Anor v Dyason & Ors (1993) 176 CLR 300 Fox v Percy (2003) 214CLR 118 Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 Toll (FGCT) Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165 Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41 |
| Applicant: | GEORGE ADAMCZAK |
| Respondent: | ALSCO PTY LTD |
| File Number: | ADG 379 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 19, & 20 December 2017; 2 February & 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Mr Moses QC with Ms Stewart |
| Solicitors for the Respondent: | Alsco Pty Ltd |
ORDERS
The application filed 2 October is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 379 of 2014
| GEORGE ADAMCZAK |
Applicant
And
| ALSCO PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, in these proceedings, George Adamczak[1] claims that he was subject to “adverse action”, in contravention of sections 340(1) and 351(1) of the Fair Work Act 2009 (Cth),[2] during the course of his employment with the respondent, Alsco Pty Ltd.[3]
[1] Hereinafter referred to as Mr Adamczak or the applicant
[2] Hereinafter referred to as the FWA or the Act
[3] Hereinafter referred to as Alsco or the respondent
Adverse action, is defined in section 342(1) of the Act and includes dismissal from employment. In generic terms, Mr Adamczak alleges Alsco unlawfully terminated his employment firstly, because he exercised his workplace rights (section 340) to complain about his treatment by Alsco and secondly, as a consequence of one of his personal attributes, protected by the Act, namely that at relevant times, he suffered from a mental disability.
In addition, the applicant relies on the court’s accrued jurisdiction to pursue an action against Alsco for breach of contract. It is his case that Alsco owes him a number of incentive payments, relating to rebates and recalculation of worker’s compensation insurance, recouped by Alsco, as a consequence of his efforts as HR/OH&S coordinator at Alsco’s Adelaide facilities. [4]
[4] Herein after referred to as incentive payments or the incentive scheme.
Alsco terminated Mr Adamczak’s employment summarily on 30 July 2014. The respondent’s position is that it was entitled to do so because it had discovered Mr Adamczak had engaged in serious misconduct, in relation to the use of Alsco’s electronic mail system and his confidentiality obligations to the firm, which rendered his continued presence in the workplace untenable and absolved it of any liability to give Mr Adamczak any notice of his termination or payment in lieu of such notice.
The reason for Mr Adamczak’s dismissal is the central evidentiary issue in this case. Mr Adamczak asserts that the reason proffered by Alsco has been concocted by its senior management to cloak its arbitrary and unlawful dismissal of him, which he relates to his fragile mental health, directly attributable to being subject to the bullying of Alsco management in the workplace, about which he had previously complained, but to no avail.
In addition, he asserts that management at Alsco had a jaundiced attitude to him, because he had previously stood up for the rights of injured workers, at the industrial laundry operated by Alsco, as well as for himself, over the bonus incentive scheme.
In these circumstances, Mr Adamczak claims that he is entitled to compensation arising from his unlawful termination and that a pecuniary penalty should also be imposed on Alsco for breaching the general protection provisions contained in sections 340 and 351 of the Act.
Finally, Mr Adamczak seeks the imposition of several additional civil penalties, on Alsco, in respect of the alleged breaches of the Act, as well as a consequence of related breaches arising from the application of section 117, which prohibit employers from terminating employment unless a specified amount of written notice has been provided and thereafter provides for the payment of redundancy pay, pursuant to section 119, depending on the length of service of the employee concerned. Neither of which occurred in Mr Adamczak’s case.
Alsco is not in a position to deny that it took adverse action against Mr Adamczak on 30 July 2014, given its dismissal of him. Its position is that it was legally entitled to dismiss him, as it did and it did not take this action for any reason prescribed by the FWA.
Rather, the respondent’s chief financial officer, John Hickin, who is based in Alsco’s Sydney headquarters, decided to terminate Mr Adamczak’s employment, after being briefed by Alsco management from Adelaide, including a staff member, who had flown to Adelaide from Sydney.
This briefing arose as a consequence of Alsco management discovering what it believed were serious irregularities in respect of emails sent by Mr Adamczak, on Alsco’s electronic mail system, which were considered to constitute a serious breach of the respondent’s internet and electronic mail use policy, which had been circulated to all Alsco staff, including Mr Adamczak.
In addition and more significantly, Alsco had reason to believe that Mr Adamczak had circulated its confidential information to other parties in breach of a confidentiality and restraint agreement, which he had executed, on his commencement with the firm.[5]
[5] See Exhibit C
In the circumstances, it is Alsco’s position that it had a legally justifiable reason for taking adverse action against Mr Adamczak, which does not involve any of the protective provisions of the FWA.
It is the respondent’s case that a proper analysis of the evidence of its managerial team, leading up to the ultimate decision-maker, Mr Hickin, will reveal that it cannot be established, by Mr Adamczak, that any aspect of the decision in question has been tainted by any flavour of illegality.
In all these circumstances, it is Alsco’s position that it was entitled to summarily dismiss Mr Adamczak, without any provision to him of notice or redundancy pay, because his employment was terminated because he had committed serious misconduct whilst in its employ, within the parameters envisaged by section 123(1) of the Act.
In addition, Alsco denies that it has breached any contract with Mr Adamczak, arising from its agreement with him to pay incentive payments, relating to reductions in the company’s workers’ compensation insurance premiums.
Its position being that Mr Adamczak has been paid all the monies due to him both before and after the incentive scheme was modified, which modification was anticipated in the contract of employment between it and the applicant.
These reasons for judgment are directed to resolving these various disputes between the parties concerned, after a three day hearing, which occurred in Adelaide. Mr Adamczak represented himself during this trial and following, when submissions were taken from each of the parties concerned.
It is further Mr Adamczak’s position that the entire trial process, before this court, was flawed as a consequence of his self-representation and therefore this case too has been fundamentally unfair to him. Shortly prior to the commencement of the trial, Mr Adamczak sought the adjournment of the case. This adjournment application was refused.[6]
[6] See Adamczak v Alsco [2017] FCCA 3550
Given the failure of his adjournment application, it is Mr Adamczak’s position that it was close to impossible for him to conduct his own case and therefore any conclusions reached by the court about the matter and Alsco’s behaviour towards him will be based on dubious premises and, as such, erroneous.
Background
Alsco is a large corporation, which operates throughout Australia. Its main business is as an industrial laundry, washing linen and work wear for its various customers. It also provides services to enable other customers to maintain clean and sanitary washrooms at their premises.
Relevant to these proceedings, Alsco operates an industrial laundry at 2 Coglan Street, Hindmarsh, which provides laundry and ironing services for soiled textile products, for its various customers. In addition, it operates a business known as Fresh & Clean, located at 1/31 Barnes Road, Glynde, which provides commercial washroom products to commercial customers.
Mr Adamczak has no formal qualifications in the area of work health and safety or worker’s compensation. However, he has worked in industry, in South Australia, for more than twenty years and, during this period, developed an extensive knowledge of the legislation relating to worker’s compensation claims in South Australia and how claims for worker’s compensation could be efficiently handled. This experience included forming relationships with stakeholders in the worker’s compensation insurance field.
Prior to his employment with Alsco, Mr Adamczak was employed by a firm known as Viscount Plastics, as its HR manager, for approximately ten years. Mr Adamczak left Viscount at around the time of the global financial crisis. Thereafter, in May of 2009, he was engaged by an employment provider to provide payroll services to Alsco, at its main Adelaide laundry, as a subcontractor.
Thereafter, senior management at Alsco, particularly its national human resources and workplace health & safety manager, Joy Whitelaw and the then general branch manager at Adelaide, Steven Cullinan, became aware of Mr Adamczak’s previous experience in managing worker’s compensation claims, from the perspective of management, under the applicable South Australian legislation.
In this context, in November of 2009, Alsco offered Mr Adamczak a position as HR/OH&S coordinator (Adelaide), which Mr Adamczak accepted on 6 November 2009. His salary was $65,000 per annum. In addition, under the heading incentive, the offer of employment accepted by Mr Adamczak, included the following:
“a) 5% of WorkCover rebates achieved over the year,
b) 5% of the dollar value of any annual decrease in WorkCover premiums from the current level of 7.5%.
It is anticipated that this incentive scheme will need to be reviewed by December 2010 to provide an equitable access to an ongoing incentive. We discussed the possibility of an ‘injury free month’ bonus as an example.”[7]
[7] See annexure 1 to the affidavit of the applicant filed on 23 December 2015
The offer of employment was signed by Mr Adamczak and by Mr Callinan, who appears to have been instrumental in negotiating its terms. Mr Adamczak asserts that Alsco has breached its contractual obligations to him arising from the incentive scheme, outlined in the offer of employment dated 5 November 2009. Later, there is no apparent controversy that, in conjunction with his employment contract, Mr Adamczak and Mr Cullinan, on behalf of Alsco, executed a standard document entitled Confidentiality and Restraint Agreement. Amongst other things the agreement required:
“The employee shall keep confidential all Confidential Information confidential and secret.”
The expression Confidential Information is compendiously defined as follows:
“1.2 the Confidential Information includes:
1.2.1 all trade secrets, secret or confidential operations, processes or dealings, or any information concerning the Employer or is clients or customers, including any information in respect of the business, finances, transactions or affairs of the Employer or its clients or customers (including without limitation concerning the Employer’s or its customers’ or clients’ policies and membership) and any record of such information, whether recorded electronically or in any other form;
1.2.2 any notes, memoranda, computer data or records or other recorded information, relating to any matter within the scope of the business of the Employer or its members or concerning any of the Employer’s or its clients’ or customers’ dealings or affairs which may come or have come to the Employee’s knowledge or possession or have been generated by the Employer or its clients or customers or the Employee during the employment and any record of such information, whether recorded electronically or in any other form;
1.2.3 any information relating to improvements of or modifications or changes to the Confidential Information;
1.2.4 any information designated by the Employer as confidential and any record of such information, whether recorded electronically or in any other form.”[8]
[8] See exhibit C
Alsco’s position is that the employment agreement was not particularly well drafted and, on its face, envisages a re-negotiation in December 2010. It asserts that the agreement was subsequently changed, after consultation with Mr Adamczak and he has been paid his entitlements under both the initial and revised schemes.
It is Mr Adamczak’s evidence that his duties were to be performed at both Alsco’s industrial laundry at Hindmarsh and at the premises of Fresh & Clean in Glynde. The agreement does not make this clear, particularly in terms of the incentive scheme.
Employers in South Australia are required to pay worker’s compensation insurance premiums based both on the value of their payroll overall and also according to the classic vocation of the particular industry in which they operate. Industries which have a greater propensity for industrial accidents or injury are classified differently to industries which do not and, for obvious reasons, attract a higher premium.
In addition, employers which are able to demonstrate extended periods without industrial accidents or injuries may be able to obtain a reduction in premiums as a consequence of engaging in responsible occupational health and safety practices.
It is Mr Adamczak’s evidence that Alsco were attracted to him because it believed that his expertise would be useful in managing its relationship with its worker’s compensation insurer, particularly in terms of how various components of its business were classified and achieving some reductions in its premiums.
In particular, Alsco was interested in exploring whether the Clean & Fresh aspect of its business, which is significantly different in nature to its industrial laundry, could be classified differently for worker’s compensation purposes.
In addition, controversies can arise as to how a worker’s injury is actually classified for worker’s compensation purposes, particularly in the sense of whether the injury concerned is a new one or is an aggravation of an existing injury.
Again, depending on whether the injury in question is characterised as a primary disability or as a secondary disability the amount payable by an employer to its insurer may be different. It is Mr Adamczak’s evidence that he had significant success in re-classifying the injuries of a number of Alsco’s employees for worker’s compensation purposes.
In this context, it is Mr Adamczak’s evidence that he performed the following duties, on a day to day basis, for Alsco:
·Managed worker’s compensation claims, arising from both Alsco’s industrial laundry and the Fresh & Clean business;
·Reviewed and investigated worker’s compensation claims in order to assess whether the employee’s disability could be related to a prior injury or a pre-existing condition;
·Liaised with Alsco’s worker’s compensation insurer regarding potential re-coding of levels of disability;
·Engaged in a process with relevant South Australian worker’s compensation insurance authorities to seek a premium review for Alsco and its various businesses.[9]
[9] See affidavit of the applicant (ibid) at paragraph 24
In addition, the applicant attended to payroll inquiries, particularly from employees who were receiving worker’s compensation payments as a consequence of injuries. He was also responsible for implementing and monitoring health and safety considerations within the workplace at Alsco.
At the time of the applicant’s employment commencement at Alsco, Mr Callinan was its branch general manager. He was subsequently replaced by Paul Shilabeer, who held this position at the time of Mr Adamczak’s termination. Previously, Mr Shilabeer was branch general manager for the Fresh & Clean business.
Mr Callinan has left the employ of Alsco. He did not provide any evidence in these proceedings. At relevant times, both Mr Callinan and Mr Shilabeer reported to Robert Carlile. Mr Carlile was Alsco’s regional general manager, based at its head office in central Sydney. MrCarlile is now general manager of Alsco. He provided an affidavit in these proceedings, but was not cross-examined.[10]
[10] See affidavit of Robert Bruce Carlile filed 15 June 2016
It is Mr Carlile’s evidence that Mr Callinan approached him with the proposal that Mr Adamczak be employed with the view of seeing if, through Mr Adamczak’s expertise, Alsco’s South Australian WorkCover premiums could be reduced. It was Mr Carlile’s understanding that this would be the focus of Mr Adamczak’s employment with Alsco and he would not be responsible for HR or be a part of the principle management team in Adelaide.
It is Mr Carlile’s evidence that he was aware, to some extent, of some of Mr Adamczak’s efforts to reduce Alsco’s worker’s compensation premiums, but largely left these matters to the staff in Adelaide. Mr Carlile also concedes that there were some successes in reducing premiums, which was attributable to the efforts of Mr Adamczak.
In April 2010, Mr Carlile was informed by Mr Shilabeer that he (Mr Shilabeer) proposed to pay a bonus to Mr Adamczak as a consequence of the latter’s successful reclassification of the Fresh & Clean business, which had led to a re-classification of its worker’s compensation classification.
It is Mr Carlile’s evidence that he approved the payment but was unaware that the payment had any contractual justification. Mr Carlile also confirms that he was copied into emails, which indicated Mr Adamczak was reporting some tensions between him (Mr Adamczak) and other staff members in Adelaide, particularly Mr Callinan.
Joy Whitelaw was, at relevant times, employed by Alsco as its national human resources and workplace health & safety manager. She was also based at Alsco’s head office in Sydney, but visited Adelaide at least twice yearly. She has filed an affidavit in these proceedings and given additional evidence to the court.[11]
[11] See affidavit of Joy Whitelaw filed 15 June 2016
Ms Whitelaw was involved in the decision to employ Mr Adamczak. She was responsible for the national management of all worker’s compensation claims affecting Alsco employees. In her evidence, she conceded that she did not have a significant level of familiarity with the South Australian legislation, which she regarded as being unique, so far as Australia was concerned.
It is Ms Whitelaw’s evidence that Mr Adamczak was employed to focus on work health and safety matters, not HR. She attributes the inclusion of a reference to HR, in Mr Adamczak’s offer of employment, to be an unauthorised aberration, which she can only attribute to a decision made by Mr Callinan.
In addition, it is her evidence that this appointment was not consistent with the national practice of Alsco, which oversaw all HR issues from its Sydney headquarters. Ms Whitelaw was not involved in the preparation of Mr Adamczak’s contract, which was drafted by Mr Callinan.
In her affidavit, Ms Whitelaw deposes as follows, in respect of Mr Adamczak’s employment.
“… the applicant was hired to focus on safety within the Hindmarsh branch and to manage the worker’s compensation claims. The WHS focus was to ensure that further injuries were prevented, which in turn would prevent further worker’s compensation claims being lodged. This would be done by emphasising safety in the workplace and ensuring adequate measures were put in place to avoid the risk of injury.”[12]
[12] Ibid at [27]
It is Ms Whitelaw’s evidence that she became increasingly concerned that Mr Adamczak was spending too much time on attempting to re-classify the injuries of Alsco employees, who were subject to worker’s compensation claims, rather than on the prevention of further injuries in the workplace.
It is her evidence that, on occasions, she also counselled Mr Adamczak that HR matters were not within his remit. It is also Ms Whitelaw’s evidence that she indicated to Mr Adamczak that she was concerned that he was working out of hours and taking work home¸ which was not authorised by Alsco policy. From her perspective, conventional offices hours should have been more than adequate for Mr Adamczak to complete his duties.
In October of 2011, Ms Whitelaw conducted an audit of safety procedures at the main Alsco laundry facility in Adelaide. As a consequence of her audit, she was concerned that there were significant gaps in Alsco’s OH&S procedures in Adelaide. She raised her concerns with Mr Carlile, who referred them on to Mr Callinan for his attention.
Ms Whitelaw further deposes as to her perception, which crystallised in early 2012, that Mr Adamczak was not handling WorkCover matters at Alsco effectively. These concerns related to her view that Mr Adamczak had not responded appropriately to an industrial accident, at the laundry, in 2009 and further she herself had received complaints, via Alsco’s insurance broker, that its worker’s compensation insurer in Adelaide had complained that Mr Adamczak had bullied one of its claims officers.
Mr Shilabeer replaced Mr Callinan in October of 2012. This change coincided with decisions made by Mr Carlile, in conjunction with Mr Shilabeer and Ms Whitelaw, to finalise Alsco’s proceedings before the WorkCover Premium Review Panel of South Australia, which, in effect challenged the assessment of the company’s worker’s compensation insurance, particularly the calculation of various levies to which it was subject. Mr Adamczak, in conjunction with Mr Callinan, had been the major protagonist of this litigation.
It is Mr Shilabeer’s evidence that, whilst he was branch manager of Fresh & Clean, controversy arose between him and the applicant as to whether Mr Adamczak was entitled to any incentive payments, regarding the re-classification of that business for worker’s compensation purposes. In particular, Fresh & Clean had been originally classified as a laundry business, analogous to Alsco, when in actual fact its business was totally different, as it was conducted in a less hazardous industrial environment.
Mr Shilabeer’s position was that he had not been a party to the contract between Alsco and Mr Adamczak, which had been drafted by Mr Callinan. In addition, the offer of employment itself did not specifically nominate Fresh & Clean as being relevant to it. Mr Shilabeer was also of the view that the document in question was poorly drafted, without any specific commencement or conclusion date.
From his perspective, Mr Adamczak “was only doing his job” in reviewing the various compensation matters for which he had been employed. Notwithstanding these concerns, Mr Shilabeer and Mr Carlile approved a payment of approximately $8,000.00 to Mr Adamczak for the re-classification of Fresh & Clean, in December 2010, on a one off basis.
Mr Shilabeer was not greatly involved in the proceedings before the WorkCover Premium Review Panel, prior to his appointment as the general manager of Alsco in October 2012. On 5 December 2012, the panel delivered its decision in respect of the various applications instigated by Alsco regarding the recoding of its worker’s compensation matters from primary to secondary claims.
Alsco was unsuccessful in respect of its various applications, which were out of time. In this context, Mr Carlile deposed as follows:
“After the court proceedings were commenced and I observed the growing legal costs and time spent on the matter, I did not consider it worthwhile to continue incurring costs when it became apparent over time that the amount of the recovery was unlikely to be as significant as originally had been expected. Despite originally saying to me that a large amount of money would be recovered from WorkCover, on every subsequent occasion when I spoke with the applicant, the amount that he would tell me could be recovered became smaller and smaller.”[13]
[13] See affidavit of Robert Carlile at [38]
Mr Shilabeer agreed with this assessment and, in May of 2013, Alsco compromised its action with WorkCover, receiving a settlement sum of just over $50,000.00. In July 2013, Mr Shilabeer, in consultation with Mr Carlile, arranged for Mr Adamczak to receive payment in an amount of $11,746.91, which, from Alsco’s perspective, reflected the applicant’s entitlement to any incentive payment arising from the now compromised re-classification process.
As a consequence of the settlement of its action, Alsco was no longer in a position to challenge its previous claim history with WorkCover or re-code any of its previous claims. In addition, issues to do with the re-classification of Fresh & Clean had also been resolved. In these circumstances, Mr Carlile, Mr Shilabeer and Ms Whitelaw were of the view that it was necessary for Mr Adamczak to be more focussed, in his employment, on actual work health and safety matters, in the workplace, rather than on financial matters relating to the payment of premiums.
In Mr Shilabeer’s view, the incentive scheme implemented by Mr Callinan had become redundant. In any event, from his perspective, it lacked clarity and was poorly written. In addition, on its face, it was subject to renegotiation. In these circumstances, in consultation with Ms Whitelaw, he elected to implement a new incentive scheme for Mr Adamczak.
This scheme was formulated in consultation with Ms Whitelaw. She drafted a list of key performance indicators, “KPI” which she expected the Adelaide work health and safety manager to achieve and allocated a percentage weighting to each of them, which would be relevant to the calculation of any incentive payment to be made. The KPIs were focussed on the implementation of successful branch safety; the implementation of training; and other aspects of risk management.
Mr Shilabeer discussed the new incentive scheme with Mr Adamczak in June of 2015. On Mr Shilabeer’s calculation, if Mr Adamczak achieved each of the applicable KPIs each year, he would be entitled to a maximum bonus of $4,800.00 per annum. Clearly, this was a lesser sum than the moneys Mr Adamczak had hitherto received in respect of the previous incentive scheme.
Arthur Frank Taras is the administration manager for Alsco. He has provided an affidavit for these proceedings.[14] He commenced with Alsco in November 1979. He reports to the branch general manager, initially Mr Callinan and more recently Mr Shilabeer. He is responsible for the production requirements of Alsco’s Adelaide branch, which includes the following:
·Billing customers;
·Processing accounts;
·Bookkeeping and administration of the business, including oversight of worker’s compensation claims;
·Calculation and payment of any commissions for bonuses payable to staff within the Adelaide branch.
[14] See affidavit of Arthur Andrew Frank Taris filed 15 June 2016
As a consequence of his responsibilities, Mr Taras was involved with Mr Shilabeer and Mr Adamczak, when Mr Adamczak’s new incentive scheme was implemented. Mr Taras concedes, in his evidence, that prior to Mr Adamczak’s employment, worker’s compensation claims, within the Adelaide branch, were not well managed and, as a consequence, the firm paid greater premiums that it should have. Mr Taras was also possible for the calculation of Mr Adamczak’s incentive payments under the initial scheme.
It is Mr Taras’ evidence that he understood the incentive scheme, contained in the offer of employment to Mr Adamczak, drafted by Mr Callinan, entitled the applicant to 5% of all rebates issued by WorkCover, as a consequence of its reclassifications of claims or due to a reduction in premium, but not as a consequence of any overpayment by Alsco as a consequence of its over-estimate of its payroll.
Between 2009 and December of 2010, Mr Taras calculated various bonuses, which were paid to Mr Adamczak. These related to the reclassification of claims and also to the change of worker’s compensation status of Fresh & Clean, as well as for Quality Drycleaners, another business owned by Alsco. Initially Mr Callinan approved these payments and then more recently Mr Shilabeer.
Mr Adamczak’s new incentive scheme commenced on 1 July 2013. Mr Shilabeer indicated to Mr Adamczak that he, Mr Taras and the applicant would meet each month to discuss the achievement of the KPIs specified by the new agreement and whether Mr Adamczak was on course to achieve his bonuses.
In this context, it is the evidence of both Mr Shilabeer and Mr Taras that the applicant complained that the KPIs were not achievable and he (the applicant) was meeting resistance from staff at Alsco’s laundry facility in Adelaide in meeting the health and safety objectives on which his bonuses depended.
As indicated above, it is the evidence of Ms Whitelaw that her work health and safety audit of the Adelaide plant indicated that Mr Adamczak had difficulties in implementing proper occupational safety procedures. Mr Shilabeer was also concerned with some aspects of Mr Adamczak’s performance in this area believing that he was hypersensitive to criticism and unduly focussed on reclassification issues, when management’s concern was more on injury prevention.
It is Mr Shilabeer’s evidence that he believed the various KPIs set for Mr Adamczak were readily achievable and did not greatly rely on the input of other managers at the Alsco laundry. In this context, Mr Shilabeer deposes as follows:
“The Applicant’s incentive scheme required the input or involvement of the managers in 20% of his targets at the very most. At least 80% of the scheme involved the completion of tasks by the Applicant alone and was very much within his control and didn’t require outside assistance or involvement. In so far as those tasks which were only able to be completed with some kind of external contribution or assistance, such as the involvement of the managers, I had stressed to the Applicant that he was required to follow up with the managers and if he encountered resistance, he ought to email the manager and include myself in the email and I would then intervene. The Applicant did not ever include me in any such email.”[15]
[15] See affidavit of Paul John Shillabeer at paragraph 115
Mr Adamczak felt the new scheme was unfair to him and voiced his concerns in a lengthy email to Mr Shilabeer dated 1 July 2014. In particular, Mr Adamczak complained that he would not be able to earn a similar amount of bonuses, under the new scheme, than he had under the original one. Mr Shilabeer does not accept that this was so.
It is his evidence that Mr Adamczak had earned $16,599.16 between the commencement of his employment and 1 August 2013 or approximately $4,527.00 per year. Under the new scheme, Mr Adamczak had the potential to derive approximately $500.00 per month or $6,000.00 per annum.
On 2 May 2014 there was an incident between Mr Adamczak and Brenton Lemon on the laundry floor. Mr Lemon is the production manager at Alsco’s Adelaide laundry. He began at Alsco in early 1996 and reports to Mr Shilabeer. He has filed an affidavit of evidence in these proceedings.[16]
[16] See affidavit of Brenton James Lemon filed 15 June 2016
Mr Lemon is responsible for overseeing the production floor. There are approximately 68 employees operating machinery on the floor at any given time. Mr Lemon’s responsibilities are to ensure that the laundry processes are conducted efficiently and safely. In particular, he is responsible for ensuring that all staff use machinery properly, so as to avoid the risk of injury.
Mr Lemon concedes that there were tensions in the relationship between him and Mr Adamczak from time to time. Specifically, Mr Lemon acknowledges that he complained to Mr Callinan that staff members were going directly to Mr Adamczak, rather than him, to request light duties due to injury and this had impacted upon the efficiency of the laundry overall. Mr Lemon and Mr Adamczak interacted frequently with one another in respect of issues to do with employees who were in receipt of worker’s compensation.
The incident between Mr Adamczak and Mr Lemon, of 2 May 2014, centred on the operation of an ironing machine on the factory floor. Early that morning, Mr Adamczak received a telephone call, from a staff member in the plant, complaining that aprons were being improperly fed into the ironing machine, which potentially posed a danger to staff.
As a consequence of this report, Mr Adamczak went to the machine in question. Mr Lemon was already there. It is his (Mr Lemon’s) position that Mr Adamczak went directly to the worker in question, without referencing him first.
In this context, Mr Lemon’s asserts that the appropriate protocol, in the event of unsafe condition report being lodged, is that Mr Adamczak should have raised the issue with him as the first point of contact. He said as much to Mr Adamczak at the ironing machine. Thereafter, there was a verbal altercation between the two individuals concerned.
Later that morning, Mr Adamczak made a formal complaint to Mr Shilabeer, via email. He accused Mr Lemon of yelling at him because he had spoken directly to the supervisor rather than him. He further complained that he had received this same treatment from Mr Lemon on several occasions in the past.
Mr Shilabeer tasked Mr Taras to investigate Mr Adamczak’s report, as he (Mr Taras) had been appointed by Alsco’s head office to be the investigation officer for bullying complaints, at the Adelaide plant. Mr Taras deposes that he had received some training, in this area, but this was the first formal compliant with which he had had to deal. He sought advice from Ms Whitelaw in respect of it.
Mr Taras interviewed Mr Adamczak, Mr Lemon and the supervisor to whom the applicant had spoken during the incident of 2 May. The supervisor indicated that she had neither seen nor heard anything concerning. Mr Adamczak alleged that Mr Lemon had spoken to him in abusive terms and in a loud voice. Mr Taras further asked Mr Adamczak, if he had any other complaints to make, in respect of Mr Lemon’s previous conduct towards him.
In response to this question, Mr Adamczak indicated that Mr Lemon had previously stormed out of a safety meeting saying words to the effect of “he wasn’t going to put up with this shit any more”. Mr Adamczak also alleged that Mr Lemon had bullied other workers. Mr Taras was disinclined to investigate these complaints, as they were not related to Mr Adamczak personally.
Mr Lemon indicated to Mr Taras that the conversation between him and Mr Adamczak had been a little heated. Mr Lemon had wished to know the identity of the person who had made a complaint to Mr Adamczak. Mr Lemon concedes that he became frustrated at the situation. It is his position that both men were angry and each swore at the other. He denied having any recollection of the safety meeting incident, raised by Mr Adamczak to Mr Taras.
Ultimately, in his written response to the complaint raised by Mr Adamczak, Mr Taras concluded that there was no evidence of bullying. Rather, in his assessment, both individuals were in the wrong and each had behaved inappropriately by swearing and yelling at the other. He recommended that Mr Lemon attend a conflict resolution course and an in-house Alsco management course.
On 14 May 2014, Mr Taras wrote to Mr Adamczak to finalise his (Mr Adamczak’s) bullying and intimidation complaint concerning Mr Lemon. He summarised this complaint as being that Mr Lemon had yelled and ranted at him, when he had gone to investigate a potential breach of safety procedures in respect of the ironing machine.
In response to this complaint, Mr Taras indicated to Mr Adamczak that he was satisfied that the allegations raised by him had been appropriately investigated and dealt with and no further action was warranted.
On 21 March 2014 Mr Adamczak registered and incorporated a company entitled Injury Management SA Pty Ltd. It provides worker’s compensation claims management on behalf of its clients. Mr Adamczak concedes that he commenced working in his business approximately seven or eight months prior to being terminated by Alsco because he wanted to be able to earn more money, particularly in the context of his view that he was not being paid the same level of bonuses as previously.[17]
[17] See affidavit of the applicant filed 3 December 2015 at [151] – [152] *** check December date
On 23 July 2014, Mr Adamczak approached Mr Shilabeer in his office to complain of bullying. This bullying allegedly related to Mr Callinan; Ms Whitelaw; Mr Carlile; and Mr Taras. Mr Adamczak also made complaints against Alsco’s worker’s compensation insurer. In this context, Mr Adamczak indicated that he had been diagnosed with stress and anxiety, approximately six months after having started with Alsco, because he had been subject to bullying by these various nominated individuals in the workplace.
As a consequence of these complaints, which Mr Shilabeer regarded as being serious, he contacted Allison Freeman. Ms Freeman was employed by Alsco as its national human resources advisor. She was based at Alsco’s head office and previously reported to Ms Whitelaw. Ms Freeman has filed an affidavit in these proceedings.[18] She ceased employment with Alsco on 23 December 2016.
[18] See affidavit of Allison Clare Freeman filed 16 June 2016
Mr Shilabeer had asked Mr Adamczak what he wished to do about these matters. It is Mr Shilabeer’s evidence that Mr Adamczak indicated that he did not want to take any action whatsoever, particularly in terms of supporting Alsco investigating his complaints. From Mr Shilabeer’s perspective, this was not appropriate, given the overall circumstances, particularly how upset Mr Adamczak had appeared to be. It was for this reason that he sought counsel from Ms Freeman.
Ms Freeman agreed with Mr Shilabeer’s assessment that an independent inquiry was the best approach to Mr Adamczak’s complaints, from both his perspective and that of Alsco. In particular, Mr Shilabeer felt uncomfortable about not doing anything about the matter. In these circumstances, he asked Ms Freeman to draft a letter to Mr Adamczak formally outlining Alsco’s proposal for an independent investigation to take place. This letter was sent to him later on the 23rd of July 2014.
It is Mr Shilabeer’s evidence that, apart from the incident involving Mr Lemon, he was unaware of any previous complaints of the applicant regarding bullying in the workplace. In addition, Mr Shilabeer deposes that the applicant had not previously raised with him any concerns relating to him suffering stress or anxiety at work. Certainly, there is no evidence Mr Adamczak had previously formally made any work health complaints to Alsco prior to 23 July 2014.
Medical records obtained in respect of Mr Adamczak indicated that he did consult his general medical practitioner in respect to concerns relating to stress in the workplace and medical certificates were issued. However, Mr Adamczak chose not to proceed on them.
The next day, which was a Thursday, Mr Adamczak was based at Fresh & Clean. Mr Shilabeer elected to contact him by telephone to discuss the conversation of the previous day and the correspondence which had issued as a result of it. Mr Shilabeer took contemporaneous notes of his conversation with Mr Adamczak. He was concerned about the applicant’s emotional tone and the contents of his conversation, particularly Mr Adamczak’s comment that:
“People can be driven to desperate measures. I am prepared to make the ultimate sacrifice to get to the truth. If something happens to me, there are plenty of people who know the facts. You should go and ask all these people to tell you the truth.”
For obvious reasons, Mr Shilabeer was concerned that this statement might indicate that Mr Adamczak was contemplating doing harm to himself. In these circumstances, he reiterated his offer of an independent investigation of Mr Adamczak’s complaints, which again Mr Adamczak rebuffed, indicating that he was going to see his lawyer and then is doctor and would therefore not be returning to work that day. Mr Adamczak also indicated that it was unlikely he would be at work the following day.
In these circumstances, Mr Shilabeer again contacted Ms Freeman. They decided to wait until the following day to see if Mr Adamczak reported to work. At the time, both considered this to be unlikely given what Mr Adamczak had said to Mr Shilabeer, particularly his (Mr Adamczak’s) parting comment that he was in a “bad place”.
Mr Adamczak did not report for work on 25 July 2014. Mr Shilabeer reported this fact to Ms Freeman. Ms Freeman consulted Ms Whitelaw. It is Ms Freeman’s evidence that, given the circumstances of Mr Adamczak’s departure from the workplace, she formed the view that it was unlikely he would be returning to his position, at Alsco, in the short to medium term. In her affidavit, Ms Freeman deposes as follows:
“One of the methods the business has of supporting those suffering from mental health issues is to redirect emails or redirect mobile phones for those team members who receive multiple customer inquiries such as sales executives or service account managers. Generally the redirection is to their direct manager/managers … ”[19]
[19] See affidavit of Ms Freeman at [53]
In these circumstances, Ms Freeman sought Ms Whitelaw’s approval to gain access to his Alsco email account. She indicated to Ms Whitelaw that she wished to do so, so that any “urgent worker’s comp or return to work stuff” could be managed by her whilst Mr Adamczak was away from work, which Ms Freeman believed to be a reasonably lengthy period of time. Ms Whitelaw gave her approval for this course.
As a consequence, Ms Freeman tasked the IT department of Alsco to facilitate her access to Mr Adamczak’s Alsco email account. The use of Alsco’s electronic mail system, by its employees is subject to policy, issued by its information technology department and circulated to all employees. The policy provides as follows:
“Internet access is provided to employees and contractors of Alsco Pty Ltd as a business communication tool. Acceptable uses of the internet include information gathering, marketing and communication for Alsco Pty Ltd’s business purposes only. Internet mail messages are not private communications and may be viewed at any time. …
Alsco Pty Ltd has the right to monitor all aspects of its computer system, including monitoring sites that employees and contractors visit on the internet, monitoring access to chat rooms and music groups and viewing material downloaded or uploaded and emails sent by employees. Any right to privacy in anything an employee or contractor may create, store, send or receive on Alsco Pty Ltd’s computer system is waived.”[20]
[20] See Alsco Internet and Electronic Mail Use Policy at annexure AF11 to the affidavit of Ms Freeman
The email, by means of which Ms Freeman sought access to Mr Adamczak’s Alsco email account was sent to Alsco’s IT Helpdesk and was in the following terms, under the heading “Urgent – George Adamczak.
“Hi All, could you please arrange for Paul Shilabeer to have access to George’s emails? He is off work and we need to deal with any worker’s comp and return to work issues in his absence.”[21]
[21] Ibid at annexure AF-13
Mr Shilabeer and Ms Freeman obtained access to Mr Adamczak’s email account at some time during 25 July 2014. As a consequence, Ms Freeman discovered that Mr Adamczak had sent a significant number of emails to his own personal email address, which included correspondence sent to outside individuals.
In Ms Freeman’s assessment, some of this email was confidential to Alsco and its employees. She was particularly concerned that information had been sent to a solicitor, who was not known to Alsco. From her perspective, it appeared that Mr Adamczak had breached Alsco’s IT policy.
Ms Freeman discussed her concerns with Ms Whitelaw and was directed by her to investigate further. In this context, Ms Freeman deposes as follows:
“I then went through the contents of the emails in the outbox in greater detail and discovered many emails which had been sent to third parties as well as to the Applicant’s personal email address and confirmed that they contained confidential and commercially sensitive information about the business of the Alsco and individual staff members, including medical records and pay information.[22]
[22] Ibid at [66]
Ms Freeman informed Ms Whitelaw and Mr Shilabeer of what she had discovered. Ms Whitelaw confirmed to her that the lawyer, about whom Ms Freeman was concerned, was not known to her. Ms Whitelaw further confirmed that she had, in the past, instructed Mr Adamczak not to work from home.
In this context, Ms Freeman indicated her concern to Ms Freeman that there was no apparent explanation as to why Mr Adamczak would be sending Alsco payroll details, employee medical reports and information from its worker’s compensation insurer to a lawyer, who was not retained by Alsco and at first blush it represented a breach of Mr Adamczak duty to maintain confidentiality in respect of Alsco’s information.
On 29 July 2014, a meeting was convened in Alsco’s Sydney boardroom. Present at the meeting were Mr Hickin, Ms Whitelaw and Sam Ingui, who is Alsco’s in-house legal advisor. At the meeting, the approximately 300 emails, about which Ms Freeman was concerned were displayed on the boardroom projector and each was examined one at a time. At the end of the meeting, it was agreed that Ms Freeman would travel to Adelaide the next day to discuss the various emails directly with Mr Adamczak. In a formal sense, Mr Hickin, who was the senior management person at the meeting directed that this should occur.
At the same time, Ms Freeman directed the IT staff at Alsco to prevent Mr Adamczak accessing his email account remotely or his mobile phone. At the time, she was concerned at the possibility that the emails in question might be remotely deleted.
Mr Adamczak returned to work on 28 July 2014. He provided Mr Shilabeer with a medical certificate indicating that he had been absent from work between 24 July and 27 July due to suffering a reactive anxiety state/depression as a consequence of intimidation, accusation, bullying.[23]
[23] See affidavit of Paul Shilabeer at annexure PS-47
Later that day, Mr Shilabeer was advised by head office that Ms Freeman had been despatched to Adelaide to discuss the email issue with Mr Adamczak and would arrive on 30 July.
Ms Freeman arrived in Adelaide around midday on 30 July 2014. Mr Adamczak was already at work and was taken into a meeting with her and Mr Shilabeer at the outset of which Mr Freeman raised with him the issue of the 300 emails, located in his out box.
Initially, Mr Adamczak denied any knowledge of the emails and requested access to his computer. Ms Freeman indicated that she would prefer if he remained with her. Notwithstanding this request, Mr Adamczak left the room and went to his office, where he opened his email account and revealed it to be empty.
At this point, Ms Freeman informed him that the IT Helpdesk had backed up the emails the previous night and Alsco remained concerned that confidential information had been sent by Mr Adamczak to both his home and third parties. When asked why he had sent the material in question, Mr Adamczak replied “Protection”.
The meeting was a difficult and emotional one. Mr Adamczak raised concerns that Ms Whitelaw and Alsco’s worker’s compensation insurer were out to get rid of him. Mr Adamczak again indicated that people could be driven to do desperate things. From Ms Freeman’s perspective, the explanations provided by Mr Adamczak were unsatisfactory and evasive.
The meeting ended abruptly when Mr Adamczak elected to leave it. This was in spite of Ms Freeman’s direction to him to remain in the meeting room whilst further inquiries took place. On leaving, Mr Adamczak indicated his view that the outcome was determined and Alsco should just send him a letter. Ms Freeman warned him of the risk of termination, if he failed to follow her direction but Mr Adamczak left nonetheless.
Following Mr Adamczak’s departure from Alsco’s premises, Ms Freeman arranged a further conference call with Ms Whitelaw, Mr Hickin and Mr Ingui from Alsco’s head office in Sydney. Mr Hickin was the senior managerial person at this meeting.
Ms Freeman informed Mr Hickin and the others that she had met with Mr Adamczak and asked him about the emails, which he had admitted sending but without providing any explanation, which Ms Freeman assessed as being reasonable. Ms Freeman also informed the others that Mr Adamczak had left the meeting notwithstanding her direction that he should remain.
All Alsco employees are required to execute a confidentiality agreement at the outset of their employment. In this sense, no distinction was made between Mr Adamczak and other of Alsco’s employees. After having viewed the emails in question previously, Mr Hickin was concerned that Mr Adamczak had breached this agreement. Following the briefing from Ms Freeman, he determined that given the serious implications of Mr Adamczak’s conduct, Alsco had no alternative other than to terminate his employment.
Mr Hickin deposed as follows, in his affidavit:
“To my mind, the applicant’s actions were a significant breach of company policy and he had offered no explanation which could reasonably explain his conduct. Additionally, the fact that he had walked out of the investigation and refused a reasonable direction to remain for the purpose of discussing the matter further, to my mind, showed a refusal on the part of the applicant to be bound by the terms of his employment.”[24]
[24] See affidavit of Mr Hickin at [28]
It is Mr Hickin’s evidence that he was not aware, prior to the decision of 30 July 2014 to terminate Mr Adamczak’s employment or that Mr Adamczak had complained of being bullied in the workplace, either by Mr Lemon or any other person. It is also Mr Hickin’s evidence that he had not previously been introduced to Mr Adamczak, although he may have met him during one of his visits to the Adelaide plant.
On 30 July 2014, Alsco arranged for a termination letter to be sent, via courier, to Mr Adamczak’s home. The letter was under the hand of Mr Shilabeer. The letter was in the following terms:
“I refer to my meeting with you and Allison Freeman today in which you were asked questions about numerous emails containing commercially confidential and sensitive personal information belonging to Alsco Pty Limited (Alsco) that has been sent from your Alsco Outlook email account to your private email account and to third parties. The emails in question were located in the Outbox folder of your Alsco account. I note that you admitted that you were responsible for sending these identified emails.
Alsco recently became aware that these emails had been sent from your email account and was concerned as it considered that you may have acted contrary to its Information Technology Policy (IT Policy) and your confidentiality obligations both pursuant to the Confidentiality and Restraint Agreement dated 1 November 2009 (Agreement) and also as implied at law.
Alsco became aware that the disclosure of such material in the emails you now admit were sent by you included such things as:
·personal employee information like medical reports and certificates of numerous employees
·commercially sensitive information like insurance premium histories and calculations
·advice to third parties (All Staff) about secondary claims that impact on Alsco such as the Reuser matter.
Such information has been sent to third parties without the consent of either Alsco or any of the persons the subject of the medical reports.
Your response initially that you could not answer whether you sent them or not, followed by your admission that you deliberately chose to send this information outside of the Alsco Pty Ltd network and to third parties as "protection" from future criticism is unacceptable.
Breaches
Having considered the disclosures from your email account and the inadequate/unacceptable nature of your explanations, Alsco consider that you have breached
1. your duty as an employee to maintain its confidential information. This duty is not just in the Agreement that you signed in paragraph 2 but it is also in your common law duty as an employee
2. the lT policy in that you have used its systems for a purpose other than for the business Interests of Alsco and
3. your duty as an employee to act with fidelity and good faith in relation to the interests of Alsco
Disciplinary action
Having been satisfied that these breaches have occurred, Alsco have consequently considered the nature of the disciplinary action it should take.
Alsco consider that you have acted in a manner than demonstrates that you have disregarded its interests and that you have demonstrated an intention not to be bound to the provisions of your contract of employment. Alsco also consider that you have acted in breach of your duty of fidelity and good faith to protect and serve its interests.
Alsco regrets that it considers in these circumstances that it is appropriate to terminate your employment for reasons of misconduct by you. You are accordingly being terminated summarily. Any remaining personal belongings will be sent you at your home address. An electronic fund transfer representing your accrued statutory entitlements will be made to you within 7 days.”[25]
[25] See affidavit of Paul John Shillabeer at annexure “PS-51”
The legal and evidentiary issue in the case
The central issue in this case is why Alsco determined to terminate Mr Adamczak’s employment and whether it was for a reason prohibited under the Act – namely because Mr Adamczak had exercised his entitlement to complain about being bullied at work and had bought a worker’s compensation claim in respect of it or alternatively because he was suffering from some form of mental disability.
The court is not required to determine whether Alsco is a good or bad employer and has been procedurally fair to Mr Adamczak. Nor is the case an inquiry into what kind of employer Alsco is and whether it adheres to proper worker’s compensation and industrial safety practices. This case is not a broad inquiry as to whether Mr Adamczak has been fairly treated, by Alsco, during his five years or so of employment with the firm.
It must be borne in mind that the issue, in an adverse action claim, arising under section 340 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason. As White J said in Tsilibakis v Transfield Services (Australia) Pty Ltd[26]
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics[27] when it said:
“... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...”
[26] Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
[27] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ
Legislative provisions
Part 3-1 of the Fair Work Act 2009 (Cth) (“the Act”) is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action
Item Column 1
Adverse action is taken by …Column 2 if … 1 an employer against and employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
Section 341 provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
“(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.”
The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters.
This correspondence, in my view, further reinforces what was Alsco’s motivation for terminating Mr Adamczak’s employment, which was its concerns regarding Mr Adamczak breaching its confidences by sending its commercial documents to his home computer – an assertion which Mr Adamczak chose not to respond to in the period shortly after his termination.
d) Summary Dismissal
Section 117(1) of the FWA provides that an employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of termination. Section 117(3) provides a method for the calculation of the minimum period of notice required, which depends on the years of continuous service of the employee concerned.
As a corollary of the requirement to provide notice of termination, section 119 of the Act provides for the calculation of redundancy pay. Again, the quantum of redundancy pay depends on the length of continuous service of the employee concerned.
It is common ground that Mr Adamczak was not given any notice and no redundancy pay. Rather, Alsco provided him with his accrued entitlements, up to 30 July 2014. As previously indicated, it formed the view that it was not required to provide notice and pay redundancy to Mr Adamczak because of the circumstances surrounding his termination.
Alsco’s position relies on section 123(1)(b) of the Act, which excludes employees from the provisions contained in section 117 and 119, relating to notice and redundancy, if the employee concerned is terminated because of serious misconduct. Alsco asserts that Mr Adamczak’s employment was terminated because of such serious misconduct.
Regulation 1.07 of the Fair Work Regulations provides a definition of the expression serious misconduct. The expression is said to have its ordinary meaning. Accordingly, in my view, what will amount to serious misconduct will depend on the court’s objective assessment of the circumstances prevailing, vis-à-vis the employer and employee concerned, at the time of termination.
Pursuant to sub-regulation (2) serious misconduct includes the following:
“(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.”
It is Alsco’s position that Mr Adamczak’s contract of employment contained a specific provision, prohibiting him from divulging confidential information, pertaining to Alsco, for his own benefit or that of others, which provision was well known to Mr Adamczak personally. Nonetheless he chose clandestinely and deceptively to breach his contractual obligations with Alsco.
In these circumstances, it is Mr Moses’ submission that given the evidence led by Alsco clearly indicates that Mr Adamczak did in fact distribute Alsco’s confidential information to others the firm is therefore it was entitled to consider this behaviour to be serious misconduct of such a degree to warrant immediate dismissal. I agree.
I accept that Mr Adamczak’s conduct, in disseminating emails containing Alsco’s confidential worker’s compensation data, when combined with his evasive response to Ms Freeman’s questioning, at the 30 July 2014 meeting, were objectively likely to lead Mr Hickin to conclude that Mr Adamczak’s behaviour was inconsistent with his contractual obligations to Alsco and his conduct in regards to the emails in question was both deliberate and wilful.
The word wilful is defined in the Australian Oxford Dictionary, in respect of a person, as being obstinate and headstrong and, of an action, being one which is intentional and deliberate.
I am satisfied that Mr Adamczak deliberately sent emails to third parties, without Alsco’s consent, knowing that Alsco would not approve his actions. Thereafter, I accept that he behaved deceptively towards Alsco in both attempting to conceal the contents of his outbox from Ms Freeman and then dissembling about this conduct to her. This conduct can only have resulted in Alsco loosing trust in Mr Adamczak and fearing that its commercial integrity had been compromised.
In my view, in these circumstances, Mr Hickin and the Alsco management team were entitled to reach the conclusion that Mr Adamczak was no longer loyal to Alsco and wished the firm ill. Accordingly, in my view, such misconduct is inconsistent with the continuation of his contract of employment and justified immediate dismissal.
Conclusions
It is not my function to inquire whether Mr Adamczak is entitled to feel hard done-by by what occurred to him during his employment by Alsco or whether Alsco itself is or not a model employer. Rather, my statutorily based function is to determine whether he has suffered any adverse action, at the direction of Alsco, because of the existence of a workplace right, which he holds or whether Alsco has acted adversely against him because of some protected attribute relevant to him.
For the reasons set out above, I am of the view that the adverse action of which Mr Adamczak complains, namely his termination by Alsco, was not as a consequence of him exercising any of his workplace rights or because of his mental incapacity.
The substantive and operative reason for his dismissal was that he was found to have breached his trust with Alsco by sending unauthorised emails containing Alsco’s confidential information. In these circumstances, Mr Adamczak has not established any of the remedies sought by him in his application, which accordingly must be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and six (406) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 25 May 2018
[33] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
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