Adams v Windara Communities Ltd

[2018] FCCA 40

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMS v WINDARA COMMUNITIES LTD [2018] FCCA 40

Catchwords:
INDUSTRIAL LAW – Fair work application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 341, 342

Applicant: SHANE ADAMS

Respondent: WINDARA COMMUNITIES LTD

File Number: SYG 2155 of 2013

Judgment of: Judge Baumann

Hearing dates: 7 and 16 October 2014

Date of Last Submission: 16 October 2014

Delivered at: Brisbane

Delivered on: 10 January 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Hannigans Solicitors

ORDERS

1. That the Application filed 10 September 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 2155 of 2013

SHANE ADAMS

Applicant

And

WINDARA COMMUNITIES LTD

Respondent

REASONS FOR JUDGMENT

1. Shane Adams (“the Applicant”) alleges in his Application filed 10 September 2013 that, in breach of s.340 of the Fair Work Act 2009 (“the Act”), his employment was terminated because he exercised a “workplace right” – namely a complaint he made to his employer and a regulatory body about serious workplace health and safety concerns.

2. In response the Respondent Windara Communities Pty Ltd (a charitable not for profit organisation), says that the Applicant’s employment was terminated in the probationary period for “breach of employment contract and fiduciary duty”.

3. The statements of fact hereafter should be construed as findings of fact.  In making these findings, the Court has considered the following Affidavits and Applications relied upon by the parties, namely:

   a)Applicant:

   i)Application filed 10 September 2013;

   ii)Affidavit filed 30 January 2014;

   iii)Affidavit filed 14 August 2014;

   iv)Further Affidavit filed 14 August 2014; and

   v)Written submissions, partly also delivered orally on 16 October 2014.

   b)Respondent:

   i)Response file 17 January 2014;

   ii)Affidavit of Andrew Goodchild filed 28 January 2014;

   iii)Affidavit of Amanda Rose filed 9 April 2014;

   iv)Affidavit of Robert Walsh filed 9 April 2014;

   v)Affidavit of Thomas Rogers filed 9 April 2014;

   vi)Affidavit of Sharee Denson filed 9 April 2014; and

   vii)Written submissions.

4. The fact that every point of the submissions is not mentioned in these Reasons is not to be construed as not having considered or read those submissions.

5. Although, leave having been sought and granted to do so, the Respondent was represented by Mr Hannigan (solicitor), the Applicant represented himself, and more than adequately.  Although his evidence and submissions were at times repetitive, he was a passionate advocate for his cause.

6. These Reasons have been prepared with a view to succinctly revealing the pathway to the ultimate decision determined by the Court – namely that the Application be dismissed. Before doing so, it is appropriate to set out ss.340, 341 and 342 of the Fair Work Act 2009, as follows:

   “340 Protection

   (1) A person must not take adverse action against another person:

   (a) because the other person:

   (i) has a workplace right; or

   (ii) has, or has not, exercised a workplace right; or

   (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b) to prevent the exercise of a workplace right by the other person.

   341  Meaning of workplace right

   Meaning of workplace right

   (1)  A person has a workplace right if the person:

   (a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (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.

   342  Meaning of adverse action

   (1)  The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an 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.
2	a prospective employer against a prospective employee	the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3	a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c)  alters the position of the independent contractor to the independent contractor’s prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e)  refuses to supply, or agree to supply, goods or services to the independent contractor.
4	a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or (c)  refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5	an employee against his or her employer	the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer.
6	an independent contractor against a person who has entered into a contract for services with the independent contractor	the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person.
7	an industrial association, or an officer or member of an industrial association, against a person	the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or (c)  if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

(2)  Adverse action includes:

(a)  threatening to take action covered by the table in subsection (1); and

(b)  organising such action.

(3)  Adverse action does not include action that is authorised by or under:

(a)  this Act or any other law of the Commonwealth; or

(b)  a law of a State or Territory prescribed by the regulations.

(4)  Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

(a)  engaged in protected industrial action; and

(b)  employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.”

1. The following witnesses were required for cross examination:

   a)The Applicant;

   b)Andrew Goodchild, Team Leader and Employment Consultant for On-Q Human Resources;

   c)Sharee Denson – Manager of the Respondent;

   d)Robert Walsh – former CEO of St Vincent’s Private Hospital in Lismore;

   e)Thomas Rogers – Events and Projects Officer of the Respondent; and

   f)Amanda Rose – Cook employed in the function centre at the Windara Communities site.

2. The Applicant exercised his right to cross examine each of the Respondent’s witnesses.  Statements of fact hereafter shall be construed as findings of fact.

Employment terms

1. In early February 2013 the Respondent advertised a vacant position of Nursery Manager (although apparently the intention was to offer the position of Nurseryman).  After a meeting on 27 March 2013 and revising the offer of employment, the Applicant commenced employment on 2 April 2013 and signed a Contract of Employment with the Respondent on 3 April 2013.  A copy of the signed Contract is Annexure “D” to the Affidavit of Ms Denson.  Relevantly clause 6.1 provides as follows:

   6   Probation

   6.1    Your employment is subject to a probationary period of 6 months.  The first 3 months will comprise of monthly reviews with your manager during which time, your conduct, work performance and skill levels will be assessed to determine whether you meet the required standard for employment with Windara nurseries.”

2. The Applicant fairly acknowledged the probation period commenced on 2 April 2013 for six months.

3. I accept that in or around June 2013, Ms Denson requested the Applicant to drive the Windara van to an external site and the Applicant refused to drive the van saying words to the effect “I refuse to drive the van, it is not roadworthy”.

4. Ms Denson says, and I accept, that she was receiving reports of some minor issues arising between the Applicant and other staff including with Thomas Rogers on or about 20 June 2013.

5. On 3 July 2013, Ms Denson received am email from Mr Goodchild attaching a letter from the Applicant raising six issues (see Annexure “G”) about workplace and safety issues.  The Applicant, in his evidence, says he sent the letter and his concerns were both genuine and intended to improve the quality of the workplace.  The letter does have a very direct tone.

6. Ms Denson says she felt “intimidated” by the letter however it was agreed a meeting would occur on 10 July 2013 with Mr Walsh being present.  However when the Manager was informed the Applicant had made complaint to at least WorkCover about employees being required to drive an “unroadworthy” van, a meeting on 8 July 2013 was hastily arranged.

7. I accept the evidence of Mr Walsh (who I found an impressive witness), was that the Applicant was not interested or prepared to meet at such short notice.  I accept Mr Walsh sought to defuse the tension but the Applicant was upset and left the room where the Applicant was “in an abrupt fashion, slamming the door on his way out”.

8. I find the Applicant was upset as he felt his concerns about workplace issues were not taken seriously.  I accept his demeanour was “aggressive” as Mr Walsh described it – but whether he was, as alleged, a safety concern to other staff, I am not so satisfied.

9. It was an uncomfortable exchange and Mr Walsh said to the Applicant “I want you to leave now.  I’m escorting you off the premises”.  Eventually, but unhappily, the Applicant left the site.

10. On 9 July 2013, the Respondent wrote a letter in these terms to the Applicant:

    “On Tuesday 8th July 2013 you were suspended on pay from your employment.  This suspension was because of your aggressive conduct, foul language, swearing, and your refusal to obey a reasonable and proper direction from your employer.

    You are required to respond to the following by email by 1.00pm Friday 12 July 2013; Please advise the reasons why you:

    (i)     Closed the door of your office from 3.30pm on most days for the past fortnight

    (ii)     Locked the door of your office from 3.30pm for most days past fortnight

    (iii)    Photocopied confidential records of your employer after 3.30pm of an afternoon for the last fortnight

    (iv)    Took those photocopies off the property of the employer

    (v) Were threatening in your conduct to staff and support workers

    (vi)    Have been argumentative with fellow staff

    (vii)   Have displayed aggressive conduct and put the safety of staff and supported workers at risk

    Shane, as you are aware you are still in your probation period and your conduct has put your employment in jeopardy.  Your answers to the above questions shall be taken into account when the future of your employment is being decided.

    Please be under no misapprehension your employment is in jeopardy.  You are currently being investigated for:

    (i) Theft

    (ii)     Threatening behaviour

    (iii)    W.H & S matters referred to above

    (iv)    Falling to obey the reasonable direction of your employer

    (v) Breaching confidentiality, and

    (vi)    Breaching your fiduciary relationship you’re your employer

    In the event you fail to answer the above by 1.00pm on Friday 12 July 2013, your employer shall have no alternative other than the termination of your employment contract.  If you choose to so answer the above, those answers shall be considered when determining your future as an employee.

    Further, you are not permitted on the grounds of Windara in the future until the manager so invites you.

    Yours faithfully”

11. The letter clearly was provocative and sought a response and indicated if he did not answer the allegations his employer would have no alternative “other than the termination of your employment contract”.

12. The Applicant made a fulsome response on 9 July 2013 saying that they had formed a view without getting his response (a breach of procedural fairness) and impugned his character by “accusing me of theft”.

13. The use of the term “theft” was, in the Court’s view, unfortunate and likely to provoke, when the evidence is that whilst gathering evidence to support his complaints (eg registration details for the “unroadworthy” car complaint) he did access company property.  I am not satisfied he was “stealing” documents, but he certainly was gathering evidence.

14. The letters and remarks of the Applicant are of such a tenor that he seems to have felt he was really acting as a type of “whistle-blower” and protecting the rights of workers – most of whom were working in a supportive environment because of some level of challenges either physically or emotionally.

15. When his employment was terminated on 23 July 2013, the Applicant thereafter commenced these proceedings.

16. The evidence of Mr Rogers and Ms Rose corroborate that some of the Applicant’s behaviour was “aggressive” from their perspective.  The Applicant did cross examine them; however their evidence was not diminished in my view.

Conclusion

1. On the evidence overall, I am not satisfied the Applicant was treated unfairly as the Applicant alleges in his workplace.  The Applicant appears to have suitable qualifications as a Nurseryman or Nursery Manager, but did not seem suited to working in the Windara Community environment.

2. Although the Applicant says that he is not a motor mechanic, he asserts he “can see rust on the floor” which I take it means that it is his view that what he observed made the car unroadworthy.  There is no probative evidence that at the time in question, the van was unroadworthy.

3. I accept the submission of the Respondent that the employer was faced with the CEO, the Manager and two fellow employees all expressing concerns about their capacity to work with the Applicant.

4. The bottom line is that the Applicant was in his probationary period and his conduct was a concern to his employer.  The evidence offered to this Court gives some foundation to those concerns.

5. The Applicant did not, on the evidence, have his employment terminated because he made a complaint to the employer or WorkCover or Police or any other regulatory body.

6. His employment was terminated principally because he was aggressive at times and difficult to work with in this environment.

7. In the circumstances the Court has no option but to dismiss the Application.

8. Under the Act the general rule is that parties cannot claim costs. This is to ensure as a matter of public policy that, save for vexatious applications, persons are not reluctant to commence proceedings under the Act, because of the fear of costs orders.

9. I do not regard the Application was vexatious – just, on the evidence, unsuccessful.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Baumann

Associate: 

Date:  10 January 2018