Annear v Spotless Facility Services Pty Ltd
[2015] FCCA 1335
•6 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNEAR v SPOTLESS FACILITY SERVICES PTY LTD | [2015] FCCA 1335 |
| Catchwords: INDUSTRIAL LAW – Adverse action – general protections application – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth) ss.340, 342, 343, 344, 345, 349, 351, 360, 361 Evidence Act 1995 (Cth) s.140 |
| State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 |
| Applicant: | NURGUL ANNEAR |
| Respondent: | SPOTLESS FACILITY SERVICES PTY LTD |
| File Number: | MLG 1180 of 2014 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 14 & 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2015 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Galbraith |
| Solicitors for the Respondent: | Mr Douglas |
ORDERS
The application filed 16 June 2014 be dismissed.
The respondent may file and serve any application for costs, affidavits and written submissions within 14 days.
The applicant may file and serve any response to any application for costs, affidavit and written submissions to be relied on 14 days thereafter.
AND THE COURT NOTES:
Any application or costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1180 of 2014
| NURGUL ANNEAR |
Applicant
And
| SPOTLESS FACILITY SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 June 2014 Nurgul Annear (“the applicant”) filed an application in the Fair Work Division of the Court alleging that Spotless Facility Services Pty Ltd (“the respondent”) had contravened the Fair Work Act 2009 (Cth) (“the FW Act”). The respondent denied the applicant’s claims.
Background
The applicant’s claims arise out of her employment with the respondent which was based at the Australian Emergency Management Institute (“AEMI”) in Mount Macedon Victoria and the termination of her employment in March 2014.
The respondent provided cleaning, catering and basic accommodation administration services at AEMI. The applicant was employed by the respondent as a casual pursuant to a letter of offer of employment dated 29 March 2011. This was signed by the applicant and provided inter alia that she was employed on a casual basis in the position of night manager based at AEMI.
The applicant’s first shift for the respondent was in April 2011. During her employment the applicant’s direct manager was Christopher Williams, who was the respondent’s Site Manager at AEMI.
During her employment, the applicant was usually engaged to work 2 shifts per week on a Wednesday and Thursday. However on occasions the applicant may have been offered and rostered to fill additional shifts to support activities being conducted at AEMI.
In January 2012 the applicant contacted the Fair Work Ombudsman (“FWO”) in relation to alleged underpayment of wages. After contact with the FWO in July 2012 the respondent voluntarily rectified the alleged underpayments.
The applicant worked day shifts with effect from 5 March 2014 until her employment was terminated in March 2014. The applicant was paid $2,035.15 (gross) in lieu of notice by the respondent.
The respondent’s operations at AEMI ceased at the end of April 2015.
These proceedings first came before the Court on 21 July 2014. Orders were made referring the parties to mediation. Unfortunately the mediation was not successful and on 29 October 2014 the proceedings were fixed for trial with orders and directions made for that purpose.
At the trial on 14 and 15 May 2015, the applicant appeared in person and Mr Galbraith of Counsel appeared for the respondent.
Material relied upon
At trial the Court was told the applicant relied on her:
a)application filed 16 June 2014;
b)form 2 filed 16 June 2014;
c)statement of claim filed 14 August 2014;
d)affidavit filed 30 January 2015;[1]
e)affidavit filed 13 April 2015[2].
[1] Exhibit A1.
[2] Exhibit A2.
At trial the Court was told the respondent relied on the:
a)defence filed 12 September 2014;
b)affidavit of Ms Dianne Scott filed 5 March 2015;[3]
c)affidavit Mr Christopher Williams filed 5 March 2015;[4]
d)affidavit of Dana Nelson filed 5 March 2015;[5]
e)affidavit of John Douglas filed 5 March 2015; [6]
f)outline of submissions filed 29 April 2015;
[3] Exhibit R9.
[4] Exhibit R8.
[5] Exhibit R7.
[6] Exhibit R4.
The respondent also relied on the following exhibits:
a)the applicant’s pay advice from 19 February 2014 to 25 February 2014; [7]
[7] Exhibit R1.
b)
spreadsheet of the applicant’s pay entitlements accrued from
9 July 2013 to 11 February 2014;[8]
c)
spreadsheet of the applicant’s pay accrual for the week ending
2 April 2013;
d)an ASIC search on the respondent;[9] and
e)an ASIC search on Spotless Services Australia Pty Ltd.[10]
[8] Exhibit R2.
[9] Exhibit R5.
[10]Exhibit R6.
After the applicant had the opportunity to get advice and see the duty lawyer the parties filed a ‘Statement of Agreed Facts, Law and Questions to be Determined’ in Court on 14 May 2015 (which is Annexure A to these reasons) to which I will turn shortly.
The applicant’s letter of appointment and the Agreement
However before doing so, it is necessary to set out the terms of the applicant’s letter of appointment and the Spotless Services (Australia) Limited Victorian Garrison Support Workplace Agreement 2006 for reasons that will become clear presently. The applicant’s letter of appointment dated 29 March 2011 provided inter alia that:
“…
Appointment & Position
The company agrees to employ you, and you agree to accept employment with the Company, as Night Manager – with effect from 4 April 2011.
A position description detailing the primary duties and responsibilities is attached. Your position and duties may change from time to time in accordance with the Company’s business needs. Any such changes will be first discussed with you.
Employment Status
Casual
Location
This position is primarily located at Australian Emergency Management institute, Mount Macedon VIC 3441.
The location of your employment may change in accordance with the Company’s business needs. Any proposed changes will occur in full consultation with you. …” (emphasis added)
The letter of appointment was for employment with Spotless Facility Services Pty Ltd (the respondent in this case) which was the “Company” referred to in the applicant’s letter of appointment. The letter of appointment also included the following:
“Award/Agreement
You will be employed according to the Spotless Services Australia Ltd Victorian Garrison Support Workplace Agreement 2006 applicable to the location where you work and the classification of your tasks.” (emphasis added)
Attached to the letter of appointment was a Position Description which included the following:
“Special Note
The above statements are intended to describe the general nature and level of work being performed by people assigned to this role. They are not intended to be an exhaustive list of all responsibilities, duties and skills to perform the role.”(emphasis added)
The Spotless Services (Australia) Limited Victorian Garrison Support Workplace Agreement 2006 (“the Agreement”) was made prior to the commencement of the FW Act under the then Workplace Relations Act 1996 (Cth) (“WRA”). The Agreement on its face provided inter alia:
“2 COVERAGE OF AGREEMENT
2.1Except as provided in subclause 2.4 hereof, this Agreement shall apply to all employees employed by Spotless Services (Australia) Limited in any position covered by the classification structure set out in Schedule 1, for the provision of services by the Company in or in connection with emergency management and all military bases in Victoria excluding HMAS Cerberus and RAAF Williams…
2.4The Agreement shall not apply to the salaried management and executive staff employees of the Company.” (emphasis added)
Under the Agreement “the Company” was defined in Clause 6 ‘Definitions’ to mean “Spotless Services (Australia) Limited”.
The classification structure in Schedule 1 of the Agreement provided:
“Part 1 – CLASSIFICATION STRUCTURE
Service Attendant Level 1
A Service attendant Level 1 means an employee who is capable of performing any of the following within that employee’s skill and competence:
·Preparation and dispensing beverages parking attendant.
·General cleaning and tidying including servicing of accommodation and offices, cleaning of equipment, general utensils, crockery, dining tables, kitchen and areas etc.
·General kitchen duties including assembly and preparation of ingredients for cooking.
·Attending a snack bar, buffet or meal counter and or serving or delivering meals.
·General waiting duties
·Setting and/or cleaning tables
·Maintenance and repairs of a basic and routine nature including garden and grounds.
·Handling, storing and distributing goods, including, pantry, utensils, linen, cleaning materials, mail, garden supplies and the like.
·Laundry, dry cleaning and/or linen duties.
·Driving a vehicle and transport support services.
·Persons not elsewhere provided for
Employees will be provided with Company specific training during the first 3 months of service.
Service Attendant Level 2
A Service Attendant Level 2 means an employee who is required to and capable of performing all the duties set out for a Service Attendant – Grade 1 and who has in addition has completed requisite company training.
Or an employee performs any of the following:
·Cooking basic food items such as breakfast, grills and snacks
·Cleaning including offices and accommodation
·Range operation/general hand
·Grounds, garden or minor maintenance
·Gymnasium, supervision and performing lifeguard duties.
Requisite Company Training above means the satisfactory completion of a series of an appropriate number of Company provided and/or approved training courses as required by the Company.
Service Attendant Level 3
A service Attendant Level 3 means an employee who has satisfactorily completed a requisite course of training and who is engaged in:
·Grounds maintenance, cleaning and gardening/horticulture with responsibility for the work of other staff but does not include trades persons.
·Stores work in Materiel and Wing Stores
·Supervising, training and coordinating employees at lower classification levels.
·Undertaking general cooking duties including a-la-carte cooking, baking, pastry cooking and associated butchering.
·Housekeeping duties.
·Distribution/dispending of Petrol, Oil and Lubricants
·Clerical and administrative duties including booking accommodation.
·Licensed Bus (Coach) driving.
Service Attendant Level 4
A Service Attendant Level 4 means an employee who has satisfactorily completed an appropriate apprenticeship, or who has passed the appropriate trade test and is involved in any of the following:
·Head Waiter/Steward who has responsibility for the work of other waiters and stewards within a fine dining area or major function.
·Undertaking general cooking duties including a-la-carte, bakery, pastry cooking duties and associated butchering.
·Grounds maintenance and gardening/horticulture requiring specialist trade skills.
·Cinema Operation.
·Maintenance services.
Service Attendant Level 5
A Service Attendant Level 5 means an employee who has achieved post trade qualification recognised by the Company and is specifically engaged in any of the following:
·A qualified cook solely responsible for other cooks and other employees in a single kitchen establishment where no other trade qualified cooks are employed.
·A qualified cook responsible for special events, banquets or similar function.
·Maintenance services requiring specialist trade skills.
Service Attendant Level 6
Means a chef/Head Cook who has achieved post trade qualifications recognised by the Company and who is specifically appointed by the Company to perform the following typical duties:
·Oversees the catering and related operations of the Company at that location;
·Supervise the duties of other catering staff; and
·Perform all other duties related to the efficient operation of the catering services as required by the Company.”
Under the provisions of the WRA at the time (and in accordance with its own terms) the Agreement was to operate from the date of lodgement with the then Office of the Employment Advocate until it reached its nominal expiry date which was expressed to be on the fifth anniversary of the date of lodgement.[11]
[11] See clause 5 of the Agreement.
The Agreement was made during the operation of the WRA which has since been repealed. However by virtue of the Fair Work (Termination Provisions and Consequential Amendments) Act 2009 the WRA continues to apply on and after its repeal in relation to conduct that occurred before its repeal.
The applicant’s case
In the form 2 filed 16 June 2014 accompanying her initiating application the applicant had alleged inter alia:
“Part G – Contravention(s) alleged
s340 i) has a workplace right – I exercised the right to seek fair pay under the Modern Award (For the number of hours I was at work I was earning about $12.48 /hr before I sought remedy) this occurred in 2012.
I was not being paid proper loadings for the night manager’s position and when doing higher duties (day manager’s position) the higher rate was not being applied.
Even recently when Chris took time of (sic) and I was performing his work, plus my own work as night manager my pay was incorrectly entered, by him. Please see attachment 1, 2 & 3
My normal hours when rostered are:
4.30 pm to 12 am (7 hrs)
12am to 7.30 (onsite but not on duty/not allowed to leave site in case of emergency) $20 is paid for overnight stay (it is below the 6% paid in the award)
7.30 am till 8.30 am (2 hrs paid) on duty till the day manager arrives. Total hours of 15.3 hours.
When I was performing both day and night shift managers work I should have been paid as above but then paid as the day manager would have been paid if he was working. If you look at the figures on the attachments they are not a true representation how my pay should have been entered into the system, nor was I paid for higher duties. And the paperwork written in Chis Williams’ handwriting infers I started work at 6.30 am, I never start work at 6.30 am if you look at the attachment it is made to look like I started work at 6.30 in the morning. Constantly my pay is wrong. I have taken the matter up with Chris several times and he has stated that it seems to be just my pay which is incorrect and everyone else’s is correct.
Part of my agreement states that: The Victorian Garrison agreement also states that (7.8-d) If any time when this Agreement is in operation, the rate of pay for a classification is part B of Schedule 1 to this agreement is less than the corresponding rate of pay in the Australian Pay and Classification Scale derived from the nationwide AWU and LHMU Australian Defences Forces Services Award 2001 then the employees will be entitled to the higher APCS rate. My pay had fallen way below the fair work minimum. Even though the Fair Work Agreement came into effect in its place it’s still relevant.
After I took this step Chris has tried to find ways and in which to make me terminate my employment through acts and deeds. Please see attachments.
(ii) exercised a workplace right – I have a workplace right not (sic) be deskilled and be given work is peripheral to the main tasks or functions for the role I was hired for. My work was changed to my disadvantage without consultation. I was transferred to day shift which meant a drop in pay.
The first day of day shift, I was asked by Chris to fold napkins, and after awhile then I was asked to vacuum the dining room. I refused and was then dismissed from work because I refused (Spotless Services Victorian Garrison Support Workplace Agreement 2006 7.4 & 7.6 covers I believe my right to refuse). (My employment position altered to my prejudice). Chris Williams action was to demoralise me in from (sic) of my peers. Folding napkins and vacuuming is not peripheral to the work I was employed for, (s343). We have a full time cleaner, we have dining staff, we have foyer staff and we have in-house staff who are employed to vacuum. Chris was trying to humiliate and make me hand in my resignation.
The whole incident started because I had been rostered to do 2 shifts in February. I then received a SMS from Chris Williams stating I would not be required until 5th and 6th to find out whether the classes had been cancelled and was told no. I then phoned Chris Williams to enquire why I had been taken of (sic) the 2 shifts.
The next I heard about the matter was when Dianne Scott phoned and said (sic) inferred about the complaints made against me, and I was not to speak to anyone co-workers etc about what had occurred, and we would be having a meeting. I spoke to Les who is head chef and he had not heard anything.
(iii) s.345 Chris Williams stated to Diane Scott, I was not rostered on Sundays because of complaints against me. Complaints which were never brought up with me. Complaints which seem to emerge when I queried the reason 2 shifts had been cancelled from my roster in February (s345) I had taken over Chris Williams’ day manager’s shift while he was away. No mention of there being a problem was brought up even then.
If I was not being rostered on due to this fact, why has the matter never been raised before this.
I am also still in contact with the students Friday night/Saturday part of the day Saturday night and Sunday part of the day. So how can this be the reason I was not being rostered on Sundays.
We have Hospitality Questionnaires that are done on a monthly basis, why if my performance was so poor was not the problem addressed months ago as per Spotless representation. And why when and if it was being brought up in the Questionnaires did Chris Williams not speak to me about the problems.
I wasn’t sacked because of the complaints; my employment was terminated because I refused to do vacuuming. Previously I had refused to wipe Chris’s desk (as he put it) because I was living (sic) it sticky…Please see attachment.
(iv) In April 2012 I made an application to the Fair Work Ombudsman in regard to my pay. The matter was finalised in my favour. Since then Chris Williams has not rostered me on Sunday shifts unless the other night manager is not available. Sunday shift has a 75% loading. I am generally rostered on Friday night/Saturday morning. Saturday night/Sunday morning. These shifts have less loading plus since I took the action to have my pay increased the cleaner who normally would be cleaning the KKH building was not rostered on and his work was transferred to the person who was Saturday morning/Sunday morning night managers shift. Which is normally me (s351 and s341)
See Fair Work Act s.342 Employer against an employee
Adverse action was taken by Spotless against me in the following way: dismissing (my employment was terminated) injuring the employee in his or her employment (I was put on day shift which has lower pay and Chris Williams was altering my duties)
altering the position of the employee to the employee’s prejudice as above discriminating between the employee and the other employees of the employer. I was never given Sunday shifts.
(v) I believe that Chris Williams was trying to make me do what he even deemed as menial tasks to try and force me to resign. He knew I was coming in and he had prepared tasks that he felt would show me who was boss. The folding of the napkins is the bar persons normal work, the dining staff and full time cleaner are available to do the vacuuming.
I have never refused a shift.
All work which has been set has been completed.
There has never been any tardiness.
I have tried to help, and (sic) times been told NOT TO help in the dining room by Chris Williams because he has said that it wasn’t part of my role (Night Managers book would verify this).”
The applicant also filed a statement of claim on 14 August 2014 which it appears she prepared herself and as a result it suffered from a number of flaws, including not being in proper form. However in the Statement of Agreed Facts, Law and Questions to be Determined referred to at paragraph 14 above the applicant agreed only certain questions had to be determined. Ultimately it was only her case as to how those questions should be answered that the applicant pursued at trial.
The respondent’s case
In the defence on 12 September 2014 the respondent opposed all of the orders sought by the applicant. The respondent’s position was there were no contraventions of the sections of the FW Act identified by the applicant or of the applicant’s contract of employment as alleged.
The respondent acknowledged that the applicant had a workplace right to make a complaint to the FWO, that she had exercised that right and that termination of the applicant’s employment amounted to ‘adverse action’ within the meaning of Item 1(a) of s.342(1) of the FW Act but otherwise denied there had been adverse action against the applicant. The respondent also denied adverse action constituted by the termination of the applicant’s employment (or any other adverse action within the meaning of Item 1 of s.342(1) of the FW Act that may be established) was taken because of or for the prohibited reason/s alleged. The respondent’s position was that the applicant’s poor performance was the reason for the termination of her employment.
In the particulars of defence filed on 12 September 2014 the respondent denied the other allegations of breaches of the FW Act, opposed the orders sought by the applicant and claimed the applicant was liable to refund the payment in lieu of notice of termination made to her based on mistake and unjust enrichment.[12]
[12] Defence and counterclaim dated 12 September 2014 at [18] – [24].
In submissions filed prior to trial on which it relied the respondent denied each of the allegations made by the applicant including those allegations of contraventions of the FW Act and comprehensively addressed why those allegations should be rejected.
Issues to be determined
In the Statement of Agreed Facts, Law and Questions to be Determined it was agreed the questions that needed to be determined were:
(a)was the termination of the applicant because of her complaint or inquiry to the FWO on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the FW Act?
(b)did working day shift with effect from 5 March 2014 constitute adverse action within the meaning of 1(b) or 1(c) of s.342(1) of the FW Act?
(c)if yes to the previous question, was working day shift because of the applicant’s complaint or inquiry to the FWO on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the FW Act?
(d)did the failure to roster the applicant for shifts on Sundays constitute adverse action within the meaning of 1(d) of s.342(1) of the FW Act?
(e)if yes to the previous question, was the failure to roster the applicant for shifts on Sundays because of her complaint or inquiry to the FWO on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the FW Act?
(f)has the respondent contravened the following civil remedy provision of the FW Act:
(i)s.343;
(ii)s.344;
(iii)s.345;
(iv)s.349; and
(v)s.351(1).
(g)has the respondent breached the applicant’s contract of employment by reason of it breaching the following clauses of the Spotless Services (Australia) Limited Victorian Garrison Support Workplace Agreement 2006:
(i) Clause 17;
(ii) Clause 27;
(iii) Subclause 7.4(a);
(iv) Clause 7.6; and
(v) Clause 32.
(h)does the respondent owe the applicant wages in respect of time worked by her during the week ending 4 February 2013; and
(i)is the applicant liable to refund the notice payment?
Before considering those questions in light of the evidence of each of the parties it is necessary to set out the relevant legislative provisions.
The legislation
The applicant’s claims raised for consideration the general protection provisions in Division 3-1 of the FW Act. The provisions of ss.340, 341, 342, 343, 344, 345, 349, 351, 360 and 361 of the FW Act are relevant.
Section 340(1) of the FW Act provides:
“(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.”
For the purposes of s.340(1) of the FW Act, the term ‘workplace right’ is defined in s.341(1) of the FW Act:
“(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.”
A ‘workplace law’ is defined in s.12 of the FW Act and includes the FW Act and any other statutory law which regulates the employment relationship.
The circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 as follows:
“(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).
Section 343 of the FW Act provides as follows:
“(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(i)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(ii)exercise, or propose to exercise, a workplace right in a particular way.”
Section 344 of the FW Act provides as follows:
“An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c)agree to, or terminate, an individual flexibility arrangement; or
(d)accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.”
Section 345 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 349 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a)another person's obligation to engage in industrial activity;
(b)another person's obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 351(1) of the FW Act provides:
“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
In relation to the applicant’s claims of adverse action the FW Act provides that once an applicant has established either that they have a workplace right or an attribute (for the purposes of s.351) and that they have been subject to adverse action s.361 of the FW Act operates to reverse the normal onus of proof.
Section 361 provides:
“(1)If:
(a)In an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)Taking that action for that reason or with that intent would constitute a contravention of this Part;
It is presumed, in proceedings arising from the application that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.”
By virtue of s.360 of the FW Act a person takes action for a particular reason if the reasons for the action include that reason.
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Approach to adverse action allegations
The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 (‘Barclay’).[13] The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged or proposed to engage in industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.
[13] at paragraphs [56]; [102]; [127].
In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.
What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:
“41.The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.
At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:
“100.The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101. The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3-1,
a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.
104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.”
Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:
“126.The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
127.In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
128.Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”
Heydon J said at [146]:
“To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”
Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:
“10.That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”
Finally in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Full Court of the Federal Court said:
“32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
· The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
· That question is to be answered having regard to all the facts established in the proceeding.
· The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
· It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
· Even if the decision-maker gives evidence that he or she acted solely for non prescribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”
Those ‘principles’ have since been considered in a number of Full Court decisions.[14]
[14] See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, Short v Ambulance Victoria [2015] FCAFC 55 and Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76.
Evidence
I did not form the view that the witnesses in this case were lying or that they deliberately set out to mislead the Court to the extent that the whole of their evidence was unreliable. The Court was not asked to make any credibility findings in relation to the respondent’s witnesses who all gave consistent and corroborative accounts of relevant events. I accept their evidence was in some respects contested by the applicant but they struck me as honest and conscientious witnesses doing their best to recall events and where it is necessary to do so I prefer their evidence to that of the applicant.
As for the applicant, even after making allowances for her status as an unrepresented litigant, and having seen her conduct her case, give evidence and be cross examined, the Court was left with the clear impression that she was a quarrelsome character with an unshakeable belief in the correctness of her view and who would maintain that view even in the face of overwhelming evidence to the contrary.
Applicant’s evidence
The applicant filed two affidavits, one on 30 January 2015 and
the other on 13 April 2015 upon which she relied and was cross examined. In her evidence in chief the applicant acknowledged she had been employed as a casual and had been terminated for misconduct. However the applicant’s evidence was that she believed after she complained to the FWO, adverse action was taken against her by the respondent.
Whilst acknowledging complaints had been made against her for her behaviour including, refusal to perform the work requested of her and her attitude, the applicant maintained that she believed she was employed as the night manager; her shifts were changed to her detriment; she was not a cleaner and should not have been asked to vacuum or clean up dishes.
The applicant’s evidence was that by being required to do these things by the respondent, she believed Mr Williams was trying to force her to resign or to terminate her for not following repeated lawful commands.
In cross examination the applicant agreed that as the respondent no longer operated at the AEMI site she would no longer have a job.
The applicant accepted that when the respondent operated at the AEMI site it didn’t require staff every weekend or every night as this depended on course bookings. The applicant also agreed the respondent did not require a night manager every night and that the respondent rostered staff according to its requirements.
Importantly, given the allegations of adverse action made by the applicant, and that the prohibited reasons upon which the applicant relied was the complaint to the FWO, she accepted in her evidence before the Court that since making her complaint she had actually had an increase on the number of shifts.
Also in cross examination the applicant agreed she had never been appointed to the site manager’s role or asked to do that role, that her role did require her amongst other things to clean up rubbish and that the content of exhibits R1 and R2 was correct.
Respondent’s evidence
The respondent relied on the affidavits of its General Manager of Human Resources, Group Divisional Manager, the Site Manager at AEMI where the applicant was employed and the Operations Manager who it wasn’t disputed had made the decision to both change the applicant’s shifts and terminate the applicant’s employment.
Mr Douglas’ evidence
Mr Douglas gave evidence and was cross examined. Mr Douglas is the General Manager of Human Resources for the Spotless Group. He adopted the affidavit referred to earlier.
Mr Douglas gave evidence of his involvement with decisions leading up to the termination of the applicant’s employment. Mr Douglas gave evidence that he provided advice to the managers responsible for the applicant, who made decisions affecting the applicant on how to address her history of inappropriate behaviour.
Mr Douglas gave evidence that he was told the relevant managers believed the applicant had been given several warnings about her conduct, was informed of the allegations against her and was given an opportunity to respond.
Mr Douglas gave evidence which made clear he was not aware of the applicant’s complaint to the FWO until after her employment was terminated.
In cross examination Mr Douglas gave evidence that he understood if it was required, it was normal for the respondent’s administration staff to assist with cleaning up before, after and for functions or attendees at AEMI.
Ms Nelson’s evidence
Ms Nelson gave evidence and was cross examined. Ms Nelson is the Group Divisional Manager for the respondent.
Ms Nelson adopted the affidavit referred to earlier. Ms Nelson’s evidence was that she was involved in the decision to terminate the applicant’s employment but only to the extent that her approval was sought to do so by the relevant manager, Ms Scott who actually made that decision.
Ms Nelson’s evidence was she was told there had been a number of complaints about the applicant’s inappropriate behaviour, failure to follow directions and complete the tasks required of her. Ms Nelson also indicated that she understood the applicant had been warned previously and told if her performance did not improve, her employment would be terminated.
Ms Nelson’s evidence made clear she was not aware of the applicant’s complaint to the FWO or any changes to the applicant’s shifts during her employment and on the basis of what she was aware she did not believe either were a factor in the decision to terminate the applicant’s employment.
In cross examination the questions asked of Ms Nelson made plain from an organisational perspective that the issues the applicant had complained of such as moving from night to day shifts and being asked to clean dishes or vacuum were not inappropriate tasks to be required of any employee and in her view if they were required they should have been done.
Mr Williams’ evidence
Mr Williams was the Site Manager for the respondent at AEMI where the applicant was employed and the person who had the most contact with the applicant on a day to day basis. Mr Williams gave evidence and was cross examined. He adopted the affidavit referred to earlier.
Mr William’s affidavit chronicled the history of complaints about the applicant and the events leading up to applicant’s termination on
5 March 2014.[15] Mr Williams’ evidence was he was not involved in and did not make the decision to change the applicant’s shift or to terminate the applicant’s employment.[16]
[15] See paragraphs 13 to 45 of affidavit filed 5 March 2015.
[16] See paragraphs 46 to 58 of affidavit filed 5 March 2015.
In cross examination the evidence of Mr Williams was that the applicant was very rude to him, everything was questioned and that whilst he had said on one occasion to the applicant “your time is coming” this was borne out of his frustration at the applicant constantly questioning his decisions or requirements. His evidence was this not because of any complaint the applicant had made or for any other prohibited reason.
The interaction between Mr Williams and the applicant during the course of his evidence underscored the conclusion arising from the rest of the evidence that there were clearly interpersonal issues between the two of them. However, the statement made by Mr Williams referred to above needs to be looked at in context. The applicant had a history of inappropriate behaviour including making what could only be described as ‘odd’ or even abhorrent comments to staff and customers at AEMI. These comments, which weren’t denied by the applicant, included that Microsoft was a criminal company, claims about public figures being involved in organ theft and asking whether people were Jewish.
Mr Williams’ evidence was he was not aware of the details of the settlement with the FWO or the applicant’s complaint to the FWO. Mr Williams also gave unchallenged evidence of the free character assessments the applicant had given him including that he was not a manager’s bootlace.
He was asked about the complaints regarding the applicant, documented at annexure CW1 to his affidavit. Whilst the answers Mr Williams gave to those questions were unremarkable it was the questions asked by the applicant that were most revealing as they suggested the applicant believed these proceedings were an opportunity to challenge the validity of those complaints.
Mr Williams repeatedly and emphatically denied he changed the applicant’s duties or conditions or what she was required to do because of any complaint the applicant may have made or for any prohibited reason.
In his evidence in chief Mr Williams made clear any requests he made of the applicant such as to clean the desk or assist with other cleaning or vacuuming were not to place pressure on the applicant. Mr Williams’ evidence in cross examination made clear he did not take the decision to change the applicant’s shifts and had not altered her duties or changed what she was required to do for any other reason than that the respondent’s operational requirements demanded it.
Mr Williams’ evidence in cross examination also made clear he had not asked the applicant to cover for him and all the requests and instructions he had given to the applicant were dependent on or by reason of the work required by the respondent at AEMI.
Ms Scott’s evidence
Ms Scott is employed by the respondent as an Operations Manager and she had managerial responsibility for the respondent’s operations at AEMI. Ms Scott gave evidence and was cross examined. Ms Scott adopted the affidavit referred to earlier.
In her affidavit Ms Scott deposed to her involvement with issues concerning the applicant’s performance.[17] Ms Scott gave evidence about her understanding of how the underpayment to the applicant had arisen and how it was rectified.
[17] See paragraphs 24-79 of affidavit filed 5 March 2015.
Ms Scott also deposed to the background events leading up to and reasons why she took the decision to terminate the applicant’s employment.[18]
[18] See paragraphs 80 -110 of affidavit filed 5 March 2015.
In relation to the change of the applicant’s shift Ms Scott deposed:
“62. I made the decision to change the Applicant to day shifts with effect from her next rostered shift on 5 March 2014 because it would provide a better opportunity for the Respondent to monitor her workplace conduct during ordinary office hours. None of the following factors:
a.the Applicant’s contact with the Fair Work Ombudsman;
b.any complaint or inquiry made by the Applicant in relation to her employment whether directly to me or otherwise;
formed any part of my decision to transfer the Applicant to day shifts on and from 5 March 2014.”
In cross examination Ms Scott made clear why she had made the decision to place the applicant on day shift. Ms Scott’s evidence did not disclose that her decision or the reasoning for her decision was in any way motivated by a prohibited reason, but instead was solely to monitor the applicant’s performance.
In her evidence before the Court which was not contested by the applicant, Ms Scott deposed:
“109.I made the decision to terminate the Applicant’s employment because:
(a)of her rudeness and in appropriate conduct towards students and guests of AEMI resulting in complaints from the Client;
(b)she refused the reasonable directives of Spotless management including Christopher Williams’ directions to vacuum on 5 March 2014;
(c)of her indication during the meeting on 19 March 2014 that she would not follow reasonable directions from her manager in the future;
(d)of her failure or unwillingness to improve her workplace conduct after she was issued with a first and final warning and being given an opportunity to do so.”
110. None of the following factors:
(a) the Applicant’s contact with the Fair Work Ombudsman;
(b)any complaint or inquiry made by the Applicant in relation to her employment whether directly to me or otherwise;
formed any part of my decision to terminate the Applicant’s employment.”
Ms Scott’s evidence in cross examination was she took the decision to terminate the applicant’s employment based on her concerns about the problems with the applicant’s performance (which had been raised with her previously and about which she had been warned), and her refusal to follow directions.
Submissions
In final submissions the respondent noted the evidence upon which it had relied as to why the applicant’s employment was terminated was not challenged. Counsel for the respondent noted the evidence was Ms Scott made the decision for the reasons she gave in her evidence before the Court. Counsel noted this also applied in relation to the reason for the decision to move the applicant to day shift. Accordingly the respondent submitted it had discharged the onus under s.361 of the FW Act.
In relation to the applicant’s claim of a breach of s.343 of the FW Act Counsel for the respondent submitted there was no evidence of any pressure to negate the applicant’s choice or evidence of unlawful or illegitimate pressure.
Similarly Counsel for the respondent submitted there was no evidence that the applicant could point to as a basis for or that the applicant could rely on to make out her claim of a breach of s.344 of the FW Act.
In relation to the applicant’s claim of a breach of s.345 of the FW Act Counsel for the respondent submitted there was no evidence of a representation or a deliberate or knowingly misleading.
Insofar as the applicant claimed there had been a breach of s.349 of the FW Act it was submitted the applicant’s claim in this regard was misconceived and in light of the evidence she had not made out any protected attribute for the purposes of s.351 of the Act.
Finally, insofar as the applicant had claimed breaches of the provisions of the Agreement it was submitted the Court could not be satisfied it had been either incorporated into the applicant’s contract of employment and/or to the extent it otherwise applied (which was denied) that the evidence made out the applicant’s claims of a breach of each of the relevant clauses.
In her final submissions before the Court, the applicant whilst not taking issue with the respondent’s submissions made clear she maintained her subjective view of the righteousness of her claims. The applicant maintained she had been employed as night manager and the matters she complained the respondent had engaged in were unlawful.
Consideration
It is not necessary to recount all of the evidence. However all of the material and submissions before the Court have been considered.
Claims of adverse action
Before turning to address the questions raised by the parties for determination it is important to note that this is not an unfair dismissal proceeding and in relation to that part of the applicant’s claims alleging adverse action it is the causal relationship between the adverse action and the proscribed reason in Part 3-1 of the FW Act that is the critical issue for determination not whether the applicant was unfairly dealt with. Many decisions of the Federal Court have pointed out the difference between unfair dismissal proceedings and general protection disputes under Part 3-1 of the FW Act.[19] In Khiani v Australian Bureau of Statistics [2011] FCAFC 109 the Full Court at [31] 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.”
[19] See for example, Dickson v Downer EDI Works Pty Ltd [2014] FCA1134 at 64 -67 and cases referred to therein. See also Vink v LED Technologies Pty Ltd [2013] FCA 443 at [41].
In relation to the applicant’s claims of adverse action an employer can take adverse action against an employee by: dismissing the employee; or by injuring the employee in his or her employment; or by altering the position of the employee to the employee’s prejudice; or by discriminating between the employee and other employees of the employer.
The relevant provisions of the FW Act provide that once the applicant has established:
·the entitlement to the workplace right alleged; and
·the alleged adverse action;
then the onus falls to the respondent to establish that the adverse action was not for a prohibited reason or with a particular intent that would constitute a contravention of the FW Act.
Was the applicant’s termination because of her complaint or inquiry?
In approaching the resolution of this question in light of the principles set out above I have taken into account the evidence of the witnesses and the submissions made by both parties.
In this case the decision maker was Ms Scott. In relation to the question whether the applicant’s employment was terminated because of her complaint or inquiry Ms Scott’s evidence was critical to the respondent being able to discharge the onus under s.361 of the FW Act. The more plausible the evidence of, or as to, the real reason for taking the adverse action, the more likely the Court will accept a decision makers statement that the action was not taken for a prohibited reason.
In the letter confirming the termination of the applicant’s employment provided inter alia:
“As you are aware there have been ongoing issues relating to your employment, specifically in regards to following directives issued by Spotless management which are required for you to complete your current role.
We note these issues have been the subject of formal disciplinary action for which you were provided written warning on 25th February 2015.”
The approach identified in each of the joint judgments in Barclay emphasised that the question of whether an adverse action was “because” of a proscribed reason is a question of fact. Consideration of this requires a careful analysis of the evidence adduced and the overall facts and circumstances of the case.
Ms Scott gave evidence and was cross examined. This was the “direct evidence of a decision-maker as to state of mind, intent or purpose” which was referred to in Barclay in the passages set out above.
Ms Scott gave evidence which I accept that the decision to terminate the applicant’s employment was solely due to her poor performance and not for any other or additional reason.
In this case the evidence of Ms Scott was replete with consistent and ongoing concerns about the applicant’s behaviour. The evidence of Ms Scott was not otherwise unreliable because of other contradictory evidence given by her or because other objective facts have been proven which contradict her evidence.[20]Therefore I am satisfied the respondent has discharged the onus upon it under s.361 of the FW Act.
[20] See Barclay at [45]. See also Grant at [48].
On the basis of the above I am satisfied the answer to this question is no.
Did working day shift from March 2014 constitute adverse action?
In submissions the respondent noted:
“18. The phrase “injures the employee in his or her employment” extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right.[21]
19. The phrase “alters the position of the employee to the employee’s prejudice” is an additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. A prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.[22]”
[21] See for an example Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178 at [84] and the authorities cited therein.
[22] Ibid.
“Adverse action” for the purposes of s.342 of the FW Act, includes conduct that “injures the employee in his or her employment” or “alters the position of the employee to the employee’s prejudice”. [23] There is no doubt that an employee may be injured in their employment or their position altered in a prejudicial manner whether or not a legal right (contractual or otherwise) is lost or infringed. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3)[24], the High Court said (at [4]) that the concept of altering the position of an employee to their prejudice:
“...is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
[23] Section 342(1), Item 1(b) and (c).
[24] (1998) 195 CLR 1.
In this case it was difficult to understand what “workplace right” the applicant relied on in relation to this claim of adverse action. However assuming it falls under s.341(a) or (c) the injury or alteration the applicant appeared to rely on was the reduction in income working day shifts instead of nights.
The respondent’s position was this did not constitute ‘adverse action’ as alleged because:
(a)the applicant was engaged as a casual employee and only called on for duty when required with each time she was called for duty being a separate engagement;
(b)the applicant did not have any legal right or entitlement to work specific hours or spread of hours;
(c)the change was permitted under her contract of employment;
(d)the applicant was free to refuse shifts offered to her but chose to accept day shifts from 5 March 2014.
However given the authorities referred to above, the answer to this question is yes.
If yes to the previous question was working day shift because of her complaint or inquiry?
As noted earlier the decision in Barclay (supra) emphasised that the question of whether an adverse action was “because” of a proscribed reason is a question of fact.
In this case for the reasons set out above I accept the evidence of Ms Scott. I am satisfied that the respondent has discharged the onus under s.361 and that the applicant was given day shift from 5 March 2014 because it would provide a better opportunity for the respondent to monitor her workplace conduct during ordinary office hours and not for reasons including her complaint to the FWO, any complaints or inquiries she made in relation to her employment[25] or any other prohibited reason.
[25] DS Affidavit at [62].
For those reasons the answer to this question is no.
Did the failure to roster the applicant for shifts on Sundays constitute adverse action?
As with the allegation of adverse action in relation to working day shift it was difficult to understand what “workplace right” the applicant relied on in relation to this claim of adverse action. However assuming it falls under s.341(a) or (c) the injury or alteration the applicant appeared to rely on was the reduction in income in not working Sunday shifts.
The respondent’s position, was there was no ‘adverse action’ within the meaning of Item 1(d) of s.342(1) of the FW Act by never giving the applicant Sunday shifts as alleged because:
a)she was in fact given Sunday shifts during her employment;
b)given the letter of appointment she had no legal right or any entitlement to work or benefit from Sunday shifts or any specific shifts;
c)the evidence was rostering was determined by operational needs and which applied universally to all employees including other casual employees engaged at the AEMI[26].
[26] DS Affidavit at [22], [37] – [41], [60] – [62] & [120]; CW Affidavit at [12], [31] – [37] & [68].
In Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 Perry J considered inter alia the principles in relation to adverse action[27] and whether the alteration in the allocation of shifts could constitute an alteration in an employee’s position.[28] Given the approach set out therein the answer to this question is yes.
If yes to the previous question, was the failure to roster the applicant for shifts on Sundays because of her complaint or inquiry?
[27] See paragraphs 31-37 and 72,74-75.
[28] See paragraphs 44-59.
Given the above I now consider whether in this case the failure was because of the applicant’s complaint or inquiry. As noted earlier the decision in Barclay (supra) emphasised that the question of whether an adverse action was “because” of a proscribed reason is a question of fact.
In this case for the reasons set out above I accept the evidence of Ms Scott. I am satisfied the respondent has discharged the onus under s.361 and that the decisions about rostering shifts (including Sunday shifts) were a result of operational needs and not the applicant’s complaint to the FWO, any complaints or inquiries she made in relation to her employment[29] or for any other prohibited reason.
[29] DS Affidavit at [22] & [122]; CW Affidavit at [12], [68] & [74].
For those reasons the answer to this question is no.
Other claimed breaches of FW Act
The applicant also claimed the respondent had contravened s.343 of the FW Act. As the respondent noted in written submissions an intention to coerce forms an element of the statutory proscription in s.343 of the FW Act. By reference to Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 the respondent submitted, there must be two elements to prove ‘intent to coerce’:
a)it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice; and
b)the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.[30]
As the respondent noted in submissions the applicant appeared to base this allegation on the requests made to perform vacuuming. In this case the Court needs to determine whether there is conduct which leaves the applicant with no real choice and whether this negatory effect was intended by the respondent and then whether the conduct was illegitimate.[31] In this case I am not satisfied there was evidence capable of making out an allegation that the respondent engaged in conduct that negated choice or that it intended to do so or that any action was unlawful illegitimate or unconscionable.[32] Accordingly this claim should be dismissed.
[30] See for example: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 at [50] to [52] per Tracey J and the authorities cited therein.
[31] See Stanley v Father Michael Court [2014] FCCA 156.
[32] See Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244.
The applicant had also claimed that the respondent had contravened section 344 of the FW Act. The respondent submitted this allegation also appeared to be based on the requests made of the applicant by her manager. As the respondent noted in submissions the authorities on the approach to that provision talk of “undue” conduct as conduct which is ‘unwarranted; excessive, too great’ or ‘not proper, fitting or right; unjustified’.[33] In Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 Pagone J considered the approach to s.344.[34] In this case the evidence of the applicant was not capable of persuading me that the respondent engaged in conduct that was in the circumstances capable of constituting undue influence or undue pressure. Accordingly this claim should be dismissed.
[33] Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82 at [18], cited in Wintle v RUC Cementation Mining Contractors Pty Ltd(No.3) [2013] FCCA 694 at [63].
[34] See paragraph 12-13.
The applicant also claimed the respondent had contravened section 345 of the FW Act. As the respondent noted in submissions section 345 captures representations which have a particular subject matter, namely, “workplace rights” as defined in s.341(1) of the FW Act, as they apply to a particular person or classes of persons.[35]
[35] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [51] & [52].
The respondent in submissions noted that to contravene s.345, it is not enough that a person made a representation which was false or misleading. The representation must be made knowingly or recklessly. The notion of “knowingly” requires that the person who made the representation knew it was false when the person made it.[36]
[36] Ibid at [54].
The respondent had submitted that for a person to recklessly make a false representation about the workplace rights of another, the person either must have made the representation without believing it to be true, or not caring whether it was true or false.[37]
[37] Ibid at [55] – [58].
In relation to the applicant’s claim of a contravention of s.349 of the FW Act the respondent’s submissions claimed there was an absence of authority but that it is directed to representations with very specific subject matter, namely a person’s industrial activity or association and there was no evidence in this case to sustain such a claim.
In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 Collier J at [135] to [142] considered the provisions of ss.345 and 349 of the FW Act. On appeal the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 accepted that for the purposes of s.345 the fact that a representation may be inconsistent with a workplace right does not make it about a workplace right and for the purposes of s.349 the necessary representation must lead someone into error and it was important to put any representation in context. In this case on the evidence before the Court of the respondents’ witnesses which I accept, I am not satisfied there was a false and misleading representation or the promulgation of same about a workplace right. There was also a complete dearth of evidence capable of making out let alone sustaining the allegation of representation that amounted to a contravention of s.349.Accordingly those claims must also be dismissed.
Finally, in relation to the claim regarding a contravention of s.351 the respondent’s position in submissions was:
“84. [This] claim appears to be based on an allegation that the Applicant was not rostered for Sunday shifts [38]. It is predicated on an assumption that the rostering of Sunday shifts amounted to some sort of “discrimination”, which is denied.
85. Although s.351 is headed “Discrimination”, the section is couched in terms of adverse action against a person who is an employee because of an identified attribute. There is no protected attribute identified or established by the Applicant.
86. The claim fails at this point without further consideration necessary.
87. Putting the absence of a protected attribute to one side, there was no discrimination (or other ‘adverse action’) within the meaning of Item 1 of s.342(1) of the FW Act constituted by the rostering of Sunday shifts in circumstances where:
(a)the Applicant was given Sunday shifts during her employment;
(b)the Applicant had no legal entitlement to work or benefit from Sunday shifts or any specific shifts;
(c)the reasons for rostering decisions were operational and legitimate [39].
[38] Part G of the Application.
[39] See DS Affidavit at [22], [37] – [41], [60] – [62] & [120]; CW Affidavit at [12], [31] – [37] & [68].
88. The Applicant’s claim under s.351 of the FW Act is not made out and must fail.”
In considering this claim I have borne in mind the requirement for the applicant to first prove the existence of objective facts capable of providing a basis for the alleged adverse action.[40] Given the evidence before the Court I accept the respondents’ submissions and find the applicant has not established those objective facts and otherwise for the reasons set out above this claim must also be dismissed.
[40] See Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399.
The Agreement
The parties raised for determination the question as to whether the respondent had contravened the particularised provisions of the Agreement.
The respondent denied the applicant’s allegations that there had been contraventions of the Agreement. The respondent also denied that the Agreement was a term of the applicant’s contract of employment. The respondent’s position whilst there were a number of provisions of the Agreement identified by the applicant there was no evidence of any actions or omissions with proper particulars which could constitute a supposed contravention of those provisions. The respondent had noted the applicant had not pleaded any cause of action in contract. The respondent’s position was the applicant had misconceived the terms and effect of the Agreement. In written submissions the respondent contended:
“94. The Applicant suggests that her contract of employment was breached by the Respondent.
95. The suggested breach(es) supposedly stem from contravention of provision(s) of the Spotless Services (Australia) Limited Victorian Garrison Support Workplace Agreement 2006 (“Spotless Workplace Agreement”).
96. In the SOC the Applicant identifies a number of provisions of the Spotless Workplace Agreement but she does not plead any actions or omissions with proper particulars which constitute a supposed contravention of those provisions. The Applicant has not pleaded any cause of action in contract.
97. Clause 17 of the Spotless Workplace Agreement is identified. Put simply, clause 17 has application when an employee “is specifically appointed” by the Respondent to higher duties. All other fundamental factual and legal deficiencies aside, the Applicant was never so specifically appointed by the Respondent.
98. Clause 27 of the Spotless Workplace Agreement is also indentified(sic). When understood in the light of its industrial context and purpose, Clause 27 is a ‘consultation’ provision. It has application when the Respondent has made a definite decision to implement changes in “production, program, organisation structure or technology” which are likely to result in “significant effects” as defined therein. The decision to terminate an individual employee for misconduct is not covered by the provision.
99. Subclause 28.2(a) of the Spotless Workplace Agreement is also identified. Clause 28 is about “Redundancy”. Subclause 28.2(a) stipulates that where definite decisions about “Redundancy” have been made which may lead to termination of employment, discussions should occur as soon as practicable with the employees directly affected. This case does not involve “Redundancy” as defined therein.
100. The Applicant has misconceived the terms and effect of the Spotless Workplace Agreement.
101. No cause of action in contract is established.”
In Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 His Honour Judge Driver considered the question of the coverage of particular industrial instruments and the principles relevant to the determination of same.[41]
[41] See inter alia paragraphs 17 to 28 and 86 to 188 and authorities referred to therein.
In relation to the issue of the incorporation of the Agreement to the applicant’s contract of employment the comments in Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422 per Brennan CJ, Dawson and Toohey JJ, explaining the operation of an award provision vis a vis a contract, are apposite:
“The award regulates what would otherwise be governed by the contract. But [the award provision is] imported as a statutory right…the legal relations between the parties are in that situation determined in part by the contract in part by the award.
…
In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already but cannot derogate from the terms and conditions imposed by the award (14) and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations.”
Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422 established that awards operate by force of the statute. The Full Court decision in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 held that the same position applies to statutory agreements such as the Agreement in this case.[42] Given the wording of the applicant’s letter of appointment I accept that the Agreement was not expressly incorporated into the applicant’s contract of employment and find that the reference to the Agreement (which would in any event operate by statutory force according to its terms) was clearly by way of provision of information only.
[42] See also Visscher v Giudice (2009) 239 CLR 361.
I did not understand the respondent to argue that the Agreement in its terms did not cover the applicant as she was not an employee of the “Company” for the purposes of the “Coverage” or the “Definition” clauses of the Agreement. There was no explanation of why the applicants pay advice referred to “Spotless Services Aus Ltd”.[43] In its defence the respondent had pleaded that the Agreement applied to the applicant during her employment [44] and that the applicant was classified as a Service Attendant Level 3.[45] Moreover the correspondence from the FWO in June 2012 indicated that their investigation had proceeded on the basis that the Agreement “governed” the applicant’s employment but that the applicable rates of pay were in the relevant modern award as they were higher.[46]
[43] See Exhibit R1.
[44] See paragraph 2(b) of defence.
[45] See paragraph 3(f) of defence.
[46] See FWO letter dated 13 June 2012 at exhibit JD-4 to affidavit of John Douglas.
The relevant provisions of the Agreement that the parties raised (in the order they raised) for consideration were:
“17. Higher Duties
An employee specifically appointed by the Company for more than four hours during one day or shift on duties carrying a higher rate than the employee’s normal classification shall be paid the higher rate for such day or shift. If appointed for four hours or less during one day or shift, the employee shall be paid the higher rate for the time so worked.”
In submissions the respondent’s position was:
“97. Clause 17 of the Spotless Workplace Agreement is identified. Put simply, clause 17 has application when an employee “is specifically appointed” by the Respondent to higher duties. All other fundamental factual and legal deficiencies aside, the Applicant was never so specifically appointed by the Respondent.”
In considering this issue and applying the principles set out in the authorities[47] to the approach to the terms of the Agreement set out above (and that the obligation was on the applicant to make out her case) I note even putting to one side the respondent’s denials of any breach of this clause that the applicant’s own evidence was that she was not ‘appointed’ to duties carrying a higher rate. This claim is not made out.
[47] See Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4, and cases referred to therein including Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, Kucks v CSR Ltd (1996) 66 IR 182.
The next clause raised for consideration was:
“27. Introduction of change
27.1 Notification of Intended Changes
(a) where the Company has made a definite decision to implement changes in production, program, Organisation, structure or technology that are likely to have significant effects on employees, the Company shall as soon as practicable notify the employees who may be affected by the proposed changes.
(b) “Significant Effects” include termination of employment; major changes in the composition, operation or size of the Company’s work-force or in the skills required; the elimination or diminution of job’s opportunities, promotion opportunities or job tenure; the alteration of hours or work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the Agreement makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.”
This clause is different to the sort of clause considered in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591. In considering this issue and applying the principles set out in the authorities[48] to the approach to the terms of the Agreement set out above (and that the obligation was on the applicant to make out her case) clause 9.6 of the Agreement makes clear the terms of this clause do not apply to casual employees. That clause provides:
“9.6. The provisions of clause 15-Public Holidays, clause 21-Annual Leave, clause 22-Personal Leave (excluding 22.3), clause 23 Compassionate Leave, clause 24-Parental Leave, clause 26-Termination of Employment, clause 27-Introduction of Change, clause 28-Redundancy shall not apply to casual employee. (emphasis added).”
[48] See Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4, and cases referred to therein including Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, Kucks v CSR Ltd (1996) 66 IR 182.
Accordingly this claim is not made out. The next clause raised for consideration was:
“7.4 Directions by the Company
(a) The Company may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this Agreement provided that such duties are not designed to promote de-skilling.
(b) The Company may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.
(c) Any direction issued by the Company pursuant to subclauses (a) and (b) hereof shall be consistent with the Company’s responsibilities to provide a safe and healthy working environment.”
In considering this issue and applying the principles set out in the authorities[49] to the approach to the terms of the Agreement set out above (and that the obligation was on the applicant to make out her case) I am not satisfied given the terms of the applicant’s letter of appointment, position description and the evidence of the respondent’s witnesses that the applicant has made out a claim of a breach of this clause of the Agreement. The next clause raised for consideration was:
[49] See Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4, and cases referred to therein including Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, Kucks v CSR Ltd (1996) 66 IR 182.
“7.6 Flexibility
Employees are to perform as directed the full range of duties encompassed within the classification level including work which is peripheral to their main tasks or functions.”
For the same reasons set out above in paragraph 144 the applicant has not made out a claim of a breach of this clause of the Agreement. The final clause raised for consideration was:
“32. Dispute settling Procedure
32.1 If there is a dispute over the application of this Agreement between an employee or group of employees and the Company the dispute resolution procedure set out in this clause shall apply. The aim of this procedure is to ensure that the dispute is settled as quickly as possible.
32.2 During each stage of the dispute resolution procedure (other than the first stage) either the employee(s) or the Company may choose to be accompanied or represented by another person of their choice.
32.3 The procedure is:
(a) 1st step: The matter is discussed between the employee(s) and his /her immediate supervisor.
(b) 2nd step: If settlement is not reached, the matter is discussed between the employee and the Manager.
(c) 3rd step: If settlement is not reached, the matter is referred to more senior management of the Company.
(d) 4th step: If, after the attempts at the workplace to resolve the matter have failed, the matter in dispute may be referred to the Australian Industrial Relations Commission (AIRC) for resolution by conciliation.
(e) 5th step – If the matter is not resolved by conciliation, the AIRC may, subject to the agreement of both the employee(s) and the Company at the time, resolve the matter in dispute by arbitration of the application of the Agreement. The parties may identify a particular member of the AIRC who will arbitrate the matter in dispute and failing agreement will be before a member allocated by the AIRC.
(f) In exercising its arbitration functions in this dispute resolution clause the Australian Industrial Relations Commission may only exercise the procedural powers that are agreed to by both the employee(s) and the Company in the agreement to arbitration.
32.4 Until the matter is determined, work will continue as directed without prejudice to the positions of the parties. Every effort will be made to ensure settlement of a grievance at the earliest possible stage and at each stage an agreed time for resolution of the problem will be made before possession to the next step.
32.5 The decision of the AIRC in arbitration under this procedure may be appealed to a Full Bench of the AIRC. That appeal may be an appeal on a question of law and/or an appeal on the merits. The Full Bench may hear the appeal and exercise such powers in respect of the appeal as provided to the Full Bench in the Workplace Relations Act 1996, as if the arbitrated decision were an order of the AIRC.”
Applying the principles set out in the authorities[50] to the terms of the Agreement set out above (and that the obligation was on the applicant to make out her case) I would find, given the absence of inter alia evidence of a dispute over “the application of” the Agreement, that I am not satisfied the allegations made by the applicant of breaches of the above clauses of the Agreement had been made out.
[50] See Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4, and Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, Kucks v CSR Ltd (1996) 66 IR 182.
The last issue raised by the applicant was whether the respondent owed the applicant wages in respect of time for the week ending 4 February 2013. Despite raising this as a question to be determined the issue wasn’t pursued in evidence before the Court by either party. On the material before the Court I am unable to find there are monies outstanding that are owed to the applicant.
In conclusion there remained the respondent’s claim that the applicant was liable to refund the notice payment made to the applicant. The respondent claimed it had sought repayment of the notice payment on the basis that it had been made as a result of a mistake. None of the respondent’s witnesses could explain that mistake and this issue was barely mentioned in evidence. However it didn’t appear to be contentious that the respondent wasn’t required to give a casual notice.
In final submissions Counsel for the respondent didn’t cavil with the issue raised by the Court on the applicant’s behalf that the applicant’s position appeared to be that she had changed her position in reliance on that payment.[51] On that basis I am not satisfied the order sought by the respondent should be made.
[51] See Davids Securities Pty Limited and Ors v Commonwealth Bank of Australia (1992) 175 CLR 353.
Conclusion
The applicant maintained (even in the face of the consistent evidence of the respondent that her behaviour had been unacceptable and that is why her employment had been terminated) that she had been wronged. This fixed view, implacably maintained by the applicant that she had been wronged and dealt with unfairly, coloured all of the evidence given by her.
On the basis of all the evidence the Court comes to the conclusion the applicant’s claims were either misconceived, not established on the evidence or the respondent has discharged the onus upon it and established to the requisite degree that adverse action was not taken for a prohibited reason. Accordingly, for the reasons set out above the application must be dismissed.
Given s.570 of the FW Act any application for costs is to be filed and served within 14 days and any response 14 days thereafter.
Any application for costs will be determined on the papers unless the parties request otherwise.
I certify that the preceding one-hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 6 July 2015
ANNEXURE A
STATEMENT OF AGREED FACTS, LAW AND QUESTIONS TO BE DETERMINED
Introduction
The Applicant’s claims arise out of her employment with the Respondent which was based at the Australian Emergency Management Institute (in this document, “AEMI” or “Client”) and her dismissal effective on or about 19 March 2014.
Agreed facts
The Applicant was employed by the Respondent on a casual basis pursuant to a letter of offer of employment dated 29 March 2011 and signed by the Applicant on 31 March 2011 (“Contract of Employment”).
The Applicant was employed on a casual basis in the position of Night Manager.
The Applicant’s employment was based at AEMI which is located at 601 Mount Macedon Road, Mount Macedon in the State of Victoria.
The Respondent provided cleaning, catering and basic accommodation administration services to the Client at AEMI.
The Applicant’s first shift for the Respondent was on or about 5 April 2011.
The Applicant’s direct manager was Christopher Williams, Site Manager.
During her employment, the Applicant was usually engaged to work 2 shifts per week on a Wednesday and Thursday.
The Applicant on occasion may have been offered and rostered to fill additional shifts to support activities being conducted at AEMI. Similarly, she may not have been offered or engaged to work by the Respondent because there were no activities being conducted at AEMI which required her service.
AEMI provides knowledge and capability development in national emergency management. It is a part of the Attorney General’s Department, Emergency Management Australia Division.
AEMI:
a. provides a range of education, training, professional development, information, research and community awareness products and services;
b. sponsors a range of national programs and activities that engage communities in building disaster resilience including producing emergency management publications, developing school education activities, engaging with communities and the volunteer sector and using innovative information sharing technologies;
c. delivers a range of educational programs including accredited courses and professional development for those working in the emergency management sector covering topics including leadership, business continuity, community recovery, exercising and coordination and organisational resilience;
d. undertakes research and strategic activities to enhance the emergency management sector's insight into emerging issues, challenges and best practice. The activities include workshops and master classes and a research agenda focused on contemporary issues.
On or about 24 January 2012 the Applicant contacted the Fair Work Ombudsman in relation to alleged underpayment of wages.
In or around July 2012 the Respondent voluntarily rectified the alleged underpayments the subject of the Applicant’s complaint or inquiry with the Fair Work Ombudsman.
The Applicant worked day shifts with effect from 5 March 2014.
The Applicant’s employment was terminated effective 19 March 2014 (“Dismissal”).
The Applicant was paid $2,035.15 (Gross) or $1,394.15 (Net) in lieu of notice of termination (“Notice Payment”).
The Respondent’s engagement at AEMI ceased effective 30 April 2015.
Agreed law
The parties agree and acknowledge that:
a.the Applicant’s had a workplace right to make a complaint or inquiry to the Fair Work Ombudsman within the meaning of s.341(1)(c)(i) of the Fair Work Act 2009;
b.the Applicant exercised a workplace right by making the complaint or inquiry to the Fair Work Ombudsman on or about 24 January 2012;
c.the Dismissal constitutes adverse action within the meaning of Item 1(a) of s.342(1) of the Fair Work Act 2009.
Questions to be determined
Was the Dismissal because of her complaint or inquiry to the Fair Work Ombudsman on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the Fair Work Act 2009?
Did working day shift with effect from 5 March 2014 constitute adverse action within the meaning of 1(b) or 1(c) of s.342(1) of the Fair Work Act 2009?
If yes to the previous question, was working day shift because of her complaint or inquiry to the Fair Work Ombudsman on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the Fair Work Act 2009?
Did the failure to roster the Applicant for shifts on Sundays constitute adverse action within the meaning of 1(d) of s.342(1) of the Fair Work Act 2009?
If yes to the previous question, was the failure to roster the Applicant for shifts on Sundays because of her complaint or inquiry to the Fair Work Ombudsman on or about 24 January 2012 in contravention of s.340(1)(a)(ii) of the Fair Work Act 2009?
Has the Respondent contravened the following civil remedy provision of the Fair Work Act 2009:
a.s.343;
b.s.344;
c.s.345;
d.s.349; and
e.s.351(1).
Has the Respondent breached the Applicant’s Contract of Employment by reason of it breaching the following clauses of the Spotless Services (Australia) Limited Victorian Garrison Support Workplace Agreement 2006:
a.Clause 17;
b.Clause 27;
c.Subclause 7.4(a);
d.Clause 7.6; and
e.Clause 32.
Does the Respondent owe the Applicant wages in respect of time worked by her during the week ending 4 February 2013?
Is the Applicant liable to refund the Notice Payment?
__________________________ __________________________
Nurgul Annear Spotless Facility Services Pty Ltd
Applicant Respondent
3
31
4