Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd
[2017] FCCA 1954
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION v AUSTRALIAN WESTERN RAILROAD PTY LTD | [2017] FCCA 1954 |
| Catchwords: EVIDENCE – Whether evidence tendered to prove facts in previous representations. |
| Legislation: Disability Discrimination Act 1992 (Cth) Occupational Safety and Health Act 1984 (WA), ss.19, 20 |
| Cases cited: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 Cross v Harbour City Ferries Pty Ltd T/AS Harbour City Ferries & Ors (No.2) [2017] FCCA 1713 Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 Ucchino v Acorp Pty Ltd [2012] FMCA 9; (2012) 218 IR 194; (2012) 63 AILR 101-526 Victoria v Construction, Forestry, Mining and Energy Union & Anor [2013] FCAFC 160; (2013) 218 FCR 172; (2013) 239 IR 441 Walton v The Queen (1989) 166 CLR 283; (1989) 38 A Crim R 276; (1989) 63 ALJR 226; (1989) 84 ALR 59 |
| Applicant: | AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION |
| Respondent: | AUSTRALIAN WESTERN RAILROAD PTY LTD |
| File Number: | PEG 139 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 9, 10 and 18 July 2014 |
| Date of Last Submission: | 18 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Cox |
| Solicitors for the Applicant: | MDC Legal |
| Counsel for the Respondent: | Mr RB Wade |
| Solicitors for the Respondent: | Ashurst Australia |
DECLARATION AND ORDERS
The Court declares that the respondent breached ss.340(1)(a)(i) and (ii) and 351(1) of the Fair Work Act 2009 (Cth) by cancelling, and not reinstating, Operations Supervisor training that Mr Aiberti was scheduled to undertake on 26 October 2012.
The Court orders that in relation to relief and penalty:
(a)the applicant file and serve any affidavits and an outline of submissions by 1 September 2017;
(b)the respondent file and serve any affidavits and an outline of submissions by 15 September 2017; and
(c)the matter be listed for further hearing as to relief and penalty at 10.15am on 27 September 2017.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 139 of 2013
| AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION |
Applicant
And
| AUSTRALIAN WESTERN RAILROAD PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, the Australian Rail, Tram and Bus Industry Union (“Union”) alleges that the respondent, Australian Western Railroad Pty Ltd (“AWR”) took adverse action for a prohibited reason against one of the Union’s members employed by AWR, Mr Brendon Robert Aiberti (“Mr Aiberti”) by reason of Mr Aiberti’s workplace rights, contrary to various provisions of the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Aiberti was at all relevant times employed as a Locomotive Driver at AWR’s West Kalgoorlie depot. Mr Willem Fouche (“Mr Fouche”) was the Service Delivery Manager at AWR’s West Kalgoorlie depot at the relevant time. On 20 October 2012 Mr Aiberti refused to work a shift on which he was rostered (“Disputed Put-Back Shift”). Thereafter, Mr Fouche instructed one of his subordinates to cancel Operations Supervisor training that Mr Aiberti was scheduled to participate in on 26 October 2012. The Operations Supervisor training had previously been approved and arranged by Mr Fouche.
It is common ground that a “put-back shift” occurs when there are delays in the running times of trains which result in an employee being required to commence their shift later than the usual commencement time of their rostered shift, and that Mr Aiberti might ordinarily be required to work put-back shifts.
Cause of action – adverse action in relation to workplace rights
The Union pursues a cause of action founded upon the prohibition in s.340(1) of the FW Act against taking adverse action against a person. The Union contends that AWR took adverse action against Mr Aiberti in relation to the Operations Supervisor training for Mr Aiberti because Mr Aiberti:
a)had exercised a workplace right to:
i)take unpaid parental leave;
ii)take paid personal or carer’s leave;
iii)obtain the benefit of a working environment in which he was not exposed to hazards; and
iv)exercise his responsibility to ensure his own safety and health at work; and
b)proposed to exercise a workplace right to take further unpaid parental leave.
The Union contends further, or in the alternative, that AWR took adverse action against Mr Aiberti by discriminating against him by reason of his family or carer’s responsibilities in breach of the prohibition in s.351(1) of the FW Act.
The statutory framework – adverse action and workplace rights
Adverse action
The relevant statutory framework in terms of adverse action derives from s.340(1) of the FW Act which relevantly provides as follows:
(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.
The meaning of “adverse action” is relevantly provided for in s.342(1) of the FW Act which provides 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.
The Union specifically relies upon paragraphs (b), (c) and (d) in column 2 of Item 1 in s.342(1) of the FW Act as the adverse action taken against Mr Aiberti, that is:
a)that AWR injured Mr Aiberti in his employment; or
b)that AWR altered the position of Mr Aiberti to his prejudice; or
c)that AWR discriminated between Mr Aiberti and other of its employees.
Section 351 of the FW Act relates to adverse action on the grounds of discrimination, and s.351(1) of the FW Act relevantly provides as follows:
(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 orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 360 of the FW Act deals with the reasons for adverse action and provides as follows:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361(1) of the FW Act deals with the statutory presumption that action was taken for the reason alleged and relevantly provides as follows:
(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Alleged workplace rights
The term “workplace right” in s.340(1) of the FW Act is relevantly defined in s.341 of the FW Act as follows:
(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) …; 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.
The Union asserts that Mr Aiberti had workplace rights for the purposes of s.341(1) of the FW Act pursuant to:
a)the National Employment Standards (“NES”) contained within Part 2-2 of the FW Act;
b)the Australian Western Railroad (Western Australia) Rail Operations Enterprise Agreement 2011 (“Enterprise Agreement”) (the Enterprise Agreement is Exhibit 1);
c)sections 19 and 20 of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”); and
d)the anti-discrimination provisions of s.351(1) of the FW Act.
NES
Under the NES Mr Aiberti asserts workplace rights to:
a)personal/carers leave under ss.96 and 97 of the FW Act which provide as follows:
96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
b)unpaid parental leave under s.70 of the FW Act which relevantly provides as follows:
An employee is entitled to 12 months of unpaid parental leave if:
(a) the leave is associated with:
(i) the birth of a child of the employee or the employee’s spouse or de facto partner; or
(ii) the placement of a child with the employee for adoption; and
(b) the employee has or will have a responsibility for the care of the child.
Enterprise Agreement
The Enterprise Agreement is a “workplace instrument” within the meaning of s.12 of the FW Act.
Mr Aiberti is, and at all material times was, a Locomotive Driver – Level 8 under cl.20.1 of the Enterprise Agreement and was accordingly at all material times covered by the Enterprise Agreement: Enterprise Agreement, cl.3.1.
Mr Aiberti alleges a workplace right to personal and carers leave under cl.35 of the Enterprise Agreement which provides as follows:
Entitlement
35.1Personal leave is for the purpose of providing income for employees unable to attend work due to personal illness or injury, or due to providing care or support to a member of the employee’s immediate family or household who requires care or support because of a personal illness or injury or an unexpected emergency affecting the member.
35.2Fulltime employees are entitled to paid personal leave of up to 96 hours for each completed year of service (pro rata for part-time employees) which may be taken by an employee as follows:
35.2.1paid personal leave may be taken because the employee is unable to attend work due to personal illness or injury; or
35.2.2paid carers leave may be taken where the employee is required to provide care or support to a member of the employee’s immediate family or because of a personal illness or an unexpected emergency affecting the member.
Mr Aiberti also alleges a workplace right to unpaid parental leave under cl.39 of the Enterprise Agreement which provides as follows:
Unpaid parental leave
39.1Employees will be entitled to unpaid parental leave in accordance [with] Division 5 of Part 2-2 of the Act. This includes leave for employees who are to be the primary carer of the child, and leave for employees who are not the primary carer of the child.
39.2Employees who have an entitlement to parental leave under subclause 39.1 above will be entitled to up to 14 weeks paid parental leave in accordance with AWR’s Parental Leave Policy.
Paid Parental Leave
39.3The paid leave at subsection 39.2 above forms part of, and is not additional to the employee’s entitlement to parental leave under subclause 39.1 above.
39.4The entitlement to paid leave in this clause is independent of any entitlement an employee may have to payment for parental leave under the Paid Parental Leave Act 2010.
Family or carers responsibilities under s.351 of the FW Act
Mr Aiberti alleges that at all material times he had family or carer’s responsibilities for the purposes of s.351(1) of the FW Act.
OSH Act
Mr Aiberti alleges workplace rights under the provisions of the OSH Act, and specifically:
a)to the benefit of a working environment in which he was not exposed to hazards under s.19(1) of the OSH Act, which relevantly provides as follows:
(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c) consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace; …
b)that he personally had a responsibility to ensure his own safety and health at work pursuant to s.20(1)(a) of the OSH Act, which provides as follows:
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; …
The evidence
The evidence in this matter is contained in the affidavits, the Statement of Agreed Facts and 16 exhibits, most of which (those numbered 1 to 15) were tendered by consent.
The affidavits relied upon by the parties in these proceedings are as follows:
a)the affidavit of Mr Aiberti affirmed 24 January 2014 on behalf of the Union (“Aiberti Affidavit”);
b)the affidavit of Shaun Andrew Willis (“Mr Willis”) affirmed 16 January 2014 on behalf of the Union (“Willis Affidavit”);
c)the affidavit of Mr Fouche sworn 20 February 2014 on behalf of AWR (“Fouche Affidavit”);
d)the affidavit of Amy Louise Kimberley (nee Bland) (“Ms Kimberley”) sworn 20 February 2014 on behalf of AWR (“Kimberley Affidavit”);
e)the affidavit of Mr Aiberti affirmed 28 March 2014 on behalf of the Union (“Aiberti Reply Affidavit”); and
f)the affidavit of Mr Willis affirmed 2 April 2014 on behalf of the Union (“Willis Reply Affidavit”).
There were various objections to some of the affidavit material filed, and these objections are dealt with hereunder: see [24]-[27] below.
In relation to the objections to the Aiberti Affidavit the Union conceded that paragraph 11 should be struck out: Transcript at page 11.
In relation to the objections to the Willis Affidavit:
a)it was conceded that paragraphs 9, 10 and 11 should be struck out: Transcript at page 11;
b)in relation to paragraph 15 the first sentence of this paragraph records an inadmissible conclusion or opinion on the part of Mr Willis, and therefore ought to be struck out. In any event, the conversation which is recorded following the second sentence speaks for itself; and
c)it was conceded that the second sentence of paragraph 24 should be struck out.
In relation to the Aiberti Reply Affidavit:
a)in relation to paragraphs 6-8 these are facts which might be put as matters which counter Mr Fouche’s perception of a lack of commitment by Mr Aiberti, and therefore the objection is dismissed;
b)in relation to the first three sentences of paragraphs 12 and all of paragraph 13 these are facts which might be put as matters which counter Mr Fouche’s perception of a lack of commitment by Mr Aiberti, and these objections are therefore dismissed;
c)in relation to paragraph 14 these are facts which might be put as matters which counter Mr Fouche’s perception of a lack of commitment by Mr Aiberti, except for the fourth and fifth sentences from the words “[i]t is common” through to “for the employees” which is inadmissible hearsay or opinion. The sixth sentence is probably also an opinion, but one which it appears Mr Aiberti is qualified to give. Therefore, the objection is upheld in relation to the fourth and fifth sentences of paragraph 14 which will therefore be struck out, but otherwise this objection is dismissed;
d)in relation to paragraph 17 the second sentence contains an inadmissible conclusion or opinion and will therefore be struck out;
e)in relation to paragraph 18 the second sentence records an inadmissible conclusion or opinion based on observations which are not otherwise recorded, and is also based in part on hearsay the source of which is not specifically disclosed or recorded, and therefore the second sentence of paragraph 18 will be struck out;
f)it was conceded that the final two paragraphs of paragraph 20 should be struck out: Transcript at page 11;
g)in relation to paragraph 22 the last sentence contains an inadmissible conclusion or opinion and therefore ought to be struck out;
h)it was conceded that the second and fourth sentences of paragraph 23 should be struck out: Transcript at page 11;
i)in relation to other than the first four sentences of paragraph 24 these are facts which might be put as matters which counter Mr Fouche’s perception of a lack of commitment by Mr Aiberti, and therefore this objection is dismissed;
j)in relation to paragraph 27 this paragraph contains an inadmissible conclusion or opinion concerning the reasons why Mr Fouche allegedly said something and this paragraph will be struck out;
k)in relation to the second sentence of paragraph 28 this sentence records an inadmissible conclusion or opinion about the reasons why Mr Fouche is alleged to have said something and this sentence will therefore be struck out;
l)in relation to paragraph 29 the factual basis for Mr Aiberti’s stated disagreement with Mr Fouche’s assertions concerning his lack of commitment and Mr Fouche’s concern in relation to his attitude is set out in previous paragraphs in the affidavit: see, for example, Aiberti Reply Affidavit at [12]-[13], [24] and [26], and the second sentence records what Mr Aiberti says was his agreement, and in the circumstances the objection to paragraph 29 will be dismissed;
m)in relation to paragraph 33 the second sentence sets out Mr Aiberti’s reasons for refusing to work the Disputed Put-Back Shift and is therefore relevant and admissible. Insofar as it involves a prediction in relation to whether or not Mr Aiberti would be fatigued, that is a prediction, or an assessment, which Mr Aiberti might have been called upon to make in order to fulfil his obligations as an employee under s.20(1)(a) of the OSH Act, and the various policies of AWR (in evidence by consent as Exhibit 2) as they relate to fatigue management: see [85]-[90] below. The objection to the second sentence of paragraph 33 will therefore be dismissed;
n)it was conceded that the second sentence of paragraph 34 should be struck out: Transcript at page 12; and
o)the various policy documents referred to in paragraphs 44-47 are in evidence by consent as Exhibit 2, and Mr Aiberti’s awareness of those policies may be relevant to his assertions of fatigue, or probable fatigue, if required to work the Disputed Put-Back Shift and of asserted workplace rights under the OSH Act. Further, the evidence of awareness of the policies is responsive or relevant to Mr Fouche’s evidence concerning fatigue: Fouche Affidavit at [55] and [57]. The objection to paragraphs 44-47 will therefore be dismissed.
In relation to the Union’s objections to the Fouche Affidavit:
a)it was conceded that paragraphs 25 and 29 should be struck out: Transcript at page 17;
b)in relation to paragraph 20 that paragraph, as with paragraphs 12 to 19 and 21 (which are not objected to) are part of the narrative, and contextualise who and why it was that certain persons were not given Operations Supervisor training, including, relevantly, that one of the persons mentioned did not have “the right attitude”. Because the evidence might be relevant to whether there was adverse action by reason of discrimination between Mr Aiberti and other employees for the purposes of s.342(1) Item (d) of the FW Act, and because it is also part of the narrative and provides context to what occurred, the objection is dismissed;
c)in relation to paragraphs 23, 24, 26, 30 (including Exhibit WASF 2), 31 (including Exhibit WASF 3) and 61, the evidence in those paragraphs is not tendered to prove the existence of any facts referred to in the previous representations made by the persons in the verbal or written reports, but rather serve exclusively to explain why Mr Fouche says he held the views that he did concerning Mr Aiberti’s attitude and level of commitment, and on that basis this evidence is therefore adduced for a non-hearsay purpose, and therefore admissible for the purpose of drawing rational inferences as to Mr Fouche’s perception or belief or state of mind, and not inadmissible by reason of s.59 of the Evidence Act 1995 (Cth) (“Evidence Act”): Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196; (2005) 79 ALJR 468; (2005) 213 ALR 1 at [77]-[83] per McHugh J; Walton v The Queen (1989) 166 CLR 283; (1989) 38 A Crim R 276; (1989) 63 ALJR 226; (1989) 84 ALR 59, CLR at 301-302 per Wilson, Dawson and Toohey JJ. For the above reasons the objection to these paragraphs is dismissed;
d)in relation to paragraph 27 the purpose of the evidence is not to establish the fact that the conditions of the Enterprise Agreement were satisfied, but, as with paragraphs 23, 24, 26, 30, 31 and 61, to establish Mr Fouche’s perception of Mr Aiberti’s attitude or level of commitment, and on the same basis as the paragraphs referred to, the objection to this paragraph is dismissed;
e)in relation to paragraph 45 the view of McQuade is in the Court’s view irrelevant, and the words “McQuade and” ought to be struck out. The remainder of the paragraph appears to be Mr Fouche’s assessment of Mr Aiberti’s suitability for a position as Operations Coordinator, and in the Court’s view is evidence that Mr Fouche can give as it is evidence of the fact of his assessment of Mr Aiberti (and in that regard whether it is an accurate assessment or not is irrelevant), but, in any event, it appears that the evidence is not introduced to establish the existence of the fact of the accuracy of the assessment, but merely that that was what the particular assessment was, and that this is relevant to Mr Fouche’s perception of Mr Aiberti’s abilities and commitment, and to that extent it falls within the exceptions in ss.77 and 78 of the Evidence Act. It follows that, apart from the striking out of the words “McQuade and”, the objection to this paragraph is dismissed; and
f)in relation to paragraph 87 and the objection to the words “after I had received the Complaints” on the basis that they are hearsay, that objection is to be dismissed because these words simply record the fact of the receipt of the “Complaints” and provide a reference to a point in time which assists in identifying when it was that Mr Fouche made a decision in relation to Mr Aiberti’s Operations Supervisor training.
The factual matrix established by the evidence is set out hereunder. Some additional facts are set out and dealt with in the Court’s consideration of the issues at [102]-[133] below.
AWR is a National System Employer within the meaning of s.14 of the FW Act.
AWR’s business provides rail freight transport services.
Mr Aiberti was at all relevant times a member of the Union.
Mr Aiberti has been employed by AWR since October 2003, and has been a Locomotive Driver since 2009: Aiberti Affidavit at [5]; Aiberti Reply Affidavit at [24].
Mr Aiberti has been an active voluntary member of AWR’s Safety Committee as an Occupational Health and Safety representative, and also of AWR’s consultative committee at the West Kalgoorlie depot since October or November 2012: Aiberti Affidavit at [7]-[8].
Between 2003 and 2009 Mr Aiberti progressed from his position as a shunter, moving into the role of Pilot and Examiner and the operating of a Signal Cabin, and in 2009 Mr Aiberti progressed to the role of Locomotive Driver: Aiberti Affidavit at [5]; Aiberti Reply Affidavit at [24].
In the Aiberti Reply Affidavit at [12]-[14] Mr Aiberti says that:
a)from time to time he has worked shifts which had been put-back shifts, including in circumstances in which the shift has been put back shortly before the start of the shift;
b)has at all times been flexible, willing and able to work put-back shifts, provided it is safe and practicable for him to do so, namely that his family or carer’s responsibilities and fitness permit him to do so; and
c)has declined to work put-back shifts in circumstances where there was late notice of the amended starting time, and:
i)he has been unable, due to his carer and family responsibilities, to re-schedule his rests so as to accommodate the change, meaning that there was a risk of Mr Aiberti becoming fatigued during the shift; and
ii)alternatively, there has been disruption to Mr Aiberti’s carer and family responsibilities.
During 2011 Mr Fouche approached Mr Aiberti and had at least two informal discussions with him regarding AWR’s Enterprise Bargaining Agreement negotiations and, in particular, the Locomotive Drivers' rosters: Aiberti Reply Affidavit at [15]-[20]; Fouche Affidavit at [32], [34] and [37]. During these informal discussions, Mr Aiberti and Mr Fouche discussed the issue of put back shifts. Mr Fouche rejected suggestions that his view about Mr Aiberti’s attitude was as a consequence of conversations that he had had with Mr Aiberti concerning the Enterprise Agreement and put-back shifts in which Mr Aiberti had been “straightforward”, and that Mr Fouche was not, by reason of his background in the South African railway system, used to such directness: Transcript at pages 89-90 and 94.
In June 2011 Mr Aiberti's wife gave birth to their first child. Mr Aiberti took approved parental and carer’s leave from on or about 6 June 2011 to on or about 13 August 2011: Aiberti Affidavit at [3]; Transcript at page 114. By reason of complications arising from Mr Aiberti’s wife’s pregnancy, Mr Aiberti became the primary carer for both his wife and their son during an approximate three month period following the birth, and after this time Mr Aiberti had ongoing family responsibilities for caring for his wife and child: Aiberti Affidavit at [3]; Aiberti Reply Affidavit at [13]; Transcript at pages 60 and 147-148.
In or around March 2012 Mr Aiberti applied for a Tutor Driver position with AWR: Aiberti Reply Affidavit at [24]; Fouche Affidavit at [39].
Mr Fouche and Ms Helen McQuade interviewed Mr Aiberti for the position of Tutor Driver on or about 20 March 2012: Aiberti Reply Affidavit at [24]; Fouche Affidavit at [41].
Mr Aiberti was unsuccessful in his application for the Tutor Driver position. Mr Fouche and Mr Aiberti later had a conversation regarding the outcome of Mr Aiberti's application for the Tutor Driver position and Mr Fouche told Mr Aiberti that he was looking for someone who could provide more commitment to the position and that Mr Aiberti "needed to be on his [Fouche's] team." Mr Fouche told Mr Aiberti he did not believe Mr Aiberti had the right attitude or was committed enough: Aiberti Affidavit at [9]-[10]; Aiberti Reply Affidavit at [26]; Fouche Affidavit at [43].
Mr Aiberti acknowledged that he was “quite shocked” when he was presented with an assessment by Mr Fouche in relation to his Tutor Driver’s application, and that on most areas of scoring he was scored as “marginal”, which is the level above “totally unacceptable”: Transcript at page 49.
It is plain that prior to any issue arising in relation to the Disputed Put-Back Shift Mr Fouche had a view that Mr Aiberti was not a team player and lacked commitment, and that part of the reason for that was discussions that Mr Fouche had had with Mr Aiberti during 2011, firstly in the context of extant negotiations concerning the Enterprise Agreement, and secondly an informal chat concerning rostering, in the course of which Mr Aiberti expressed the view that AWR ought to be able to get its trains running on time, and that the delays and put-back shifts were interfering with either Mr Aiberti’s personal life, or the personal lives of employees: Fouche Affidavit at [32]-[38].
In July 2012 Mr Aiberti approached Mr Fouche requesting training and experience in the Operations Supervisor role. The Operations Supervisor role involves supervising the shunting and marshalling movements around the yard at the Kalgoorlie Depot, as well as supervising other employees. The Operations Supervisor role has a higher base rate of remuneration than the Locomotive Driver position and Operations Supervisors work four regular 12 hour shifts per week: Aiberti Affidavit at [12]; Fouche Affidavit at [46]. Mr Aiberti told Mr Fouche that he wanted to earn more money, improve his family life and have more time with his family: Fouche Affidavit at [47]; Transcript at page 113. Mr Fouche was aware at that time that Mr Aiberti had started a family, and he says he had heard, by way of rumour only, that the commencement of life as a family had been difficult for both Mr Aiberti and his wife: Fouche Affidavit at [47]; Transcript at pages 90 and 113. Mr Fouche told Mr Aiberti that he wanted to watch what improvement there would be in Mr Aiberti’s attitude to work prior to scheduling training in the Operations Supervisor role for Mr Aiberti: Aiberti Reply Affidavit at [28]; Fouche Affidavit at [48]; Transcript at pages 30 and 91. Although Mr Aiberti disagreed with Mr Fouche’s comments concerning Mr Aiberti’s commitment and attitude Mr Aiberti agreed to wait until such time as Mr Fouche was happy to schedule him for the Operations Supervisor training: Aiberti Reply Affidavit at [29].
Between July 2012 and October 2012 Mr Aiberti made a number of further enquiries about Operations Supervisor training: Aiberti Affidavit at [30]; Fouche Affidavit at [50]. Mr Aiberti says, initially, that he was told by Mr Fouche that he would need to wait until there was availability within the usual roster to complete the training: Aiberti Affidavit at [12]-[13]; Transcript at pages 23-24. Mr Aiberti says that between July 2012 and 26 October 2012 no representative of AWR, including Mr Fouche, raised any concerns with him regarding his attitude or commitment towards work: Aiberti Affidavit at [13]; Transcript at pages 23-24.
Mr Fouche scheduled Mr Aiberti for Operations Supervisor training because he felt, after a number of calls from Mr Aiberti between July and October 2012, that Mr Aiberti was serious about being trained and committed to moving ahead. Mr Fouche also felt that Mr Aiberti was committed to making his family life easier, and he therefore agreed on the above bases, that Mr Aiberti undertake Operations Supervisor training: Fouche Affidavit at [51].
Mr Aiberti gave evidence that what he said in the Aiberti Affidavit at [12]-[13] was intended to convey that there had been no concerns raised with him about his attitude or level of commitment to his work and that the delay in training was purely a matter of rosters and scheduling: Transcript at page 24. Mr Aiberti also confirmed that the Aiberti Affidavit at [30] said that he had never previously been told that he had been unsuccessful for the Tutor Driver’s position because of his attitude, level of commitment and a perceived inability to work as a member of a team, allegations which were pleaded as the reasons for him not being successful in his application for the Tutor Driver’s position: Transcript at pages 24-25. Mr Aiberti was cross-examined in relation to these issues, in the context of what had been said in the Fouche Affidavit as to raising of issues of attitude, performance and work capacity, and was taken to the Aiberti Reply Affidavit at [12] in which his evidence was that:
At no time has Mr Fouche or any other representative of AWR spoken to me about any verbal or written reports received about me suggesting I have unreasonably refused shift changes or that I have a poor attitude to work or my employer, other than
1) in March 2012 after the tutor driver interview when Fouche said he was looking for someone who can provide more commitment to the position and I needed to be on his team, and
2) when I asked for Operations Supervisor training Mr Fouche said he would look for an improvement in my attitude. These comments were of a general nature and he did not mention any specifics.
Further, in the Aiberti Reply Affidavit at [28] Mr Aiberti reiterated that Mr Fouche said to him words to the effect that he wanted to watch for an improvement in his attitude prior to scheduling Operations Supervisor training: Transcript at page 25.
Mr Aiberti in cross-examination was unable to provide an explanation for the direct contradiction in his evidence as to what he was told about his attitude, or commitment, or work abilities: Transcript at page 28. Mr Aiberti conceded that, having approached Mr Fouche about Operations Supervisor training in July 2012 for the first time, it was not until 21 October 2012 that he was first scheduled to undertake Operations Supervisor training: Transcript at page 28. Under cross-examination Mr Aiberti equivocated as to whether or not Mr Fouche had told him that he must demonstrate an improvement in his attitude and level of commitment before he received Operations Supervisor training, and asserted that he had received no feedback in the relevant period of time, that Mr Fouche was not specific, and that Mr Aiberti may not have understood any particular reasons Mr Fouche gave him in relation to these matters: Transcript at pages 28-29. Asked directly as to whether or not Mr Fouche ever said words to him that he wanted to watch for an improvement in his attitude before he would schedule Operations Supervisor training Mr Aiberti at first said that “I don’t recall him specifically saying that”, and then went on to say that the “main reason” that Mr Fouche “gave me” for the delay “was simply that at that stage, he wanted to monitor my performance to make sure I was suitable”: Transcript at page 29. When it was put to him in cross-examination that the Aiberti Reply Affidavit at [28] said that Mr Fouche said to him words to the effect that Mr Fouche “wanted to watch for an improvement in my attitude prior to scheduling the training” Mr Aiberti agreed that his evidence in that regard was “correct”, and to the extent that the pleadings and the Aiberti Affidavit conveyed a contrary proposition they would not be correct: Transcript at page 30.
In October 2012 Mr Fouche scheduled training in the Operations Supervisor role for Mr Aiberti. The scheduled training dates were 21 October 2012 and 26 October 2012: Fouche Affidavit at [53]; Aiberti Affidavit at [19]-[20]. There is no evidence that Mr Aiberti was scheduled to undertake training in the Operations Supervisor role on any dates other than 21 October 2012 and 26 October 2012.
In October 2012 Mr Aiberti informed AWR that his wife was pregnant again and that he intended to take parental leave from approximately 13 February 2013 and submitted a medical certificate: Aiberti Affidavit at [4]; Aiberti Reply Affidavit at [38]. The medical certificate provided in relation to Mrs Aiberti’s pregnancy and expected dates of confinement (Exhibit 16: Transcript at page 18) were handed to Mr Hughes from AWR (who appears to have been responsible for the rosters) shortly after 20 October 2012: Transcript at page 20. Mr Fouche was aware of the medical certificate, or at least its import: Fouche Affidavit at [70].
Mr Aiberti was rostered to work a shift from 3.00pm on Saturday 20 October 2012 to 3.00am on Sunday 21 October 2012: Aiberti Affidavit at [15]. Sometime around 10.30am or 10.40am on Saturday 20 October 2012, Ms Kimberley telephoned Mr Aiberti and told him that his shift had been put back and that he was now required to work from 6.00pm to 6.00am: Aiberti Affidavit at [16]; Kimberley Affidavit at [11]. This is the Disputed Put-Back Shift which had the result that instead of Mr Aiberti working from 3.00pm on 20 October 2012 to 3.00am on 21 October 2012, his shift was only due to commence at 6.00pm on 20 October 2012 and could have endured until 6.00am on 21 October 2012.
It is not in dispute that Mr Aiberti told Ms Kimberley that he could not work the Disputed Put-Back Shift because his wife was not at home and he was looking after his baby and for that reason would not be able to get enough rest and would be fatigued, or that he would become fatigued prior to the end of the Disputed Put-Back Shift: Aiberti Affidavit at [16]; Kimberley Affidavit at [11]. In re-examination Mr Aiberti said that he did not think that he could work the Disputed Put-Back Shift because he would not be functioning to the best of his ability, which was a company requirement: Transcript at page 53.
Ms Kimberley told Mr Fouche that Mr Aiberti was refusing to work the Disputed Put-Back Shift because he would be fatigued: Aiberti Affidavit at [12]; Fouche Affidavit at [55]; Transcript at page 104. Mr Fouche does not recall whether Ms Kimberley made any reference to Mr Aiberti’s family circumstances when she spoke to him: Transcript at page 114, and Ms Kimberley says she may, or may not, have told Mr Fouche about Mr Aiberti’s family circumstances: Kimberley Affidavit at [13] (she was not cross-examined as to whether she told Mr Fouche about this), but readily admitted in cross-examination that in one of their telephone conversations on 20 October 2010 Mr Aiberti had made her aware of his family circumstances on that day as she had said so in her affidavit: Transcript at page 145; Kimberley Affidavit at [11].
Ms Kimberly’s evidence of what she describes as “the incident on 20 October 2012”: Kimberley Affidavit, page 3, is important in the context both of what Mr Aiberti told Ms Kimberley, but also in the context of what Ms Kimberley told Mr Fouche, and also as to Mr Fouche’s state of knowledge when making decisions concerning Mr Aiberti’s Operations Supervisor training some days later. In the Kimberley Affidavit at [9]-[16] Ms Kimberley says as follows:
9. On 20 October 2012 Aiberti was rostered to take over the driving of a train from Esperance, Western Australia. The original roster would have meant a change over at 1500, with Aiberti then driving the train to Koolyanobbing and returning to the Depot.
10. Earlier that morning I had been told that the train had been delayed in Esperance. I was contacted once again at about 1030 hours and told that the train had just left Esperance, which meant that there would be about a three hour delay.
11. I immediately telephoned Aiberti and we had a discussion to the following effect:
Me: “Hi Brendon, how are you going. Amy here from West Kal. The train from Esperance is quite late and I need to put you back until 1800.”
Alberti: “No, no, no, my wife's not here, she's shopping and I'm looking after my baby and I can't get enough rest and I will be fatigued.”
Me: “Look Brendon, I think Control will be able to have you back at the Depot by about 0330 to 0400 hours.”
Aiberti: “No, no, my shift is now from 6 tonight and I will be fatigued. I think you should arrange for someone else.”
Me: “Listen Brendon, I will have to ring Willie.”
12. I then called Fouche, who I think was at home at the time. We had a discussion to the following effect:
Me: “I've just phoned Brendon to give notice of a put back shift and he has refused because he says that he will be fatigued and that I must arrange a relief driver. Can I swap him with the shed driver?”
Fouche: “No that is the job he is rostered for and he must do it.”
Me: “But he's saying he will be fatigued.”
Fouche: “No, it's his duty to be fit. If he says he's unfit for duty then he must take sick leave. He mustn't be swapped out.”
Me: “Ok Willie.”
13. I don't remember if I told Fouche that Aiberti had said he had to look after his baby. I may have done so.
14, I then called Brendon back and said words to the following effect: “Willie says that it is your responsibility to be fit for duty and that if you don't want to work your shift you must take sick leave.” Our further discussion was to the following effect:
Aiberti: “I am looking after my child and I will have to take carer's leave, Make sure that it is marked like that on the roster.”
Me: “Yes Brendon I will do that. I think you should think about it. I don't want this to jeopardise you getting into this office. You don't want to miss out on an O/S opportunity.”
Aiberti: “Just put me down for carer's leave.”
Me: “Ok Brendon.”
15. I did not in this discussion with Aiberti tell him that he was putting an Operations Supervisor job at risk. I raised my own concerns for him putting a possible office job at risk. This was also not something that I discussed with Fouche.
16. After our discussion l complied with Aiberti's request and recorded carer's leave on the roster. I also then arranged for another locomotive driver to take over Aiberti's shift.
Mr Fouche told Ms Kimberley that if Mr Aiberti refused to work the Disputed Put-Back Shift he would need to take sick leave: Kimberley Affidavit at [12]; Fouche Affidavit at [56]; Transcript at pages 53-54. Ms Kimberley conveyed that to Mr Aiberti and Mr Aiberti asked Ms Kimberley to ensure his absence was recorded as carers leave: Aiberti Affidavit at [17]; Kimberley Affidavit at [14] and [16]. Mr Aiberti reiterated to Ms Kimberley the reasons that he could not work the Disputed Put-Back Shift, and Ms Kimberley expressed her concern that this would jeopardise Mr Aiberti’s Operations Supervisor training: Aiberti Affidavit at [17]; Kimberley Affidavit at [15]. At the time of the telephone conversations with Mr Aiberti and Mr Fouche on 20 October 2012 Ms Kimberley was unaware that Mr Aiberti had already commenced Operations Supervisor training: Transcript at page 148.
Mr Aiberti did not work the Disputed Put-Back Shift, and the time was recorded as carer’s leave for which a medical certificate was not required to be produced: Exhibit 6; Transcript at page 101.
Mr Fouche gave evidence that if family or other circumstances were such that the employee determined that they were not fit for the duration of their shift it was the responsibility of the employee not to proceed with that shift: Transcript at pages 107-108, but a train driver was supposed to get sufficient rest to ensure that he could do the job and run the train safely: Transcript at page 115. Mr Fouche also indicated that if a train driver became fatigued part of the way through their shift that that train driver would be replaced if he explained the situation to AWR: Transcript at page 116.
There was nothing irregular in either the length of the shift that Mr Aiberti was required to work or in the notice that he was being given to change to the Disputed Put-Back Shift, and Mr Aiberti agreed that what he was informed of in relation to the Disputed Put-Back Shift (as to the requirement to change) was in accordance with the Enterprise Agreement: Transcript at pages 20-21; Enterprise Agreement, cl.18.32.
In relation to the particular trip that was to be undertaken on the Disputed Put-Back Shift Mr Aiberti:
a)agreed that an empty train would be taken from Kalgoorlie to Koolyanobbing, loaded over a period of three to four hours (normally), and then returned to the West Kalgoorlie depot: Transcript at pages 20-21;
b)the train would have two drivers, and it was sometimes the case that the trip could take significantly less than 12 hours, and as little as nine and half hours: Transcript at page 21; and
c)also indicated that if a driver became ill, or was going to work more than their allotted 12 hour shift, another locomotive driver would be driven to one of the six loops on the Kalgoorlie-Koolyanobbing line and would replace any driver who was ill or working over their allotted 12 hour shift: Transcript at pages 22 and 52-53.
On 21 October 2012 Mr Aiberti completed his first day of scheduled Operations Supervisor training: Aiberti Affidavit at [19].
On 22 October 2012 Mr Fouche became aware that Mr Aiberti had taken carer’s leave on 20 October 2012: Fouche Affidavit at [60]. Mr Aiberti concedes that Mr Fouche would have had to have approved, either directly or indirectly, Mr Aiberti’s carer’s leave on 20 October 2012: Transcript at page 32. There does not appear to be any dispute that Mr Fouche was aware of, and either approved or did not disapprove, of Mr Aiberti’s absence on 20 October 2012 being taken as carer’s leave.
Sometime on or after 22 October 2012 Mr Fouche directed Mr Hughes to cancel Mr Aiberti's second Operations Supervisor training session scheduled for 26 October 2012: Fouche Affidavit at [63]; Transcript at page 85. It was only one session of Operations Supervisor training that was cancelled, and not “the whole session of training”: Transcript at page 85. There is no, or no sufficient evidence, as to what might be meant by “the whole session of training”, that being a phrase which formed part of a question to Mr Fouche in cross-examination: Transcript at page 85. General references by Mr Fouche to “training” at Fouche Affidavit at [87]-[89] take the matter no further, and again there is no, or no sufficient, evidence as to what, if any, Operations Supervisor training in addition to the cancelled training on 26 October 2012 might have been contemplated by Mr Fouche or AWR. Ms Kimberley’s evidence at Transcript at pages 141-142 takes the matter no further as there is no evidence of equivalence between the training she undertook and any training Mr Aiberti might have undertaken.
Mr Fouche says that he cancelled Mr Aiberti’s second Operations Supervisor training session schedule for 26 October 2012 because, following Mr Aiberti not working the Disputed Put-Back Shift, he received feedback from operational staff, namely Ms Boyd, and he thinks Mr Peacock and Mr Faithfull, as to Mr Aiberti’s lack of commitment and poor attitude generally: Fouche Affidavit at [61]; Transcript at page 128. Mr Aiberti gave evidence that he was not in a position to challenge Mr Fouche’s account of what Operations Supervisors may have said to Mr Fouche concerning Mr Aiberti’s commitment and attitude after his failure to work the Disputed Put-Back Shift: Transcript at pages 30-32.
On 25 October 2012 Mr Hughes told Mr Aiberti that Mr Fouche had cancelled his training scheduled for 26 October 2012. Mr Aiberti contacted Mr Fouche and arranged a meeting for the following day: Aiberti Affidavit at [21]; Fouche Affidavit at [65].
On 26 October 2012 Mr Aiberti met with Mr Fouche at Mr Fouche’s office. Mr Willis, another Locomotive Driver employed by AWR and the Union delegate, accompanied Mr Aiberti to the meeting (“First 26 October 2012 Meeting”): Aiberti Affidavit at [22]; Fouche Affidavit at [66]; Willis Affidavit at [13].
There is some disagreement as to precisely what was said during the First 26 October 2012 Meeting, however it is not disputed that Mr Fouche raised the issues of Mr Aiberti not working the Disputed Put-Back Shift, Mr Aiberti's intention to take parental leave in the future and the need to retrain Mr Aiberti in relation to the Operations Supervisor role if Mr Aiberti took parental leave: Aiberti Affidavit at [23]; Fouche Affidavit at [68] and [70]; Willis Affidavit at [14] and [15]. It is also not in dispute that towards the end of the First 26 October 2012 Meeting, after Mr Willis had spoken about whether Mr Aiberti would need to be retrained, and Mr Fouche had realised (but did not openly admit) that he was wrong about the need for Mr Aiberti to be retrained if he took parental leave, Mr Fouche told Mr Aiberti and Mr Willis that he would consider re-scheduling Mr Aiberti’s Operations Supervisor training, and he would get back to Mr Aiberti: Aiberti Affidavit at [24]; Fouche Affidavit at [73]-[74]; Willis Affidavit at [17].
Under cross-examination Mr Aiberti confirmed that at the First 26 October 2012 Meeting:
a)Mr Fouche said to him that he (Mr Fouche) still had concerns about Mr Aiberti’s attitude;
b)that he did not want to train Mr Aiberti if he did not have time to consolidate the training;
c)that it would have made no difference if Mr Aiberti was a woman, and that it was about the fact that Mr Fouche did not want to have to re-train before the person being trained had consolidated their learning;
d)that he would reconsider reinstating the training; and
e)that Mr Aiberti left the meeting optimistic that the problem had been solved: Transcript at pages 42-43 and 50-51.
There is some dispute as to whether Mr Fouche said that the reason that he was not prepared to train and then re-train Mr Aiberti if he took another three months parental leave in 2013 was “because his wife was pregnant and he was taking parental leave next year”. The Court considers that it most likely that this was said by Mr Fouche, but said at a time and in the context of the discussion concerning the necessity for retraining, and before Mr Fouche admitted, but only to himself, that he was wrong about the timing of the retraining, and that it was therefore not said in the context of, and therefore did not inform any of Mr Fouche’s ongoing decision-making on the issue of the withdrawal or reinstatement of Mr Aiberti’s Operations Supervisor training.
Under cross-examination Mr Fouche said that:
a)he did not on 20 October 2012 reject Mr Aiberti’s explanation for declining to work the Disputed Put-Back Shift, namely that he was or would become fatigued, but ultimately came to the view that it was not an acceptable explanation because he was given enough notice: Transcript at page 105;
b)he had cancelled the scheduled Operations Supervisor training on 26 October 2012 as he did not believe that Mr Aiberti had displayed an appropriate level of commitment or change in a poor attitude: Transcript at page 105; and
c)it was not correct that the cancelling of the training was solely due to Mr Aiberti’s refusal to work the Disputed Put-Back Shift or because he had parental leave forthcoming in 2013: Transcript at page 105.
Mr Fouche ultimately conceded that:
a)“very rarely” Mr Aiberti did not work a put-back shift: Transcript at page 132; and
b)employees were required to ensure that they did not work when they were unfit and that if they were to be fatigued in their shift they must avoid proceeding with the shift: Transcript at page 108.
After the First 26 October 2012 Meeting, Mr Fouche and Mr Willis met on their own in Mr Fouche’s office (“Second 26 October 2012 Meeting”): Fouche Affidavit at [76]; Willis Affidavit at [18]. What occurred during the Second 26 October 2012 Meeting is in dispute.
AWR denies that the reason for Mr Fouche’s decision not to provide further Operations Supervisor training to Mr Aiberti was because Mr Aiberti had or exercised a workplace right. Mr Fouche (who, it is not disputed, is the decision-maker) says that his decision not to reschedule Operations Supervisor training to Mr Aiberti was because Mr Willis told him at the Second 26 October 2012 Meeting that Mr Aiberti was not “fair dinkum” or “genuine”. Mr Fouche says that this confirmed his opinion that Mr Aiberti was not committed to AWR and was not a team player, had a bad attitude to work and that he “put his own convenience in front of that – of the business”: Transcript at page 87, and for that reason he did not re-schedule Mr Aiberti Operations Supervisor training: Fouche Affidavit at [77]-[78]: Transcript at pages 87 and 126.
Mr Willis denied saying to Mr Fouche anything at the Second 26 October 2012 Meeting that could be interpreted as casting doubt on Mr Willis’ view as to whether Mr Aiberti was genuine in his desire to undertake further Operations Supervisor training: Willis Affidavit at [23]; Transcript at pages 71 and 75. Because Mr Willis denied saying that Mr Aiberti was not “fair dinkum” or “genuine” there is no evidence as to what those terms might mean if they were said, other than Mr Fouche’s interpretation of them. In the Court’s view it is unlikely that Mr Willis in his capacity as a Union delegate would have made such a concession to AWR management.
Mr Fouche did not reschedule Mr Aiberti's Operations Supervisor training and neither Mr Aiberti nor Mr Willis approached Mr Fouche about that failure: Aiberti Affidavit at [26]; Willis Affidavit at [25]; Fouche Affidavit at [79]; Transcript at pages 43-44. Under cross-examination Mr Willis agreed that the First 26 October 2012 Meeting came to an end on the basis that Mr Willis had undertaken to reconsider Operations Supervisor training for Mr Aiberti: Transcript at page 72. Mr Willis also said that he did not follow-up upon Mr Fouche’s reconsideration of the Operations Supervisor training for Mr Aiberti, because, variously:
a)he “didn’t deem it necessary to pose it to Mr Fouche”: Transcript at page 72;
b)he “was waiting for Brendan [Mr Aiberti] to either contact me and to take it further”: Transcript at page 72;
c)“it never came up between Brendan [Mr Aiberti] and I”: Transcript at page 73;
d)he did not think of having a discussion with Mr Aiberti as to whether Mr Aiberti wanted Mr Willis to take it up again: Transcript at page 73;
e)he is a “voluntary delegate” with the Union, and “I do not go off my own bat to – to take up issues”: Transcript at page 73; and
f)he thought that the decision not to re-train Mr Aiberti in Operations Supervisor training “was pretty much made up when – with Willem Fouche not answering or coming to speak to Brendan [Mr Aiberti] or seeing that he was on the roster”: Transcript at page 74.
Mr Willis agreed under cross-examination that at the Second 26 October 2012 Meeting he had raised Mr Aiberti’s Operations Supervisor training issue of his, that is, Mr Willis’, own accord: Transcript at page 72.
Mr Willis denied, under cross-examination, that he did not raise the issue of Operations Supervisor training again with Mr Fouche because Mr Willis had told Mr Fouche that Mr Aiberti was not fair dinkum or genuine in relation to his approach to the Operations Supervisor training: Transcript at page 74.
The Court notes that in cross-examination it was put to Mr Willis that he and Mr Aiberti would cross paths many times because the West Kalgoorlie depot was not a big place, a proposition which Mr Willis denied: Transcript at page 73. The Court further notes that in the Willis Reply Affidavit Mr Willis says that as a locomotive driver he worked with Mr Aiberti “regularly”, and further that he was occasionally rostered to work as part of a two-man team with Mr Aiberti on trains workings shifts of up to 12 hours in duration: Willis Reply Affidavit at [4]-[5], and then proceeds to give a detailed assessment of Mr Aiberti’s capacities as a team player, one who was able to do his job properly, one with whom he has worked “several shared shifts”, one who is committed to his work, safety conscious and a passionate worker who is fond of his work, and who knows each procedure and protocol required to do the job, and is a diligent worker, always conscious of safety and who is prepared to do what is required of him to make sure that work is done the right way: Willis Reply Affidavit at [7]-[14].
Mr Willis also gave evidence that three days after the First and Second 26 October 2012 Meetings the “interview process” was recorded and he was “pretty sure” he “elevate[d] it to the next level” by sending the record to the head office of the Union: Transcript at pages 72-74 and 76.
There is a contradiction in the evidence given by Mr Willis:
a)on the one hand he initiates the Second 26 October 2012 Meeting with Mr Fouche; and
b)on the other hand denies that it was part of his role as a Union delegate to initiate any action at all, or even to mention to Mr Aiberti with whom he worked “regularly”, whether Mr Fouche had reconsidered the issue of Mr Aiberti’s Operations Supervisor training.
Mr Willis’ failure to take the issue up again with Mr Fouche would be more consistent with the view that Mr Willis did tell Mr Fouche that Mr Aiberti was not “fair dinkum” or “genuine” in his approach to the Operations Supervisor training if it did not have an otherwise rational explanation. It is the Court’s view that that explanation is afforded by the fact that Mr Willis, as the local Union delegate, forwarded his record of the First and Second 26 October 2012 Meetings to the head office of the Union, and in this way elevated the matter to the next level such that his practical involvement in the matter ended.
Under cross-examination Mr Aiberti agreed that he had sworn an affidavit which had been provided to AWR’s lawyers, but not filed in this Court, sworn in early January 2014 in which he said he did not get back to Mr Fouche concerning his possible reconsideration of reinstating the training “because I had no hope of him agreeing”: Transcript at page 45. Asked about why he would say that when he had been told that Mr Fouche might reconsider, Mr Aiberti at first said that it was “a perception I had at the time”: Transcript at page 45, and then said that he could not “be sure exactly what would happen … it was – would have just simply been a reaction to that meeting”: Transcript at page 46.
Cross-examined as to why he did not follow up on Mr Fouche’s possible reconsideration of the re-training Mr Aiberti said that his shift work and family situation were complex, and when another locomotive driver was put into the Operations Supervisor training position Mr Aiberti realised that maybe the training was not going to occur: Transcript at page 46. Mr Aiberti denied not being committed to the training, and said that he just did not feel that it was appropriate in all the circumstances to simply ask Mr Fouche, or to get Mr Willis to ask Mr Fouche on his behalf as to whether he had reconsidered the training issue: Transcript at pages 47-48. In the Court’s view that explanation is entirely tenable, particularly when regard is had to the fact that Mr Aiberti felt that the Operations Supervisor training would not truly be reconsidered, and in circumstances where another locomotive driver was put into the Operations Supervisor training position.
Under cross-examination Mr Aiberti conceded that:
a)at no stage prior to October 2012 had Mr Fouche either refused or unreasonably restricted any legal entitlement that Mr Aiberti may have had to carer’s or parental leave;
b)all relevant applications related to the birth of Mr Aiberti’s first child and the subsequent illness of his wife were in fact approved, and approved directly or indirectly by Mr Fouche as Mr Aiberti’s direct superior;
c)Mr Fouche went further and approved applications which Mr Aiberti made in terms on account of his wife’s ill health to give effect to Mr Aiberti being the primary caregiver; and
d)Mr Fouche approved Mr Aiberti being considered the primary caregiver in respect of the birth of his second child, and that that occurred after 20 October 2012: Transcript at page 32.
Mr Aiberti’s wife gave birth to their second child in February 2013. Again, Mr Aiberti took parental leave.
Mr Aiberti also confirmed that in November 2013 it was Mr Fouche who, unsolicited, approached Mr Aiberti in respect of roster and shift changes which would allow Mr Aiberti to work more beneficial shift times to accommodate the difficulties that Mr Aiberti was having as primary caregiver of his wife and his by then two children, and that Mr Fouche changed his roster to meet Mr Aiberti’s requirements as primary caregiver: Transcript at pages 32-33. Mr Aiberti also conceded in cross-examination that Mr Fouche had been generally sympathetic to the difficulties that Mr Aiberti had had in his personal life: Transcript at page 51.
At all material times, AWR had a:
a)Fatigue Management Policy;
b)Safety Policy;
c)Code of Conduct; and
d)ZeroHarm culture,
and Mr Aiberti was aware of these policies, and had seen them and read them, and had been required to sign a statement to the effect that he had read each of those policies, both when he commenced employment and when amendments were made to the policies: Aiberti Reply Affidavit at [44]-[47].
Clause 18.35 of the Enterprise Agreement required rosters to be arranged in accordance with the Fatigue Management Policy and the Train Crew Rostering Principles.
The Train Crew Rostering Principles state in summary that:
a)the Train Crew Rostering Principles are to be read in conjunction with the procedure for the management of fatigue and that where there is a conflict between the Train Crew Rostering Principles and the procedure for the management of fatigue, the latter shall prevail in any case where that conflict is likely to increase the potential for a workplace hazard; and
b)where shift changes occur, consideration will be given to an employee’s personal and family circumstances and Fatigue Management Policy.
The Fatigue Management Policy states in summary that:
a)AWR is “committed to ensuring that appropriate fatigue management protocols are in place to ensure that its activities are conducted with due consideration to its employees, and that the opportunity is provided for adequate restorative sleep to be obtained”;
b)AWR regularly evaluates its shift rosters against fatigue management principles to ensure any adverse effects of fatigue are minimised; and
c)fatigue management principles are to be used when assessing work arrangements required as a result of disruptions to planned work or during an incident.
The Safety Policy provides in summary that:
a)AWR recognises it has a “moral and legal responsibility” to provide a safe and healthy work environment for its employees;
b)AWR will eliminate or reduce hazards and risks through safe work behaviours and by applying sound risk control measures that prevent safety incidents, injury or damage;
c)AWR will demonstrate leadership by fostering a culture that empowers and ensures commitment to a “just culture” approach; and
d)AWR will provide open communication and consultation with its employees.
The Code of Conduct and the ZeroHarm culture in summary provide that:
a)employees must be safe and fit for work;
b)employees are to monitor themselves, and other employees to make sure they are fit for work; and
c)employees are to respect each other, treat each other with dignity, fairness, equity and without discrimination.
As to Mr Fouche’s credibility, the Court observes that he was plainly a man used to giving direction, but who, in the circumstances of a lengthy cross-examination, came across as being someone who was direct, if not blunt, and taciturn in that he did not appear to be a person who was voluble or demonstrative. Mr Fouche was not demonstrably incredible in any of his evidence, and where the Court has not made findings which accord with his evidence, that is simply a consequence of it preferring the evidence of others, particularly Mr Aiberti and Mr Willis.
In relation to Mr Aiberti, Mr Willis and Ms Kimberley the Court does not have any concerns with respect to their credibility, and once again, where the Court has made findings which do not accord strictly with their evidence, that is a consequence of other evidence simply being preferable or more likely in the circumstances.
Consideration
The law
In the context of adverse action proceedings it is for an applicant to assert and establish that:
a)he exercises the workplace rights pleaded in his statement of claim;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
If the Union proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for AWR to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Barclay as set out at [98] hereunder; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; FCR at [221] per RD Nicholson J (“Geraldton Port Authority”).
The use of the word “because” in ss.340(1) and 351(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in ss.340 and 351 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”) the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer the High Court observed in Barclay that:
a)“… 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?’”: Barclay at [44] per French CJ and Crennan J;
b)French CJ and Crennan J went on in Barclay at [41] to observe that “… why an employer took adverse action against an employee is a question of fact …” and then at [45] per French CJ and Crennan J it was said that:
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.
c)Gummow and Hayne JJ at [127] said that:
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.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Section 351(1) of the FW Act prohibits adverse action based on the traditionally statutorily proscribed grounds of discrimination there listed, including family and carer’s responsibilities. The meaning of “discrimination” in the Disability Discrimination Act 1992 (Cth) is not to be necessarily used to interpret discrimination for the purposes of s.351 of the FW Act: Hodkinson v Commonwealth [2011] FMCA 171; (2011) 248 FLR 409; (2011) 207 IR 129 at [141] per Cameron FM, and the section has a broad reach including both direct and indirect discrimination claims: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399 at [88]-[102] per Gordon J.
The issues
The first issue for consideration is whether on 20 October 2012 Mr Aiberti was exercising a workplace right when he refused to work the Disputed Put-Back Shift.
Mr Aiberti’s evidence as to his particular circumstances on 20 October 2012 has to be viewed in the context of, firstly, what had occurred in relation to his family circumstances prior to 20 October 2012, and secondly, what occurred on 20 October 2012.
The evidence of Mr Aiberti as to his family circumstances is, in the Court’s view, corroborated by Ms Kimberley’s evidence, and even to a certain extent by Mr Fouche’s evidence. Ms Kimberley gave evidence that she had had a number of conversations with Mr Aiberti to the effect that he was effectively a single parent, and that there were difficulties for him at home. Those conversations had clearly occurred over a period of time. Further, Mr Fouche acknowledged that Mr Aiberti had approached him to do the Operations Supervisor training, at least in part, on the basis that the shifts were more regular and he would be able to spend more (and by inference, more fixed) time with his family. Furthermore, Mr Fouche acknowledged that he accepted Mr Aiberti’s explanation as to why he did not work the Disputed Put-Back Shift on 20 October 2012 when Mr Aiberti explained it to him in the First 26 October 2012 Meeting as being by reason of fatigue caused by the necessity to care for his child in circumstances where Mrs Aiberti was not able to do so, albeit that Mr Fouche says he only accepted it for that day: Transcript at page 119.
Mr Aiberti’s evidence has to also be considered against the background of the fact that there was a period of extended parental and carer’s leave taken by him between June 2011 and August 2011, and in the context of the evidence given by Mr Aiberti, corroborated by Ms Kimberley, and as understood by Mr Fouche, albeit indirectly, that that was indicative of the fact that Mr Aiberti was required to undertake at least some of the care of the child because Mrs Aiberti was not able to do so. There was evidence from Mr Aiberti as to the fact that his wife was unable to look after the child, and as to the nature of the illnesses, injuries and disabilities that she had, and whilst there was not evidence of Mrs Aiberti’s medical conditions from a medical practitioner, Mr Aiberti’s evidence is sufficient to establish that Mrs Aiberti, for whatever reason, was not able, from time to time, to look after the child.
In relation to the capacity of his wife to look after the child in the period leading up to the Disputed Put-Back Shift not being worked Mr Aiberti gave evidence in re-examination: Transcript at page 60 as follows:
My wife was unable to look after our children, basically. I couldn’t say for sure whether she was actually going to be able to cope. She suffered from anxiety attacks and numerous – she had some ulcers. And the stress of her pregnancies and her own personal problems basically, in the period of time, were all brought out through the psychologist, and it put a great deal of pressure on me and it was much like being a single parent in the way the family home operated. It required me to pretty much take over most of the duties when I was home in order to allow her to try and cope with her mental state.
In the above circumstances, the Court is satisfied that Mr Aiberti had parental carer’s responsibilities which were significant in the period leading up to the time of the Disputed Put-Back Shift.
In relation to the events of 20 October 2012 Mr Aiberti’s evidence was that his wife was unable to look after the child before Mr Aiberti was due to commence his shift. Ordinarily, in the circumstances, that is to be interpreted as a reference to the shift as originally scheduled commencing at 3.00pm. When the commencement time of the Disputed Put-Back Shift was put back to 6.00pm Mr Aiberti’s evidence was that he would not be able to rest in the additional three hours, or before, because the child would require his care, or at the very least, be doing what children do, and making a noise and running around the house thereby preventing Mr Aiberti from having a rest. Much was made, by way of criticism by AWR in final submissions, of what was said to be Mr Aiberti’s evidence that he would be required to look after the child up until the commencement of his shift at 6.00pm. Some of the criticism was founded in the evidence of Mr Willis, who ultimately said that he understood that Mr Aiberti had to look after his child until shortly before his shift commenced at 6.00pm: Transcript at page 66. That criticism is misplaced for two reasons: firstly, Mr Willis’ understanding is not inconsistent with Mr Aiberti’s evidence that he would either have to look after the child until 6.00pm, or not be able to have any rest prior to 6.00pm because of the child’s behaviour; and, secondly, because Mr Fouche gave evidence on behalf of AWR that at the First 26 October 2012 Meeting he accepted the explanation given by Mr Aiberti in relation to what occurred on 20 October 2012. Likewise, Mr Fouche had initially “approved” Mr Aiberti’s carer’s leave on 22 October 2012, and had not rescinded that carer’s leave, even after he became aware of the complaints of Ms Boyd, and Mr Peacock and Mr Faithfull.
The substance of Mr Aiberti’s account of what occurred on 20 October 2012 in relation to his care of the child, and his perception of what would occur in relation to the care of his child leading up to 6.00pm on 20 October 2012, was tested in cross-examination, so far as AWR’s Counsel could properly do so in the circumstances, and the substance of Mr Aiberti’s account of the events, and likely events as he perceived they would occur, on 20 October 2012, remained unchanged.
It is evident that working whilst fatigued, or working in circumstances where there was a risk of becoming fatigued, is a safety issue and that AWR’s employees have a personal responsibility to avoid presenting for work fatigued or working whilst fatigued: see Mr Fouche’s evidence at Transcript at pages 108-109 and 119.
The fact that Mr Aiberti as an employee had a responsibility to report that he might be fatigued if he worked, and to refuse to work the Disputed Put-Back Shift if he considered that it was not safe to do so by reason of fatigue, a position accepted, albeit temporarily, by Mr Fouche, makes it unnecessary to consider whether Mr Aiberti might have worked part of the Disputed Put-Back Shift and then been relieved part-way through the Disputed Put-Back Shift.
In all of the above circumstances the Court is satisfied that on 20 October 2012, when Mr Aiberti indicated to Ms Kimberley that he would not work the Disputed Put-Back Shift:
a)Mr Aiberti did so because he was caring for his child, and perceived that he would continue to care for the child during the afternoon of 20 October 2012, and that as a consequence he would either be fatigued, or become fatigued, whilst working the Disputed Put-Back Shift; and
b)in relation to (a) above, Mr Aiberti therefore requested that his absence on the Disputed Put-Back Shift be recorded as carer’s leave; and
c)having regard to, in particular, (a) above, and also (b) above, Mr Aiberti was exercising, or proposing to exercise, a workplace right or rights, namely:
i)an entitlement to take paid personal or carer’s leave under s.97(b)(i) of the FW Act, or clause 35.2.2 of the Enterprise Agreement; and
ii)utilising a system of work for the purposes of s.19(1)(a) of the OSH Act so that he was not exposed to hazards by reason of fatigue, or taking responsibility for his own safety and health pursuant to s.20(1)(a) of the OSH Act by taking reasonable care to ensure his on safety and health at work by reason of fatigue, or anticipated fatigue.
In the above circumstances, the Court does not consider that in relation to the cancelation of Mr Aiberti’s Operations Supervisor training on 26 October 2012 by reason of what occurred on 20 October 2012 (assuming for present purposes that that was the reason) that Mr Aiberti was exercising a workplace right in relation to the parental leave taken in June 2011. On the facts, that leave appears to have played no part in Mr Aiberti’s reasons for seeking to take carer’s leave in relation to the Disputed Put-Back Shift, and although it formed part of the general contextual background for what was occurring, it did not form any part of Mr Fouche’s reasons for ultimately cancelling Mr Aiberti’s Operations Supervisor training on 26 October 2012, or refusing to reschedule that Operations Supervisor training. Likewise, the pendent 2013 parental leave application did not form any part of Mr Fouche’s reasons for ultimately cancelling Mr Aiberti Operations Supervisor training on 26 October 2012, or refusing to reschedule that Operations Supervisor training, for reasons which are set out above: see [67] above.
It is important to focus upon what is the alleged adverse action in this case. That requires reference to the Amended Statement of Claim at [44] where it is alleged that the adverse action occurred “when Mr Fouche withdrew his decision to allow Mr Aiberti to participate in training for the position of Operations Supervisor”.
It is plain that AWR understood the case to involve both the cancellation of Mr Aiberti’s Operations Supervisor training on 26 October 2012 and the failure to reinstate or resume that training on account of a prohibited reason. AWR’s submissions at [3] indicate that the central issue for the Court will be “to determine … whether … [AWR’s] conduct in both stopping Aiberti’s training and failing to resume that training occurred on account of a prohibited reason.”
It is important to establish as precisely as the Court can the decision alleged to have been made by Mr Fouche to withdraw an earlier decision to allow Mr Aiberti to participate in training for the position of Operations Supervisor. In that regard, the Court finds that:
a)prior to 20 October 2012 Mr Aiberti was informed by Mr Fouche that he had scheduled Operations Supervisor training for him on 21 and 26 October 2012;
b)on 20 October 2012 Mr Aiberti did not work the Disputed Put-Back Shift;
c)Mr Aiberti commenced Operations Supervisor training as scheduled on 21 October 2012;
d)the absence of Mr Aiberti from the Disputed Put-Back Shift was recorded as carer’s leave, a fact of which Mr Fouche was aware on or about 22 October 2012, and in relation to which Mr Fouche consciously took no action, ever, to seek to have that time recorded as other than carer’s leave;
e)following the making of complaints on or after 22 October 2012 by Ms Boyd, and Mr Peacock and Mr Faithfull Mr Fouche reconsidered his decision to allow Mr Aiberti to undertake the scheduled Operations Supervisor training on 26 October 2012;
f)the decision to cancel the next allocated day of Operations Supervisor training for Mr Aiberti was conveyed to Mr Aiberti by Mr Hughes on Thursday, 25 October 2012; and
g)the above timeline means that the decision by Mr Fouche to withdraw approval for Mr Aiberti’s next allocated day of Operations Supervisor training scheduled for 26 October 2012, was made sometime between Monday, 22 October 2012 and Thursday, 25 October 2012.
It is the decision by Mr Fouche sometime between 22 and 25 October 2012 not to allow Mr Aiberti to continue with Operations Supervisor training on 26 October 2012 and that is the decision which Mr Aiberti alleges constitutes adverse action because of the exercise, or threatened exercise, of a workplace right, or because of discrimination on the basis of his family or carer’s responsibilities. The fact that at the First 26 October 2012 Meeting Mr Fouche said that he was prepared to reconsider his decision to cancel Mr Aiberti’s Operations Supervisor training on 26 October 2012 does not in the Court’s view affect the characterisation of Mr Fouche’s decision to withdraw Mr Aiberti’s training as an ongoing withdrawal, that is, not a withdrawal limited to the time of the First 26 October 2012 Meeting. In that regard, the Court observes that although Mr Fouche said that he would reconsider, and in his own mind had shortly thereafter decided to reinstate Mr Aiberti’s training, that decision was, on Mr Fouche’s evidence, never conveyed to Mr Aiberti because, following the Second 26 October 2012 Meeting, Mr Fouche determined not to reinstate Mr Aiberti’s Operations Supervisor training, but never conveyed that determination to Mr Aiberti. Effectively, therefore, the decision to withdraw Mr Aiberti’s next day of Operations Supervisor training was never formally withdrawn.
The cancelation of Mr Aiberti’s scheduled Operations Supervisor training on 26 October 2012, and the refusal to reinstate such training thereafter, constitutes, at a minimum, and alteration of the position of Mr Aiberti to Mr Aiberti’s prejudice for the purposes of s.342(1), Item 1(c) because Mr Aiberti was in the position of undertaking the Operations Supervisor training which was then withdrawn, thereby prejudicing him by reason of the fact that he did not undertake the Operations Supervisor training, or have the opportunity to demonstrate that he was capable of undertaking the Operations Supervisor training and accruing skills which might assist him to obtain future employment as an Operations Supervisor, and in respect of the latter, might also constitute an injury in employment for the purposes of s.342(1), Item 1(b) of the FW Act: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339; (1998) 153 ALR 643; Geraldton Port Authority at [230] per RD Nicholson J, and see Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1 at [15] per Tracey J where it was said that an employer reneging on an assurance might constitute prejudicial alteration to an employee’s position. The Court notes, on the evidence, it is not in dispute that there is absolutely no guarantee that undertaking the Operations Supervisor training would result in Mr Aiberti obtaining employment as an Operations Supervisor.
In all of the above circumstances the Court is satisfied that there was a decision by Mr Fouche sometime between 22 and 25 October 2012 not to allow Mr Aiberti to continue with Operations Supervisor training on 26 October 2012, and that that decision was never withdrawn, and that that decision constituted adverse action against Mr Aiberti on the bases of injury in employment or alteration to position to Mr Aiberti’s prejudice for the purposes of s.342(1) Item 1(b) and (c) of the FW Act. The Court does not consider that there is enough evidence to find that the decision constituted adverse action by reason of discrimination between Mr Aiberti and other employees of AWR for the purposes of s.342(1)(d) of the FW Act.
Was the decision made for a prohibited reason?
It is important to place Mr Fouche’s decision in some further context, and in that regard the Court notes that:
a)Mr Fouche had approved the parental and carer’s leave taken by Mr Aiberti from 8 June 2011 to 31 August 2011;
b)Mr Fouche had approved Mr Aiberti’s carer’s leave for the Disputed Put-Back Shift on 20 October 2012;
c)Mr Fouche was aware that there were “difficulties” in relation to Mr Aiberti’s wife and the care of Mr Aiberti’s child, but beyond being aware of “difficulties” at home, there is no evidence that Mr Fouche was aware of the specific “difficulties” or of any injury, disability or health condition suffered by Mrs Aiberti or the effect of the injury, disability or health condition upon her capacity to care for the child, and its impact upon Mr Aiberti’s capacity to work;
d)Mr Fouche had not ever been troubled or concerned by any parental or carer’s leave taken by Mr Aiberti in the past, and Mr Fouche had indeed been relatively sympathetic to Mr Aiberti’s “difficulties”, notwithstanding that Mr Fouche was not aware of the specifics of those “difficulties”;
e)Mr Aiberti had previously been spoken to by Mr Fouche concerning his attitude and commitment to the job of Locomotive Driver, contrary to Mr Aiberti’s initial assertions to the contrary, and in this regard Mr Fouche spoke to him about his attitude and commitment:
i)when he applied to be a Tutor Driver and failed to obtain one of the vacancies that were then available Mr Fouche spoke to him about his level of commitment, his poor attitude and that he was not considered to be a team player; and
ii)when Mr Aiberti initially approached Mr Fouche in July 2012 to express an interest in undertaking Operations Supervisor training, and when in subsequent months Mr Fouche pursued the issue of Operations Supervisor training, Mr Fouche indicated to him that he wished to see an improvement in Mr Aiberti’s attitude and commitment before he would consider him for Operations Supervisor training;
f)on Monday, 22 October 2012 when Mr Fouche was made aware that Mr Aiberti had booked the Disputed Put-Back Shift as carer’s leave, Mr Fouche says that:
At that stage I decided to simply leave things as they were.
Fouche Affidavit at [60]; and
g)Ms Boyd, and probably Mr Peacock and Mr Faithfull (who were both Operations Supervisors) came to see Mr Fouche on either Monday, 22 October 2012 or Tuesday, 23 October 2012, and all expressed unhappiness with Mr Aiberti being offered Operations Supervisor training, and each of them questioned why Mr Aiberti should be trained as they believed he had no commitment to AWR: Fouche Affidavit at [61]. The failure to call Ms Boyd, and Messrs Peacock and Faithfull, to give evidence about their complaints, and the very high level of generality as to the content of those complaints, does affect the weight that those complaints ought to be given, or the weight to be attributed to whatever the substance of those complaints was: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 at [397]-[400] per Siopis J; Victoria v Construction, Forestry, Mining and Energy Union & Anor [2013] FCAFC 160; (2013) 218 FCR 172; (2013) 239 IR 441 at [77]-[86] per Buchanan and Griffiths JJ. There was no further real explanation as to why the three persons who had complained were not called, at least two of them still apparently being employed by AWR. There can be little doubt that their evidence might have been relevant to an assessment of the validity of any perception held by Mr Fouche as at 22 or 23 October 2012 in relation to Mr Aiberti’s attitude and level of commitment;
h)Mr Fouche conceded in cross-examination that the complaints by Ms Boyd, and Messrs Peacock and Faithfull, related to Mr Aiberti’s failure to work the Disputed Put-Back Shift: Transcript at page 130; and
i)Mr Fouche also conceded that an employee who thought that they would be fatigued in a shift ought to avoid proceeding with that shift: Transcript at page 108. Mr Fouche also conceded that if an employee explained that they had not been able to rest, and would become fatigued half-way through the shift, fatigue management principles applied to that person, and that that driver would be replaced if he explained that situation to AWR: Transcript at page 116 (in response to a question from the Court). Albeit with some element of prediction as to how he would feel at 6.00pm, that is what Mr Aiberti did, and did in circumstances where given his wife’s circumstances and his carer’s responsibilities, there was a basis for his prediction as to how he would feel at 6.00pm. In that regard, the Court notes that Mr Fouche accepted at the First 26 October 2012 Meeting the circumstances that led to Mr Aiberti refusing to work the Disputed Put-Back Shift. Mr Fouche did so to such an extent that he was prepared to reschedule Mr Aiberti’s Operations Supervisor training, but subsequently says that he did not do so because of what he was told by Mr Willis in the Second 26 October 2012 Meeting.
It must be said that other than in relation to his parental or carer’s responsibilities, and the alleged fatigue arising therefrom, there is no evidence of Mr Aiberti seeking to put his “own convenience” ahead of that of AWR’s operations. There is by contrast evidence that those employees who were perceived to be “on the team” were those who went above and beyond what was strictly required of them, and were those who therefore got ahead within AWR’s operations: that at least was the evidence of Ms Kimberley at Transcript at page 144.
In relation to the decision taken to cancel Mr Aiberti’s scheduled Operations Supervisor training on 26 October 2012, there is evidence that Mr Fouche had a perception, prior to that point in time, that Mr Aiberti lacked commitment and had a poor attitude toward his work.
In the context of Mr Aiberti’s alleged poor attitude to work the Court notes that there is not sufficient evidence to sustain an assertion that Mr Aiberti was engaged in a sustained refusal to work put-back shifts, either at all or on the basis of his “own convenience”. Indeed, the evidence, such as it is, indicates that he “very rarely” did not work put-back shifts: see [69(a)] above, and that there were perhaps two prior instances of a refusal to work put-back shifts prior to 20 October 2012, at least one of which was explained by reference to fatigue following Mr Aiberti’s return from an extended period of carer’s leave in 2011.
The cancelation of Mr Aiberti’s Operations Supervisor training on 26 October 2012 cannot be explained by what Mr Fouche says Mr Wallis told him in the Second 26 October 2012 Meeting, because that meeting was at least three days after Mr Fouche made the decision to cancel Mr Aiberti’s Operations Supervisor training on 26 October 2012.
When Mr Fouche became aware that Mr Aiberti had not worked the Disputed Put-Back Shift he knew, at the very least, that it was because Mr Aiberti said that he would probably be fatigued: Fouche Affidavit at [55] and [60]. Mr Fouche was also aware at that time of Mr Aiberti’s alleged difficulties with his family circumstances: Transcript at page 133. Mr Fouche was also aware that part of Mr Aiberti’s purpose in undertaking the Operations Supervisor training was to ultimately obtain an Operations Supervisor role so that he could spend more time with his family: Fouche Affidavit at [47].
Mr Fouche had agreed to Mr Aiberti undertaking Operations Supervisor training because he believed that he had the requisite level of commitment, and because he recognised that Mr Aiberti was committed to making his family life easier: Fouche Affidavit at [51].
On the above bases, the Court finds that Mr Fouche was aware that Mr Aiberti said that he was fatigued, and did not work the Disputed Put-Back Shift as a consequence, and further, that it can be inferred that Mr Fouche was aware that that was as a consequence of Mr Aiberti’s carer’s responsibilities, because of the carer’s leave application which Mr Fouche, either directly or indirectly, approved, or at the very least did not fail to approve or cause to be disapproved.
Mr Fouche’s reasons for cancelling the Operations Supervisor training of Mr Aiberti do not depend upon Mr Fouche’s being prepared to grant parental or carer’s leave requests when made. Obviously, there was an obligation to approve such requests for parental or carer’s leave in the ordinary course of events: FW Act, ss.70, 96 and 97; Enterprise Agreement, cll.35 and 36. Likewise, Mr Fouche’s actions in 2013 in suggesting to Mr Aiberti that certain rosters cannot be said to have informed the reasons Mr Fouche made the decision that he did in October 2012 in cancelling Mr Aiberti’s Operations Supervisor training on 26 October 2012, and not reinstating that training.
It was against the above background that Mr Fouche then made the decision to withdraw Mr Aiberti’s Operations Supervisor training scheduled for Friday, 26 October 2012. It is worth observing that on Monday, 22 October 2012 having been made aware of the carer’s leave, and having approved it (either directly or indirectly), Mr Fouche had said that at that stage he had decided to simply leave things as they were. It was then that Mr Fouche thought more about what is described as “the incident”, more about the complaints which had just been made by Ms Boyd and probably Mr Peacock and Mr Faithfull, which specifically related to the Disputed Put-Back Shift, and changed his mind “about letting the incident go”: Fouche Affidavit at [62]. It was then that he called Mr Hughes, and cancelled Mr Aiberti’s Operations Supervisor training scheduled for Friday, 26 October 2012: Fouche Affidavit at [62].
Cross-examined in relation to Mr Aiberti’s failure to work the Disputed Put-Back Shift on 20 October 2012 Mr Fouche said that it reflected, in his view, a bad or poor attitude by Mr Aiberti. Mr Fouche’s response was that that was “[p]art of it”: Transcript at page 119. In circumstances where Mr Fouche was aware that Mr Aiberti had claimed to be fatigued and had taken carer’s leave, and had not disapproved that leave, Mr Fouche was also aware that the Disputed Put-Back Shift was not worked because of Mr Aiberti’s alleged fatigue and responsibilities as a carer, both of which gave rise to workplace rights. Moreover, the failure to reinstate the scheduled 26 October 2012 Operations Supervisor training occurred in circumstances where Mr Fouche, was aware, at least temporarily, that Mr Aiberti had a reasonable explanation for not working the Disputed Put-Back Shift: Transcript at page 119.
The Court does not doubt that, at least in part, Mr Fouche’s decision to withdraw the Operations Supervisor training on 26 October 2012, and not to reinstate it, was informed by a view that he held as to a lack of commitment and poor attitude by Mr Aiberti. The Court does however consider that insofar as that view related to the failure to work the Disputed Put-Back Shift on 20 October 2012 Mr Fouche’s perception of that attitude and commitment became mixed with another reason which formed the other substantial and operative part of his reason (see Transcript at page 119) for making the decision, and that is Mr Aiberti’s failure to work because of alleged fatigue and the existence, and exercising of workplace rights in relation to the fatigue and the carer’s leave, which Mr Fouche ultimately, and wrongly in the Court’s view, decided not to accept as being genuine, and it was the taking of that carer’s leave which formed part of the basis for the decision made by Mr Fouche.
In the above circumstances the Union has established that AWR has breached s.340(1)(a)(i) and (ii) of the FW Act by reason of adverse action being taken against Mr Aiberti because he had a workplace right or exercised a workplace right. Similarly, in relation to the same adverse action there was a breach of s.351(1) of the FW Act by reason of the adverse action being taken because of Mr Aiberti’s family or carer’s responsibilities.
Conclusion and orders
The Court has concluded that AWR has breached ss.340(1)(a)(i) and (ii) and s.351(1) of the FW Act by cancelling, and not reinstating, the Operations Supervisor training that Mr Aiberti was scheduled to undertake on 26 October 2012.
Issues of relief and penalty were set aside until liability was determined. Liability having been determined the Court will order that each of Mr Aiberti and AWR file and serve any further affidavits and outlines of submissions in relation to relief and penalty, and that the issue of relief and penalty be set down for hearing at 10.15am on 27 September 2017.
Costs, if any (as to which see s.570(2) of the FW Act and Cross v Harbour City Ferries Pty Ltd T/AS Harbour City Ferries & Ors (No.2) [2017] FCCA 1713) will be reserved.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 18 August 2017
Key Legal Topics
Areas of Law
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Employment Law
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Evidence
Legal Concepts
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Procedural Fairness
4
17
5