Barbieri v CMP Controls Pty Ltd

[2017] FCCA 784

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARBIERI v CMP CONTROLS PTY LTD [2017] FCCA 784

Catchwords:
INDUSTRIAL LAW – Adverse action application – whether applicant made workplace complaints – whether applicant dismissed because of complaints and/or for taking personal leave – applicant in fact dismissed for refusing to undertake manual work – adverse action not established – whether applicant entitled to redundancy payment – applicant’s position no longer to be performed – applicant clearly redundant – whether, in alternative, applicant entitled to notice pursuant to s 117 of the Fair Work Act 2009 – entitlement clearly established.

Legislation:

Fair Work Act 2009, ss.117, 123, 340, 341, 346, 351, 352, 361

Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32
The Queen v the Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-Operative Limited and Others [1977] 16 SASR 6

Applicant: JOHN BARBIERI

Respondent: CMP CONTROLS PTY LIMITED

File Number: MLG 1423 of 2016

Judgment of: Judge Burchardt

Hearing date: 17 and 18 March 2017

Date of Last Submission: 18 March 2017

Delivered at: Melbourne

Delivered on: 26 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Fitzgerald

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondent: Ms Jones

Solicitors for the Respondent: PCC Lawyers

ORDERS

1. The respondent pay the applicant within 30 days a redundancy payment of $138,498.42 less tax required by law.

2. The respondent remit any tax deducted pursuant to order 1 to the Australian Taxation Office and provide proof of same to the solicitors for the applicant.

3. There be liberty to apply in respect of the implementation of these orders.

4. Any written submissions in respect of costs are to be filed and served within 14 days and any response is to be filed and served 14 days thereafter, with all documents being no longer than 5 pages.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1423 of 2016

JOHN BARBIERI

Applicant

And

CMP CONTROL PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant, John Barbieri, worked for a succession of companies, of which the respondent is the last, between November 1994 and 21 April 2016.  He says he was dismissed, which the respondent denies.  He seeks remedies arising out of the termination of his employment.

2. Mr Barbieri says, and the respondent denies, that he was dismissed in contravention of s 340 and/or s 352 of the Fair Work Act 2009 (“the Act”). He says he was threatened with dismissal and dismissed because he exercised or sought to exercise a workplace right (s 340). He says the dismissal alternatively was because he took personal leave and/or parental leave (s 351). He further says that he is entitled to a redundancy payment pursuant to his contract of employment, and finally that he is entitled to notice, in the alternative, pursuant to s 117 of the Act.

3. For the reasons that follow, I do not think that the applicant was dismissed because he had sought to exercise a workplace right or because he took leave. Nonetheless, as I shall endeavour to explain, I think that the applicant is entitled to a redundancy payment pursuant to his contract and further and/or in the alternative would be entitled to a payment in lieu of notice pursuant to s 117 of the Act.

Agreed or Uncontroversial Facts

1. Although there has been some interlocutory bickering about the matter, it now seems uncontroversial that the respondent is direct successor controller/owner of a business that has operated through various corporate identities since at least 14 November 1994 when the applicant first commenced employment with ADCO Controls Pty Ltd.  It is now conceded that at the time the respondent bought the business in 2013, the applicant's redundancy entitlements transferred to the new employer.

2. Although it is apparent from the annexures to the affidavit of Mr Andonovski that the applicant had from time to time, as long ago as 1999 and 2002, performed some work on what might be described as the factory floor, it is clear that the applicant was employed in a succession of white collar jobs, which did not involve manual work or what the applicant described in his evidence as “process work”.

3. The applicant worked in a number of what one might describe as white collar positions from the commencement of his employment.  In about 2009, he asserts he was promoted to the position of senior buyer and signed a new contract to that effect.  A new contract has not been put in evidence.  Nonetheless, on 1 October 2013, in the context of a possible takeover by the respondent of the prior owner's business, the applicant, together, it would appear with other employees, was sent a further contract of employment, which is JB1 to the applicant's affidavit at Court Book (“CB”) 42.  I note that relevantly the contract asserts:

   1. POSITION

   You are employed by the Company as its Senior Buyer and report to Operations Director of Magnetic of Tridonic Manufacturing Pty Ltd, although your reporting arrangements may change as notified to you.

   In your role, you will perform the duties and undertake the responsibilities assigned to you and otherwise work in accordance with the directions given by your immediate manager.

   During the course of your employment, the Company may make reasonable changes to your duties/responsibilities to meet the needs of its business, so long as such changes are still consistent with your areas of career expertise and experience.

4. The contract also included clauses dealing with termination of employment for reasons other than redundancy (one month's written notice was required) and a generous redundancy package in the event of redundancy of two months notice or payment in lieu, together with four weeks redundancy pay for each completed year of service and sick leave entitlement capped at 60 days.  The redundancy payments were bounded by a qualification in the following terms (CB45):

   If your position is redundant and the Company is unable to offer you or facilitate an offer of an alternative position with the company, within the Tridonic Group of companies or with another employer, in accordance with the company's policies and procedures, you will be eligible for a retrenchment payment which is comprised of - - -

5. In November 2013 the applicant's employment was transferred to the respondent and in the same month his first child was born.  The pregnancy and birth appear to have been unremarkable.  In February 2014, although there is some dispute as to exactly what was said, it is common cause that the applicant, who was underutilised in his role as a senior buyer, would takeover dispatch duties in the warehouse.  These duties nonetheless continued to be office or white collar duties.

6. By November 2015, the applicant's wife was approximately seven months pregnant with their second child.  The applicant says he was concerned about the amount of hours he was working and he raised this matter with management and there was a meeting attended by Mr Andonovski, the effective owner of the respondent, Ms Farah, the human resources person, and Mr Metaxas, the chief financial officer.  There is a dispute which it will be necessary to resolve as to whether or not the applicant told those present about his wife's difficulties in her pregnancy.  But on any view of the matter, it is common cause that the applicant was offered extra duties in New Zealand and declined.

7. In February 2016, the applicant commenced parental leave, which he duly completed in March 2016.  He went into work on the last day of his leave (there is some dispute as to exactly whose idea this was) and there was a discussion of alteration of duties.  Once again, there is a dispute it is necessary to resolve as to quite what was said, but in any event, the applicant was supposed to co-work with a Mr Petrovski.  Disputation appears to have arisen as to this aspect of the matter.

8. From 12 to 15 April 2016 the applicant was absent for work due to personal illness and provided a medical certificate, and on 18 April 2016 Mr Andonovski requested that he attend a meeting.

The Meeting on 18 April 2016

1. On 18 April 2016, there was a meeting between Mr Andonovski and the applicant, at which Ms Farah, Mr Metaxas and Mr Christodolou were also present.  The applicant was given a series of job descriptions.  One was for him.  One was for Mr Petrovski.  The other was duties to be performed jointly by the applicant and Mr Petrovski.  Despite some earlier confusion, it is clear that those documents are exhibit A1 at CB 152 - 154.  There is some dispute as to exactly what was said to which it will be necessary to return. 

2. On 19 April 2006, Mr Barbieri sent an email to those who had attended the meeting the previous day, which is exhibit JB5 at CB 56.  Relevantly for these purposes, he said in his email:

   I am unable to accept the majority of the tasks highlighted in the “Duties - John and Zoran” relating to packaging of the product whether it be strapping/wrapping/packaging, forklift work and any work relating to the factory floor.  It is NOT in my area of career expertise and experience and it is not work that I am comfortable with.

3. The applicant set out a series of proposed duties, which would have had him continue to work in the office.

4. The same day a further meeting took place with the applicant, Mr Andonovski, Ms Farah, Mr Metaxas and Mr Christodolou present.  Once again, there is a dispute as to exactly what was said, but it is clear that even if he was feeling pressured to do so, Mr Barbieri appeared to accept the proposed new duties.

5. On 21 April 2016, the applicant sent another email to those who had been present at the 19 April 2016 meeting.  The document is exhibit JB6 at CB 58 - 59, where a succession of emails between the parties is set out.  For these purposes, it is sufficient to note that the applicant refused to perform factory floor work, which he itemised as distinct from office work, and indicated he was prepared to take on any office bound roles similar to his current employment.  Mr Andonovski's reply inquired whether the applicant was refusing to do the job as per the job description offered to him, and the applicant responded that that was the case.

6. Following that email, the applicant was called to a meeting by Mr Andonovski and the same persons were present.  The applicant confirmed that he was not prepared to perform the duties as now required.  There is some difference of opinion as to exactly what was said, but the last words said by Mr Andonovski, which appeared to have concluded the conversation were "then you don't have a future in this company any longer so pack your bags and get out.  See you later" (applicant's version), or, "Okay.  If you are not prepared to do your job, then you are no longer needed here.  Take 30 minutes to pack up your things and go" (Mr Andonovski's version);  "Okay.  Well, then there is no job for you here" (Mr Metaxas' version); “well, unfortunately then I don’t have a job for you” … “Pack up your stuff and leave” (Ms Farah’s version).

7. On the same day, 21 April 2016, Ms Farah sent a message to a number of employees of the company relevantly stating (exhibit JB7 to CB 63):

   Please note that as from this afternoon John Barbieri's employment has been terminated due to refusing new duties in Magnet Wire.

8. On 27 April 2016, Mr Andonovski wrote to Mr Barbieri (exhibit JB8).  He referred to the refusal of the applicant to undertake the "additional duties allocated".  The letter went on to say:

   You have left us with no alternative but to treat this as a resignation of your employment.

   The Company is reluctantly prepared to waive the requirement that you give one month's notice of termination of your employment under clause 8(b) of your Contract and treat today, 27 April 2016, as the final day of your employment.

9. An employment separation certificate consistent with that position was also enclosed (exhibit JB8, CB 65 - 67).

10. Thereafter proceedings were issued.

The Evidence Given At Court

1. It should be noted that I do not propose to traverse the affidavit materials of the parties in great detail, save to the extent it may touch on aspects of the evidence that are disputed and which are of significance. I have, of course, had regard to all the affidavit material filed.  Given the nature of the case and the way in which the evidence in court devolved however, it is more useful to concentrate on what the parties actually said in evidence.  What follows is taken from my notes.

2. The applicant adopted his affidavits as true and correct, subject to a correction in paragraph 40.  It is clear that the document exhibited as JB4 to his affidavits, documents exhibited to paragraph 4 to his affidavit are not the documents given to him on 18 April 2016.  These are exhibit A1.  The other expanded job descriptions were given to him at a later meeting. 

3. The applicant also tendered as exhibit A2 photographs he took during the week in April 2016 when all the meetings had occurred.  They show Mr Petrovski undertaking part of the role that the applicant says he was to perform jointly with Mr Petrovski.  The applicant said that these photographs showed Mr Petrovski with a heavy crowbar in the task of removing approximately 200 nails in separate timbers.  He said from his observation this was significant manual labour and that this was the duties that he was to share in part with Mr Petrovski.  He said that Mr Petrovski took one to one and a half hours unloading that container alone.

4. Under cross-examination, the applicant confirmed that his position changed in about 2009 to 2010 and his job title became that of senior buyer.  His formal contract had a position description of operative buyer and strategic purchasing.  In 2013, the title of his position in his contract was changed to senior buyer.  He was cross-examined about the leave he took around the time of the birth of his child.  Although he had slightly exaggerated the number of days he had taken, in my view, nothing turns on this.  He was asked questions about the number of redundancies that had taken place over time.  He said that there had been changes when Mr Andonovski took over in some people's jobs and his particularly.  There was a change with ownership moving from a multinational to a family company.

5. The applicant was cross-examined about discussion in November 2015 between himself, Mr Andonovski, Ms Farah and Mr Metaxas.  He had deposed at paragraphs 28 to 30 of his affidavit that he had too much work and had asked to have his workload reduced.  At the resulting meeting involving Mr Andonovski, Ms Farah and Mr Metaxas, Mr Andonovski had suggested that he undertake duties in New Zealand, but he said he could not do it.  The applicant had deposed that at a second meeting with Mr Andonovski and the others he had said he could not take the position because of complications experienced by his wife in her second pregnancy. 

6. Under cross-examination, he said he had suggested someone take four to five of his suppliers and that this was six to eight weeks before his wife was due to give birth.  He said that Mr Andonovski had agreed with his suggestion and said it was a good idea.  Mr Barbieri denied that he had ever said he had no work to do.  He said dispatch took about six and a half hours.  He said that Mr Andonovski accepted that he was unable to take the extra work in New Zealand at the time.

7. The applicant's evidence proceeded to March 2016.  He had been on paternity leave.  Mr Petrovski had been undertaking his duties while he was on leave.  Mr Andonovski met him on 25 March 2016 (there was an, in my view, immaterial dispute as to who requested the meeting), and it was agreed that the applicant would take on the purchasing role for Melbourne and assist with production planning in the wire factory.

8. The applicant was not cross-examined on an assertion at paragraph 36 of his affidavit that he met Mr Petrovski on 6 April 2016 and at that time was told by Mr Petrovski that it was required for the applicant to share the production planning duties on the factory floor, which involved labour duties.

9. Mr Petrovski and the applicant did not agree about the planning part of Mr Petrovski's job being given to Mr Barbieri and Mr Barbieri requested a meeting with Mr Andonovski who was then in New Zealand.  The applicant was absent from work from 12 to 15 April for medical reasons and provided his certificate.

10. On 18 April 2016, as I have earlier indicated, a meeting took place attended by the applicant, Mr Andonovski, Ms Farah and Mr Metaxas and Mr Christodolou.  In evidence, Mr Barbieri said that Mr Andonovski wanted him to undertake forklift duties, which would have required him obtaining a forklift driver's licence, and share with Mr Petrovski some factory floor duties.  Mr Andonovski said these duties would be minimal.  He said he was to be Mr Petrovski's backup.  Mr Andonovski had not given him much description of what would be required at the earlier meeting in March. 

11. Mr Barbieri said he was concerned about factory work.  When taken to CB 52 and 53, the applicant was not sure why extra duties were added to the first draft that he had been given.  He said he had disagreed with factory work on 18 April and did not want to work on the factory floor or to do forklift duties.  Mr Andonovski said it would be a small part of the duties, but the applicant did not agree.

12. In evidence, Mr Barbieri said he had been employed at the factory for 22 years and knew the duties.  He said that he and Mr Petrovski would have to share strapping and wrapping.  He said he felt this was unfair.  He said he had never sat on a forklift.  He said he was very daunted.  He would have needed to have undertaken a forklift driver's course.  In evidence, Mr Barbieri conceded that Mr Andonovski has a forklift licence.  He did not know that the termination of his employment was likely.  He offered four alternatives.  He said he was threatened with dismissal at both meetings.  He said he thought that they would come to their senses.  He said he had very young children and he needed his job.

13. Mr Barbieri said that in the second meeting they said they hoped that purchasing might increase.  They said that the factory floor work might be temporary.  If he had done the duties, his job would continue. 

14. When asked why he had not called Mr Petrovski to give evidence, the applicant said that he had not been called because the applicant was concerned about Mr Petrovski's job.  The respondent was ruthless.

15. The applicant said he worked overtime in November 2015 and worked 37 and a half hours per week.  He filled in time records.  He was in early and left late.  He rarely took breaks and never took afternoon breaks.  He said that both in November 2015 and April 2016 he had raised the issue of his wife's pregnancy.  He said those to whom he spoke were aware of complications and aware that his wife was pregnant.  He said he mentioned the complications once.  This was because it was already known. 

16. He said he had discussed the miscarriage with human resources and in the company.  He identified that this was Ms Farah and said that he had spoken with her about this matter on five to 10 occasions.  He had not provided the medical certificate at CB 50, "To Whom It May Concern", about his wife to the company.

17. In re-examination, the applicant confirmed that he was senior buyer to 2009 to 2010.  He had rung Ms Farah in November 2015, because of the amount of overtime he was doing.  She had organised a meeting at which he was subsequently offered work in New Zealand.  He had responded that that would be really hard on his family.

The Evidence of Rena Farah

1. Ms Farah, who appeared under subpoena, is the sales and payroll manager for the respondent. She has been employed by the company and predecessors since 2006 having started as finance and sales officer.  She started as human resource manager when CMP took over. She undertakes any human resources duties that arise, including negotiating the EBA.  She deals with any issues on the floor.  She confirmed in evidence-in-chief that performance reviews are undertaken by herself and Mr Andonovski, but do not involve formal reviews. 

1. Ms Farah further confirmed that office staff are not paid overtime, as they are considered monthly employees.  Weekly employees are not on contract and get paid overtime.  The monthly employees were herself, the sales manager, planning manager, the chief financial officer (Mr Metaxas), IT and maintenance managers.  Weekly employees are warehouse and factory workers.

2. Ms Farah confirmed that a note (in fact taken by Mr Metaxas) at CB 118 referred to Omar, who was a weekly employee.  He was overseeing production, and it was best for him to concentrate on that.

3. Ms Farah confirmed that the applicant had approached her around November 2015 to say that his workload had increased.  He wanted change.  Ms Farah was aware that he had a little child and that his wife was pregnant as well.

4. When taken to paragraph 30 of Mr Barbieri’s affidavit at CB 35, Ms Farah said that the applicant did not mention that his wife was pregnant or struggling at the meeting with Mr Andonovski and others.  He did complain about Mr Petrovski.  Ms Farah knew that the applicant’s wife was pregnant.  The concerns the applicant had about her health were raised at the last few meetings approximately five to six months later. 

5. Ms Farah was unable to recall why the applicant was absent from work on 12 April until 15 April 2016.  She did not know why he was off sick.

6. Ms Farah confirmed that her attendance at the meetings with Mr Andonovski and others were, on her part, as a witness.  That was her role.  She was also frequently a support person.  She was the person who had typed up the proposed duties for the applicant and Mr Petrovski.  She and Mr Andonovski spoke about it, and also with Mr Petrovski.  The point was for them to be replacements for each other.  There was no discussion with the applicant.  In the event a further point was added to the position descriptions and also the reference to harmony between the employees.  The applicant resisted the position.  Mr Andonovski wanted to be sure that the applicant and Mr Petrovski would work together.  Mr Andonovski said to include that for both the applicant and Mr Petrovski. 

7. At the meeting on 18 April 2016, Mr Andonovski provided the duties to the applicant and said everyone had to do extra duties.  The applicant did not accept this.  He did not wish to move out of the office.  Mr Andonovski said there was very little work on the floor, but the applicant resisted, as he did not wish to do it.  He thought it would degrade his position.  He was not interested in forklift driving.  Mr Andonovski said he had a forklift licence.  It was just helping out, and not permanent.

8. The applicant was at the meeting on 19 April 2016.  She remembered the email, exhibit JB5 (CB 56), that the applicant had sent. She  had not thought anything of it.  Mr Andonovski asked for another meeting, at which he asked the applicant to reconsider.  The applicant said no, he had made up his mind.  And Mr Andonovski said, “unfortunately, I don’t have a job for you.  Pack up your things and please leave,” and the applicant did so.  Ms Farah sent an email on 21 April 2016, which announced the applicant’s termination of employment (exhibit JB7 at CB 63).  She wanted everyone to know that the applicant was no longer in the job anymore.  Mr Petrovski has taken over with assistance.  A few people take over when he is on leave.  Mr Petrovski is very busy.

9. Mr Christodolou has been involved in the company for many years and is now a consultant. 

10. Ms Farah typed JB8 (CB 65-68) (the separation certificate).  This is what happened.  Mr Andonovski decided about the question of notice.  By then, lawyers were involved.  Lawyers were involved straight after the meeting on 21 April 2016.

11. Ms Farah confirmed that she was at the various meetings at which Mr Metaxas took notes.  The notes were correct.  Mr Andonovski gave the applicant the list of his duties and explained what each job was.  The applicant said he was happy doing planning.  Mr Andonovski said this was not the idea.  He and Mr Petrovski had to back each other up and cover each other if they were absent.  There were various duties to be undertaken between the two of them, which are at CB 154.  Mr Petrovski had done production planning.  There were a lot of changes.  He was involved in sales and controlled magnet wire and purchasing also.

12. At the meeting on 19 April 2016, the applicant did not want to take the position offered to him.  There was a lot of back and forth.  A lot of dispute.  The meeting lasted about one and a half hours.

13. The meeting on 21 April was very brief.  The applicant refused the position.  Mr Andonovski said there’s no job.  The meeting lasted about 15 minutes.

14. Rosa Lea left in 2012.  Up until then, Ms Farah was the payroll person.  She took over at the end of 2012 and became sales manager and then human resources manager.

15. Sasha Georgevski assists in the warehouse and magnet wire.  He might do duty 5 at CB 154 and possibly duty 3 as well.  Jobs 3, 4 and 5 are factory floor jobs.

16. The company employs approximately 14 employees in total.

Ms Farah Under Cross-examination

1. Ms Farah confirmed that about five to six of the employees are casual employees.

2. When taken to the duties at CB 154, Ms Farah confirmed that it was regular for a person to load and unload.  This would take about half an hour or as little as 10 minutes.  The applicant’s position was advertised after he left, but it was filled internally.  Mr Christodolou has been doing more purchasing work since the applicant left.  The applicant was told that the majority of his work would be in the office.  Every now and again he would be on the factory floor. 

3. Ms Farah told the applicant that this would be short-term.  There would only be a little work on the forklift and there would not be significant change.  Factory floor work was the problem.  He said he was not comfortable working on the forklift.

4. In November 2015, the applicant was offered the work in New Zealand.  He came back the next day.  He said if he was going to do more work he wanted more money.

5. Ms Farah confirmed that the contract deal with ETL went through. 

The Applicant Recalled

1. By leave, the applicant was recalled.  He said that in the meeting on 19 April 2016 there had been long pauses, because he did not accept the alternative position.  Mr Christodolou spoke to him at the end of the meeting.  He said purchasing could be nothing or everything.  Mr Christodolou told the applicant to accept forklift duties.  He would also help in purchasing.  The applicant asked how. 

2. Mr Barbieri said he was ground down after two days.  He accepted because he felt threatened.  He thought about it.  He learnt about Mr Petrovski’s job.  He would be spending half a day on the factory floor.  He was worried he would be a process worker.

Mr Barbieri Under Further Cross-examination

1. The applicant was told that the ELT deal was confidential.  He was told that it would increase his purchasing duties.  He raised his concern about sales contracts.  He raised his concern that factory duties were larger than he had been told.  Mr Andonovski said it was a minor part.  The applicant did not recall saying that he “always intended to agree. I just wanted to give you a hard time”.  He was stressed. 

The Evidence of Mr Andonovski

1. Mr Andonovski adopted his affidavit as true and correct.  He was taken to the photographs tendered by the applicant as exhibit A2.  He said they show Mr Petrovski entering a container.  This is normal procedure.  It is possible that this was for inspection for damage.  It is part of Mr Petrovski’s job.  Copper might be damaged.  It was just an inspection process.

2. Under cross-examination, Mr Andonovski said that he was not there when the photographs were taken.  He was cross-examined about records at CB 82 - 84, which record work done by the applicant on the factory floor.  He conceded that he was not present in the company at that time.  It was put to him that this showed the applicant performing special roles, to do work outside his normal job, and agreed that this might be the case.

3. Mr Andonovski was aware that the applicant applied for redundancy when he took the firm over.  He also asked for a salary increase.  This surprised Mr Andonovski;  he had not expected it.  Mr Andonovski said there was a big cultural shift from a large company to a family company.  The owner was on-site.  The door was open for discussion.

4. Mr Andonovski did not think that the applicant had been disloyal to the company.  He did not know that he had put his hand up for redundancy.  He said it seemed he had an agenda to get a redundancy.  He complained.  Nonetheless, Mr Andonovski had not decided to make things untenable for the applicant.  The purchasing role was the most important in the company.  The applicant’s opinion was not a secret.  The applicant was talking openly about redundancy. Mr Andonovski did not manufacture the situation on 21 April 2016. 

5. He confirmed that the applicant agreed to take on the dispatch role.  Nonetheless, the applicant was never happy with dispatch duties. 

6. When Mr Andonovski took over, changes were made in the applicant’s job after about six to seven months after that.  Mr Andonovski agreed that he kept a closer eye on costs and this affected the applicant.  He removed from the applicant price negotiations on steel and copper, and also removed the scrap metal contract, hygiene, cleaning, keys and security contracts too.  He insourced copper wire and base plate production.  This reduced the applicant’s role as a buyer.  Mr Andonovski was taken to the job description for the applicant at CB 98.  He confirmed that jobs 1 to 7 were office jobs.  When asked if jobs 1 to 3 could take about an hour per day, Mr Andonovski could not say.  He said he was a manager and was not involved.  He could not say how long the applicant takes.

7. Mr Andonovski confirmed that jobs 1 and 2 at CB 100 (the jobs to be shared between the applicant and Mr Petrovski) were office jobs.  He disagreed that jobs 3 to 5 were factory jobs.  He said he was not close enough to know.  Senior managers would know.  He does not spend that much time on the floor.  When he was asked if jobs 3 to 5 are now done full-time by Sasha, he said that he would say yes (Sasha is a weekly employee, not an office employee).

8. Mr Andonovski was challenged about paragraph 28 of his affidavit, in which he asserted receiving an email from the applicant complaining of his workload, including the dispatch role.  He said he believed it was an email, but was not certain and did not have all the emails.  It was put to him that the applicant denied sending this message, but Mr Andonovski said that was his word.  When it was put to him that the applicant did not want to give up dispatch work, he denied this.  The applicant had mentioned passing duties to Mr Petrovski, but it was not for him to decide.  It was for Mr Andonovski to decide.

9. Mr Andonovski raised New Zealand on 9 November 2016.  It just came into his mind. Tellingly, Mr Andonovski went on to say that the applicant rocked backward and forward on his chair in this conversation.  This was disrespectful to him and the company.  He was the managing director.

10. Further cross-examination about whether the applicant wished to cease dispatch work did not progress the matter.

11. Mr Andonovski confirmed that in March 2016 he knew the applicant was on leave as a result of the birth of his child.  He had a telephone discussion with the applicant, who agreed to come in on his day off.  He denied that this was exerting power over him.  Nor was it done because the applicant had been disrespectful in earlier meetings.

12. Mr Andonovski was taken to the job description at CB 43 - 46.  When it was put to Mr Andonovski that the applicant said that there had been no discussion at that time of factory duties, Mr Andonovski said there had been a verbal discussion.  They did not discuss full details.  He mentioned whatever was involved in that area. Mr Andonovski told the Court that everyone is a factory worker.  I would interpolate and say that I found Mr Andonovski’s evidence about this discussion evasive and unconvincing.

13. Mr Andonovski was questioned about paragraph 50 of his affidavit, in which he described the applicant’s concerns about undertaking factory work.  He said that from his point of view it was just an additional skill for emergencies and nothing to be fearful of.  He said the Spanish deal was mentioned towards the end of the meeting.  The applicant was sceptical.  He had not agreed with the proposals because he was worn-down. The Spanish deal came through on 1 June 2016.  Mr Andonovski denied sacking the applicant.  He said there was no guarantee that they would get the Spanish deal.  He had to make a decision.  He might have had to wait for years.

14. The purchasing role is now undertaken by Zoran (Mr Petrovski), assisted by Mr Christodolou and Omar.  Zoran is a full-time worker.  It’s not true that purchasing takes Zoran one hour.  Mr Andonovski was not sure what job was advertised.  He could not say if it was for a senior buyer, but presumed it was so.

15. Mr Andonovski confirmed that he had asked Ms Farah to add the extra clause in the job description and also the one about disharmony.  The applicant had a tendency to create disharmony.  Nonetheless, he did not see the applicant as unwilling to support the company.  Mr Andonovski was certain that Mr Christodolou had reassured the applicant that he would not be undertaking significant factory work. 

16. In re-examination, Mr Andonovski said that senior managers have to inspect goods.  Material tends to shift.  It has to be inspected for damage.  This is what he presumed was happening in the photographs.

17. He had offered the applicant the role in New Zealand, which is a more senior role, and he was disappointed that the applicant refused it.

18. When taken to CB 100 (the listed jobs for Zoran and John) Mr Andonovski confirmed that jobs 3 - 5 are undertaken by Sasha Georgevski on a full-time basis.  The applicant and Mr Petrovski had similar skills and could assist each other if they were busy or sick or on leave.

The Evidence of Mr Metaxas

1. Mr Metaxas adopted his affidavit as true and correct.  He was taken to the photographs prepared as exhibit A2, and said the first photograph was of copper rods from Germany.  Mr Petrovski was inspecting the cargo, which was tightly squeezed in.  It is the only cargo that the company receives of this sort.

2. Under cross-examination, Mr Metaxas confirmed he has been with the company since 2000.  He worked with both the applicant and Mr Petrovski, but not on a daily basis.  He works in a different part of the premises.  The applicant’s role changed since Mr Andonovski bought the company.  Duties have changed.

3. Mr Metaxas said he would know at least 80 per cent of what Mr Petrovski does.  He worked in the factory some of the time. 

4. Factory duties were never meant to be full-time.  This was told to the applicant at the meeting.  Mr Andonovski is usually calm.  Everybody has made changes and everyone has to chip in.  Turnover is down to $15 million per year.  Mr Metaxas was cross-examined about paragraph 62 of the applicant’s second affidavit.  He said that he made it clear that factory work would be for a short amount of time and would be a small part of the job.  If it was a long time, he would not accept.  Mr Metaxas said he had driven a truck to Cheltenham and collected stuff himself.  This was not the same role as the applicant was to undertake.

Brief Observations About the Credit of the Witnesses

1. The applicant struck me as being very precise and pedantic, and also somewhat dogmatic in his view of the world generally.  I particularly refer to his very clear understanding that he was an office worker and not a factory floor worker.  This was reflected in his monthly pay and lack of overtime, rather than weekly pay. 

2. Having said this, nonetheless, I thought that Mr Barbieri generally answered questions directly and fairly, and he struck me in the main as having a good recollection of events, although the passage of time means that he made some errors.

3. Ms Farah was a palpably fair and reasonable witness, who answered questions given to her directly and responsively. 

4. Mr Andonovski was prone to answering questions with answers that had not been asked for.  He came across to me, under cross-examination particularly, as being combative and bullying in his personality.  He struck me as being an extremely formidable personality and was, on occasions, as I have already indicated, evasive and/or unresponsive in his answers.

5. Mr Metaxas struck me as being a very fair witness.

Findings on the Facts

1. I have already set out at the commencement of these reasons a number of uncontested or uncontroversial matters.  There is no doubt that the applicant worked for the company in its various corporate identities for many years.  While it is true that he performed a small amount of factory floor work in the distant past (the latest of it being in 2002), he clearly was, and was entitled to regard himself, as an office employee.  The respondent’s endeavours to portray him as untruthful in this regard does it no credit.

2. Albeit that the applicant’s position was not one of inordinate seniority, the fact it is that by 2009, as I find, he had achieved the position of senior buyer, and this was eventually reflected in the contract executed in 2013.

3. When Mr Andonovski, who is clearly to all effects and purposes the respondent’s will, took over things changed.  Mr Andonovski is a hard nut.  He wants more from his employees than they were giving to the previous large corporation.  Understandingly enough, as a man who has obviously invested significantly in the company, he takes a very close interest in it and he wants more. 

4. It is clear that Mr Andonovski thought that the applicant was angling for a redundancy.  He said so directly in his evidence.  Nonetheless, I do not think this had anything to do with this dismissal. 

5. In November 2015, the relevant parties had a meeting, and by then it was known that the applicant’s wife was pregnant.  I do not find that he made it as clear as he now thinks that he did, that his wife had pregnancy complications.  He was offered a position in New Zealand and turned it down.  I accept that he wanted more money for doing more work, scarcely an unreasonable position.  I note that Mr Andonovski felt that the applicant was disrespectful to him.  Mr Andonovski clearly sees himself a senior figure, and regarded Mr Babrieri’s attitude as disrespectful.  He may even be right.  It cannot have helped.

6. There things stayed until, by March 2016, the respondent was starting to seek that the applicant change his duties.  I am not able to form any conclusive view as to exactly what the applicant was doing, nor the extent to which he did or did not want to undertake purchasing duties.  It does seem clear, however, that Mr Barbieri was prepared to undertake alternative duties, provided they were not on the factory floor.

7. The applicant was called to meetings on 18 and 19 April 2016.  It was clear to him that he was being required to do factory work.  The respondent makes much of the fact that it was explained to the applicant that the amount of such work would be minimal and likely to be of a short duration, bearing in mind the possible forthcoming of the Spanish contract.  The trouble with that assertion is that Mr Andonovski does not himself agree.  He did not know whether the Spanish contract was going to come through and needed to force, as he saw it, Mr Barbieri to undertake factory work if needed then and there.

8. I accept that the applicant eventually agreed to undertake factory work at the meeting on 19 April 2016.  I accept that he did this simply because he felt pressured to do so.  He may even have said words to the effect “I was always going to agree” etcetera, but he plainly did not mean that.  Rather, he reconsidered and sent his email, making his position clear on 21 April 2016. As I find, this was because the applicant did, as he said he did, investigate what the work would actually involve. 

1. Exhibit A2 does not show an executive undertaking an executive function.  It shows manual labour of a crude nature.  The applicant obviously observed Mr Petrovski and obviously discussed the matter with him, and it is clear that he thought that if he accepted what the respondent was offering he would be working as a process worker, as he put it. 

2. Whatever was said to the applicant was plainly insufficient to persuade him that the work he was being asked to do would not be of a character and of an amount that he found deeply objectionable.  It is important to remember, as the applicant himself says, that he had a wife with two young children to support.  As he said, he needed his job.  The idea that he was wilfully seeking to get himself sacked is instantly, obviously, completely wrong.  Insofar as there are differences in the versions of the parties as to what was said and done and these meetings, I accept that whatever the respondent said to the applicant was nowhere near sufficient to reassure him.  Indeed, the applicant, being an intelligent man, would not have misunderstood the sort of reassuring words that it is now said by the respondent to have been said. 

3. When the applicant made it clear he would not accept the additional duties that the respondent wanted him to do, he was sacked.  The words as suggested by any of the applicant, Mr Andonovski, Ms Farah and Mr Metaxas permit no other construction.  The weasel words drafted by the respondent’s lawyers and put in the correspondence purporting to waive the notice requirements likewise do the respondent no credit. 

4. It is quite apparent that the bulk of duties to be shared between Mr Petrovski and the applicant as set out at CB 100 are manual labour.  They are now being performed full-time by a weekly non-salaried employee.

How Does This Operate Upon the Applicant’s Particular Claims

The Adverse Action Claims

1. The first adverse action alleged against the respondent is said to have taken place on 18 April 2016 and is described at paragraph 19 of the further amended points of claim as the “threatened dismissal”.  It is next alleged that the applicant's email of 19 April 2016 in which he refused to accept the additional duties that the respondent wanted him to undertake constituted a third employment complaint. 

2. The first employment complaint is alleged at paragraph 12 and constitutes the allegation that in November 2015 the applicant complained to Mr Andonovski about working excessive hours.  The second complaint is alleged to have arisen during the 18 April 1016 meeting and was constituted by a complaint that Mr Andonovski had failed to inform the applicant of the positive change in duties to include manual and forklift - and/or forklift work.  It is next alleged that on 19 April the applicant made a further oral complaint to Mr Andonovski to the effect that he did not have the skills and experience required to perform forklift, packaging, strapping and material handling duties. 

3. It is next alleged that on 21 April the applicant made a fifth employment complaint at the meeting between the parties in which he again said that he did not have the skill to work in forklift and packaging work and was not willing to do so.

4. Mr Barbieri's case is that both the threatened dismissal and the dismissal were motivated by reasons which included his various employment complaints and his taking parental leave in February 2016 and sick leave in April 2016.

5. It is apparent that, at the very least, the applicant's actions in complaining about the amount of time he had to work in November 2015 and that he did not wish to undertake manual labour in April 2016 were capable of constituting workplace complaints within the meaning of section 341(1)(c)(ii) of the Act.  They were complaints “in relation to his employment”. 

6. It is not necessary however to enter into the question of the reverse onus of proof or to seek to disaggregate Mr Andonovski's motivation.  In my view, the position is entirely clear.

7. While it is the case that Mr Andonovski regarded the applicant as a bit of a nuisance, as I find, because he was constantly seeking (as Mr Andonovski saw it) to obtain a redundancy payment, neither this nor the complaints made by the applicant had anything to do with his dismissal.

8. Put shortly, there is no evidence that the taking of parental leave or personal sick leave had anything whatever to do with the events of April 2016.  There is simply nothing in the materials to suggest for an instant that that is the case.

9. The discussion about the workload in November 2015, which was sought to be resuscitated by the applicant in terms of a New Zealand position later on, likewise, as I find, these had nothing to do with what happened to Mr Barbieri either.

10. Indeed, not even the complaints made by Mr Barbieri that he did not wish to undertake manual labour operated upon the decision to dismiss.  The reason for the dismissal, as I find it, was clearly expressed and did not rely upon any other aspects of the matter.  Mr Andonovski dismissed Mr Barbieri because he refused to do manual labour.  He did not dismiss him because Mr Barbieri complained about this.  He dismissed him because of the refusal simpliciter.  As the High Court made clear in Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32 at 44 - 45:

    There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that director 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?"

    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.  

11. Here, although as I find Mr Barbieri undoubtedly did make complaints in relation to his work, and in particular in November 2015 as to how much work he had to do, and in April 2016 as to his lack of desire to undertake manual work, these were not "why the adverse action was taken".  The adverse action of the threat of dismissal, which I accept was such a threat made by Mr Andonovski on 18 April 2016, and the actual dismissal on 19 April 2016 were not activated by the complaint or any of the other matters asserted.  The threat to dismiss and the dismissal took place simply because Mr Andonovski wanted the applicant to agree to undertake manual labour and the applicant refused to do so.

Redundancy

1. There is no disagreement as to what the redundancy provisions apply to the applicant were.  The contract of employment is set out at pages CB 43 - 46.  As noted during the running of the trial, I refused the applicant leave to further amend to include a claim under the Act for redundancy pay for reasons then given.  Nonetheless, there are several provisions in the contract which operate upon the matter.

2. By clause 1 (CB 43) it was provided:

   You are employed by the company as its Senior Buyer and report to Operations Director Magnetic of Tridonic Manufacturing Pty Ltd, although your reporting arrangements may change as notified to you.

   In your role, you will perform the duties and undertake the responsibilities assigned to you and otherwise work in accordance with the directions given by your immediate manager.

   During the course of your employment, the Company may make reasonable changes to your duties/responsibilities to meet the needs of its business, so long as such changes are still consistent with your areas of career expertise and experience.

3. By clause 11 - Termination Due To Redundancy it was provided:

   If your position is redundant and the Company is unable to offer you or facilitate an offer of an alternative position with the Company, within the Tridonic Group of companies or with another employer, in accordance with the company's policies, and procedures, you will be eligible for a retrenchment payment which is comprised of:

   (a) 2 (two) months written notice or payment in lieu (representing your full notice entitlement in a redundancy situation);

   (b)Redundancy paid in recognition of completed years of service on the basis of 4 weeks for each completed year of service;

   (c) Sick leave entitlement paid (capped at 60 days);

4. At paragraph 38 of the further amended points of claim (marked as MFI2) it is asserted that the total operative outcome of a redundancy payment to the applicant would be $138,498.42. 

5. Although by paragraph 37 of the points of defence (MFI1), it is put that the applicant was not entitled to a redundancy payment as he was not made redundant, and, in the alternative, that he was offered an alternative position within the meaning of the contract and that, in any event, the position offered to him did not have to be suitable to come within the terms of the contract, the actual quantum does not appear to be an issue.

6. It should also be noted that although there is reference in the contract to the company's policies and procedures, neither party has suggested that any policies or procedures operate in a material way upon the matter.

7. In my view, the underlying facts are reasonably clear.  There was not enough work in the position of senior buyer, which on any view of the matter, was the applicant's position, to fully occupy him.  Although there is a certain amount of dispute as to exactly what he did and/or how eager he was to do it, the applicant did not have enough white collar duties to fully occupy his time.  Indeed, it was precisely for this reason that Mr Andonovski wanted both him and Mr Petrovski to share various factory floor jobs.  These matters in my view are completely clear on the evidence and could not be the subject of any dispute.

8. In these circumstances, there can be no dispute that the applicant's position as senior buyer was redundant. 

9. Indeed, further, insofar as his job might be said to have been altered to an extent, something in my view permitted by the clause 1 of the contract, “During the course of your employment, the company may make reasonable changes to your duties/responsibilities to meet the needs of its business, so long as such changes are still consistent with your areas of career expertise and experience”, any such new position as might have evolved was clearly also redundant, because there was not enough work to occupy the applicant fulltime in his duties.  I repeat again.  This was the whole point of Mr Andonovski's desire to have the applicant perform new duties.

10. The next, and in the circumstances perhaps critical, question is whether or not, the applicant's position being redundant, the respondent made him "an offer of an alternative position".  The respondent's position, as I have detailed it above, is that there was an offer of an alternative position.  It was a position involving a certain amount of factory floor manual labour.  The respondent says that there is no requirement for such a position to be suitable.  An alternative offer was made and that is an end to the matter.

11. In my view, the applicant's position in regards to this aspect of the matter is the better one.  The contract, like all contracts, needs to be viewed as a whole.  The contract expressly contemplated variation of duties within an acceptable range.  On any view of the matter, the demand that the applicant undertake a forklift driving course and undertake forklift driving work, something he expressly, and in my view understandably, said he was not comfortable with, and that he perform ordinary manual labouring work, as I find it to have been, was not:

    …consistent with your areas of career expertise and experience.

12. This is not a question which, in my view, turns upon detailed analysis of authority, but rather on first principles.  Here was a man who had worked for 20 years, relevantly to all effects and purposes, full-time as a white collar office worker.  This meant something to him.  He was prepared to put his job on the line as a result.  Mr Barbieri's evidence was that having seen what Mr Petrovski was doing and discussed it with him, as I infer, he found the thought of being a full-time or  even part-time process worker exceptionally unattractive and off-putting. 

13. If one were to accept the respondent's position, any offer of alternative employment made to any employee of the company would always be sufficient to meet the qualification contained in clause 11 of the applicant's contract.  By way of extreme analogy, the managing director or chief executive officer could be offered a job as a latrine attendant and denied a redundancy payment if they failed to take it.  This puts the matter at a slightly distasteful level of exaggeration.  Nonetheless, it is an accurate, logical consequence of the position that the respondent adopts.

14. As a matter of ordinary common sense, the construction of the contract for which the respondent contends is untenable.  It is quite clear that Mr Barbieri's "position" (see clause 11) was redundant.  This is unquestionably so in relation to the position of senior buyer, and in the ultimate, if his position was anything different in April 2016, that position was also redundant.  There was not enough work in it to fully occupy his time.  The employer did not wish that position to be continued by anybody.  It was redundant on any sensible understanding of what the word means. 

15. It should be noted that while a number of definitions of redundancy have been advanced from time to time (see The Queen v the Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-Operative Limited and Others [1977] 16 SASR 6 and others cited by Counsel), any endeavour to give a universal definition is, in my view, likely to fail to meet the particular circumstances that different cases throw up from time to time.

16. It follows that the applicant must succeed in this respect of his claim.

The Application For Statutory Notice

1. If I am wrong as to the applicant's entitlement to a redundancy payment, which obviously includes a notice component, I would still find that the applicant was entitled to notice pursuant to s 117 of the Act. S 117 requires written notice and associated payment, which in the applicant's case would be four weeks with a value of $5654.73. Pursuant to s 123(1)(b) of the Act, the notice provisions do not apply to an employee whose employment is terminated because of serious misconduct.

2. Once again, although the phrase "serious misconduct" has given rise to a very considerable body of authority, it is not necessary to traverse that authority in this case.  What actually happened was that Mr Andonovski sought to change the applicant's work duties by compelling him to perform manual labour and other duties, which he felt, in my view reasonably, he ought not be required to perform.  The applicant refused to do this and was dismissed accordingly.

3. The respondent's submissions endeavour to suggest that in refusing the alternative duties, the applicant abandoned his employment.  This is, of course, plainly wrong.  What he did was to refuse to do something that the employer was asking him to do.  To adopt the characterisation propounded by the respondent would appear to suggest that in every instance where employment ends, it is always by the employee abandoning their employment.  This is totally unsound.  Nonetheless, it is not necessary again to enter into discussions of universal application.

4. On the facts of this case, Mr Barbieri was dismissed because he refused to undertake the duties that Mr Andonovski demanded that he undertake.  In my view, Mr Barbieri was perfectly entitled to do so.  Part of what makes people human is their self-regard, and ordinary experience suggests that work and the role one plays at work are not an insignificant part of that for many of us.  Mr Barbieri obviously saw himself as a monthly paid worker, a white collar worker, and a person entitled to that status.  The demand that he do work on the shop floor was deeply offensive to him, to the point where, although he may not fully have appreciated it, he was prepared to put his employment on the line as a result.  He needed his job. 

5. The notion that employees in Mr Barbieri's case were required effectively to tug their forelocks and do whatever Mr Andonovski told them to do is unquestionably appealing to Mr Andonovski as an employer.  It is his company and his money.  But the course of action upon which he embarked was one which I would find unreasonable and excessive.  It should be noted that I have accepted Mr Barbieri's assertion that the amount of manual labour he was likely to find himself doing was greatly in excess of the now very qualified amounts asserted by the respondent. 

6. It was not misconduct of Mr Barbieri to refuse the alternative duties he was being demanded to do.  It was entirely reasonable for him to do so.  It follows that he was not misconducting himself, let alone seriously in so doing.  It therefore follows that his claim under the Act must be successful. It is not however necessary for there to be an order for payment as Mr Barbieri has already been awarded payment in lieu of notice in the redundancy payment.

Conclusion

1. In the circumstances, the applicant is entitled to a redundancy payment calculated pursuant to his contract in the sum of $138,498.42.  This will obviously require to be taxed and the employer will be required to deduct tax as required by law and remit the same to the Australian Taxation Office.

2. This question of tax often becomes a major point of dispute.  The orders I am proposing will remove that dispute.  If, as is possible, the amount of tax deducted is excessive given Mr Barbieri's particular personal taxation circumstances, it will obviously be open to him in due course to obtain the appropriate refund.

I certify that the preceding one-hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 26 April 2017