Bateman v Aldi Foods Pty Ltd
[2018] FCCA 415
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATEMAN v ALDI FOODS PTY LTD | [2018] FCCA 415 |
| Catchwords: INDUSTRIAL LAW – Adverse action – whether the Applicant made an employment complaint as defined in the Fair Work Act 2009 – whether adverse action was taken for reasons including that the Applicant made a complaint – application dismissed. |
| Legislation: Fair Work Act 2009, ss.340, 341, 350, 351, 352, 361 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506 |
| Applicant: | CHRISTOPHER BATEMAN |
| Respondent: | ALDI FOODS PTY LTD |
| File Number: | MLG 1714 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 3, 4 and 5 October 2017 |
| Delivered at: | Albury |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | McDonald Murholme |
| Counsel for the Respondent: | Mr Avallone |
| Solicitors for the Respondent: | Enterprise Law |
THE COURT ORDERS THAT:
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1714 of 2016
| CHRISTOPHER BATEMAN |
Applicant
And
| ALDI FOODS PTY LTD |
Respondent
REASONS FOR JUDGMENT
In a Statement of Claim filed 10 August 2016 the Applicant (‘Mr Bateman’) claims relevantly that:-
a)The Respondent (‘Aldi Foods’) took adverse action against Mr Bateman as defined in paragraphs (b) to (d) of column 2 of item 1 of the table in s.342(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’) by issuing a written warning to him. Mr Bateman claims that in breach of s.340(1)(a)(ii), Aldi Foods took this adverse action, for the reason or for reasons including the making of the first employment complaint and/or the second employment complaint as described in paragraphs five and six of the statement of claim (which appears hereafter);
b)Aldi Foods took adverse action against Mr Bateman as defined in paragraph (a) of column 2 of item 1 of the table in s.342(1) of the FW Act by effecting a dismissal of him from his employment. Mr Bateman claims that this adverse action was taken in breach of s.340(1)(a)(ii) of the FW Act for the reason or for reasons including the making of the first employment complaint; the second employment complaint; the third employment complaint; the fourth employment complaint; the fifth employment complaint; the sixth employment complaint; the first personal leave; the second personal leave; and/or the third personal leave as described in paragraphs 5, 6, 8, 9, 11, 12, 14 and 16 of the statement of claim (which appears hereafter);
c)Aldi Foods, in breach of s.351(1) of the FW Act, effected a dismissal of him from his employment for the reason, or for reasons including, the physical disability as described in paragraph 10 of the statement of claim (which appears hereafter);
d)Aldi Foods, in breach of s.351(1) of the FW Act, effected a dismissal of him from his employment for the reason, or for reasons including, the mental disability as described in paragraph 7 of the statement of claim (which appears hereafter); and
e)Aldi Foods, in breach of s.352 of the FW Act, effected the dismissal of him from his employment for the reason, or for reasons including, Mr Bateman’s absence from work during the first personal leave, second personal leave and/or third personal leave as described in paragraphs 12, 14 and 16 of the statement of claim (which appears hereafter).
The statement of claim, as it relates to the employment complaints, personal leave and disability is relevantly as follows:-
“5. On or about 22 December 2015 the Applicant complained to the Respondent that he was being bullied in the workplace by Rachael Dorou (Ms Dorou) - Assistant Store Manager (First Employment Complaint).
Particulars
The First Employment Complaint was oral and was contained in a conversation between the Applicant and Robert Whitelaw (Mr Whitelaw) - Assistant Store Manager at a restaurant in Rosebud.
6. In January 2016 the Applicant attended a performance appraisal meeting with Brent Riddiford (Mr Riddiford) - Store Manager and Fiona Prichard (Ms Prichard) – Area Manager, during which:
(a) Mr Riddiford and Ms Prichard made reference to the First Employment Complaint;
(b) the Applicant confirmed the First Employment Complaint and further complained that he had been consistently rostered to work unreasonable overtime hours (Second Employment Complaint); and
(c) Mr Riddiford and Ms Prichard stated “this is how it is, if you can't work these hours how do you expect to progress through the business?” or words to that effect.
7. In early February 2016 the Applicant was diagnosed with depression and anxiety as a result of workplace bullying and workplace stress (the Mental Disability).
8. On 10 February 2016 the Applicant attended a meeting with Ms Prichard and Ms Dorou, during which:
(a) the Applicant complained that he had been diagnosed with depression and anxiety as a result of the unreasonable overtime hours he was directed to work (Third Employment Complaint); and
(b) the Applicant was issued with a first and final written warning (the Written Warning).
9. In or around mid-February 2016 the Applicant attended a meeting with Mr Riddiford and Ms Prichard during which:
(a) the Applicant complained that he had been consistently directed to work unreasonable overtime hours and that he had not been provided with at least a 10 hour break between shifts (Fourth Employment Complaint);
(b) the Applicant presented Mr Riddiford and Ms Prichard with information from the Fair Work Ombudsman regarding breaks between shifts;
(c) Mr Riddiford stated “this is the way it is, it's part of the job” or words to that effect;
(d) Ms Prichard informed the Applicant that if he was unhappy with the working hours he could accept a demotion with less pay and hours; and
(e) the Applicant complained that he continued to be bullied by Ms Dorou (Fifth Employment Complaint).
10. In or around late March 2016 the Applicant sustained an injury to his neck while stacking produce at work (the Physical Disability).
11. In early April 2016 the Applicant attended a meeting with Mr Riddiford during which:
(a) the Applicant complained that he had been consistently directed to work unreasonable overtime hours and that it was having an adverse effect on the Mental Disability and the Physical Disability (Sixth Employment Complaint); and
(b) Mr Riddiford stated “maybe Aldi isn't for you because Aldi isn't going to change” or words to that effect.
12. On or about 10 April 2016 the Applicant was absent from work on paid personal leave due to the Physical Disability (First Personal Leave).
13. On or about 11 April 2016 the Applicant attended a meeting with Mr Riddiford during which Mr Riddiford stated it is unacceptable for managers to take sick days...maybe this job isn't for you, Aldi isn't going to change" or words to that effect.
14. From 18 April 2016 to 24 April 2016 the Applicant was absent from work on paid personal leave due to the Mental Disability (Second Personal Leave).
15. On 2 May 2016 the Applicant was transferred to the Respondent's Somerville store.
16. On 10 May 2016 the Applicant was absent from work on paid personal leave due to the Physical Disability (Third Personal Leave).
17. On 10 May 2016 the Applicant received a telephone call from Dominique Martin (Mr Martin) - Store Manager, during which Mr Martin directed the Applicant to attend a disciplinary meeting on 12 May 2016.
18. On 12 May 2016 the Respondent dismissed the Applicant (Dismissal).
Particulars
The Dismissal was partly written and partly oral.
Insofar as it was written it was contained in a document entitled “Termination Advice Form'', a copy of which is in the possession of the Applicant's solicitors and is available for inspection by prior appointment.
Insofar as it was oral it was contained in a conversation between the Applicant, Ms Prichard and Mr Martin during a meeting on 12 May 2016.”Mr Bateman seeks both compensation and that the Court impose pecuniary penalties upon Aldi Foods to be payable to Mr Bateman.
In a Response filed 10 October 2016, Aldi Foods seeks that the application be dismissed with costs. Aldi Foods denies that it took adverse action against Mr Bateman in response to alleged complaints made by him and asserts that, Mr Bateman’s alleged complaints, personal leave and/or disabilities played no part in the decision of Ms Prichard to terminate Mr Bateman’s employment. Further, the only reason Ms Prichard terminated Mr Bateman’s employment was because of his breaches of a document hereafter referred to as Yellow Security Instructions (‘YSI’).
Evidence
There was in evidence a Court Book filed jointly by the parties in accordance with orders made on 5 December 2016.
Mr Bateman relied upon the following affidavits of evidence:-
a)affidavits affirmed by him on 27 January 2017 and 29 March 2017;
b)an affidavit of Mr David Knaggs, store assistant at the Aldi Rosebud store around September 2015, affirmed 27 January 2017;
c)an affidavit of Ms Georgia Watson, deputy manager at the Aldi Rosebud store (at the relevant time), affirmed 27 January 2017; and
d)affidavits of Mr Bradleigh Bateman, brother of Mr Bateman, affirmed 27 January 2017 and 4 April 2017;
Aldi Foods relied on the following affidavits of evidence:-
a)an affidavit of Ms Ellie Charlton, deputy store manager at the Aldi Somerville store (at the relevant time) sworn 3 March 2017;
b)an affidavit of Mr Dominick Martin, store manager at the Aldi Somerville store, sworn 3 March 2017;
c)an affidavit of Ms Maddison Smith, deputy store manager at the Aldi Somerville store (at the relevant time), sworn 3 March 2017;
d)an affidavit of Mr Brent Riddiford, store manager at the Aldi Rosebud store, sworn 3 March 2017; and
e)an affidavit of Ms Fiona Prichard, area manager for Aldi Foods Dandenong region, sworn 3 March 2017.
Each of Mr Bateman and the parties various witnesses were cross-examined as to their evidence.
In this proceeding, the Applicant pleaded that the reverse onus, as set out in s.361 of the FW Act, applies such that it is presumed that Aldi Foods took the adverse action against Mr Bateman for the unlawful reasons alleged in breach of ss.340(1)(a)(ii), 351(1) and 352 of the FW Act, unless Aldi Foods proves otherwise.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
Mr Bateman’s employment at Aldi Foods
Mr Bateman commenced employment with Aldi Foods on 22 September 2015 as a trainee store manager for a period of two years pursuant to an agreement (‘the employment agreement’). The terms of the employment agreement included, relevantly, that:-
a)Mr Bateman would be employed in the position of trainee store manager with Aldi Foods;
b)Mr Bateman would be employed for a fixed term of two years;
c)Mr Bateman would work any five out of seven days in a week, Monday to Sunday as rostered, and would work such hours as were necessary to meet the needs of the position, including work on Saturdays, Sundays and Public Holidays as required. Mr Bateman would work 38 hours per week plus an average of two additional hours per week;
d)if Mr Bateman worked in excess of 40 hours per week he would be provided with time off in lieu;
e)the terms and conditions of employment would be regulated by an enterprise agreement made under the FW Act, titled the ALDI Dandenong Agreement 2013; and
f)Mr Bateman would initially be based at the Aldi Foods Rosebud Store.
On commencement of his employment, Mr Bateman reported to Mr Riddiford. Mr Riddiford commenced his employment with Aldi Foods in December 2006 and was then employed, and remains so employed, as the store manager of the Aldi Foods Rosebud store. Mr Bateman worked at the Rosebud store from September 2015 to May 2016, when he transferred to the Somerville store. This change in location was offered to Mr Bateman by the area manager, Ms Fiona Prichard, in response to Mr Bateman advising her that he had certain personal issues and that a reduction in his travel time to and from his place of work would assist him.
The hierarchy of roles within Aldi Foods in ascending order of responsibility was: store assistant, deputy store manager, trainee store manager (the position occupied by Mr Bateman) assistant store manager and store manager. Store managers reported to an area manager. The area manager also fulfilled the role of personnel leader for all employees below him or her. As store manager, Mr Riddiford reported to Ms Prichard who was the relevant area manager for Aldi Foods Dandenong Region. Ms Prichard had commenced employment with Aldi Foods in November 2012.
The Yellow Security Instructions (YSI)
On commencement of Mr Bateman’s employment in September 2015, Mr Riddiford gave Mr Bateman a copy of the YSI. The YSI set out the processes to be followed in relation to cash management and managing each Aldi Foods store’s safe. As a manager, Mr Bateman was sometimes responsible for closing the store at the end of the day which included a handover of the safe which required amongst other things, a handover of the safe keys, between managers. All managers of Aldi Foods stores, including Mr Bateman during his employment, were required to follow the YSI.
Mr Riddiford asked Mr Bateman to read the YSI and asked him if he had any questions. Mr Bateman had none. He signed the YSI on 26 September 2015. Above his signature appeared the words:-
“FAILURE TO FOLLOW THESE SECURITY INSTRUCTIONS MAY CAUSE HARM TO AN EMPLOYEE, CUSTOMER OR OUR BUSINESS. AS SUCH, ANY BREACH OF THESE INSTRUCTIONS WILL BE TREATED SERIOUSLY AND MAY LEAD TO DISCIPLINARY ACTION BEING TAKEN, UP TO AND INCLUDING SUMMARY DISMISSAL.”
The YSI detailed the procedures to follow relating to security, money handling and cash. Relevantly, paragraphs two and three of the YSI were as follows:-
“2. MONEY PROCEDURE
a) the safe holder is responsible for all cash and all EFTPOS/Credit Card transactions which are handled in the store.
The cash in the safe must be counted daily as part of the end of day procedure in the store computer system. In case of any difference above $100.00, the Area Manager is to inform the Store Operations Director.
b) In case of handover, the cash in the safe must be counted, the amount confirmed by both signatures in the Safe Count Book and the safe responsibly handed over. Only Store Management that have signed Yellow Security Instructions can hold the safe. Safe combinations must be kept confidential at all times and never disclosed to another person or written down anywhere.
c) Cash is only allowed to be kept:
- in the registers and drop box.
- in the safe.
- in the cash box locker (max $1,500 per cash box). These are to be locked and the keys removed. The keys are to be held by the person responsible for the money.
d) The safe holder is solely responsible for handing out the cash. Any change received during the shift must be counted by the safe holder and the recipient before being placed in the cash drawer.
e) the cashiers must use code 1 before leaving their register.
f) Counting of money is only allowed in the locked office. At that time only ALDI employees are allowed to be in the office.
g) Each cashier must count the cash in their cash box prior to the beginning of their shift and notify the Manager on duty of any discrepancy. All cashiers must use a drop box. The key for the drop box is to be kept in the cash box locker. Notes from the registers must be deposited in the drop boxes at frequent intervals. $100 notes must be deposited in the drop box immediately. The cash box must only be carried with the lid closed. The limit per register at any one time is $2,000 and $6,000 in the drop box. Drop boxes need to be emptied as often as the limit requires during the day and the amount then deposited in the safe, adhering to the required cash limits.
h) At the end of each day all excessive notes in the top safe are to be deposited and dropped into the bottom safe. The maximum amount of notes in the top safe at any time is not to exceed $20,000.
i) The maximum amount of notes in the bottom safe must not exceed $200,000 at any time. In case the bottom safe exceeds this limit the Area Manager must inform the Store Operations Director.
…
3. CASHING UP PROCEDURE
a) The cash box and the drop box are to be counted by the safe holder in the presence of the Store Assistant.
b) The Safe Holder is not allowed to leave the office whilst the safe is open or whilst there is unattended money in the office.”
The YSI did not expressly provide instruction as to the possession of the safe keys. Nor did it expressly state that the inner safe key was never to be left inside the outer safe with the outer safe locked, or that the keys were to be held by a manager at all times. The YSI was silent on what should happen if only one manager was at the store at the closing time of the store at the end of the day, thus precluding handover of the safe keys from one manager to another. Mr Riddiford interpreted the phrase “responsibly handed over” to mean “the money, the keys and all aspects of what’s kept in the safe”. Mr Riddiford’s evidence was that when he trained staff in the YSI, he made it clear that the safe key was required to be held by a manager at all times. Mr Bateman claimed the YSI did not provide instructions about the possession of safe keys but nevertheless accepted that the responsible handover of the safe required the handover of the safe key to another manager. In those circumstances where this was not possible however, he claimed that what was acceptable was that which he claimed to be the procedure adopted in the Rosebud store of Aldi Foods, namely, to leave the inner safe key inside the outer safe and lock the outer safe.
In early 2016, Ms Prichard instructed Mr Riddiford to retrain all managers at the Rosebud store on the YSI procedure. On 5 January 2016, Mr Riddiford gave Mr Bateman a further copy of the YSI. Mr Riddiford told Mr Bateman to make sure that he fully understood the document and that if he did not, to go to Mr Riddiford who would thereafter, in essence, explain the query raised. Mr Riddiford accepted, as alleged by Mr Bateman, that he also may have said words to the effect of “Fiona has asked me to get the YSI re-signed by all employees.” Mr Bateman did not discuss the contents of the YSI with Mr Riddiford, but rather signed the document acknowledging his receipt and understanding of the YSI and returned the copy of the YSI given to him, to Mr Riddiford.
Mr Bateman took personal leave on 9 and 10 January 2016. He provided Mr Riddiford with a medical certificate which stated he was unfit for work but provided no explanation as to the reason. Mr Bateman told Mr Riddiford that the reason he was unable to attend work was due to an injury to his neck that he had sustained at the gym. Mr Riddiford made no adverse comment to Mr Bateman concerning this taking of leave by him.
In January 2016 Mr Bateman met with Ms Prichard and Mr Riddiford for a performance appraisal. At this time, Mr Bateman had been employed by Aldi Foods for approximately four months. During this time, and indeed throughout his employment at Aldi Foods, he claimed to have been bullied by a fellow employee, Ms Rachael Dorou (‘Ms Dorou’), an assistant store manager, and by Mr Riddiford. Mr Riddiford denied such allegations. Mr Bateman conceded during cross-examination that none of his alleged complaints about Mr Riddiford were ever raised by him with Ms Prichard.
Ms Dorou raised no issues about her working relationship with Mr Bateman to Mr Riddiford. Mr Bateman did raise with Mr Riddiford on one occasion, that he had a disagreement with Ms Dorou. Mr Riddiford followed the Aldi Foods management system and directed Mr Bateman to, in the first instance, resolve the issue directly with Ms Dorou and to come back to Mr Riddiford if he, Mr Bateman, required further assistance. Mr Bateman did not again discuss the matter with Mr Riddiford. Mr Riddiford was aware that Mr Bateman had been given a copy of the Aldi Foods Employee handbook, which Mr Bateman signed on 26 September 2015, and which contained policies and procedures to follow if an employee thought they were being bullied or harassed. He was satisfied that Mr Bateman, if he had a genuine issue, was possessed of the necessary information to progress any claimed issue.
Mr Bateman at no stage, however, made known any complaint of his concerning Ms Dorou’s behaviour in the workplace, including the disagreement which he discussed with Mr Riddiford, or of Mr Riddiford’s behaviour toward him, to Ms Prichard. Nor did Mr Riddiford (as to any alleged complaints relating to Ms Dorou) or anyone else. Ms Prichard first became aware of Mr Bateman’s allegations of bullying and harassment after the commencement of these proceedings. Once she became so aware, Ms Prichard immediately conducted a review of the allegations made by Mr Bateman, finding in her review none of the allegations substantiated.
Mr Bateman claimed that his complaint concerning bullying in the workplace was raised by him at his performance appraisal meeting. The Court finds this did not occur, and prefers the evidence of Mr Riddiford and Ms Prichard. Mr Bateman became uncertain under cross-examination as to whether he had raised the matter, before claiming “I definitely did”. Mr Bateman only made such claim during cross-examination having never raised it previously in his evidence in chief.
Mr Bateman also claimed that at his performance appraisal meeting he made a further complaint, namely that he was being forced to work significantly more hours than stipulated in the employment agreement. Mr Bateman claimed that Mr Riddiford said words to the effect of “this is how it is, if you can’t work these hours how do you expect to progress through the business?” This was denied by both Mr Riddiford and Ms Prichard. Mr Riddiford’s evidence was that Mr Bateman did raise the issue of his working hours, and his difficulty in balancing work with his studies. Mr Riddiford was already aware that Mr Bateman was unhappy with the hours he was working and came to the performance appraisal with some of Mr Bateman’s timecards. The timecards were produced in the meeting to show Mr Bateman that he had been working additional hours, but not the excessive hours as claimed by him of 55-60 hour per week. Mr Bateman was required to work between 40-45 hours per week and on occasion, he had worked up to 50 hours per week. Mr Bateman had however, been able to use his accrued hours, including by taking one week off during the very busy December 2015 month, and on short notice being given by Mr Bateman. In essence, his request was accommodated.
During the performance appraisal of January 2016, Mr Bateman also claimed that Mr Riddiford and Ms Prichard accused him of creating a toxic work environment and causing high staff turnover at the Aldi Foods Rosebud store. Mr Riddiford and Ms Prichard both denied this. However, they acknowledged that morale within the workplace was discussed, which included perhaps that negative comments by a trainee store manager were toxic. The discussion was had in response to Ms Prichard and Mr Riddiford’s concerns regarding how Mr Bateman was being perceived in the workplace, following reports of comments made by Mr Bateman to other employees that he “didn’t like Aldi” (of which Mr Riddiford informed Ms Prichard) and a status shared by Mr Bateman on Facebook which was titled “Why Good Employees Leave” and which contained a cartoon criticising the value of management personnel in the workplace. Ms Prichard gave evidence that she and Mr Riddiford discussed with Mr Bateman how Mr Bateman was perceived by those who reported to him, Mr Bateman being influential because of his position as a trainee store manager. Ms Prichard was not happy with Mr Bateman’s attitude, and the way it was impacting adversely on staff morale. Ms Prichard asked Mr Bateman if he was happy at Aldi Foods. In response, he disclosed to her some personal problems he was experiencing in relation to his living arrangements and studies as they impacted upon his work performance. Ms Prichard offered Mr Bateman the option of relinquishing his role as trainee store manager and working as a deputy store manager with reduced hours until he was able to better balance his work and study, at which time he could step back up to his position of trainee store manager. Ms Prichard did not suggest to Mr Bateman that she was considering ‘demoting’ him, as conceded by Mr Bateman in cross-examination, he having earlier alleged that. Ms Prichard made this offer as a “matter of support”. Indeed, Ms Prichard told Mr Bateman that she did not want to lose him, as conceded by Mr Bateman in cross examination. Mr Bateman took a few days to consider the offer before informing Mr Riddiford he wished to retain his then position as trainee store manager. In response to a suggestion by Ms Prichard, Mr Bateman drafted a “performance improvement strategy” to address the issue of his behaviours impacting upon staff morale and emailed same to Mr Riddiford on 5 February 2016.
On 7 February 2016 Mr Bateman was responsible for closing the Rosebud store at the end of the working day. When closing the store, he breached the YSI, as he had earlier in the day. During his shift that day, Mr Bateman had left the safe door open and left the office. Thereafter, Mr Bateman did not lock the inner, or the outer, safe, when closing the store for the night. In fact, he left the outer safe door “wide open”. CCTV footage showed Mr Bateman cashing up the safe while using his mobile phone to send messages for a period of approximately 20 minutes. The footage then showed him leaving the office for a short period of time without first closing and locking the safe, then returning to the office while still using his mobile phone. The footage then showed Mr Bateman standing up, turning off the office lights, leaving the room and shutting the door behind him, without first closing the top drawer of the safe, the inner safe, or the outer safe. He engaged in these serious breaches, both during the shift, and at the end of the shift (overnight).
On 10 February 2016 Mr Bateman was called to a meeting with Ms Prichard, with Ms Dorou also in attendance, to discuss the breaches of the YSI on 7 February 2016. Mr Bateman acknowledged such breaches. Mr Bateman claimed he told Ms Prichard both that which Ms Prichard claimed, namely that Mr Bateman told her he had been catching up with friends and things he had missed on social media during the day and further, subsequently, that he had been recently diagnosed with depression and anxiety as a result of the unreasonable overtime hours he was directed to work. Ms Prichard denied that Mr Bateman made such a complaint. Rather she said he stated that he was under stress due to factors outside of work. Ms Prichard recalled Mr Bateman disclosing personal issues, but did not recall the term “depression” being used. She recalled Mr Bateman disclosing problems he was having with his girlfriend which required a movement in their residence and difficulties at university. Mr Bateman indicated however that any such problems had been occurring over time and did not specifically impact him that day. The Court prefers the evidence of Ms Prichard. In his supplementary affidavit, Mr Bateman said as to this time:-
“I did not feel comfortable explaining to Ms Prichard the full extent of the reasons that I did not lock the safe”[1]
At trial, Mr Bateman again reiterated that he was not comfortable telling Ms Prichard of his personal difficulties, “especially with Rachel (Ms Dorou), sitting in the room”.
[1] Affidavit of Mr Bateman affirmed on 29 March 2017, 34.
Ms Prichard offered Mr Bateman the assistance of the employee services program, a program where Aldi Foods provided four counselling sessions to employees. At the meeting, Ms Prichard issued Mr Bateman with a final written warning. Ms Prichard took notes of the meeting which were in evidence before the Court and which accorded with her affidavit and oral evidence. Ms Prichard provided Mr Bateman with another copy of the YSI and directed him to comply with the YSI in the future. Ms Prichard also gave Mr Bateman another copy of the Employee Handbook and his job description and reiterated the importance of complying with all policies and procedures. Mr Bateman signed the ‘Aldi Stores Warning Notice’, which in the section titled ‘improvement required’ stated:-
“Chris is required to abide by the policies and procedures as outlined in the Code of Conduct in the Employee Handbook and Trainee Store Manager Job description. He is also to follow Yellow Security Instructions.”
The timescale for improvement was listed as “Immediate – never to be repeated.” There was also a note on the warning which stated:-
“Failure to implement the improvements required in the timescale details above will result in dismissal”.
Mr Bateman had signed the YSI on two occasions prior to the events of 7 February 2016. Mr Bateman’s evidence was that he read and understood the YSI prior to signing them on each occasion. He understood that he had committed a serious breach of the YSI.
In or around mid-February 2016, after the 10 February meeting with Ms Prichard and Ms Dorou, Mr Bateman attended a meeting with Mr Riddiford. Ms Prichard was not in attendance as conceded by Mr Bateman in cross-examination, he earlier having asserted that she was present. Mr Bateman claimed that at this meeting he complained that he had been consistently directed to work unreasonable overtime hours and that he had not been provided with at least a ten hour break between shifts. Mr Bateman provided Mr Riddiford with information from the Fair Work Ombudsman relating to employee entitlements to breaks between shifts under the General Retail Industry Award 2010. Mr Bateman’s evidence was that in response to this action of Mr Bateman, Mr Riddiford said words to the effect of “this is the way it is, it’s part of the job”. Mr Riddiford denied that response was given. Instead he told Mr Bateman, as is accepted by the Court, that he was “under the Aldi Dandenong Agreement… and there is no specification on the break.” Neither Mr Bateman nor Mr Riddiford raised the above issues with Ms Prichard. As a result of Mr Bateman’s complaint, Mr Riddiford changed the rostering arrangements which minimised short turnovers.
In or around late March 2016, Mr Bateman sustained a neck injury which he claimed to have sustained while stacking produce in the course of his employment. Mr Knaggs, store assistant at the Rosebud store at that time, gave evidence that he witnessed potatoes falling on Mr Bateman’s neck and remembered Mr Bateman complaining about his neck feeling stiff and sore afterwards. Mr Knaggs did not complete an Incident Report and Investigation Form and nor did he inform Mr Riddiford or Ms Prichard as to his observation of Mr Bateman’s accident and remarks. Mr Bateman gave evidence that he reported the injury orally to Mr Riddiford. He agreed that he did not complete an Incident Report and Investigation Form. As a trainee store manager he should have been aware of the requirement as provided for in the Occupational Health and Safety Policy, which was contained in the Aldi Foods Employee Handbook that:
“All employees must report any injury, or near miss, that occurs to them on company premises immediately, whether medical attention is required or not”.
Mr Bateman claimed he was unware of this requirement and that he considered it sufficient to report such an incident to his superior, for his superior (Mr Riddiford) to take any necessary further action. Indeed his evidence was that Mr Riddiford told him to orally report such an incident to him. Mr Riddiford denied this. I accept Mr Riddiford’s evidence. It is not plausible that Mr Riddiford, who thought the reporting of a workplace injury a serious matter, would not have followed the well-established procedure. The Incident Report and Investigation Form provided for a reporting date and time and the notification of an incident to the most senior manager on site. Mr Riddiford vaguely remembered an occasion where Mr Bateman complained of a sore shoulder and neck and mentioned he had hurt himself at the gym, but stated that Mr Bateman did not mention to him anything about an injury sustained in the workplace. Had Mr Bateman done so, Mr Riddiford’s evidence was that he would have directed Mr Bateman to complete the necessary Incident Report and Investigation Form. Mr Riddiford conveyed to Ms Prichard in March or April 2016, that Mr Bateman had sustained an injury at the gym and Ms Prichard asked to be kept updated. Mr Bateman never advised Ms Prichard that he had sustained a workplace injury.
In early April 2016, Mr Bateman claimed to have attended a meeting with Mr Riddiford. Mr Bateman claimed to have complained that he had been directed to work unreasonable overtime hours and it was having negative impacts on his diagnosis of depression and anxiety and his neck injury. Mr Bateman’s evidence was that Mr Riddiford responded with words to the effect of “maybe Aldi isn’t for you because Aldi isn’t going to change”. Mr Riddiford denied making such statement at any time and denied the existence of such meeting in its entirety. Mr Riddiford acknowledged however, that Mr Bateman raised with him in February 2016 that he had been diagnosed with depression. Mr Bateman did not discuss the reasons for this with Mr Riddiford.
On 10 April 2016 Mr Bateman was absent from work on paid personal leave. Mr Bateman provided Aldi Foods with a medical certificate which stated he was unfit for work but provided no further explanation. Mr Bateman has since claimed the leave was due to his neck injury however did not provide Aldi Foods with any explanation at the time.
Mr Bateman claimed that he attended a meeting with Mr Riddiford on 11 April 2016 where he was berated for taking a sick day and informed that it was unacceptable for managers to take sick days. Mr Riddiford could not recall any such meeting and denied telling Mr Bateman that it was unacceptable for managers to take sick leave.
Mr Bateman was absent from work on sick leave from 18 April 2016 to 24 April 2016. The reason for this leave upon the evidence of Mr Bateman, was that he was suffering from anxiety and depression. Mr Bateman provided a medical certificate to Mr Riddiford which stated that Mr Bateman was suffering from a ‘medical condition’ and was ‘unfit for work’ but provided no further explanation. Mr Riddiford understood from Mr Bateman that he was having personal problems outside work. As a consequence, Mr Riddiford arranged for Mr Bateman to take an additional week off using time in lieu after the expiration of his sick leave.
On 2 May 2016 Mr Bateman was transferred, with his agreement, to the Aldi Foods Somerville store and commenced reporting to Mr Dominick Martin (store manager). The Somerville store was significantly closer to Mr Bateman’s residence in Cranbourne South, saving him half an hour of travel time each day. The transfer was arranged by Ms Prichard to further support Mr Bateman in balancing his study and work commitments.
On 6 May 2016, four days after Mr Bateman commenced at the Somerville store, he was responsible for closing the store at the end of the day. Mr Bateman departed the store without handing over the safe key to another manager. He locked the safe key in the outer safe overnight instead of performing a proper handover procedure to another manager. Ms Maddison Smith, a deputy store manager, was working with Mr Bateman at that time. Mr Bateman’s evidence was that he was not aware Ms Smith was a manager, and thus a person to whom he could hand the safe key, until they reached the car park together that night, having closed the store. Mr Bateman asked Ms Smith to let Mr Martin know (on the following morning) that the key was inside the safe. Although Mr Bateman, at the least, became aware at that time that Ms Smith was another manager, Mr Bateman and Ms Smith did not go back to the store and perform the safe handover as required by the YSI as on Mr Bateman’s oral evidence, ‘Maddie wanted to go home. I wanted to go home’. Ms Smith gave evidence that she told Mr Bateman he should have given her the safe key, to which he responded “No, it’s fine, that’s how we do it at the Rosebud store”. Ms Smith’s evidence was that she had never seen anyone leave the safe key inside the safe door, and knew it was wrong, but did not challenge Mr Bateman as he was senior to her. Mr Martin arrived at work on 7 May 2016 and was informed by Ms Smith that Mr Bateman had left the key in the safe. Mr Martin then contacted Mr Bateman to discuss his conduct on the previous day. Mr Bateman advised him that it was common practice at the Aldi Foods Rosebud store. Mr Martin responded: “Well you’re not to do that. That can’t happen, that conduct can’t be accepted here, and I will have to refer the matter on”. Mr Martin then informed Ms Prichard of the matter. Mr Martin recalls Ms Prichard informing him that “this is another breach by Chris of the YSI”.
Ms Prichard interviewed Ms Smith about the events of 6 May 2016. Ms Prichard gave evidence that Ms Smith told her “She had told Mr Bateman she was a deputy store manager during the shift when they both attended the register to answer a call bell at the same time.” Ms Smith reported that at the register, Mr Bateman told her he did not realise she was a manager, Ms Smith responded “Yes, it also says ‘Deputy Manager’ on my name badge”. Mr Bateman told Ms Smith that he didn’t read badges. They also discussed who else had management responsibilities at the Somerville store.
Ms Smith was an impressive witness, whose evidence the Court accepts, and prefers, where it differs from the evidence of Mr Bateman.
Ms Prichard called Mr Riddiford and enquired whether it was common practice in the Rosebud store to leave the key inside the outer safe. Mr Riddiford told her that it happened on several occasions in exceptional circumstances. Mr Riddiford also stated that he had done this himself on occasion. This was something that had happened from time to time at the Rosebud store but not so frequently as to regard it as practice. This was the first time Ms Prichard became aware of the infrequent practice at the Rosebud store. It was her evidence that to her knowledge, it did not happen at any other store, and that further if it did, she would have acted on it upon becoming aware of it.
On 10 May 2016, Mr Bateman was again absent from work on medical grounds. He provided Mr Riddiford with a medical certificate from “Healthybodies Physiotherapy”. The medical certificate did not state the reason he was unfit for work, however Mr Bateman claimed in these proceedings it was due to his neck injury. On the same day, Mr Bateman received a telephone call from Mr Martin who invited him to attend a meeting with he, Ms Prichard and a support person for Mr Bateman on 12 May 2016. The purpose of the meeting was to discuss Mr Bateman’s conduct on 6 May 2016.
On 12 May 2016 Mr Bateman attended the meeting with Ms Prichard and Mr Martin. Also in attendance was Mr Bateman’s brother, Bradleigh Bateman who acted as a support person for Mr Bateman. Mr Bateman stated during the meeting that he was following the standard procedure used in the Rosebud store when leaving the key inside the outer safe. Mr Bateman told Ms Prichard that he had left the key in the outer safe at the Rosebud store “ten plus” times and had held the safe approximately fifty times. Mr Bateman had previously described that it was a common practice at the Rosebud store to leave a communication note on the bench, which included information that the key had been left in the safe, for the replacement manager working the next morning. He claimed he saw other managers adopt the same procedure of leaving the key in the outer safe. One of those persons was a witness in the proceedings (Ms Charlton) who denied she had ever adopted this practice. Ms Prichard informed Mr Bateman during the meeting that she was considering terminating his employment. She asked him if he had any suggestions of alternatives to termination. Mr Bateman had none. Mr Bateman criticised Aldi’s retraining procedures, claiming it was nothing more than “Initial this sheet, put your name here, sign here”. Ms Prichard again asked Mr Bateman for suggestions. Mr Bateman replied “I don’t know, its again, it’s not my place to be generating ideas and that kind of stuff Fiona. It is what it is.” Mr Bateman’s employment was terminated by Ms Prichard. The reasons for dismissal were Mr Bateman’s failure to follow the YSI and a loss of trust and confidence in Mr Bateman’s capacity to follow procedures. There had been two breaks in the meeting during which Ms Prichard discussed her options with Mr Martin and obtained legal advice from Ms Meg McNaughton, solicitor. This was the first time Ms Prichard had obtained legal advice in regards to Mr Bateman’s employment. Mr Martin gave evidence that it was the decision of Ms Prichard alone to terminate Mr Batemans’ employment. Ms Prichard gave evidence that any workplace complaints made by Mr Bateman played no role in her decision to give him a final warning and then later dismiss him.
Ms Prichard’s reasons for decision were summarised by her in the meeting with Mr Bateman (and his support person) on 12 May 2016 in a verbatim account which is taken from a covert recording made by Mr Bateman and filed by him in these proceedings and as appears in these reasons at paragraph 46 hereafter.
The lead up to the dismissal is canvassed above and generally accorded with the affidavit evidence of Ms Prichard sworn 3 March 2017, which is relevantly as follows:-
“35. Dominick Martin (Somerville Store Manager) called me on 6 May 2016 to inform me that Mr Bateman had breached the Yellow Security Instructions – Store Management procedure when closing the store on 5 May 2016. Mr Martin explained that Mr Bateman had left the safe key inside the safe. I told him that Mr Bateman had breached the Yellow Security Instructions procedure before and that I would handle the matter.
36. I investigated the matter. I interviewed Maddison Smith, who had been rostered on with Mr Bateman the night before. She said she had told Mr Bateman she was a Deputy Store Manager during the shift when they both attended the register to answer a call bell at the same time.
37. I contacted Mr Riddiford and asked him whether the practice of leaving the key inside the safe was standard at the Rosebud store. Mr Riddiford said words to the effect of “No, leaving the key inside the safe is not standard practice”. Mr Riddiford advised that the key was only left inside the safe in rare and exceptional circumstances, such as when a manager had called in sick and was not available to receive the key during handover.
38. Each store’s safe has two doors. The ‘outer’ door of the safe is opened by entering a code. Each member of the management team for each store has their own unique code. This enables ALDI to track who opens the safe and when. To access the cash inside the safe a second ‘inner’ door must be opened. This door can only be opened with one single key. They are referred to as the ‘safe holder’. Only the safe holder can access the cash inside the safe.
39. The safe key must be held by a manager at all times. Section 2(b) of the Yellow Security Instructions set out the process to handover the safe (ie, handover the key). If a manager who is closing the store is not working the next morning they need to hand over the key to another manager either during the close or the next morning. This is not expressly provided for in the Yellow Security Instructions, but it is implied by the section 2(d) which allows only the safe holder to hand out cash. A key handover is necessary to do that. The handover process is emphasised during training.
40. My investigation concluded that Mr Bateman had breached the Yellow Security Instructions- Store Management procedure by failing to handover the safe key to another manager when closing the store on 5 May 2016.
41. I held a disciplinary meeting with Mr Bateman on 12 May 2016. Mr Martin attended, as did Mr Bateman’s support person. I took notes during the meeting …
42. I commenced the meeting by explaining my understanding of what had happened on 5 May 2016: that Mr Bateman had closed the store with Ms Smith and that he was responsible for holding the safe key. He counted the safe but did not hand the key over to Ms Smith. Mr Bateman left the key inside the safe. In the carpark Mr Bateman said to Ms Smith words to the effect of “Tell Dom the key is in the safe”.
…
45. Mr Bateman said that he didn’t know Ms Smith was a Deputy Manager.
46. I informed Mr Bateman that my investigation had found that he did know Ms Smith was a manager, because they had discussed it earlier in the day and Ms Smith had told him so when they were in the carpark.
47. I said words to the effect of “After Ms Smith told you she was a Deputy Manager in the carpark, why didn’t you go back into the store and hand the key over to her?” Mr Bateman said words to the effect of “it was 9.40pm and we had clocked off. I didn’t think it would be a problem because it was standard practice at Rosebud. That’s what I had been shown to do by my superiors”.
48. I said words to the effect of “you were given the Yellow Security Instructions and the Policies and Procedures when you started working with the business in September. You were re-trained on the procedure in January and were given another copy. In February, you were given a final warning for a serious breach of the Yellow Security Instructions and the Code of Conduct. And here we are two and [a] half months later and it has happened again”
49. Mr Bateman said words to the effect of “I am not going to change my answer. It is standard practice. That is what I was shown to do by my superiors. I did what I thought was standard practice. I won’t change my answer or respond anymore”
At the 12 May 2016 meeting there was no discussion of the workplace complaints as alleged by Mr Bateman. There was no discussion about any physical or mental disability or any absences from work. Such matters were simply irrelevant, and were not taken into account by Ms Prichard. Once Mr Bateman had been dismissed he raised an issue about the remaining balance of sick leave that had not been processed correctly.
The transcript of the meeting was relevantly as follows:-
“FP – OK. So we’ve gone through the issues, we’ve gone through the policy, we’ve gone through the warning you were sitting on before. What should we do now? What do we do?
CB – It’s your decision Fiona.
FP – What would you do if you were me?
CB – it’s not my decision to make.
FP – Where would you like to see this go? That’s a question you can answer.
CB – I don’t have a response to that Fiona. You do what you guys need to do.
FP – OK, alright, what I’ll do is take a ten minute break, so I’d like you to go and sit in the tea room, have a glass of water, think if there is anything else you want to bring to me, if there’s anything else you think that you’d like to talk about, for me to look at this and I’ll think if I’ve got any other questions. And then we will go from there. [indecipherable]I’ll come and get you.
[Break in recording]
[Meeting resumes]
FP – [indecipherable] after we’ve gone through all this, is there anything else you wanted to talk about…provide? Is there anything you considered while you were out there?
CB – No.
FP – So I was reviewing it all and, so you were hired in September last year. You were provided with the documentation when you were recruited into the business. Then we had obviously, retraining, which was when you got this, in January, and then we sat down and had a final warning, as there was a serious breach in February, so a month later, and now we’re sitting here two and a half months later, and there’s been another breach, so it brings to me, not just about Yellow Security, it also brings to me just a concern about trust and reliability and your ability to follow policies and procedures in general.
CB – Hmm.
FP – And what that shows me is that there is a bit of a problem with trying to comply with policies and procedures and the capacity to follow instructions. So, what assurances, in your role now, what assurances can you give me that you understand policies and procedures and that you will comply with them, and follow them?
CB – I can’t do anything more than what I have done [I] suppose from last time.
FP – Tell me what assurances can you give me that you can understand what you’ll follow. Talk me through it.
CB – I’m not sure what assurances you are looking for. Again, I didn’t realise that I made a mistake out there, so…
FP – OK, so now you know you made a mistake, moving forward, what assurances can you give me as a manager at ALDI that you will follow the procedures and policies and get what needs to be done in place, like, by following these?
CB – Check the roster before I go home to make sure [indecipherable]…
FP – Anything else?
CB – That’s about it.
FP – Do you want to walk me through safe handover at Rosebud, like, on a normal day, what do you do?
CB – Well, count the safe, count the coins.
FP – Count safe, count coins, yep?
CB – And then hand it over, sign the book, check the cash on hand balance, code 21 or something or whatever is in the system…
FB – Yep.
CB – And then you hand it over, sign the book.
FP – Hand over to…?
CB - …the next manager, so long as they’re there.
FP – And then sign the book, is that what you said?
CB – Hmm.
FP – OK. And why wasn’t that done this time?
CB – I’ve probably said that lots of time I didn’t know there was a manager on.
FP – And when you found out she was a manager in the car park, when you know the process?
CB – I didn’t think there’d be anything wrong with it. Considering that [sic] the way it was at Rosebud.
FP – So, I spoke to the manager at Rosebud, I spoke to Brent, and, although, I looked into what you’re saying, although it has happened, it’s not the norm, it’s not the standard practice, it might be exceptional, but it’s not the standard practice, the standard practice is the Yellow Security Instructions there.
CB – Hmm.
FP – So what assurances can you make that this is not going to happen again?
CB – So, what I just said.
FP – OK. Do you understand why there’s a concern that trust and reliability in your role to follow policies and procedures given what we’ve got here?
CB – Not really, no.
FP – Why not?
CB – Its something I’ve been shown, so…
FP – But you’re a leader, you need to lead by example.
CB – You can keep it, I don’t…
FP – You need to lead by example.
CB – You can say that, I need to lead by example, and again, you lead by example if you’re doing the right thing.
FP – Yeah but you’re saying that you’re following what other people have shown you, that’s not a policy and procedure, so you’re telling me you just go [with] what other people do, not by what all the documentation that you’ve [been] taken through is.
CB – I’m going by what I’ve been shown to do by people that are my superior.
FP – Yeah, but that means you’re just following them, you’re not following the procedure in front of you, like, I don’t, like as a manager, I trust that you will follow the procedures of the company, the policies of the company, not just what people do. And so that’s why in this instance, the concern I’ve got with you is the trust and reliability to then carry out instructions. The instruction is this and we sat down and gave this to you in September, you then had retraining where they gave you this again in January, and then in February we gave you a warning and now in May, that’s three lots of written communication regarding policies and procedures. And you’re saying “Oh yeah I just follow what I get shown, not what I actually had in front of me”. What do you think my concern is about that?
CB – So, all I’ll say to this Fiona is, yeah, I mean, yeah there’s a piece of paper here to read again, there’s quite a substantial amount of information there to remember.
FP – You don’t have to remember it, you just have to follow it and rely on it.
CB – To follow and rely on it you need to remember [indecipherable]. And at the end of the day there was the breach back in February, obviously we’re here now, I mean, again I didn’t realise that things were done differently here than they are at Rosebud. So, if that’s it, and you feel that there’s no trust. Now, I’m sure you’ll come to a decision that, that, that, best suits you and the business Fiona, I’m not going to put words into your mouth and I’m not here to make decisions.
FP – Yeah, but everything you’re telling me right now is that you’re following what people have showed you not what actually was in front of you, the policies and procedures of the business. Now, you’re a leader you need to lead by example. My deputy manager came up to me and flagged with it [sic] with the store manager, not my trainee store manager.
CB – Flagged what with you?
FP – That the safe wasn’t handed over. She knew it wasn’t the policy, she’s followed it, and yet the leader who’s mean [sic] to be leading didn’t.
CB – She’s obviously had different training, different things.
FP – It’s not about, it’s about the information in front of you.
CB – But if you’re shown something by your superior and they deem it to be OK, and an acceptable practice yes, I would deem that to be OK.
FP – So, in this instance, I don’t...I’m trying to get assurances from you, trying to get options from you and I don’t feel like you’re really giving me anything to move on.
CB – I don’t think it’s my, I don’t understand, what it is that you want me to give you, or what assurances I can give you. I’ve done what I could, I walked away from this, I’ve always been very conscious about [how] I’ve gone about cash handling and stuff in the office, and obviously we are back here again. So I don’t understand what you want from me, something, I don’t have…I don’t have an answer for you.
FP – In this, OK, so…again, in September you were given all the documentation, these are the policies and procedures we follow at ALDI. You were then given training by the store manager, in January, re-focusing on cash handling procedures, a month later, we had such a big breach, you and I sat down and said “this is a final warning, we don’t want it to ever happen again”, so we’ve got here “Improvement required…Chris is to abide by the policies and procedures as outlined by the Code of Conduct, in the Employee Handbook and the Trainee Store Manager job description, and follow the Yellow Security Instructions.”
CB – Hmm.
FP – Alright. And then “Timescale for improvement: immediate, never to be repeated”. So this is serious, this is serious. And now we’re sitting here again, right, and after this, I’m considering terminating your employment, but I want to see if you’ve got any other alternatives, or any other options, to bring to me, or suggestions, instead of that.
CB – I don’t have any suggestions Fiona, like I said, I’m not here to make decisions or that kind of stuff, at all. I mean, you say that, you say that there is retraining in this in January, retraining is what you guys say “OK, initial this sheet, put your name here, sign here, and in that way it’s all done, which is exactly what happens at Rosebud, then if that’s training for you guys, well I don’t know maybe you guys need to do retraining. But that’s the way it happened, that’s the way it works. And again, I don’t have any answers as to what kind of assurances and stuff you’re looking for. I honestly don’t know what to say, to tell you.
FP – So you’ve no suggestions of where to go to from here, instead of termination. Nothing.
CB – Again, it’s not my decision Fiona. I don’t know.
FP – Yeah, I know, I’m trying to get ideas about where you’d like this to go.
CB – I don’t know, it’s, again, it’s not my place to be generating ideas and that kind of stuff Fiona. It is what it is.
FP – OK, alright, OK, just pop outside for two more minutes. I’ll have a quick look at the ideas you’ve put forward and the suggestions and what you’ve said, and we’ll come back and conclude the meeting.
[Break in meeting]
FP – So, I had a think about what you said, and tried to get assurances out of you that you would follow Company policies and procedures, I’ve tried to get suggestions from you about where to go from here, I’ve tried to find out where you’d like this to go, I’ve tried to get ideas of what we could do possibly, and unfortunately you’re not giving me anything in the circumstances. This is serious, it’s not just the Yellow Security Instructions. It’s the fact that I need to have trust in my management team to follow instructions, of which one is the Yellow Security, I need to have confidence in my management team to lead by example, set an example for deputy managers, I need to have confidence in my managers to be able to follow instructions, company policy, company procedure and do what needs to be done. And based on everything you’ve given me today I don’t have that trust and confidence in you. As a result I’m going to terminate your employment effective immediately. I will pay you the one week in lieu of notice as per the Enterprise Agreement, but unfortunately, I didn’t want to do this, we’re going to have to part ways as of today. So you can just leave your keys behind and you don’t need to go back to your shift.
CB – Can I get a copy, are these notes going to be typed up?
FP – I’ll send you a termination advice form, which is standard practice, and I’ll send that to you by email. You’ll get that in the next 48 hours. And your annual leave entitlement will all be paid out as per normal.
CB – Another question, I gave Brent a medical certificate a couple of weeks ago for the week- for Rosebud– which was for the week- but instead of using the sick leave I had there he put it through as [indecipherable]…13 hours of sick leave [indecipherable].
FP – So was it one week that you said you got [indecipherable] of sick leave?
CB – Yep [indecipherable] certificate, and it wasn’t put through.
FP – So it was one week? OK, then I will pay you for two weeks in lieu of notice to solve that issue, if that’s something that you’re concerned about. Other than that I wish you all the best for the future and sorry this didn’t work out and thank you for coming in today.
CB – Do I leave now?
FP – Yep, thank you very much.”
I have included the above to indicate that Ms Prichard was not a manager who was insensitive to the position of Mr Bateman and nor was she arbitrary in her decision-making process. She had endeavoured throughout in her dealings with Mr Bateman to be professional and legally appropriate, making suggestions or seeking suggestion as to how the business relationship could continue. The covert recording taken by Mr Bateman was also substantially consistent with the evidence given by Mr Martin and Ms Prichard as to the contents of the meeting.
The only remaining evidence to consider was that given by Ms Watson who gave evidence that shortly following Mr Bateman’s dismissal, Ms Charlton left the safe key inside the outer safe overnight. Her evidence was that Mr Riddiford approved this. Ms Watson claimed that Ms Prichard was present when Ms Watson entered the office and collected the safe key from the outer safe. Ms Prichard denied that she saw Ms Watson take the key from inside the safe. Ms Charlton also denied that she left the key in the outer safe. Ms Charlton gave evidence that she had never left the safe key inside the safe nor had she seen, or heard of, any other manager at the Rosebud store doing so, except in a few exceptional circumstances. If there was no manager working, she would take the key home and return it to work the next morning. For Ms Charlton, it was a 20 minute trip to her place of work. The Court gives little weight to the evidence of Ms Watson.
Legislation
Section 340 of the FW Act is as follows:-
“FAIR WORK ACT 2009 - SECT 340 Protection
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
The definition of “workplace right” contained in s.341(1)(c)(ii) of the FW Act includes the ability of an employee to make a complaint or inquiry in relation to that employee’s employment.
Pursuant to s.342(1) of the FW Act, adverse action is taken by an employer against an employee if the employer:-
“(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.”
Section 351 of the FW Act is relevantly as follows:-
“Discrimination
(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.”
Aside from a one-sentence referral letter from his GP referring to depression, the Applicant has not filed any medical evidence to support his allegation that he suffered at the relevant time from a physical disability and/or mental disability. He took personal leave, from time to time, as do many employees, but this does not establish that he suffered from a physical disability and/or mental disability.
Ms Prichard was not aware of any workplace injury suffered by Mr Bateman. Any disabilities said to have been suffered by Mr Bateman were irrelevant. They did not form any part of Ms Prichard’s decision to issue a written warning and effect the dismissal of Mr Bateman.
Section 352 of the FW Act is as follows:-
“FAIR WORK ACT 2009 - SECT 352
Temporary absence--illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1)”.
The Applicant took personal leave on 10 April 2016, from 18 to 24 April 2016 and 10 May 2016. There is no evidentiary basis for asserting that the issuing of the final warning and dismissal decision was made because of these absences from work.
Consideration
I accept the submissions of Aldi Foods that:
“stripped of all the irrelevancies, this case concerns only two decisions by the Respondent’s Area Manager for the Dandenong Region, Fiona Prichard. The first was her decision on 10 February 2016 to give the Applicant a final written warning for engaging in a serious breach of the Yellow Security Instructions, and the second was her decision on 12 May 2016 to terminate the employment of the Applicant.”
Aldi Foods will have contravened s.340(1) if it is established that:-
a)Mr Bateman’s complaints and inquiries (or his right to make them) fall within the meaning of “workplace right” under the Act;
b)Aldi Foods took adverse action against Mr Bateman; and
c)the exercise of the “workplace right” was “a substantial and operative” reason for Aldi Food’s decision to take the adverse action.[2]
[2] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 522-3, 535 (‘Barclay’).
It is not in dispute that the warning decision and the dismissal decision were ‘adverse action’ within the meaning of item 1(c) and 1(a) (respectively) of s.342 of the FW Act.
The only issues to be determined by the Court are whether the warning decision was made because of a reason which contravened s340, and whether the dismissal decision was made for a reason which contravened ss.340(1), 351(1) and/or 352, as alleged by the Applicant. Each of these allegations is denied by the Respondent.
The decision-maker who made the warning decision and the dismissal decision was Ms Prichard. It is Ms Prichard’s reasons for those two decisions, and only Ms Prichard’s reasons, which are relevant to an assessment by the Court as to whether ss.340, 351 and/or 352, or any of them, was contravened.
Direct testimony from the decision-maker, which in this case is the evidence of Ms Prichard, which is accepted as reliable, as it is by the Court in these proceedings, is capable of discharging the burden upon an employer, even though an employee may have exercised a workplace right.[3] The same reasoning applies to s.351 of the FW Act, where (in this case) it is alleged that adverse action was taken because of an alleged physical disability or mental disability said to have been suffered the Applicant, and to s.352 of the FW Act, in relation to a temporary absence due to illness or injury.
[3] Ibid, 45.
In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, Jessup and Perram JJ held that before there will be a contravention it is necessary that the actual reason of the decision-maker, in his or her own mind, be the employee’s exercise of a workplace right. It is insufficient that the conduct, which gives rise to the reason for that action, happens to be the exercise of a workplace right. At paragraphs 30 and 32, Perram J also observed that there is a distinction between factoring something into the consideration of a matter and making a decision about the matter itself. As his Honour explained, s.340 is concerned not with causation but with the subjective reasons for action of the decision-maker. A finding that the decision-maker had regard to or was aware of a factor is not inconsistent with a finding that the same factor did not constitute reasons for a decision. In Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd [2014] FCA 239 Pagone J explained at paragraph 13, that even when analysed in terms of causation, an enquiry into causes will not necessarily be answered by application of a “but for” test (see March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506) but generally requires a common sense evaluation of all of the relevant facts and circumstances, as explained in Barclay.
Mr Bateman alleged that each of the warning decision and the dismissal decision were taken because he had exercised various workplace rights.
The first time that Ms Prichard became aware of any allegations by the Applicant about alleged bullying and harassment was when she read the Applicant’s general protections application dated 1 June 2016 (three weeks after the dismissal).
The Court finds that Mr Bateman’s exercise of any workplace rights was irrelevant to Ms Prichard’s decision to take adverse action against Mr Bateman.
Mr Riddiford was an impressive witness. He made concessions as required and gave considered answers to the questions asked of him. In instances where his evidence and that of Mr Bateman differs, the Court preferred the evidence of Mr Riddiford.
Ms Prichard was a reliable and honest witness. The only reason for the warning decision and the dismissal decision, both being her sole decisions, was Mr Bateman’s serious breaches of the YSI and, in the case of the dismissal, a loss of trust and confidence in him as a manager as a result of those breaches. In Ms Prichard’s view, she could not rely on Mr Bateman to follow Aldi Foods’ policies and procedures. No contraventions of the FW Act as alleged is established.
The application must be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 23 February 2018
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