Bayens v Transport Workers Union of Australia Western Australian Branch
[2019] FCCA 1284
•17 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAYENS v TRANSPORT WORKERS UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH | [2019] FCCA 1284 |
| Catchwords: INDUSTRIAL LAW – General protections claim – whether dismissal because of temporary absence due to injury – presumptive onus discharged – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), pt.3-1, ss.340, 341, 352, 360, 361, 363, 382, 383, 570, 793 Fair Work Regulations 2009 (Cth), reg.3.01 Federal Court of Australia Act 1976 (Cth), s.32AB Federal Court Rules 2011 (Cth), r.27.11 Workers Compensation and Injury Management Act 1981 (WA), s.92(F) |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 |
| Applicant: | CORNELIUS BAYENS |
| Respondent: | TRANSPORT WORKERS UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH |
| File Number: | PEG 226 of 2015 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 13 and 14 September 2018 and 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G MacLean |
| Solicitors for the Applicant: | MacLean Legal |
| Counsel for the Respondent: | Ms R Cosentino |
| Solicitors for the Respondent: | Slater and Gordon |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 226 of 2015
| CORNELIUS BAYENS |
Applicant
And
| TRANSPORT WORKERS UNION OF AUSTRALIA WESTERN AUSTRALIAN BRANCH |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
On 30 December 2014, the applicant in these proceedings, Mr Cornelius Bayens (“Mr Bayens”), filed an originating application under the Fair Work Act 2009 (Cth) (“FW Act”) with the Federal Court of Australia.
On 27 May 2015, Justice Barker ordered, by consent, that pursuant to s.32AB of the Federal Court of Australia Act 1976 (Cth) and r.27.11 of the Federal Court Rules 2011 (Cth), the matter be transferred to the Perth Registry of this Court.
Mr Bayens alleges that the respondent, the Transport Workers Union of Australia Western Australian Branch (the “TWU”), contravened s.352 of the FW Act when the TWU dismissed him from his employment because he was “temporarily absent from work due to illness or injury”.
This claim falls under pt.3-1 of the FW Act as a “General Protections” claim.
Mr Bayens’ Application
On 25 August 2015, Mr Bayens filed a Statement of Claim (“SOC”). In his SOC, Mr Bayens provided a factual basis for his claim which can be summarised as follows:
a)on or around 5 May 2014, Mr Bayens commenced employment with the TWU: SOC at [1];
b)Mr Bayens was employed in the role of “Superannuation Officer”. He says he also held the role of “Special Projects Officer”: SOC at [2];
c)on or around 15 September 2014, Mr Bayens attended the Perth Domestic Airport for a scheduled meeting with Qantas. The purpose of this meeting was to recruit new Qantas employees to join the TWU: SOC at [4];
d)while removing TWU promotional material from his vehicle, Mr Bayens experienced a sudden pain in his lower back. Mr Bayens conducted his meeting with Qantas employees but, by the time he returned to the TWU office that afternoon, the pain in his lower back had become ‘extreme’: SOC at [5];
e)Mr Bayens advised the Assistant Secretary of the TWU, Mr Paul Aslan, that he had suffered a ‘lower back injury’. He left work shortly thereafter: SOC at [6];
f)on 16 September 2014, Mr Bayens was assessed by Dr Karim Jabar of the Mirrabooka Doctors Surgery: SOC at [7], SOC Annexure ‘A’;
g)on 1 October 2014, Dr Jabar completed a “WorkCover WA-First certificate of capacity” which diagnosed Mr Bayens as having ‘Lumbar back pain’. Doctor Jabar determined that Mr Bayens had no capacity for any work from 16 September 2014 to 10 October 2014: SOC Annexure ‘A’;
h)on 24 October 2014, Dr Jabar re-assessed Mr Bayens and completed a “WorkCover WA- Progress certificate of capacity”. Doctor Jabar determined that Mr Bayens had no capacity for any work from 24 October 2014 to 7 November 2014: SOC Annexure ‘B’;
i)on 3 November, 2014, the TWU State Secretary, Tim Dawson (“Mr Dawson”) attended at Mr Bayens’ home. Mr Dawson informed Mr Bayens that the TWU had terminated his employment: SOC at [11]-[12]; and
j)on 5 November 2014, Mr Bayens received a “termination letter” dated 4 November 2014 which relevantly read: SOC at [14], SOC Annexure “C”:
Dear Con,
Further to my conversation with you today at your home I now confirm that your probationary employment with the TWU has been terminated.
As you have been on your probationary period you will be paid your statutory notice of one week’s pay.
Defence
In its defence filed 30 September 2015 the TWU:
a)admitted that it had taken “adverse” action against Mr Bayens by terminating his employment;
b)admitted that Mr Bayens was temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth) (“Regulations”) at the time of his dismissal;
c)denied that the TWU had taken adverse action against Mr Bayens because he was temporarily absent from work because of illness or injury; and
d)stated that the TWU had dismissed Mr Bayens’ from his employment because:
i)prior to sustaining any injury, Mr Bayens was not reliable in his attendance at work and did not provide medical certificates or other reasons in support of what were significant absences;
ii)Mr Bayens performed his work to a substandard level; and
iii)Mr Bayens regularly failed to follow lawful directives given by Mr Dawson.
Relevant legislative provisions
Mr Bayens claims the TWU contravened s.352 of the FW Act, which provides:
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.
The TWU admits that it “dismissed” Mr Bayens and that he was “temporarily absent from work because of illness or injury of a kind prescribed by the Regulations”: Defence at II(a)-(b).
The Court accepts that the sole issue in this case is whether the dismissal was “because of” the temporary absence because of illness or injury. The TWU argues that Mr Bayens was not dismissed because he was absent due to injury.
In effect, the Court must determine why Mr Dawson dismissed Mr Bayens and whether the reasons provided violate s.352 of the FW Act.
In this regard the Court notes that s.360 of the FW Act provides that:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Having admitted that Mr Bayens was dismissed and that he was temporarily absent because of illness or injury at the time of the dismissal, the onus rests on the TWU to satisfy the Court that the dismissal was not for the prohibited reason as pleaded.
This arises because of s.361(1) of the FW Act which provides that:
Reason for action to be presumed unless proved otherwise
(1)If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Section 363 of the FW Act, in turn, provides:
Actions of industrial associations
(1)For the purposes of this Part, each of the following is taken to be action of an industrial association:
…
(b) action taken by an officer or agent of the industrial association acting in that capacity;
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
…
The TWU is an industrial association. It is also a body corporate. Mr Dawson was acting in his capacity as Secretary of the TWU Western Australian Branch when he made the decision to dismiss Mr Bayens. Exhibit 2 before the Court was a copy of the TWU Rules. By virtue of rr.3(3) and 37(3)(k)-(l) of the TWU Rules, Mr Dawson was authorised to make the decision to dismiss Mr Bayens and his reasons for doing so are taken to be that of the TWU’s.
“State of mind” is defined in s.793(3) of the FW Act and is also used in s.363(3)(b). In the Court’s view there is nothing in the FW Act to suggest that the legislature intended the terms to be interpreted differently. Section 793(3) states:
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Finally, the Court notes s.383(a) of the FW Act, pertaining to the meaning of “minimum employment period”. That section provides:
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or…
Section 383 is relevant here as it appears from the evidence that the TWU is suggesting that one of the reasons Mr Bayens was dismissed was because he was still in his six month “probationary period”. Although there is no contractual term evident, it was submitted that Mr Bayens was in the preliminary stages of his employment during which period the TWU was “testing” his suitability to remain employed with the TWU.
Placing aside the lack of a contractual “probationary period”, terminating Mr Bayens within the “minimum employment period” means that Mr Bayens was prohibited from bringing a claim for unfair dismissal: FW Act, s.382. The only option for Mr Bayens to challenge his dismissal was by way of a general protections claim – not an unfair dismissal claim. This is discussed further below.
Evidence
Evidence for Mr Bayens
Mr Bayens relied on the following affidavit material:
a)affidavit of Cornelius Bayens sworn 22 September 2016 (the “Bayens Affidavit”);
b)affidavit of Glen William Ferguson affirmed 30 September 2016 (the “Ferguson Affidavit”);
c)affidavit of Judith Anne McCulloch affirmed on 30 September 2016 (the “McCulloch Affidavit”);
d)affidavit of Mark Bebich sworn on 21 September 2016 (the “Bebich Affidavit”);
e)affidavit of Dzevad Hodzic affirmed on 21 September 2016 (the “Hodzic Affidavit”); and
f)affidavit of John Martin Mattioli sworn on 21 September 2016.
All of the witnesses, except Ms McCulloch and Mr Mattioli, were cross-examined on their affidavits.
Mr Bayens also tendered the following exhibits:
a)a copy of an extract from his diary for the period Monday, 3 November 2014 to Wednesday, 5 November 2014 (including contemporaneous notes of meeting with Mr Dawson on 4 November 2014) (Exhibit 1);
b)a certified copy of the Rules of the Transport Workers Union of Australia (Exhibit 2);
c)WorkCover WA - First Certificate of Capacity in relation to Mr Bayens stamped 22 October 2014 (Exhibit 3);
d)email from Mr Bayens to Mr Dawson dated 5 September 2014 regarding “Schedule…” (Exhibit 8); and
e)the complete diary of Mr Bayens (Exhibit 9).
Of note, Mr Bayens’ evidence was that:
a)he was of the view that he could take time off in lieu (“TOIL”) and, as he had gone to a work conference on a Sunday and a public holiday in June, he took two days off prior to a pre-approved holiday to Bali. He did not consult with Mr Dawson on this but did speak to Mr Ferguson (his supervisor at the time) about it;
b)upon his return from Bali he had a discussion with Mr Dawson who told him it was “not what we do here” (referencing the use of TOIL). Mr Dawson was not angry or upset; rather, the conversation was along the lines that what had happened was simply a “teething problem”;
c)the fact that he was asked to report his diary contents and his movements to Mr Dawson is not evidence that Mr Dawson was concerned about his work performance; rather, this occurred at the same time as the introduction of an “electronic diary” and Mr Dawson was simply assessing how he was managing things and what he had planned;
d)because he had previously been employed by the police, Mr Bayens recorded what Mr Dawson had said to him when he told him he was dismissed and he is positive that Mr Dawson said “I can’t have your position vacant. I’m going to have to replace you”;
e)he told Mr Dawson that he was on workers compensation after Mr Dawson advised him that he was being dismissed; and
f)Mr Dawson did not provide a reason for his termination but it was clear that the reason for his termination was that he “was on workers compensation”.
Much of the evidence provided by Mr Bayens’ witnesses (in particular, Ms McCulloch – who was not cross-examined – Mr Bebich and Mr Ferguson) referenced Mr Bayens’ work habits and the fact that he “was a good worker”.
Ms McCulloch and Mr Ferguson also adverted to Mr Dawson being absent and having little interaction with Mr Bayens. This, they believe, would have made it difficult for Mr Dawson to have formed any view about Mr Bayens’ work performance.
Mr Bebich and Mr Hodzic gave evidence about Mr Dawson’s visit to Mr Bebich’s home prior to Mr Bayens being terminated on 3 November 2014. They stated that Mr Dawson said that Mr Bayens was dismissed “because” Mr Bayens “was not at work”.
Mr Mattioli’s evidence was that he was with Mr Bebich when Mr Bebich received a phone call from Mr Dawson and that Mr Bebich became angry because he had been told that Mr Bayens was going to be dismissed and Mr Bebich did not think Mr Bayens should be dismissed while on workers compensation.
Evidence for the TWU
The TWU relied on the following affidavit material:
a)affidavit of Timothy Dawson affirmed on 1 February 2017 (the “First Dawson Affidavit”); and
b)affidavit of Timothy Dawson affirmed 12 November 2018 (the “Second Dawson Affidavit”).
Mr Dawson was cross-examined in relation to both of his affidavits.
The TWU also tendered the following exhibits:
a)a medical report by Mr John Liddell FRACs dated 22 December 2014 relating to Mr Bayens (Exhibit 4);
b)a Medical report by Dr Brian Gaton-Fenzi dated 14 April 2015 relating to Mr Bayens (Exhibit 5);
c)a Medical report by Dr Karim Jabar dated 17 November 2014 relating to Mr Bayens (Exhibit 6);
d)an “Agreement” pursuant to s.92(F) of the Workers Compensation and Injury Management Act 1981 dated 6 July 2015 between Mr Bayens and the TWU (Exhibit 7);
e)a copy of an Excel spreadsheet containing summary data of various TWU matters in dispute (Exhibit 12);
f)a MYOB record of the sick leave entitlements for Mr Bayens as recorded by the TWU (Exhibit 18); and
g)a copy of handwritten notes by Mr Dawson in relation to Mr Bayens (Exhibit 19).
The medical reports from Dr Liddell, Dr Gaton-Fenzi and Dr Jabar were not provided by way of affidavit and these medical experts were not called or cross-examined. Much of the content of these documents is hearsay. The Court will not, in the circumstances, attach weight to this evidence.
Mr Dawson was the only witness for the TWU.
The Court notes the following evidence:
a)Mr Dawson explained that his reasons for terminating Mr Bayens were twofold. First, he had formed the view that Mr Bayens was “lazy” and that he was not performing his role. Second, he was also “fuming” that Mr Bayens had ignored a “lawful instruction”. In particular, he had advised Mr Bayens he was not entitled to TOIL but Mr Bayens nevertheless took time off work under that pretext;
b)Mr Dawson said in oral evidence that there was a Bali trip and several other absences over the course of Mr Bayens’ employment;
c)Mr Dawson candidly admitted that he thought Mr Bayens was a “bludger”. However, he denied that he had ever used the term “malingerer” to describe Mr Bayens to others (contrary to what Mr Bebich said in evidence). He admitted, however, that he “did think it”;
d)putting all of this together, he had made up his mind to dismiss Mr Bayens before Mr Bayens injured himself on 15 September 2014;
e)Mr Dawson also admitted that he did not believe that Mr Bayens’ injury was real and believed this at the time Mr Bayens was dismissed;
f)Mr Dawson still believes the injury was fabricated;
g)Mr Dawson made numerous telephone calls to Mr Bayens on 15 September 2014. He advised him that he wanted him to come into his office. He says it was his intention to advise Mr Bayens in the office that he was to be dismissed. Mr Bayens did not attend at his office but did enter the TWU Building;
h)in the Second Dawson Affidavit, telephone records confirm that Mr Dawson contacted Mr Bayens three times on 15 September 2014. Records show that the first call was made at 8:57am (lasting 41 seconds); the second at 1:12pm (lasting 1 minute and 56 seconds) and third at 1:26pm (lasting 4 seconds);
i)Mr Bayens denied speaking to Mr Dawson or receiving any calls on that day. However, the phone records show that Mr Bayens called Mr Dawson at 10:13am. That call lasted 21 seconds;
j)Mr Dawson says he spoke to Mr Ferguson that morning and told him that he intended to terminate Mr Bayens. This issue is addressed further below;
k)Mr Dawson says he had previously (ie, before 15 September 2014) spoken to Mr Bebich about Mr Bayens and told him that if Mr Bayens did not “lift his game” he would be dismissed;
l)Mr Dawson says he had wanted to terminate Mr Bayens when Mr Bayens returned from Bali but did not do so because he did not want to upset Mr Bebich;
m)he decided to dismiss Mr Bayens on 15 September 2014 because that was the day Mr Ferguson was returning from leave and he wanted to advise Mr Ferguson before dismissing Mr Bayens;
n)Mr Bayens then went on leave from 16 September 2014 because he says he was injured while at the airport;
o)Mr Dawson was going to dismiss him when he returned to work but eventually dismissed Mr Bayens on 3 November 2014 because he had received advice that his probationary period was coming to an end;
p)at the time he terminated Mr Bayens, Mr Dawson did not provide Mr Bayens with reasons for his termination because Mr Bayens was in his probationary period and he did not believe he needed to provide reasons;
q)Mr Dawson says he never considered any workers compensation claim (which was only brought to his attention on 1 October 2014) as a reason for termination; and
r)Mr Dawson said he did not fill Mr Bayens’ position (a broadly defined position) until approximately four months after Mr Bayens was terminated.
Mr Bayens’ submissions
In written submissions dated 24 August 2018, counsel for Mr Bayens addressed the TWU’s contentions that Mr Bayens’ work performance had not been satisfactory and that he had previously been absent from work on a number of occasions without authorisation or supporting medical evidence.
In respect of the “significant absences” that Mr Bayens is said to have taken during his employment, the relevant submissions can be summarised as follows:
a)the First Dawson Affidavit identifies one absence of 2 days occurring in late June 2014 and an apparent difficulty with the TWU receptionist, Ms Jacquie Maseyk, being informed about the movements of Mr Bayens;
b)the 2-day absence occurred between 18 to 19 June 2014 but no decision was made to terminate Mr Bayens until, at least, September 2014;
c)given there is only one 2-day absence contended, it is unclear what the purported unjustified “significant absences” by Mr Bayens actually were; and
d)if the unjustified “significant absences” are alleged to be the real motivation for the decision to terminate Mr Bayens then it would be reasonable to expect evidence identifying these purported absences.
Regarding Mr Bayens’ work performance, the relevant submissions can be summarised as follows:
a)Mr Bayens did not report to Mr Dawson;
b)in the Ferguson Affidavit, Mr Ferguson deposed that he had not received any complaints in relation to any members of his Industrial Team for alleged failures to perform their employment duties. This team included Mr Bayens;
c)Mr Ferguson’s assessment of Mr Bayens’ work performance was positive;
d)the evidence of Ms McCulloch, the third member of the Industrial Team, in relation to Mr Bayens’ work performance was consistent with Mr Ferguson’s assessment;
e)Mr Bayens worked as part of a collaborative team whose assessment of his workplace performance is at odds with Mr Dawson’s account of Mr Bayens’ work performance;
f)the evidence of Ms McCulloch, Mr Ferguson and Mr Bayens is consistent with Mr Dawson not having sufficient knowledge of the day-to-day operation of the Industrial Team to actually know how Mr Bayens was performing; and
g)the fact that Mr Bayens had never been issued with any official warnings or counselling in relation to his work performance is not consistent with the view that the TWU had given up on Mr Bayens, independent of his absence after 15 September 2014.
In relation to the submission that the temporary absences were a live issue up to, and including the “termination meeting”, the relevant submissions can be summarised as follows:
a)the close proximity of Mr Bayens’ absence to his subsequent termination suggests that they were more than coincidentally connected;
b)Mr Dawson, who was the relevant decision-maker in relation to Mr Bayens’ termination, had formed the view that Mr Bayens was malingering, rather than genuinely injured. That attitude cannot be separated from the decision to terminate Mr Bayens employment;
c)there is evidence before the Court that supports the contention that the only reason given by Mr Dawson for the termination of Mr Bayens employment was the fact that his position was vacant and Mr Dawson had to replace him; and
d)the evidence of Mr Bebich, Mr Hodzic, Mr Mattioli and Mr Bayens confirms that Mr Bayens’ absence from the workplace was an issue that Mr Dawson had raised independently of any other issues and supports the conclusion that Mr Bayens’ absence from the workplace was the rationale for terminating him.
Counsel for Mr Bayens submitted that the words that Mr Dawson used on or around the time of the termination are particularly important. In this regard, counsel drew the Court’s attention to Mr Bayens’ Affidavit evidence, in which he outlined his account of a conversation he had with Mr Dawson at the time he was told he was being dismissed.
Relevantly, at [40] of his affidavit, Mr Bayens deposes that Mr Dawson said words to him to the effect of:
I can’t have your position vacant. I’m going to have to replace you.
Counsel also drew the Court’s attention to the following affidavit evidence of other witnesses who deposed to what Mr Dawson had allegedly said to them at around the time the decision to terminate Mr Bayens was made:
a)at [16] and [17] of the Bebich Affidavit, Mr Bebich deposed:
16. I recall that not long after, I received a telephone call from Tim Dawson. He started talking about Con [Bayens] and suggested that he was malingering. I absolutely “went off my brain” at him for that. At the time I was with John Mattioli who was a witness to the conversation.
17. On the 3rd of November 2014, Tim Dawson rang me and said he needed to talk to be (sic.). He came to my residence about 11:30am. Tim told me that he was going to let Con [Bayens] go because he wasn’t at work and needed to be replaced. I reminded him that he was on worker’s compensation but he said that he could let him go because he was still on probation. Clearly, I could not change his mind.
b)at [8] of the Hodzic Affidavit, Mr Hodzic deposed:
8.I knew that Tim Dawson was the Secretary of the TWU, but this was the first time I had met him in person. He said to Mark that he was going to sack Con [Bayens] because he wasn’t at work.
It was argued by counsel for Mr Bayens that these statements demonstrate a consistent theme (ie, that Mr Dawson terminated Mr Bayens because he was absent from work).
In oral submissions, counsel for Mr Bayens sought to emphasise that Mr Bayens and those who testified on his behalf were entirely credible. He also stressed that Mr Dawson’s evidence was not reliable. Counsel further emphasised that there is no credible evidence that Mr Dawson planned to terminate Mr Bayens prior to his temporary absence due to injury.
TWU submissions
The authorities are clear that the evidence of the person who terminates an employee in circumstances such as this will go a long way towards proving that the dismissal was not for a prohibited reason – unless there is a basis to consider that that evidence lacks credibility: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (“Barclay”) at [41]-[45] per French CJ and Crennan J.
If Mr Dawson’s evidence in this case is accepted and found to be credible, the onus is discharged and the claim as advanced fails.
The TWU’s case rests on the argument that Mr Bayens was not dismissed because he was temporarily absent from work because of illness or injury of a kind prescribed by the Regulations. Rather, he was dismissed because, amongst other things, his work performance had not been satisfactory and he had previously been absent from work without authorisation or supporting medical evidence.
Relevantly, the TWU submitted:
a)the prohibited reason must always be a “substantial and operative” reason for termination. It is sufficient that the prohibited reason is simply within the decision-maker’s knowledge or present in the decision-maker’s mind;
b)a causal connection between the temporary absence and the termination is not on its own sufficient to conclude that the temporary absence was an operative and immediate reason for the termination;
c)Mr Bayens’ submission that four witnesses “confirm that the Applicant’s absence from the workplace due to injury was an issue that Dawson had raised independently of any other issues” is not an accurate depiction of the evidence. Mr Bayens’ own evidence on this point was simply that Mr Dawson had said, after informing him of the termination of his employment on 3 November 2014: “I can’t have your position vacant, I’m going to have to replace ya.” This simply evidences a statement of fact as to the consequence of the termination of employment (ie, “when you leave, I will have to fill your position”). It is not a statement as to the reason for termination (ie, “you are absent from work and your job needs to be done”); and
d)it is not correct to approach the task at hand by attempting to ascertain unconscious elements in the impugned adverse action.
At hearing, submissions were made by counsel for the TWU in relation to the credibility of the witnesses who appeared for Mr Bayens. In particular, it was urged that a high degree of caution should be exercised in accepting the evidence of each witness – in particular, Mr Bayens himself.
Proceedings in this Court
While originally unrepresented, Mr Bayens obtained legal assistance and was represented by Mr MacLean when the matter came before the Court for final hearing. The TWU was represented by Ms Cosentino of counsel.
Mr MacLean and Ms Cosentino are gifted advocates. The quality of their written and oral submissions greatly assisted the Court. The Court also notes the respect with which both lawyers treated each other and the witnesses that appeared before the Court. This (arguably more “cooperative”) approach to advocacy is well suited to litigation of this sort, particularly when dealing with witnesses who are visibly unhappy (and, in the case of one witness, bordering on hostile) about being questioned. Others would do well to emulate the high standards set by these lawyers. The Court thanks them for their considerable assistance.
The matter was heard over two days on 13 and 14 September 2018. As stated above, most witnesses were cross-examined. It was agreed that oral closing submissions would be made at a later date.
On 12 November 2018, the TWU filed an application in a case seeking leave to re-open their defence to include the Second Dawson Affidavit.
On 26 November 2018, the Court made orders by consent giving the TWU leave to re-open their defence.
The matter came back before the Court on 13 December 2018. This allowed for Mr Dawson to be cross-examined on the content of his second affidavit. Closing submissions were also made on that date.
At the conclusion of the hearing the Court reserved its judgment.
The Court has considered all of the materials relied upon and exhibited. It has had regard to the submissions of both parties. It has also reviewed the transcript of the hearing when preparing these reasons for judgment.
Credibility
Both parties recognised that a significant part of the Court’s disposition of the issues in this case depends on findings as to the credibility of each of the witnesses.
The Court is mindful that, at the time of hearing, almost four years had passed since the events in question. Despite the best efforts of the Court to hear this matter expeditiously, judicial unavailability made that impossible. This is, nonetheless, a significant delay (and, frankly, unacceptable) and the Court apologises to the parties for the inconvenience inevitably caused.
The Court notes that the affidavits in this proceeding were sworn or affirmed almost two years after the termination event at issue. The Court does not, however, draw any adverse inference from minor inconsistencies in the evidence of each witness for this reason alone.
Bearing in mind that the Court should not too readily rely upon the appearance and demeanour of a witness when giving evidence to assess their credibility (Fox v Percy (2003) 214 CLR 118 at [30]-[31]), the Court has assessed the evidence of each witness in light of the objectively known facts, the consistency or inconsistency between a witness’s recollections and, finally, the plausibility of the accounts given.
For the reasons that follow the Court has concerns about aspects of the evidence given by almost all of the witnesses who appeared before it. Suffice it to say, the witnesses here are not particularly fond of each other. The animosity was palpable. That came through in much of the evidence before the Court and makes the Court’s assessment of the evidence more complex as it requires the Court to strip away the anger and simply get to the facts.
Commencing with Mr Dawson, Mr Dawson gave direct evidence as to his reasons for dismissing Mr Bayens. In Barclay at [41]-[45] per French CJ and Crennan J, the High Court made clear that without this evidence, it would be difficult to discharge the onus evident in s.361 of the FW Act.
The Court generally prefers Mr Dawson’s reasons for dismissal. However, the Court does have concerns with some aspects of Mr Dawson’s evidence.
Importantly, Mr Dawson struggled with dates and context. For example, he gave evidence that he told Mr Ferguson on the morning of 15 September 2014 that he planned to terminate Mr Bayens. This conversation was not included in the First Dawson Affidavit. When asked why this was so, Mr Dawson indicated that it had been “overlooked” and, admittedly, he had not advised his solicitors about it.
In light of the very late revelation of a conversation that can only be seen as quite significant, the Court cannot attach much weight to this statement and the Court has exercised caution when considering it.
Mr Dawson also referenced a meeting he says he had with Mr Bebich at a hotel in Perth, stating that he believes he told Mr Bebich words to the effect that Mr Bayens would need to “lift his game” or he would be dismissed. As discussed further below, Mr Bebich denies the meeting in question and, frankly, the date suggested by Mr Dawson simply does not make sense. The evidence in this regard was confusing and the Court again attaches little weight to the content of that alleged conversation.
In relation to Mr Bayens, the Court acknowledges that Mr Bayens was a police sergeant for over 20 years. The Court does not accept (as seemed to be suggested) that this is sufficient for the Court to infer that Mr Bayens’ evidence should be accepted as credible.
Of considerable concern to the Court is Mr Bayens’ strong denial that he received a phone call or calls from Mr Dawson on 15 September 2014. This was proven to be false. The phone records reveal otherwise.
The Court also notes that some of the evidence of Mr Bayens’ supporting witnesses is not consistent with some of the statements made by Mr Bayens.
For example, Mr Bayens’ evidence was that he would, at any given time, have charge of 10/12 industrial files. Mr Ferguson, on the other hand, said he would only ever allocate five files to Mr Bayens. The Court has no reason to doubt Mr Ferguson’s evidence in this regard.
Further, Mr Bebich’s evidence was that Mr Bayens told him that Mr Dawson was “going off” about the TOIL issue and that Mr Bayens did not understand why. Mr Bayens’ evidence, on the other hand, was that Mr Dawson had described what had happened as a “teething problem” and that Mr Dawson was not angry or upset. Again, there is no reason to doubt Mr Bebich in this regard.
There are also problems in relation to Mr Bayens’ evidence as to how his injury occurred that were never adequately clarified by Mr Bayens. Before the Court, Mr Bayens indicated that he was injured when he lifted promotional materials from his car – materials which he told the Court were next to his briefcase in the back of his “hatchback” vehicle (SOC at [5]; Transcript, pp.64-71). Mr Ferguson, on the other hand, stated that Mr Bayens was injured “getting out of his car” (Ferguson Affidavit at [15]). Given the seriousness of the injury as pleaded and the legal history that flows from it, the Court finds the lack of any clarity on this issue puzzling and of concern.
The Court accepts Mr Bayens’ evidence that he believes he was performing well in his assigned role. The Court also accepts the evidence that others felt he was performing well and that they thought he was a hard worker. This finding does not, however, mean that Mr Dawson genuinely thought otherwise – a central issue that is addressed in detail below.
Initially, Mr Ferguson impressed the Court as confident and objective. However, throughout the course of cross-examination (perhaps best described as a forensic “unpacking”) of Mr Ferguson’s evidence, Mr Ferguson became increasingly evasive and angry when questions were put to him by Ms Cosentino.
Mr Ferguson was asked whether it was his view that the giving of evidence in legal proceedings was a form of advocacy – rather than the provision of factual evidence. Mr Ferguson avoided the question and, shortly thereafter, simply stated:
I do not accept that workers tell lies. I accept that people that I work with tell the truth, and I had no reason to doubt Mr Bayens, or anyone else that worked with me, because I have respect and dignity for those people I work with.
(Transcript, p.106)
Mr Ferguson’s evidence raises concerns as to whether he might simply re-frame his evidence in support of a respected colleague.
Concerns as to Mr Ferguson’s objectivity also arise in the context of evidence which shows that the claim before this Court arose at roughly the same time as the creation of a rival organisation to the TWU, TransportEdge – a rival organisation in which Mr Ferguson played a significant role: Transcript, pp.106-108.
The Court accepts that Mr Ferguson supervised Mr Bayens in his industrial work and that he was impressed with Mr Bayens. To the extent that Mr Ferguson and Mr Dawson’s evidence differs on certain aspects, however, (except as otherwise indicated below) the Court generally prefers Mr Dawson’s evidence and attaches more weight to it.
Ms McCulloch’s evidence was read without the need for cross-examination. The Court notes that most of Ms McCulloch’s evidence pertains to Mr Bayens’ work performance. The Court accepts that Ms McCulloch had a favourable view of his performance and Mr Bayens generally.
Returning to Mr Bayens’ remaining witnesses, the Court has significant doubts as to the credibility of the affidavit evidence of those witnesses and, accordingly, attaches less weight to that evidence.
It is noted that the affidavits of Mr Bebich, Mr Hodzic and Mr Mattioli’s were similarly worded. Mr Bebich and Mr Hodzic gave evidence that Mr Bayens assisted in the drafting of their affidavits. Further, it appears that each of the affidavits were sworn before the same justice of the peace, on the same day, and in the presence of one another at Mr Bebich’s house.
In cross-examination Mr Bebich initially denied that anyone was present when he swore his affidavit. He then stated he could not recall.
Mr Hodzic stated that he signed the affidavit at Mr Bebich’s house and he believes Mr Bebich and Mr Mattioli were present at that time.
Mr Hodzic struck the Court as someone who did his best to answer the questions put to him. At no time did he appear to evade those questions.
Mr Bebich was expelled as Vice President of the TWU sometime after the events in question. He allegedly posted paraphernalia online attacking Mr Dawson and the TWU (Transcript, p.140).
Overall, Mr Bebich displayed an antagonistic attitude towards the TWU when giving evidence and did not impress the Court as an objective or reliable witness. As a result, the Court attaches little weight to his evidence as a whole.
Mr Mattioli did not attend for cross-examination. It was submitted that the Court, pursuant to s.64(6) of the Federal Circuit Court of Australia Act 1999 (Cth), should give the matters raised in his affidavit such weight as it sees fit. The Court attached very little weight to his evidence.
The Court has significant concerns about the reliability of evidence provided for Mr Bayens generally.
Overall, the question the Court must address is whether, despite the above findings, the Court believes Mr Dawson’s evidence as to why he dismissed Mr Bayens.
Consideration
As already noted, the reverse onus created by operation of s.361 of the FW Act operates in this matter because s.352 also falls within pt.3-1 of Chapter 3 of the FW Act: Hodkinson v Commonwealth (2011) 248 FLR 409 at [157]. The TWU must prove, on the balance of probabilities, that the termination was not for the specified reason: s.361 of the FW Act.
In determining whether Mr Dawson dismissed Mr Bayens because he was absent with an injury (as per the scope of s.352 of the FW Act), the Court must balance the reliability and weight of the evidence of the decision-maker (Mr Dawson) against the evidence adduced by Mr Bayens and his witnesses and must do so after assessing the overall facts and circumstances of the particular case: Barclay at [127] per Gummow and Hayne JJ.
For the reasons that follow, the Court finds that Mr Dawson’s evidence is plausible in most aspects and outweighs the evidence provided by Mr Bayens and those who testified on his behalf.
The leading authority guiding the Court on the application of s.361, and more pertinently the interpretation of “because of” as that phrase appears in s.352, is Barclay.
In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at [32], Tracey and Buchanan JJ summarised, with reference to Barclay, the principles relevant to the operation of ss.360 and 361. Their Honours stated as follows:
As the trial judge recognised, the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3–1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
(References omitted)
There is no dispute that Mr Dawson was the “decision-maker” here.
Mr Dawson’s reasons for terminating Mr Bayens
As stated by Barclay at [140] per Heydon J:
140. …Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.
In evidence, Mr Dawson essentially provided three reasons for dismissing Mr Bayens:
a)Mr Bayens had failed to follow lawful instructions; and
b)Mr Bayens was working at a sub-standard level (this included a number of absences on his part) and was not “doing the job expected of him”; and
c)it was close to the end of Mr Bayens’ probationary period and Mr Bayens was not the “right fit”.
Mr Dawson’s evidence referenced one example where Mr Bayens had taken TOIL – something Mr Bayens thought he was entitled to but which, according to Mr Dawson, he was not.
Mr Dawson also noted that Mr Bayens failed to report when he was leaving the office and regularly took work breaks to smoke cigarettes.
Turning to the TOIL issue, the Court is satisfied that Mr Dawson genuinely saw this as a significant issue. In his own words, he was “fuming” that he had been disobeyed. The Court finds that Mr Bayens downplayed the significance of this issue in his evidence (referring to it as simply a “teething problem” and stating that he did not think Mr Dawson was angry or upset by it).
Placing aside the issue of when Mr Bayens was made aware that Mr Dawson was “not happy” that he had taken TOIL, the evidence does support a finding that Mr Dawson was less than impressed. That evidence includes:
a)Mr Bayens told Mr Bebich about the incident, something the Court does not consider he would have done if it was only a minor issue; and
b)in response to a question put to him, Mr Bebich answered that Mr Bayens told him that Mr Dawson was “going off” about the TOIL issue and Mr Bayens being unable to work out why.
Further, the Court does not accept that Mr Bayens was not aware that there was an issue here. Mr Bayens specifically referred Mr Dawson to a statement on the Fair Work Commission website concerning TOIL entitlements during a conversation in which the TOIL issue was raised. If Mr Bayens was not aware there was an issue with his taking TOIL, the Court does not accept he would have come prepared with this information.
No argument was advanced that Mr Bayens was in fact entitled to days off as TOIL. The Court has proceeded (to the extent necessary) on the basis that Mr Bayens was not entitled to take two days of TOIL on 18 and 19 June 2014. What follows is that Mr Bayens was absent without authorisation on those days. This was a matter which Mr Dawson clearly found to be of significance. This is a factor that, arguably, goes to Mr Bayens’ work performance – one which Mr Dawson believes reflected poorly upon him. The Court finds Mr Dawson’s belief in that regard to be quite credible.
As to Mr Bayens’ other absences, Exhibit 18 purports to show that Mr Bayens had been absent on approximately 9 occasions prior to 15 September 2014. Those absences largely correlated with days Mr Bayens had indicated in his diary (Exhibit 9) as “sick leave”, save for one discrepancy on 30 July 2014 and 31 July 2014.
Taking into account the fact that Mr Bayens did not attend work from 15 September 2014, at the time of his dismissal Mr Bayens (based upon the evidence in Exhibit 18) had only worked approximately 15 of the approximately 26 weeks he was employed at the TWU. It was submitted that this was a significant amount of absences in a short period (approximately 10 weeks of absence).
These absences were referred to as “numerous other days off”. Mr Bayens was clearly absent on these days. His own diary records this to be the case.
Hence, if the Court accepts what is reflected in Exhibit 18 (and the Court does), prior to 15 September 2015, Mr Bayens had been absent for 9.5 days (not including his two week trip to Bali).
Mr Bayens was on approved unpaid leave when he went to Bali. Mr Dawson referred to Mr Bayens “trip to Bali” as a reason for his dismissal, notwithstanding there was an apparent agreement Mr Bayens could take this time off (First Dawson Affidavit at [18]).
While Mr Bayens disputed Exhibit 18, the records (largely) match his diary. There was some dispute over what days Mr Bayens had bronchitis (whether it was late July or late August). Nevertheless, Mr Bayens recoded himself as “sick” in his diary on 31 July-1 August 2014. There was nothing recorded in Mr Bayens’ diary from 26-29 August 2014. To the Court, Mr Bayens was, therefore, not working.
Mr Bayens may have been entitled to these days off. It was not suggested that he was not entitled to them. However, Mr Bayens did not plead that it was because of “other absences” that he was dismissed. These illnesses and injuries are, on the evidence, not of a kind prescribed by the Regulations (although, in some respects, they may well have been protected by s.352).
Nonetheless, Mr Bayens was, at the very least, aware, or, objectively, should have been aware, that the TOIL days (and the work context within which those days were taken off), was of concern to Mr Dawson. Whether Mr Dawson should have been concerned is neither here nor there. What matters is whether any concerns Mr Dawson had were genuinely held by him.
Here, the Court finds that the concern held was, contextually, genuinely held. While others might have acted differently, it cannot be said on the evidence here that Mr Dawson was not genuinely of the view that Mr Bayens was acting inappropriately when he took TOIL.
Mr Dawson also had cause to talk to Mr Bayens on another occasion about his performance. Mr Bayens was told that he was required to advise the receptionist when he was leaving the office – a TWU practice and something, it was claimed, he had been failing to do.
The Court does not need to make any particular findings on the nature of this particular discussion, save as to say that Mr Bayens admitted that a discussion had occurred and he was asked to make sure he followed this practice. This is sufficient for the Court to be satisfied Mr Bayens was aware of another “issue” that had come to Mr Dawson’s attention and which Mr Bayens had been told rectify.
Mr Bayens also admitted that he would go for a “smoke” every two hours. He advised that he would often go out with Ms McCulloch and Mr Ferguson and that these breaks were beneficial as they allowed all of them to liaise and brainstorm.
Beneficial or otherwise, Mr Dawson’s evidence was that this conduct was yet another course of conduct that caused him to genuinely think that Mr Bayens was “lazy” and that his work performance was less than satisfactory.
Mr Dawson also gave evidence that he was not satisfied (on the basis of a schedule Mr Bayens had provided to him on 5 September 2014 (Exhibit 8) and his personal view of what amounted to a “busy day”) that Mr Bayens was “working to capacity”. As Mr Dawson stated in Court, he soon formed the view that Mr Bayens was a “bludger”.
Mr Dawson referred to the fact that there was little content in Mr Bayens’ schedule (Exhibit 8). He felt that, based on his past work experience as an organiser, Mr Bayens was not reporting the sorts of outcomes and results that he should have been documenting.
In his oral evidence Mr Dawson noted that the schedule confirmed that Mr Bayens was not fulfilling employment expectations.
Mr Dawson was also frank in admitting that he thought Mr Bayens was a “malingerer”. He indicated that while he never actually uttered the word, he did think it. He further admitted that he did not think Mr Bayens’ injury was legitimate.
Mr Dawson moved on his decision to dismiss Mr Bayens on 3 November 2014. He says he did so because he was advised that Mr Bayens’ six month probationary period was coming to an end. The Court notes that, by virtue of s.383 of the FW Act, Mr Bayens would surpass the “minimum employment period” on around 6 November 2014.
Finally, Mr Dawson stated that he did not replace, or fill, Mr Bayens’ position for almost four months after Mr Bayens was dismissed.
Taking all of these matters into account, it was argued that it cannot be said that, on the evidence, Mr Bayens was dismissed for reason of his temporary absence because of illness or injury from 15 September 2014 until the date of his dismissal. Rather, it was contended, he was dismissed because Mr Dawson genuinely believed that Ms Bayens was failing to perform as expected. He was, in effect, lazy and, given that the end of relevant probationary period was approaching, it was deemed appropriate to dismiss Mr Bayens.
Mr Bayens’ claim was made pursuant to s.352 of the FW Act (dismissal because of temporary absence because of illness or injury). There appeared to be some confusion amongst the witnesses as to the “reason” Mr Bayens says he was terminated and what, more broadly, the action before this Court was about.
Mr Bayens and his witnesses placed considerable emphasis on the fact that Mr Bayens was on workers compensation and that this was a reason for his dismissal.
The Court accepts that Mr Bayens believes that he was dismissed because he was “on workers compensation”. However, Mr Bayens was not actually on workers compensation at the time of his dismissal. No claim was lodged until 1 October 2014 and the claim was still being assessed at the time of his dismissal. A settlement was reached in mid-2015. That settlement was made on the basis of there being no admission as to liability (Transcript, p.72).
Were it proven that a compensation claim was the reason for his termination, this would constitute a breach of s.340 of the FW Act (as Mr Bayens would, arguably, be exercising a workplace right as defined in s.341(1)(a)). Unfortunately, this was not pleaded. Mr Bayens has only pleaded s.352.
In these circumstances, the Court will not reference s.340 further. However, to the extent that any evidence in relation to a “compensation claim” is relevant to the issue of what Mr Dawson was thinking when he dismissed Mr Bayens, then, arguably, this evidence may be relevant and will be assessed. It may, for example, go to whether Mr Dawson dismissed Mr Bayens because he was injured.
In this context, the Court notes that central to Mr Bayens’ argument is the fact that Mr Bayens’ termination quickly followed his being absent from work while injured. This, it was stressed, suggests that there is more than a coincidental connection between the two events.
The TWU submitted that this was, in fact, no more than a coincidence and referred to the following passage in Grant (at [57]):
... it is possible for there to be a close association between the proscribed reason and the conduct which gives rise to adverse action and for the decision maker to satisfy the Court that no proscribed reason actuated the adverse action
That Mr Bayens dismissal occurred during a period he was absent does not necessarily mean that it was an operative reason for the dismissal, let alone a reason at all: Dahler v Australian Capital Territory(No 2) (2015) 296 FLR 363 at [18].
Further, there is no statutory prohibition on a person being dismissed during a period of temporary absence, although the reason for the termination must nonetheless be valid and not “because of” the temporary absence: Khiani v Australian Bureau of Statistics [2010] FCA 1059 at [65]-[76].
The Timing Issue
The first thing the Court must address is: when was the decision to terminate Mr Bayens made?
If the evidence shows that Mr Dawson decided prior to Mr Bayens taking leave due to injury then that goes a long way towards supporting the argument that Mr Bayens was not terminated because he was absent while injured.
Mr Bayens claims to have been injured on 15 September 2014. His medical evidence notes 16 September 2014 as the first day of required leave from employment.
On Mr Dawson’s account, the decision to terminate Mr Bayens was made in early September.
Mr Dawson says he called Mr Bayens on the morning of 15 September 2014 and asked him to come into the office for a meeting. The subject of that meeting, he says, was to inform Mr Bayens that he was being dismissed.
If the Court determines that Mr Dawson made the decision to dismiss Mr Bayens in early September (or earlier) and planned to give effect to that decision on 15 September 2014, Mr Bayens’ claim must fail. Mr Bayens says he was dismissed because of his absence from work from 15 September 2014. However, on Mr Dawson’s evidence (if accepted) Mr Bayens’ absence from 15 September 2014 onwards could not have been “a reason for his termination” as, at the time he decided to terminate Mr Bayens, Mr Dawson was unaware of any absence that was to come. On his evidence, Mr Dawson was not aware that any injury had occurred until after 15 September 2014 – the day he called Mr Bayens and asked him to come into the office – the same day he says he was going to dismiss him.
If the Court is not satisfied that Mr Dawson decided to terminate Mr Bayens prior to 15 September 2014, the Court must then consider what reasons might exist for Mr Dawson terminating Mr Bayens on 3 November 2014. In effect, the Court must consider if the substantial and operative reason for the dismissal was Mr Bayens’ absence because of injury: Barclay.
If the Court determines that Mr Dawson terminated Mr Bayens because he genuinely believed that he was, for example, lazy, then Mr Dawson will have gone a long way towards satisfying the Court that he did not violate s.352 of the FW Act. If Mr Dawson does not convince the Court, on the balance of probabilities, that Mr Bayens’ absence due to injury was not a substantial and operative reason for his dismissal, the TWU will be found to have acted in contravention of s.352 of the FW Act. This issue is addressed below.
In relation to the timing of Mr Dawson’s decision to terminate Mr Bayens, Mr Dawson’s affidavit evidence provided, relevantly, as follows:
43. By early-September 2014 I had decided that the Applicant was not suitable for ongoing employment with the Union.
44. I wanted to keep Mark [Bebich] in the loop about these matters. I called Mark at his home in early September 2014. I told him I needed to catch up. We arranged to meet at the Inglewood Hotel. I told him that things were not working out with the Applicant and that if he didn’t lift his game I may need to terminate his employment before the probationary period ended. Mark’s response was to the effect that if the Applicant was not doing his job, then his employment with the Union should be terminated.
45. A few days after this I rang the Applicant and asked him when he was going to be back in the office. He gave me a time and I said “OK, come and see me in my office when you get here.” I intended to tell him that I was going to terminate his employment. However he did not come back to the office that day. I later learnt he claimed to have injured himself…
In the course of examination in chief and cross-examination, Mr Dawson stated that he had “made up his mind”/decided that Mr Bayens was not fulfilling his role prior to 15 September 2014. He had asked Mr Bayens to provide a schedule or diary of what work he was doing (Exhibit 8) and he had determined that the diary was deficient. He was also quite angry about Mr Bayens taking TOIL.
Mr Dawson’s evidence is that he should have dismissed Mr Bayens upon his return from Bali in early July but that he did not do so because he had hired Mr Bayens on the advice of Mr Bebich and did not want to cause any tension between himself and Mr Bebich.
The Court accepts as credible that a conversation of this sort between Mr Dawson and Mr Bebich might prove disruptive or, at least, uncomfortable.
As to the other evidence before the Court in relation to timing, some of that that evidence was less than ideal. In large part, this arises because of the considerable delay between the termination event and court proceedings. Memories fade – particularly in relation to dates – and diaries often fail to detail conversations and meetings.
There is, for example, some dispute as to whether Mr Dawson met with Mr Bebich at a local pub and told Mr Bebich that Mr Bayens would need to “lift his game”.
Mr Dawson says this would have occurred sometime in the week of 8 - 12 September 2014. The phone records in the Second Dawson Affidavit (pp.10-11) indicate Mr Dawson was in Adelaide from 9 - 11 September 2014. It is plausible that Mr Dawson may have met Mr Bebich at the Inglewood Hotel on Monday, 8 September 2014. It is also plausible that Mr Dawson met Mr Bebich on the Friday he returned – although, if he had, it is doubtful he would have said “lift his game” as there would not have been much time for Mr Bayens to do so (given that he intended to dismiss Mr Bayens on 15 September 2014 (the following Monday)).
Mr Bebich’s evidence was that no meeting occurred and he had never met Mr Dawson at the Inglewood Hotel prior to his terminating Mr Bayens.
On the evidence, the Court simply cannot determine whether Mr Dawson met with Mr Bebich at a hotel prior to 15 September 2014. The Court is not satisfied that it is more probable than not that the meeting between Mr Bebich and Mr Dawson occurred as stated by Mr Dawson. No weight is attached to Mr Dawson’s evidence in this regard, particularly as that evidence goes to timing and intention.
The question is, on the evidence here, is the Court nonetheless satisfied that, on the balance of probabilities, the decision to dismiss Mr Bayens was made prior to Mr Bayens being injured on 15 September 2014.
The Court places significant weight on the Second Dawson Affidavit and the telephone records tendered in Court. As noted above, these phone records counter Mr Bayens’ staunch denial that he received any phone calls or spoke to Mr Dawson on 15 September 2014.
The records in the Second Dawson Affidavit (pp.11-12) confirm that on 15 September 2014, Mr Dawson called Mr Bayens at 8:57am, 1:12pm and 1:26pm. Those phone calls lasted for 41 seconds, 1 minute and 56 seconds and 4 seconds respectively.
Mr Bayens’ phone records also reveal that he made a phone call at 10:13am to Mr Dawson, lasting 21 seconds (Second Dawson Affidavit, p.7).
Mr Bayens’ evidence was that he never received a phone call from Mr Dawson and that, if he had, he would have gone to Mr Dawson (as he was his boss). He stated that he returned to the office on 15 September 2014 for an appointment and that that meeting lasted approximately one hour. He then had to leave as he was in pain.
The phone records also indicate that Mr Bayens made a phone call lasting some 8 minutes from Yokine at 10:55am. A phone call was also made at 12:25pm from Morley. At 2:11pm, Mr Bayens also made a phone call from the CBD, where the TWU office is located.
It is unclear if Mr Bayens answered Mr Dawson’s phone calls and spoke to him at 1:12 and 1:26 pm. He did, however, call him after the 8:57am call was made (again, something he denied).
It is accepted that Mr Bayens did return to the office on 15 September 2014, although it is unclear at what time and for how long. His phone records appear to indicate this was around 2:00pm as a call was made from within the CBD. This accords with Mr Ferguson’s evidence that he assisted Mr Bayens to the lift shortly after returning from his lunch break.
To the Court, the fact that Mr Bayens denied that Mr Dawson called him (particularly in circumstances where, on the evidence, he himself called Mr Dawson shortly after Mr Dawson called him) raises serious concerns about Mr Bayens’ version of events on 15 September 2014.
Mr Bayens’ evidence was that any interaction with Mr Dawson was “rare”. The evidence shows that Mr Dawson tried to contact Mr Bayens three times in one day. On Mr Bayens’ evidence as to the relationship generally, this would indicate that Mr Dawson wanted to see Mr Bayens and that the request was for a significant reason.
In this context, the phone records do much to support Mr Dawson’s evidence that he had decided prior to 15 September 2014 to terminate Mr Bayens’ employment. The fact that Mr Bayens’ denied that these calls were made indicates to the Court that he was well aware that something was amiss. That, in turn, goes some way towards explaining why he did not attend Mr Dawson’s offices on 15 September 2014, despite being asked to do so – a request which the Court finds was made by Mr Dawson but which Mr Bayens ignored.
Further, while the Court accepts that there is at least an argument that Mr Dawson may have sought to embellish his evidence when he states that he had spoken to Mr Bebich at a hotel and advised him that Mr Bayens needed to “lift his game” (a conversation which, if it occurred, did not occur just days prior to 15 September 2014 – when Mr Dawson says he was going to fire Mr Bayens) in light of all the evidence before the Court (as discussed above), the Court it is satisfied that it is more probable than not that Mr Dawson had made the decision to terminate Mr Bayens prior to his temporary absence because of injury.
In this regard, TOIL event (which predates 15 September 2014) was clearly significant and it is evident that Mr Dawson had had concerns that Mr Bayens was “lazy” or not performing as he should have.
Further, as noted above, the Court also finds the telephone records of significant weight when considered against Mr Bayens’ own evidence that Mr Dawson rarely interacted with him. In that context, three phone calls on one day points to something being amiss and out of the ordinary.
When Mr Dawson actually determined that he would dismiss Mr Bayens is not entirely clear. Nonetheless, the Court is satisfied that the “decision” to terminate Mr Bayens was made in early September, and, importantly, prior to Mr Bayens being injured and taking leave.
There is, further, no evidence before the Court that Mr Dawson was aware on 15 September 2014 when the relevant phone calls were made that Mr Bayens had been injured. Nor was it suggested that this was the case. Had there been evidence to that effect, this arguably, would have cast a negative light on Mr Dawson’s evidence generally.
On the evidence, it cannot be said that the decision to terminate Mr Bayens was made because Mr Bayens was absent due to injury. On the evidence, the decision to terminate Mr Bayens was made prior to any alleged injury or absence from work.
Mr Bayens’ s.352 claim, accordingly, fails.
Timing aside, what was “the substantial and operative reason” for the dismissal?
While the Court is satisfied, on the balance of probabilities, that the decision to terminate Mr Bayens was made prior to 15 September 2014, were the Court wrong in that regard, the Court is nonetheless satisfied that the substantial and operative reason for the dismissal was not, in any way, related to Mr Bayens being temporarily absent due to illness or injury.
In this regard, and in addition to the evidence outlined above, the Court notes the following evidence.
The “you are not at work” comments
It was stressed in evidence by counsel for Mr Bayens that Mr Dawson had made comments to the effect that he was dismissing Mr Bayens because he was “not at work”.
The Court notes that, immediately prior to Mr Dawson terminating Mr Bayens in November 2014, he went to Mr Bebich’s house. Mr Bebich and Mr Hodzic gave evidence that in the conversation that occurred immediately prior to Mr Dawson walking into the house, Mr Dawson stated that Mr Bayens “wasn’t at work and needed to be replaced” (Bebich Affidavit at [17]). Mr Hodzic stated that Mr Dawson said it was because Mr Bayens was not at work (Hodzic Affidavit at [5]).
Mr Bebich and Mr Hodzic were both unimpressive in cross-examination. While the Court attributes some of this to the time between the event and the hearing, when cross examined, Mr Hodzic did not use the words “because he wasn’t at work”. When put to him that had omitted any reference to the phrase “because he wasn’t at work” he responded that Mr Dawson did say that he had dismissed Mr Bayens because he was not at work. However, he did not use those precise words when cross-examined because he was referring to what Mr Dawson had said after Mr Dawson had said that it was “because he wasn’t at work”.
The explanation provided was less than convincing. Given the significance of this phrase to his evidence and the case as a whole, the Court finds it “odd” that Mr Hodzic would not stress its use when asked about what had happened at Mr Bebich’s home.
Mr Bebich’s evidence was as follows:
Counsel: And – and when you say that he used the words” because he wasn’t at work”, that’s not actually an accurate – exactly Mr Dawson’s words?
Mr Bebich: Well, to me – to me there’s a reason why he’s not at work – is because he has hurt his back and he’s in pain and he’s home. And he’s going to physio or doctors or whatever. The doctor has given him time off.
Counsel: No. But Mr Dawson didn’t use the words “because he wasn’t at work”?
Mr Bebich: He said, “Because I need – I need someone there”. I’m pretty sure he said, “I will need someone to do the job: need someone there. He’s not at work”. So I never knew how long it’s going to take Con Bayens to get better to get back to work.
Counsel: Well, if he said, “I need someone there”, those additional words, “because he’s not at work”, are you certain that he said, “because he’s not at work”?
Mr Bebich: Yes, because he’s off work. And I thought, well, there’s a reason he’s not at work
Counsel: Could it be – well, could it be the case that that’s the conclusion that you’ve made as to Mr Dawson’s reason, but that he didn’t actually tell you what the reason was?
Mr Bebich: Well, he told me he’s not at work. I don’t think he wanted to – he knew how I felt about sacking someone who is on Worker’s Comp, so I think that’s the way to soften the blow, “He’s not at work”.
(Transcript, pp.126-127)
The Court does not accept as credible Mr Bebich’s evidence under cross-examination. It reads more like a perception of what Mr Dawson might have been thinking, rather than what he actually said.
Mr Dawson may well have told Mr Bayens that he would need to replace him but, as contended by Ms Cosentino, that is a statement of fact. It is not a reference to a vacancy due to Mr Bayens’ absence. In Mr Dawson’s own words (at [52] of his first affidavit):
…I may have told Con that I needed to replace him, but this was in the context of the decision to terminate his employment. I did not refer to his position being vacant or the time off other than to say his workers compensation claim was a separate issue…
The Court finds this explanation to be entirely credible.
The termination letter
The letter confirming Mr Bayens’ termination is of no assistance. No reasons were given as to why Mr Bayens was being dismissed. While it was argued on behalf of Mr Bayens that this “silence” was evidence that there were, in fact, no reasons for the dismissal other than the temporary absence due to injury, the Court accepts Mr Dawson’s evidence that he believed that, as Mr Bayens was on probation, he did not need to provide a reason for the dismissal. Unremarkably, this is a common perception in relation to termination during probationary periods.
The “injury” argument
Much was made by counsel for Mr Bayens of the fact that Mr Dawson was terminating Mr Bayens’ employment because Mr Dawson did not believe that Mr Bayens was injured and that he was, in effect, “gaming the system” by claiming workers’ compensation.
Putting aside the fact that Mr Bayens was not, in fact, receiving workers compensation when he was dismissed, there is no credible evidence that Mr Dawson intended to terminate Mr Dawson because of any workers compensation claim. There is, however, credible evidence that Mr Dawson was of the view that Mr Bayens was lying about his alleged injury. It is perhaps understandable why, in that context, Mr Bayens and some of his witnesses thought the workers compensation issue was relevant to these proceedings.
The Court finds the matter of Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (“Anglo Coal”) of assistance in relation to what Mr Dawson was or was not thinking in this regard.
In Anglo Coal, the employer dismissed an employee not on the basis of having exercised a workplace right or for being temporarily absent from work but, rather, on the basis of a genuine and well-founded belief that the employee had been dishonest. That is, it was not “because of” the prohibited reason, it was “because of” a genuinely held belief that the employee was dishonest – even though, in actual fact, the employee was legitimately ill at the time: Anglo Coal at [132]-[135].
At [134] of Anglo Coal per Rangiah J states:
... the question of what the employer’s reasons for dismissing Mr Byrne were must be considered on the basis of what the employer knew or believed at the time of the dismissal. The primary judge found that the decision-maker genuinely, although wrongly, believed that Mr Byrne had acted dishonestly. That belief was brought about by Mr Byrne’s conduct. The fact that it was demonstrated at the trial that Mr Byrne was in fact genuinely sick and entitled to take sick leave could not be determinative of the employer’s reasons for dismissing him at an earlier time.
(Emphasis added)
Here, it is evident from the evidence that at the time of effecting the dismissal, a number of factors were at play and at the forefront of Mr Dawson’s mind. Relevantly, Mr Dawson did think that Mr Bayens’ injury was not real and that, as such, any workers compensation claim was wrongly made.
That issue, alone, does not assist Mr Bayens.
To the extent that Mr Bayens adduced evidence that he was not injured, this does not negate the fact that the Court’s role is not to determine whether Mr Dawson’s assessment of Mr Bayens was wrong. Rather, the relevant question here is whether Mr Dawson’s view was genuinely held: Anglo Coal at [133]-[134].
Here, the Court finds on the basis of the evidence before it, that Mr Dawson genuinely believed that Mr Bayens had fabricated his injury. That perception may have been unreasonable but it was certainly open to him.
The “you are not performing” argument
In relation to Mr Bayens’ performance at work, the Court accepts the evidence that Mr Dawson did not intensively supervise Mr Bayens in the course of his employment. That does not mean, however, that Mr Dawson did not genuinely form the view that Mr Bayens was working to a substandard level and was not suitable for employment. In that regard, the Court refers to [98]-[123] above in relation to Mr Bayens’ employment “issues”.
While the Court has accepted that Mr Dawson did not have sufficient oversight of Mr Bayens to have an “informed” view of his work performance, the Court is satisfied that those matters that Mr Dawson was aware of caused him to have significant concerns of Mr Bayens’ suitability for ongoing employment. While it might seem unfair, in this context, that is all the law requires.
Again, to the extent that Mr Bayens adduced evidence that he was a hard worker, not injured, this does not negate the fact that the Court’s role is not to determine whether Mr Dawson’s assessment of Mr Bayens was wrong. Rather, the relevant question here is whether Mr Dawson’s view was genuinely held: Anglo Coal at [133]-[134].
Here, the Court finds that Mr Dawson’s belief was genuinely held.
The Court notes here the remarks of Flick J in Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913 at [56] as follows:
The genuineness of the views held by Ms Pickles is accepted. She presented as a witness who genuinely found offensive the notion that she would take action by reference to a person’s mental disability. But the conclusion that has been reached is that – no matter how genuinely Ms Pickles believed that action should not be taken because of a disability – she nevertheless fell foul of s 351(1) by taking action motivated in part by a “manifestation” of Mr Robinson’s disability, namely a concern as to his “capacity”.
The Court references its earlier findings concerning Mr Dawson’s genuine belief that Mr Bayens was a bludger. The Court highlights that it was the TOIL issue, the other numerous absences prior to 15 September 2014 and the fact that Mr Bayens did not appear to be attending appointments, completing tasks or providing the results that Mr Dawson thought he should have been.
The Court stresses that Mr Dawson’s view that Mr Bayens was a “bludger” was not a “manifestation” of his, or because of his, temporary absence because of his injury. Given the Court’s findings as to the timing of Mr Bayens’ dismissal (being prior to the injury and without Mr Dawson having any knowledge of it) the views Mr Dawson formed as to ability or capacity can safely be “severed” from any temporary absence because of injury. Mr Dawson had formed the adverse view well prior to the injury, noting that “nothing could save” Mr Bayens.
The probationary period argument
Further, in addition to the employment and injury issues discussed above, the Court notes Mr Dawson’s evidence was that he intended to wait until Mr Bayens returned to work to advise him of the dismissal. However, upon receiving advice of Mr Bayens’ probationary period coming to an end, Mr Dawson felt required to effect the dismissal prior to Mr Bayens’ return.
In Anglo Coal at [136] per Rangiah J, His Honour remarked as follows:
I have had some concern about whether this outcome is unjust. After all, Mr Byrne was genuinely sick and was entitled to take sick leave; and his dismissal came about through Mr Power’s mistaken, although honest, belief that Mr Byrne was not sick. However, Mr Byrne could have applied to the Fair Work Commission under s 394 of the FWA for a remedy for unfair dismissal. Under s 385, a person is unfairly dismissed if the Fair Work Commission is satisfied, relevantly, that the dismissal was harsh, unjust or unreasonable. Sections 725, 727 and 729 required Mr Byrne to elect whether to proceed under the general protections provisions or the unfair dismissal provisions of the FWA. The appellants made a tactical decision to proceed under ss 340(1) and 352, presumably because of a perceived advantage in attracting the reversal of onus of proof under s 361, and because the employer would be exposed to a pecuniary penalty for contravention of civil remedy provisions. The disadvantage of that course was that it allowed the respondent the opportunity to discharge its onus of proof by proving that the dismissal was not because of a proscribed reason. If Mr Byrne had applied under s 394 and the Fair Work Commission had made the same findings of fact as those made by the primary judge, it seems inevitable that his dismissal would have been regarded as harsh, unfair or unjust, and that he would have been reinstated. In addition, while Mr Byrne alleged that the respondent had breached the contract of employment before the primary judge, he abandoned his claim for damages. In these circumstances, the absence of any remedy is a consequence of the tactical decisions made by the appellants.
Mr Bayens may well have been injured on 15 September 2014. He may well have been a hard-working and dedicated worker. He may well have been legitimately absent on those days referred to as the “significant absences” and he may well have genuinely believed he was correct to take TOIL.
Mr Bayens could not, however, pursue a claim for unfair dismissal. He was prohibited by virtue of s.382(a) of the FW Act because he had not undertaken the “minimum period of employment”.
While the Court might on one level feel some degree of sympathy for Mr Bayens (as he does sincerely believe that he was wrongfully dismissed), s.382(a) of the FW Act has the statutory purpose of allowing an employer to assess the capacity and conduct of a new employee without fear of unfair dismissal claims if they are not deemed suitable.
On the evidence, it is clear that Mr Dawson was aware of the above statutory limitations, which is yet another reason he effected the dismissal at the time he did – not because Mr Bayens was absent or injured, but because he wanted to prevent any future wrongful dismissal claim.
Tacit, or otherwise, it cannot be said that the probationary period was not at the forefront of Mr Dawson’s mind when he dismissed Mr Bayens. While this might seem unfair, within the context of a s.352 claim, the fairness of any held belief is largely irrelevant.
On the evidence, the Court finds that the actual reason (in Mr Dawson’s mind) when he dismissed Mr Bayens was not because Mr Bayens was absent because of illness or injury: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [52] (“Endeavour Coal”). Rather, his “state of mind” was his “opinion or belief” that Mr Bayens was lazy, not performing as required and had fabricated his injury and the reason that the termination occurred when it did was because the relevant employment period was coming to an end.
As stated, these perceptions might in fact be wrong and completely unfair. Nonetheless, even if it were proven that Mr Bayens was, in fact, quite good at his job and was actually injured, that fact cannot, on the evidence here, be seen as determinative of Mr Dawson’s reasons for dismissing him.
Conclusion and Findings
On the evidence, the Court finds that Mr Dawson decided to terminate Mr Bayens prior 15 September 2014 (the day of Mr Bayens’ alleged injury and work related absence arising from that injury).
Further, and in any event, the Court finds that the actual reason (in Mr Dawson’s mind) for finally dismissing Mr Bayens on 3 November 2014 was not because Mr Bayens was absent because of illness or injury: Endeavour Coal Pty Ltd at [52]. Rather, it was that Mr Dawson genuinely believed that Mr Bayens was lazy, not performing as required and had fabricated his injury, and that the minimum employment period was coming to an end.
Having found that Mr Dawson’s state of mind and reason for dismissing Mr Bayens was not for a prohibited reason, by virtue of s.363(1)(b) of the FW Act, the TWU is taken not to have contravened s.352.
The application must, accordingly, be dismissed.
Prima facie, this is a no costs matter: see, FW Act s.570. However, should an order for costs be sought, an application in a case is the appropriate process through which to address the issue of costs.
I certify that the preceding two-hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 23 May 2019
CORRECTIONS
Paragraph 203, line 2 – delete “Dawson” insert “Bayens”.
Paragraph 203, line 3 – delete “from that absence” insert “from that injury”.
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