Brown v DS and MJ Batten T/As Pane in the Glass
[2012] FMCA 296
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN v DS & MJ BATTEN T/AS PANE IN THE GLASS | [2012] FMCA 296 |
| INDUSTRIAL LAW – Termination of employment – unfair dismissal – where applicant made claim for workers’ compensation – whether adverse action taken against employee because of employee’s workplace right or physical disability – whether employee dismissed because of temporary absence from work due to injury – whether employer influenced by workers’ compensation claim when employee dismissed – where employer offered to pay medicals – whether coercion to not exercise workplace right – whether employer made false or misleading representations about employee’s workplace rights – where money deducted from employee’s final pay – where deduction not authorised by employee – whether breach of s.323 of the Fair Work Act 2009 (Cth). |
| Fair Work Act 2009 (Cth) ss.323, 324, 340, 343, 345, 351, 352, 361, 545, 546 |
| Gofton v Queensland Newspapers Pty Ltd [2012] FMCA 64 |
| Applicant: | MICHAEL BROWN |
| Respondent: | DS & MJ BATTEN T/AS PANE IN THE GLASS |
| File Number: | SYG 1760 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 March 2012 |
| Date of Last Submission: | 29 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | D Currie |
| Solicitors for the Applicant: | CBD Law |
| Solicitors for the Respondent: | Conditsis Lawyers |
ORDERS
Application dismissed.
The Respondents shall pay the Applicant the sum of $317.27 within twenty-one days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1760 of 2011
| MICHAEL BROWN |
Applicant
And
| DS & MJ BATTEN T/AS PANE IN THE GLASS |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Brown is a glazier living and working on the central coast of New South Wales. In 2009 he met a Mr Trench, another glazier, and they worked together frequently thereafter. Sometimes they worked as paid employees and sometimes as sub-contractors to other glaziers. In May 2011 Mr Brown saw an advertisement in a local paper. The advertiser was a business known as “Pain in the Glass”, operated by Mr David Batten and his wife. Mr Brown had been to school with Mr Batten although they were not close friends. Mr Brown told Mr Trench about the advertisement and they applied. Mr Trench and Mr Brown were seen as a team. Mr Trench did not drive a vehicle but Mr Brown did and they would travel together to jobs. In May 2011 they commenced working as sub-contractors to the Battens and on or around 1 July 2011 they became full-time casual employees on a wage of $900.00 per week clear. On 13 July 2011 Mr Brown and Mr Trench were working at a job in Merewether when Mr Brown injured his hand. He remained working that day but when he returned home his hand had swollen and he believed he needed medical attention. He saw doctors about his hand and was informed he needed an operation. He advised his employer. Mr Batten suggested that he not make a claim under the workers’ compensation policy but that Mr Batten would pay for any medical attention needed. In the event a workers’ compensation claim was made. Mr Brown had an operation on 15 July 2011. He returned to work at the factory for light duties on 18 and 19 July. On 20 July certain events occurred which resulted in his and Mr Trench’s dismissal.
On 28 September 2011 Mr Brown commenced proceedings in this court seeking declarations and orders and penalties under the Fair Work Act 2009 (Cth).[1] He sought a declaration pursuant to s.340(1)(a) that the respondents had taken adverse action against him because he had a workplace right. He sought a declaration pursuant to s.351 of the Act that the respondents had taken adverse action against him because of his physical disability. He sought a declaration under s. 352 of the Act that he was dismissed because he was temporarily absent from work because of illness or injury. He sought a declaration pursuant to s.343 of the Act that action had been taken against him not to exercise a workplace right, namely his right to make a claim for workers’ compensation. He sought a declaration pursuant to s.345 of the Act that the respondents had knowingly or recklessly made a false or misleading representation about his workplace rights. Finally, he sought orders under s.545 of the Act, including civil penalties under s.346. He sought compensation pursuant to s.545(2) for losses suffered as a result of the contravention, namely wages, and for orders that the civil penalties be paid to him pursuant to s.546(3).
[1] “Act”
The respondents resisted this application. They argued that Mr Brown had not been dismissed because he had injured his hand or because he made a claim for compensation. They argued that he had not suffered the loss alleged because he had been paid appropriate sums by the workers’ compensation insurers and there was no further money owing.
Although not specifically pleaded as a claim for breach of contract in the court’s associated jurisdiction, the proceedings dealt with the claim by Mr Brown that he was owed the sum of $300.00 being moneys deducted from his last pay for the cost of glass ordered by Mr Trench for a job he was undertaking at Trafalgar Avenue, Umina. It was said by the respondents that this money could be deducted from Mr Brown because it had been ordered by a partnership that he had set up with Mr Trench under the name M & M Advanced Aluminium.
In the proceedings evidence was given by Mr Brown and Mr Trench on Mr Brown’s behalf. Evidence was given by Mr David and Ms Melissa Batten, by Mr and Mrs Batten’s son Joshua Doré, a Mr Troy Westbrook, a Ms Jennifer Nicholls, a Ms Isobelle Howells and Mr Brian Batten. The resolution of these proceedings is dependent upon the findings on the evidence. There are, however, some principles of law which guide how that evidence is to be considered.
Legal Considerations
The manner in which an applicant, in proceedings such as these, establishes his or her right to the declarations and relief sought is qualified by the s.361(1) of the Act:
“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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.”
In Gofton v Queensland Newspapers Pty Ltd [2012] FMCA 64, Jarrett FM helpfully, and I believe correctly, reviewed the current authorities on the interpretation of this subsection at [11] to [15]:
“[11] Logan J explained the nature of the onus cast upon applicants like Ms U in applications such as this in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:
13. Subject to the operation of s 360 and s 361 of the Fair Work Act, [the applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[12] Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 summarised the effect of s.361 as follows:
10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
[13] Such an approach is consistent with the approach outlined by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490. In that case his Honour was dealing with s.664 of the Workplace Relations Act 1996 (Cth), but what his Honour there said is equally apposite to a consideration of the comparative provisions of the Fair Work Act 2009. After tracing the history of provisions similar to s.361 and the approach by Courts to those provisions, his Honour summarised the approach thus:
o 34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
o a) Mr Gofton proving the fact of employment and its termination;
o b) Mr Gofton proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
o c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
o d) In discharging that onus Queensland Newspapers do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.
[14]In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Gray and Bromberg JJ, pointed out:
The onus cast by s.361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s.346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s.346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s.346 attribute or has or had engaged in or proposes to engage in the s.346 industrial action.
[15] Those observations are equally apposite, in my respectful view, to the operation of s.361 where the relevant contraventions are alleged to arise under ss.340(1), 345(1) and 351(1) of the Act.”
What is clear from these authorities is that it is not part of the duty of this court in a case such as this to embark upon an investigation as to the fairness of the dismissal. Provided that the respondent can show that when he came to the decision to let Mr Brown go he was not influenced by the fact that Mr Brown had made a claim for workers compensation then he would have made good his defence. This does not deal with the application for a declaration under s.345 which relies upon evidence concerning the conversation between the parties when Mr Brown informed Mr Batten of the injury and requested a workers compensation claim be made.
The Evidence
It is not in dispute that Mr Brown was employed by Pane in the Glass at the relevant times and therefore had the workplace rights that he claims. The dispute between the parties upon which evidence was called relates to the reasons for Mr Brown’s dismissal. The court heard a considerable amount of evidence about the injury. Mr Brown and Mr Trench deposed to the fact that it occurred whilst they were lifting some five sets of bifold doors off the back of a ute. Mr Brown’s hand got caught under the doors and he was later found to have a comminuted fracture of the left 5th metacarpal base. Mr Brown is left handed. Mr Brown and Mr Trench worked on in the job after the injury had occurred but when Mr Brown returned home his hand had swollen and he sought medical treatment. It is my understanding that the respondents now accept that the accident happened at work as deposed to by Mr Brown and Mr Trench but that is not relevant to these proceedings. Of considerable relevance is the fact that the Battens had doubts as to whether the accident had occurred on the job and believed that it might have happened in a fight the night before. The way in which these suspicions are manifested and Mr Brown’s reactions to that form an important part of the evidentiary matrix that the court must consider. There are, however, other matters of equal weight that do not bear directly upon the injury.
It is the Battens’ case that the reasons for the termination of Mr Brown (and Mr Trench at the same time) were an amalgam of facts that did not include Mr Brown’s making a claim for workers compensation. I shall deal with each in turn.
M & M Advanced Aluminium Issue
Mr Trench and Mr Brown have been in the glazing/construction business for many years. They have worked together on and off since 2009. It was said in evidence that Mr Brown had skills as a salesman and estimator and that Mr Trench’s strengths lay in the more physical aspects of the work. Mr Trench had been considering opening his own factory before he started working for Pane in the Glass and at times spoke with Mr Brown about going into business with him. Nothing had materialised by the time the two started work as sub-contractors. Mr Batten deposed that:
“Between the applicant commencing contracting work with the business and his employment being terminated the applicant and I and Mr Trench had several conversations about the establishment of their own business. During these conversations on occasions the applicant and on other occasions Mr Trench said words to the effect:
“We are in the process of getting a factory at Rawson Road Woy Woy. We are gearing up to getting our business going and we should be right to go soon.
At one point Mr Trench said to me words to the effect:
“I am organising to bring down my glass ?????? from up north for our business.”
Mr Brian Batten, Mr David Batten’s father, gave evidence that:
“During the first week of July 2011 I was at the factory premises when the applicant in these proceedings, Michael Brown, said words to me to the following effect:
“In the next few weeks I will be starting my own business up, I am renting a factory at Rawson Road Woy Woy. I will be making out windows for David and teaching David’s apprentices how to manufacture windows at his expense.”
Ms Isobelle Claire Howells swore an affidavit, and was not required for cross examination, in which she told that she was the proprietor of a light industrial unit at Rawson Road Woy Woy in respect of which Mr Brown negotiated with her and her husband for a lease. She produced three emails from Mr Brown, the first of which was dated 12 July:
“Hi Kenneth and Isobelle
I was just wondering if you received the information regarding Rawson Road Woy Woy that I sent you last night. If you haven’t could you please let me know so that I can forward it again. Myself and Mark are keen to get things going. Thank you very much.”
The second email was from Ms Howell to Mr Brown advising him of the amount of the rent and telling him that the tenancy could start as soon as the first month’s rent was received. The third email was from Mr Brown dated 21 July stating:
“Dear Ken and Isobelle
Thank you kindly for waiting for your money. If you check your account you will find that $1,150.00 has been deposited. We thank you both for your patience and look forward to a prosperous relationship. Could you kindly call Michael on [number given].
Regards
Michael Brown and Mark Trench
In her affidavit Ms Howells states that Mr Brown said to her words to the effect:
“I am going into partnership (or business) with Mark Trench.”
She recalls that most of the conversations were with Mr Brown and that Mr Trench was in the background. She also deposed to the fact that possession of the unit was taken before the lease was signed and that sometime after 21 July Mr Brown telephoned her and asked her to put the lease in the name of Mr Trench only. He said it was for “tax purposes”. A second lease was prepared and Mr Trench signed it.
Mr Brown stated in his evidence, and under cross-examination, that he did not intend to go into business with Mr Trench as a partner but that he wanted to share the premises with him to “store his stuff”. The only evidence of Mr Brown and Mr Trench being on the premises at the same time is when there was a delivery of some glass that Mr Trench had ordered from Mr Batten a few days after the employment had been terminated. The cost of this glass, which was invoiced by the Battens to M & M Advanced Aluminium at $420.00 on 27 July 2011, was in fact $300.00 and this is the $300.00 that was deducted from Mr Brown’s last pay.
Mr Brown’s evidence about the formation of M & M Advanced Aluminium was that before commencing work with the Battens Mr Trench had said to him that he had been looking at premises and considering opening his own factory and that they casually spoke about going into business together, however, nothing serious ever came out of it:
“On one occasion my partner drew up some business cards after I told that Mark and I were looking at going into business together. I am aware that soon after his employment was terminated Mark leased a factory at Woy Woy.”
Mr Brown denied telling any other persons that they were going to do this.
Mr Brown’s partner, Ms Katherine Johns, gave evidence that after the dismissal she was hoping that Michael and Mr Trench would commence business together and so she went on to her computer and designed the business cards and told them that they should go into business together and gave them the cards. She says that Mr Brown indicated that he would not be going to work with Mr Trench and so she gave the cards to Mr Trench.
Mr Trench agreed that he had spoken to Mr Batten about him possibly opening his own factory and said words to the effect:
“I am looking at leasing a factory at Woy Woy. I’d work weekends and after hours.”
Mr Trench’s evidence was that he and Mr Brown were looking to lease premises together but not to go into business together. He agreed that he had conversations with Mr Batten about the premises but not about going into business with Mr Brown. In regard to the business cards he says that he discussed those with Mr Brown and his partner, they tossed around a few ideas. He said they were considering going into business. He said that he stopped considering business arrangements with Mr Brown after Mr Brown told him that he was being pressured by the insurance company to get a full time job and that was a few days after their employment with the Battens had terminated.
It is my belief that Mr Batten was aware when Mr Brown and Mr Trench first started to work as sub-contractors that either together or individually they had other work outside his. The evidence is that Mr Trench ordered the glass for the work in Umina whilst he was employed by Mr Batten. Mr Batten did not appear to have any problem with them doing work independent of his firm provided it was not done in his time and was happy to supply them. Whilst I am unable to make a finding that Mr Trench and Mr Brown did agree to go into business I am satisfied that this was the impression that Mr Brown gave people including Mr Batten and the two witnesses who reported their conversations to Mr Batten. Thus I can be satisfied that at the time of the dismissal Mr Batten had it in mind that Mr Brown and Mr Trench would not be long in his employ. To the extent that I come to this view on the basis of evidence other than Mr Browns’ it is because I prefer that evidence to Mr Brown. I think that Mr Brown’s affidavits were carefully drawn to give the impression that renting the premises was more Mr Trench’s initiative than his own. That evidence was clearly rebutted by the evidence of Ms Howells. It is one of several instances where the respondents have shown Mr Brown’s evidence to be less than forthright.
The Rubber Gasket Issue
Mr Batten deposed that sometime in July 2011 Mr Brown ordered some materials for a job for Pane in the Glass from a company that formerly employed him “PMA”.
“The applicant and Mr Trench went to PMA to pick up the material. Later that day the applicant and Mr Trench arrived at the factory with the material and I saw a rubber gasket with a PMA label on it. I said to the applicant “Whats this?” The applicant said: “That’s a little bonus for you.” This was said in the presence of Mr Trench and Joshua. Mr Trench then said: “Brownie’s good at doing shit like that.” I was shocked at what I was being told by the applicant and Mr Trench but I did not say anything and intended to follow it up directly with PMA. Within a few days, after I had check the order, I telephoned Mr Mark Twee at PMA. I did not hear back from Mr Twee about the rubber gasket. The business continues to order materials from PMA.”
This evidence is corroborated by Mr Doré, the apprentice and stepson of Mr Batten. He states at paragraph [10] of his affidavit:
“[10]I recall a time I was at the business’ factory, when there was me, Mr Brown and Mr Trench present. I can’t recall when this was. I saw a rubber gasket that fits around bi-fold doors and I assumed it was part of an order that they had collected a day or so before in Sydney.
I said to Mr Brown: “How did you go getting the rubber”?
Mr Brown said: “I didn’t pay for it, I just picked it up and walked out with it.”
[11]I can’t recall whether it was that day or another, but I remember being at the factory and hearing Dad ask Mr Brown something about the rubber gasket, and I heard Mr Brown say to Dad, wit a smile on his face, words to the effect: Don’t worry about it, that’s a bonus for you.”
In Mr Brown’s affidavit in reply he denies the paragraph in Mr Doré’s affidavit and says in regard to the paragraph in Mr Batten’s affidavit:
“In respect to paragraph 7.14 I deny the contents therein and annexed hereto and marked with the letter “A” is a copy of my bank statement dated 1 July 2011 showing payment to Pressed Metal Aluminium.”
The annexure does indeed show two eftpos payments to PMA in the sum of $46.02 and $50.34. Under cross examination Mr Brown said that he went to PMA to pick up the materials with Mr Trench and brought them back. He did say to Mr Batten:
“There is a little bonus for you”
and he accepted that Mr Trench said words to the effect:
“Brownie is good at doing shit like that.”
However, he said that he did not steal the gasket, he paid for it. He said there were two transactions on his eftpos account, there were two things missing from the prepaid invoice and the gasket was one of them and he paid for it. He was then shown two documents (Exhibit A) which were copies of invoices from PMA. The one for $46.02 was an invoice for what is described as an “Fin Adaptor MF 6.5 MTR”. The invoice for $50.34 was for goods described as “1 pivot head/sill W 4 metres, 2 pivot Jan W 4 metres, 2 panel style W 4 metres.” There is no reference to a rubber gasket. In the face of this evidence I cannot accept Mr Brown’s explanation or his statement that he paid for the gasket. I think it is more than likely that he gave Mr Batten the clear impression that the gasket had not been paid for.
Mr Doré’s Computer Issue
Mr Brown had a laptop computer which he took to work with him. He utilised a program on it for the Pane in the Glass business. He let Mr Doré use the computer from time to time. Mr Doré deposes that on the day before Mr Brown was injured he used Mr Brown’s computer with Mr Brown’s permission. It would appear that he logged on to a search engine utilising his own log in code and password but did not log out. When Mr Brown took the computer home he tried to get into it but he could not because it kept coming up with Mr Doré’s log in name. Mr Doré deposes that at about 10.00p.m. or later that evening he received a telephone call on his mobile phone. It was Mr Trench telephoning. Mr Doré deposes that Mr Trench said:
“Brownie is here and wants a word with you.”
Mr Brown then came to the phone and, it is deposed, started yelling at him in an aggressive voice:
““You fuckwit, you’ve got onto my computer and fucked it. Now I can’t sign into my email address because I’ve forgotten my password. Every time I try to get in it comes up with your name.”
Mr Brown yelled out words to this effect once or twice before I could say anything. I told him that all I had done with his computer was to sign into my email address.”
Mr Brown continued to yell abuse and said several times:
“I had “fucked his computer”… The call lasted about five minutes or so. I was shocked to have been spoken to by Mr Brown in that manner or at that time of night, I was apprehensive about what he may have done the next day because I assumed I would be working with him the next day.”
Mr Doré spoke to his stepfather the next morning and told him about the call and said:
“The way Mick was carrying on last night if he saw me today it would be on (fight).”
Mr Batten said to him:
“I was planning for you to work with him in the later day but don’t worry about it, don’t worry about working today.”
Mr Batten’s evidence was corroborative of Mr Doré’s. He told that he was very concerned for his stepson; he was concerned that Mr Brown had been aggressive and threatening to Mr Doré and told him not to come into work that day so that he would not have to work with Mr Brown. Mr Brown admitted that he rang Mr Doré, that he did so from Mr Trench’s house but denied that he was rude, aggressive or threatening or that he laughed at Mr Doré in a patronising way. He denied that he was intoxicated or that his speech was slurred. He strongly disagreed that he called Mr Doré a “fuckwit”. He said he was not even rude to Mr Doré and that he did not say on several occasions that Mr Doré had “fucked his computer”.
Mr Troy Westbrook, a former employee of Pane in the Glass gave evidence that in about July 2011 one morning [a date later agreed to be 20 July, the day of the dismissal], he was at the factory waiting to speak to Mr Batten who was not there. However, Mr Brown was there waiting for Mr Batten:
“[5].I could see that Mr Brown had his hand bandaged up and to me, he appeared not to be happy about something. Whilst we were both waiting for David to arrive he said to me in words to the following effect:
“I’m packing up my gear and getting out of here. I’m sick of the place and insecure work. Me and Trenchy have got a factory at Woy Woy and we’ll be taking back he work we’ve given to Dave. I’ve fucken hurt my hand working for the prick and now I can’t work and he won’t put me on compo. I’m going to take him to court. Josh wrecked my lap top. I’m going to smash him.
[6].When Mr Brown said these words he was speaking in an aggressive, loud voice.”
I have already expressed my concerns about Mr Brown’s credibility. In regard to the incident with the computer I prefer the evidence of Mr Doré as to what occurred. Mr Trench does not deal with this matter in his affidavit. I am satisfied that Mr Brown did act aggressively towards Mr Doré about the computer on that evening and remained in an aggressive mood towards him.
The Events on 21 July Issue
The context of these events is that when Mr Brown first injured his hand he told Mr Batten about it and that he was going to seek medical advice with which Mr Batten agreed. He went first to the hospital but there was a very lengthy waiting list so he went back home and the next day he went to his GP. The GP sent him to the hospital for an x-ray. The x-ray revealed the fracture to the 5th carpal bone and the requirement for surgery which was due to take place the next day (Friday). Mr Brown telephoned Mr Batten and on his version of events the following conversation took place:
“[18]On the same day, whilst on my way to the hospital I telephoned Dave and I said:
“I went to the hospital last night about my hand and it’s broken, it looks like I will need to have surgery.
He then said:
“I suppose you will need to get it through my Workers Comp.”
I said:
“Yes I have no choice the doctors here have automatically filled in the paperwork to workers comp. I had to tell her I hurt myself at work.”
He said:
“I have just recently had a worker’s comp claim and I am still paying for it. My premium is going up now; I am not really happy about this.”
I said:
“I am sorry it was an accident.”
He then said:
“You don’t need to put in a claim I’ll pay for your medicals.”
I said:
“It’s too late. The paper has been filled out.””
When Mr Brown attended the hospital on the Friday he was told that they could not go ahead with the surgery because they needed a workers compensation claim number. Mr Brown telephoned Mr Batten again but Mr Batten was on a job and told him to speak to his wife who had all the paperwork. Mr Brown did so. Again, according to Mr Brown’s affidavit the following conversation took place:
“[19] Following this I telephoned Mrs Melissa Batten and I said:
“They won’t do the surgery because they need a claim number.
She said:
“I didn’t even know about your accident.”
I said:
“The hospital rang Dave to get details and Dave told them they need to talk to you because he was on a job at Somersby and he was too busy.”
Melissa said:
“This is first I found out about it.”
Approximately 15 minutes later, Mrs Batten called back with a claim number. At about 6.00p.m., I was transferred to Berkeley Vale Private Hospital where I undertook the surgery to my left hand. I was discharged from hospital at about 10.30p.m. the same day.””
I think I should say at this point that accepting this evidence in its entirety there is not enough to make a finding on the balance of probabilities, taking into account the dicta in Brigginshaw v Brigginshaw that Mr Batten knowingly or recklessly made a false or misleading representation about Mr Brown’s workplace right to claim workers compensation. For that is what is alleged against him. True it is that Mr Batten offered to make the payments himself but after Mr Brown said it was too late and that he told the doctors that this was a workers compensation claim nothing further was said according to Mr Brown. The claim proceeded as a workers compensation claim. Mr Brown was paid all that he was entitled to by the insurer and the provision of the required details by Mrs Batten was speedy enough to ensure that Mr Brown was operated on that day.
Mr Brown appeared troubled about obtaining his wages and was not clear as to whether he received those from the insurer or from the business. He had a conversation with the insurer from which he understood that he was to collect the wages from the business. According to his evidence in his affidavit on 20 July he telephoned Mrs Batten:
“[23] As a result of my conversation with Maria, I called Melissa at work and I said:
Melissa, I just called CGU and they said that they paid you my wage for last week directly and they gave you instructions to pass it on to me. Can I come pick it up?
Melissa then said:
I don’t think your injuries happened at work. My son reckons he spoke to you on the phone the night before and you were drunk and you broke your hand in a fight.
I said:
I called your son the other day only because he locked my computer and I could not access my emails.
She said:
Mark told me that he had been changing the gears of your car on the way up to Newcastle.”
I said:
He did not do that. What’s going on? I will talk to Dave.
She said:
I don’t believe you. I know you injured your hand the night before.
I said:
That’s not true. What are you going on about?
As Melissa would not listen, I went to see Dave at the Factory.”
Mr Brown then went to the factory. According to his evidence only the following conversation took place:
“I said to Dave:
Hey what’s going o? Your wife just called me a liar, I am not really happy about that. You know Mark was only joking when he said he was changing gears for me. I am sorry I have had an accident. I didn’t mean to. I will come back to work as soon as I get the go ahead for suitable duties.”
Mr Batten’s recollection of those events is more detailed. He states:
[7.12]Further, as to paragraph 23: In an aggressive tone and manner, the applicant said: “Melissa’s questioning me about my claim. I’m not happy about that. Mark was only joking about changing the gears for me on the way to the job.” I believed then and now, it was strange that the applicant would make a such a comment when I had never raised the matter with him.”
I said:What about your late night call to Joshua, the night before the Merewether job, when you abused him and you were off your face?
The applicant said: I have a few beers every night.
The applicant then turned to Joshua who was nearby and very aggressively said:
This little fuckwit, I’ll smash him with one hand.
At that time Joshua was not within hearing distance as he was still unloading the truck. The applicant was well aware that Joshua was my son (step son).
I then said to Mr Trench:
What was that about you changing the gears for Brownie on the way up to the job?
Mr Trench said: I just meant it as a figure of speech. I just meant that I was used to doing a lot of things for him.
Both the applicant and Mr Trench stared at me and then at Joshua, and the applicant said to me in a threatening and aggressive manner, words to the effect:
I’m not the sort of bloke you want to be calling a liar.
I felt that the situation was potentially, very dangerous although I was more concerned for Joshua. I was afraid about what may have happened. I could see that the applicant was very angry and that by his body language and attitude, that Mr Trench was in support of him.
I said something like: Calm down, we’ll sort it out later.
There was then a pause for what seemed like a minute or so, when the applicant and Mr Trench were looking at each other. Fortunately, they both got in the station wagon of the applicant and left with the applicant driving, causing the wheels of his car to spin aggressively and in my view, dangerously, as he drove out of the work car park during work hours where there were people in the area.”
There is no reference to this conversation in Mr Trench’s affidavit but he was cross examined about it. He said that he remembered the conversation but he did not recall Mr Brown saying he was going to smash Mr Doré. He did not think he was qualified to say whether or not Mr Brown was upset at the time and he did not recall if Mr Brown was behaving normally or was being aggressive. Mr Doré deposed that he was there when Mr Brown first arrived but he went to the shop to buy something to eat. He was with Mr Trench. He states:
“A little while later I returned to the factory. Upon my return I saw Mr Brown get into his car, a station wagon, and he then proceeded to do a “burn out” on the road as he left the car park. The tyres to Mr Brown’s car screeched loudly and I saw the rear of his car slide sideways. At that time there was some pedestrians and cars around.”
There is also the evidence of Mr Westbrook previously extracted.
I am satisfied that Mr Brown’s affidavit evidence does not tell the full story of what occurred on that day. I believe that Mr Brown was, rightly or wrongly, upset as a result of his conversation with Mrs Batten in which he had been accused of lying about the injury and that he was still annoyed with Mr Doré about the computer. I am satisfied that he did act aggressively towards Mr Batten. I note that Mr Brown agreed in cross examination that Mr Batten was a passive sort of fellow and so I accept Mr Batten’s evidence that the incident made him fearful of Mr Brown and concerned for his stepson. I make these findings on the basis of the evidence that I have rehearsed concerning what occurred on that day. There was considerable further evidence of communication between Mr Brown and the Batten family thereafter including the report of an incident to the Police. At the very best this could only be evidence of tendency covered by s.98 of the Evidence Act. But I do not believe that I need this to come to the views I have expressed which are based upon my preference of the evidence of Mr Batten, Mr Doré and Mr Westbrook to that of Mr Brown and the corroboration that Mr Westbrook and Mr Doré’s evidence gives to that of Mr Batten.
The Dismissal
The circumstances of the dismissal are not seriously in dispute. They occurred after the altercation between Mr Brown and Mr Batten referred to at [35] of these reasons. In Mr Brown’s affidavit he says:
“[24] Soon after I left the factory Dave called me and he said words to the effect of:
“I have had enough of all of this. It’s all too hard; I can’t run this business like this. I am shutting the doors of the business right now. I don’t need you to work for me anymore. I am better of working as a contractor. Can you please tell Mark I don’t need him either? You can come back tomorrow and get your stuff.”
I immediately called Mark and I said:
“I just spoke to Dave and he said he is going to shut the doors of the business. He said to go back tomorrow and pick up our stuff.”
Mark said:
“Hang on what’s going on let’s go back to the factory I need to get my tools out of there.”
Mark called me back a few minutes later and he said:
“I called Dave. I want to get my stuff today can you take me there?”
I said:
“Okay.”
I picked Mark up from his place and we drove back to the factory. When we got there David said:
“I cannot run the business anymore.”
Mark and I collected our tools whilst Dave continued talking about the business. I said:
“Good luck with it.”
David said:
“Come back tomorrow and I will get your pay ready.”
[25]The next day Mark and I went back to the factory. We collected our final pay and we left.”
Mr Trench deals with it at [9] and [10] of his affidavit:
“[9] I immediately called Dave and I said:
“Is this true, are you closing the business?”
Dave said:
“Yes, I have had enough of not being able to get ahead so I am closing the business and I will do what I used to do, just subcontract to others.”
I said:
“Okay them, I will be there in a minute and pick up my tools.”
[10]Michael picked me up from my place and we sent back to the factory to collect my tools. David continued talking about closing his business. I recall saying to him words to the effect of:
“Good luck then. You are better off not carrying the dead weight.”
Mr Batten in his affidavit explains the thinking behind the words used at paragraphs [7.13] and [7.14]. This is his response to the claims that it was Mr Brown’s making of a workers compensation claim and his insistence upon it being dealt with by the insurance company and that he be appropriately paid was the reason for the dismissal:
[7.13]As to paragraph 24: It took some time for my fear to subside and when it did, I began to consider, “what now”? We were a very small family business and had never before encountered such aggression and threats of violence to our family by employees. Our business was such that it required that all our employees be able to work with one another at very short notice. The business was not big enough, to be able to ensure that one worker would not have to work with another. To make matters worse, our other apprentice, our son, Joel Doré had left earlier that week. I was also concerned about my responsibility to Joshua, not only as his father, but also as his employer.
[7.14]Further, as to paragraph 24: My thought process at that time was: I’ve been working my guts out trying to establish this business for the past three years; I’ve just lost an apprentice and now this; I gave them a go as contractors and they then wanted to go on wages and three weeks later, there is all this drama; I’m paying these guys good money, even though money is tight and the Business is doing it tough; There was also the issue of the dishonesty of the applicant in telling me in the presence of Joshua and Mr Trench, that he had stolen a rubber gasket, worth over $100, from his former employer, PMA Press Metal Australia (“PMA”) (see paragraph below); On top of that, they are talking of going out on their own and they are doing their own jobs on the side; I’m better off going back to working as a contractor. I telephoned Melissa and told her what had happened.
I did ring the applicant and told him words to the effect of what he deposed in paragraph 24 of his affidavit.
Sometime in July 2011, the applicant ordered some material for a job for the Business, through his former employer, PMA in the western suburbs of Sydney. The applicant and Mr Trench went to PMA to pick up the material. Later that day the applicant and Mr Trench arrived at the factory with the material and I saw a rubber gasket with a PMA label on it. I said to the applicant: “What’s this?” The applicant said: “That’s a little bonus for you.” This was said in the presence of Mr Trench and Joshua. Mr Trench then said: “Brownie’s good at doing shit like that.” I was shocked at what I was being told by the applicant and Mr Trench but I did not say anything and intended to follow it up directly with PMA. Within a few days, after I had checked the order, I telephoned Mr Mark Twee at PMA and said words to the effect: “I’ve got some property here that hasn’t been paid for by me. Michael has picked it up when picking up some ordered material and him and Mark have been bragging about it.” Mr Twee said: “That wouldn’t surprise me, we had a lot of trouble with him when he worked here.” I said: “If you want it, let me know and I’ll get it to you.” I did not hear back from Mr Twee about the rubber gasket and it is still where the applicant left it in the factory. The Business continues to order materials from PMA.”
Mr Batten was cross examined and agreed that the conversation was as deposed to by Mr Brown. He was not challenged about paragraphs 7.13 or 7.14 of his affidavit or why he did not give Mr Brown those true reasons for the dismissal. This failure to test Mr Batten does not assist me to come to any conclusion contrary to his evidence. In any event I am satisfied that Mr Batten is a witness of truth and that he has here given the true reasons for terminating Mr Brown and Mr Trench. Whilst he may have changed his mind about closing the business, he clearly felt that he did not want as an employee a person as aggressive and threatening to him and members of his family as was Mr Brown.
The $300.00 deduction
The deduction made was from Mr Brown’s final pay. That pay was an amount payable to an employee in relation to the performance of work. During the course of the hearing I made reference to the fact that I was under the impression that deductions from pay were not permitted under the Act and indeed had not been permitted since the passing of the The Truck Acts[2]. This matter was not taken up by counsel on either side but the fact is that s.323 of the Act does prohibit such deductions. Section 323 is in the following form:
[2] “The Truck Act 1725 – 1940 UK”
“Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
Note 1: This subsection is a civil remedy provision (see Part 4-1).
Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) leave payments.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c) the use of an electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Note: This subsection is a civil remedy provision (see Part 4-1).”
The permitted deductions referred to in sub-s.313(1)(a) are dealt with at s.324:
Permitted deductions
“(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:
(a) the deduction is authorised in writing by the employee and is principally for the employee's benefit; or
(b) the deduction is authorised by the employee in accordance with an enterprise agreement; or
(c) the deduction is authorised by or under a modern award or an FWA order; or
(d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.
Note 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:
(a) forgo an amount payable to the employee in relation to the performance of work; but
(b) receive some other form of benefit or remuneration;
will be permitted if it is made in accordance with this section and the other provisions of this Division.
Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.
(2) An authorisation for the purposes of paragraph (1)(a):
(a) must specify the amount of the deduction; and
(b) may be withdrawn in writing by the employee at any time.
(3) Any variation in the amount of the deduction must be authorised in writing by the employee.”
It is quite clear from the evidence that I heard that the deduction was not authorised by Mr Brown and I am satisfied that it was not for his benefit because I am not convinced that Mr Brown and Mr Trench were in partnership at the time Mr Trench ordered the glass from Mr Batten or at the time that Mr Batten delivered it. I accept Mr Trench’s evidence that the glass was ordered for his work and that he was not in partnership with Mr Brown. This application did not proceed on pleadings but the applicant in his outline of submissions concerning declarations and orders sought refers at 6.10 to the $300.00 deduction. In my view the issue was sufficiently aerated at the hearing to allow me to make findings upon it, as I have done, and to make an order in respect of the return of the money, as I propose to do.
Conclusion
The findings which I have made on the evidence lead me to the conclusion that the real reason for the termination of Mr Brown’s employment lay outside the ambit of s.340 of the Act and that I should not make any declarations or provide consequential relief on the basis that Mr and Mrs Batten took adverse action against Mr Brown because he had a workplace right (s.340) or because he had a physical disability (s.351) or that the Battens dismissed Mr Brown because he was temporarily absent from work because of his injury (s.352).
I am satisfied that when Mr Batten suggested to Mr Brown that he would pay the medicals for his injury he was not taking action against Mr Brown with an intent to coerce him not to exercise his workplace right to claim workers compensation. I am satisfied that this was a genuine offer which Mr Brown in any event declined and as a result obtained the workers compensation he demanded (s.343). I am satisfied that none of the actions of Mr Batten in relation to Mr Brown constituted him knowingly or recklessly making a false or misleading representation about Mr Brown’s workplace rights or the effect of him exercising them (s.345).
On the other hand I am satisfied that Mr and Mrs Batten acted in breach of s.323 of the Act when they deducted $300.00 from Mr Brown’s final pay. I will order DS & JM Batten make payment to Mr Brown of this sum together with interest from 29 July 2011 until judgment, a total sum of $317.27.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 13 April 2012
0
9
1