Burke v Serco Pty Ltd
[2012] FMCA 1134
•29 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURKE v SERCO PTY LTD | [2012] FMCA 1134 |
| INDUSTRIAL LAW – Termination of employment for proscribed reason – making a complaint or inquiry about workplace health and safety – s.361 engaged – onus not discharged by employer. |
| Fair Work Act2009, ss.340, 340(1), 341, 341(1)(c)(ii) 342(1) |
| General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 |
| Applicant: | DOMINIC BURKE |
| Respondent: | SERCO PTY LTD |
| File Number: | BRG 317 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 8 May 2012 |
| Date of Last Submission: | 8 May 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | Baker & McKenzie |
ORDERS
THE COURT DECLARES THAT:
Serco Pty Ltd contravened s.340 of the Fair Work Act2009 by taking adverse action against the applicant Dominic Burke when it terminated his employment on 25 January, 2011.
THE COURT ORDERS THAT:
The application be adjourned to 9.30 on 30 January, 2013 for hearing as to the relief to which the applicant is entitled by reason of the Court’s judgment delivered 29 November, 2012;
The applicant file and serve any further evidence upon which he intends to rely at such hearing no later than 4.00pm on 4 January, 2013;
The respondent file and serve any further evidence upon which it intends to rely at such hearing no later than 4.00pm on 18 January, 2013.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 317 of 2011
| DOMINIC BURKE |
Applicant
And
| SERCO PTY LTD |
Respondent
REASONS FOR JUDGMENT
Mr Burke was employed as a client services officer by Serco Pty Ltd from 30 August, 2010 until 25 January, 2011 when he was dismissed. In these proceedings he claims that his dismissal was adverse action taken against him in contravention of the general protections contained in the Fair Work Act 2009 (Cth). He claims compensation and/or the imposition of a pecuniary penalty in the sum of $65,000.
Although it admits terminating Mr Burke’s employment without notice, Serco otherwise denies his claims.
Serco is a service company which manages facilities, projects and information technology systems for government and non-government entities in Australia. It manages the day-to-day operations of immigration detention centres in Australia, including centres in Brisbane and Darwin.
It became apparent during the course of the hearing in this matter that what was critical for Mr Burke was that he had never been provided with a reason for his termination. He has speculated as to the reasons for it, but prior to him commencing action in Fair Work Australia no reason had ever been given to him by Serco for his dismissal. Since then, he says that their reasons have changed.
Mr Burke has represented himself in these proceedings. His claims are ill-defined and difficult to understand. He has not filed an affidavit which clearly articulates the evidence upon which he relies in support of his claim. The affidavit he filed for use at the final hearing of this matter takes the form of a response to the matters raised by Serco in its amended response to his claim and application. It is a mixture of claim, assertion, conclusion, speculation and argument mixed with some facts.
Essentially Mr Burke’s claim is that he made complaints about the way in which Serco exposed him to an unsafe working environment and unsafe work practices and as a result, his employment was terminated. Mr Burke has many complaints about the way in which he was treated during his employment, and the way in which Serco went about its business generally, but those complaints are outside the scope of this proceeding.
He also complains that Serco did not respond, adequately or at all, to a WorkCover claim that he made arising out of his employment.
Mr Burke’s Employment
Mr Burke commenced his employment in Brisbane and received some training there. On or about 19 September, he was deployed to Darwin for what Serco’s witness Mr Ronald Rogers describes as final training and “shadowing” of a more experienced client services officer. There is a dispute about the circumstances in which this move to Darwin occurred, but a resolution of that dispute will not assist the final determination of this matter.
Mr Burke complains about the level and quality of the training he received at Darwin. He says that he was simply deployed, at short notice, into a dangerous working environment without proper training.
Mr Burke gives examples of the dangerous working conditions he was required to endure. For example, he says that Serco’s own senior staff questioned him as to why he had no keys and radio in the kitchen area of his workplace in Darwin when there was a potentially dangerous situation. He complains that Serco was to provide him with a uniform and all necessary equipment and tools to allow him to perform his work. He says, however, that he was not given a uniform and he had to go shopping in Darwin to buy blue shirts and trousers so that he had clothes that looked close to the Serco uniform. He says that he was not given keys or radio to assist him to carry out his job safely.
There was a particular incident about which Mr Burke gave evidence and which involved Mr Burke and some officers from the Department of Immigration becoming locked in an area with some detainees. Mr Burke was very concerned about this incident because he was provided with neither keys nor a radio with which to help him reach assistance. The incident was seemingly denied by Serco, and Mr Rogers was unable to give evidence about there being any record of the incident as far as Serco was concerned.
Mr Burke, however, secured some documents from the Department of Immigration (exhibit 1 in the proceedings) that confirm his allegations. In cross examination Mr Rogers accepted that if the incident described by Mr Burke occurred, he was probably bound by Serco policy to make a report about it to Serco management.
Another of Mr Burke’s complaints was that his workplace presented dangers to him because there were many employees who smoked cigarettes. Mr Burke does not smoke. He was exposed to their smoking during working hours. Many of the detainees that he was required to work around also smoked cigarettes. He says that he reported these unsatisfactory hygiene conditions to Serco, in accordance with company policy, but he was ignored. He says that he did as he was told to do in training and when he did he was sacked.
By an email sent by Mr Burke at about 2.00am on or about 29 September, 2010 to Cassandra Jones, an employee in the Serco Human Resources department Mr Burke made clear his complaints about smoking in the workplace.
Mr Burke had a workplace right to raise workplace health and safety issues (such as passive smoking) with his employer. The contrary was not suggested by Serco. Mr Rogers accepted in cross-examination that Mr Burke was entitled to make a complaint about that matter. His actions in doing so fall squarely within s.341(1)(c)(ii) of the Fair Work Act, which defines the meaning of the phrase “workplace right”.
Further, Mr Burke complained about the failure of Serco (as he perceived it) to provide him with even the most basic of safety equipment such as keys to appropriate doors and gates, and a radio for safe communications. That complaint or inquiry also falls within the definition to which I have just referred.
Because of the passive smoking to which Mr Burke claims he was exposed, he obtained medical advice from Dr Antoinette Wells in Darwin who advised him not to return to work until the poor working conditions had abated.
On 4 October, 2010 Serco gave Mr Burke a letter wherein they recommended that he return to Brisbane. The letter referred to a meeting that occurred between Mr Burke and Serco managers in Darwin a few days earlier. The letter records a determination by Serco management that Mr Burke should return to Brisbane “until the matter surrounding the incident you were involved in on Melbourne Cup Day, 2009 is finalised.”
Mr Burke asserts that the letter of 4 October, 2010 was clearly in response to “my doctors advice as they were defensive of the issues I brought to their attention as they were unable to fix the problems and felt the easiest solution was to get rid of me, which they did instead of attempting to fix the situation”. The letter however refers to a specific incident in which Mr Burke was involved in on Melbourne Cup Day, 2009. Moreover, the face to face meeting referred to in the letter took place on 1 October, 2010 and Mr Burke’s medical certificate was dated 2 October, 2010.
There is little evidence about the Melbourne Cup Day incident referred to in the letter. It seems, however, that on Melbourne Cup Day, 2009 Mr Burke was involved in some type of disturbance, as a result of which he took some civil action against the Police involved in the incident. He was apparently arrested and charged with some public nuisance offence. He asserts that the actions taken against him by the Police were nothing more than a personal vendetta by a known corrupt Qld police officer that resulted in him being unnecessarily incarcerated for a few hours as an act of revenge for personal reasons. He claims that such a fact was noted by the Magistrate that dealt with his case.
There is a dispute as to whether Mr Burke told his superiors at Serco that he had been involved in that incident with the Police prior to his employment. Whatever the case might be, it is clear that the issue was of some concern to Serco management as it motivated management to decide that Mr Burke should be returned to Brisbane. I reject Mr Burke’s claim that he was returned to Brisbane for medical reasons.
Moreover, there was a second incident that allegedly occurred on Friday, 17 September 2010 whilst Mr Burke was in his training phase with Serco. Mr Rogers says that he found out about this incident via information about a rumour that was circulating about Mr Burke.
For his part, Mr Burke says that he is absolutely certain that “Serco” had knowledge of the incident with the police that occurred on 17 September, 2010 as he telephoned “Serco” in Brisbane to report his whereabouts. He had missed the afternoon session of a training session in Brisbane city. He claims that he explained the situation straight after he was released from the cells on 17 September.
Mr Burke returned to Brisbane. On or about 22 October, 2010 he provided a workers’ compensation medical certificate stating that he was unfit for work for the period 18 to 20 October, 2010. Mr Burke then made a claim for workers’ compensation. In his own words:
Serco continued to fail to talk common sense about getting back to work when in Brisbane and this caused further stress and anxiety after which I was diagnosed with a depressive disorder. This was as a direct result of Serco not participating in talks with me and continually ignoring my attempts through phone and email communication even though I was an employee of Serco. Serco again showed their above the law attitude when they failed to respond to my WorkCover claim in any regard as Serco manager in Brisbane Derek Bullock treated me like I did not exist and never returned any phone call apart from the time he dismissed me over the phone on January 25, 2010 where he refused me any union representative to be present.
I am satisfied that Serco processed Mr Burke’s WorkCover claim. It was sent to Serco’s workers’ compensation insurance manager. Other steps were taken in response to that claim.
Mr Burke was certified unfit for work for the period 25 November, 2010 to 7 December, 2010.
After Mr Burke returned to Brisbane, and frustrated with the progress of his WorkCover claim and the absence of any response from Serco about when and in what circumstances he might return to work, Mr Burke engaged in a number of offensive emails to various management employees at Serco. His frustration was palpable.
He was dismissed on 25 January, 2011.
Mr Burke’s claims
Mr Burke claims that pursuant to s.340 of the Fair Work Act Serco took adverse action against him because:
a)he had workplace right to make a complaint about unsafe working conditions and he did so by way of email on 29 September, 2010;
b)he made a WorkCover claim relating to his working conditions when he was working at Serco’s facility in the Northern Territory.
There is no doubt that Mr Burke’s employment was terminated by Serco. His termination is clearly adverse action for the purposes of the Act. I am also satisfied that he exercised his workplace right to make a complaint to his employer about an unsafe working environment. He also exercised his workplace right to make a claim for workers’ compensation.
The timing of those events give rise to the inference that the action taken by Serco might have been in response to Mr Burke’s attempts to exercise his workplace rights. He complained about his working conditions on 29 September, 2010. He was called to a meeting on Friday, 1 October, 2010. He obtained a medical certificate in relation to his ability to work on 2 October, 2012. He was given a letter recalling him to Brisbane on 4 October, 2010. He was unable to work between 18 – 20 October, 2010 for medical reasons. He made a WorkCover claim. He was unable to work between 25 November, 2010 to 7 December, 2010, again for medical reasons.
Having regard to the tests that were explained by Wilson FM in Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32, and the Federal Court decisions of Logan J in Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 and Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 it seems to me that Mr Burke has successfully invoked the provisions of s.361 of the Fair Work Act. That is to say, he has raised a sufficient prima facie case, to shift the onus to the respondent to show that it did not take the alleged adverse action against Mr Burke for the proscribed reasons alleged by him.
In the circumstances, the Act requires me to presume that the alleged adverse action was taken for the reasons contended for by Mr Burke unless Serco proves that it did not take the adverse action against him for those reasons. It is, therefore, for Serco to prove that it did not take the relevant action against Mr Burke - terminating his employment – for the reasons contended for by him.
The Employer’s Response
Ordinarily, evidence about the reason that an employee was terminated in a case such as this is given by the person who made the decision to terminate the employment: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 619.
In the present case, the evidence of Mr Rogers, the only witness called by Serco, was that he did not make the decision to terminate Mr Burke’s employment. He purported to give evidence of the reasons for the termination – namely Mr Burke’s failure to disclose his history with the Queensland Police and his altercation and brief incarceration on 17 September, 2009. Mr Rogers was at pains to point out that it was Mr Burke’s failure to disclose the incidents, not the incidents themselves that was the critical issue for Serco.
Mr Rogers gave evidence that the person who formed the view that Mr Burke’s employment ought to be terminated was Michael Davidson. He sought approval to do so from a person called Liz Kavanagh by an email dated 22 December, 2010. The approval was given by Kavanagh on 12 January, 2011. The termination letter, incorrectly dated 22 December, 2010 was dispatched to Mr Burke on 20 January, 2011.
Mr Rogers’ evidence about Mr Burke’s failure to disclose his Police matters as the reason for the termination of his employment is curious because:
a)Serco management was aware of Mr Burke’s failure to inform them of his history with the Queensland Police from at least 22 September, 2010;
b)No meeting was called with Mr Burke to deal with that matter until after Mr Burke made his complaint about the smoking issue on 29 September, 2010. That email was sent by Mr Burke to Serco at 2.00am on 29 September, 2010.
c)Mr Roger’s annexes an email dated 29 September, 2010 but sent at 6.29pm from Ian Napier to Paul Richards, which appears to be the first email wherein a meeting with Mr Burke is suggested over the police matters;
d)Serco recalled Mr Burke to Brisbane ostensibly so he could attend to “court matters” , but in respect of which there was no request from Mr Burke for him to be returned for that reason;
e)Mr Burke was fit for work from 17 October, 2010 according to his first medical certificate;
f)He lodged a claim for worker’s compensation in early November;
g)Mr Rogers suggested that the reason Mr Burke was not terminated earlier was that he had his WorkCover claim pending – but that is not so given the facts just stated.
If Serco was concerned about Mr Burke’s failure to disclose his police matters, it had opportunity to take action against Mr Burke for that reason, either while he was still in Darwin, or between 17 October, 2010 and when he lodged his WorkCover claim (Mr Rogers suggested that Mr Burke could not be terminated from his employment while he had a WorkCover claim pending).
Mr Rogers has no personal knowledge of the reasons for Mr Burke’s termination. Indeed, his affidavit does not set out any evidence at all about the reason for Mr Burke’s termination. It merely recites the fact that email communication passed between various people in the Serco organisation. The emails annexed to his affidavit do not advance the matter any further because there is nothing from Mr Davidson in the emails that set out the reason for Mr Burke’s termination.
At paragraph 44 of his affidavit filed on 24 April, 2012, Mr Rogers swears the issue in this way:
44 I refer to paragraph 3 in the Burke Affidavit in which Mr Burke alleges that Serco did not have any valid reason to terminate his employment. Mr Burke’s employment was terminated in accordance with the 2009 Agreement. The basis for the termination was Mr Burke’s breach of the Serco Code of Conduct. The reason for the Termination of Mr Burke’s employment did not include any reason which could be regarded as adverse action in respect of a general protection under the Fair Work Act 2009.
(faithfully reproduced)
The source of Mr Rogers’ information and beliefs stated in that paragraph (for that is what they must be) are not set out in his affidavit. Further, in cross-examination Mr Rogers purported to give evidence about the reason for Mr Burke’s termination.
I have little faith in Mr Rogers’ evidence, however. His evidence was couched in terms of what “would” have occurred rather than what did occur. It was clear that the Serco records were unreliable. One example will suffice. Mr Burke’s safety complaints centre upon an incident that occurred in the Darwin facility on 28 September, 2010 when he and some officers form the Department of Immigration were in an unsecure area and he (and the others present) had neither keys nor radios. The incident was denied by Serco management and Mr Rogers denied that any such incident had occurred. He said there was no record of it. Mr Burke, however, was able to demonstrate that it did occur by reference to contemporaneous document from the Department of Immigration (exhibit 1).
Mr Roger’s evidence has, for the reasons given above, little probative value.
Mr Davidson’s absence as a witness is unexplained. The only reason proffered by Mr Rogers for the absence of Mr Davidson was that it was thought that he was not necessary.
To paraphrase the words of Mason J (as his Honour then was) in Bowling (above) at p.619 the unexplained failure of Serco to call Mr Davidson or Ms Kavanagh becomes significant. It leaves uncontroverted the possibility that Mr Burke’s complaints and the making of a WorkCover claim against Serco were an influential, perhaps even a decisive, consideration in either of their minds. They, or at least Mr Davidson, was the decision maker.
Conclusions
In my view, Serco has not discharged the onus upon it to show that it did not take the adverse action that it took against Mr Burke for the proscribed reasons he alleges. Serco has failed to discharge the onus of proof upon it.
In the circumstances, I am of the view that Serco has contravened s.340 of the Fair Work Act 2009 in that it has taken adverse action against Mr Burke because he exercised a workplace right, namely his right to:
a)Make a complaint or inquiry about his working environment with his employer;
b)Make a complaint or inquiry about his working (safety) conditions with his employer; and
c)Making a WorkCover claim.
Mr Burke’s claim is entitled to succeed.
At the conclusion of submissions Counsel for Serco suggested that I should, in the event that I found against his client, invite further submissions as to the relief to which Mr Burke is entitled. Initially, I was against that idea, but I am now persuaded that I should make the relevant declarations and adjourn the application to another date upon which I can take any further evidence and submissions as to the orders to which Mr Burke is entitled.
For those reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 29 November 2012
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