Campbell v Aero and Military Products Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL v AERO & MILITARY PRODUCTS PTY LTD

[2015] FCCA 2310

Catchwords:
INDUSTRIAL LAW – Application alleging adverse action as result
of applicant’s CFA activities – applicant asserting discrimination on basis of his social origin – applicant seeking payment of unpaid overtime – whether applicant sought to exercise workplace right – whether adverse action taken as a result – respondent’s conduct not because applicant sought to exercise
a workplace right – applicant not entitled to overtime – applicant not discriminated against because of social origin.

Legislation:
Fair Work Act 2009, ss.108, 109, 110, 340, 351

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
State of Victoria v Grant [2014] FCAFC 184

Applicant:

CAMERON CAMPBELL

Respondent:

AERO & MILITARY PRODUCTS PTY LTD

File Number:

MLG 561 of 2014

Judgment of:

Judge Burchardt

Hearing date:

17 June 2015

Date of Last Submission:

17 June 2015

Delivered at:

Melbourne

Delivered on:

7 September 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Galbraith

Solicitors for the Respondent:

Russo Pellicano Carlei

ORDERS

The Application filed 28 March 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 561 of 2014

CAMERON CAMPBELL

Applicant

And

AERO & MILITARY PRODUCTS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introductory

In this matter the applicant seeks remedies related to his employment with the respondent and the termination of it. He claims $994.50 for alleged unpaid overtime when his manager was on leave between 16 April 2012 and 21 May 2012. He further claims remedies arising out of an alleged termination of employment and other adverse action said to have contravened ss.340 and 351 of the Fair Work Act 2009 (“the FW Act”).
The application commenced as a Small claim but has proceeded as an adverse action claim pursuant to Orders made by Judge Whelan

on 19 June 2014 (there was no express order to this effect but construing the file as best I can, this seems to have been the outcome), and the Statement of Claim filed 25 July 2014 and the applicant’s subsequent materials, which as the respondent submits are not altogether easy to analyse, appear to be to this effect.
For the reasons that follow, I am by no means convinced that the applicant has established a workplace right that he sought to exercise. Whether this is so or not in the ultimate however is immaterial as I am firmly of the view that any actions of the sort that the applicant might be said to have undertaken had nothing to do with his dismissal, and it follows that the application must be dismissed.

Some Agreed Facts

Although there are a number of factual controversies in this proceeding, much of the facts are not the subject of disagreement. What follows is an amalgam of the parties’ affidavit and oral evidence and is not, in my view, controversial.
Tony Gangemi, the Managing Director of the respondent, started the respondent’s operations in 1989. The respondent is a small business which specialises in supplying equipment to the Australian Defence Force and related entities or similar entities. Part of its business is the calibration, testing, servicing and repairing of night vision equipment for essential services.
The respondent is, and at all times has been, a small employer which, at the time of the termination of employment of the applicant, had six employees including Mr Gangemi himself.
The applicant commenced employment with the respondent on 23 May 2011. His annual salary was $45,968 and he was employed in the position of Internal Sales on a full time basis.
At the commencement of the applicant’s employment there was another employee named Arthur Chris who performed the calibration, testing, service and repair work to which I have referred, having been trained by Mr Gangemi to do so. Mr Gangemi is also capable of performing this work.
About nine months after the applicant commenced employment with the respondent Mr Chris left employment (this is the timeline asserted by Mr Gangemi’s affidavit filed on 30 April 2015 and it was not put in issue) and Mr Gangemi began training the applicant in the calibration work. The applicant reported to Mr James Anil, the respondent’s Sales Manager who reports directly to Mr Gangemi. It does not seem controversial nonetheless that Mr Gangemi is the person who makes all decisions relating to the disciplining and hiring and firing of employees.
Mr Anil took annual leave from 16 April 2012 to 21 May 2012. There is a dispute about whether the applicant worked any overtime during this period and/or whether he is entitled to pay for it.
The respondent concedes that the applicant’s work performance for about his first year of employment was acceptable, but from the respondent’s point of view the applicant’s performance thereafter declined. While the applicant disputes the various allegations made against him, and these again are matters to which it will be necessary

to return, it is common cause that on 19 June 2013 the applicant attended a meeting with Mr Gangemi and Mr Anil at which a number of issues with his work performance were raised and addressed with the applicant. One of these related to call‑out requests from the Country Fire Authority (“CFA”). Once again there is a dispute as

to exactly what occurred.
As a parallel development, in May 2012 the respondent hired Mr Paul Platts in the position of Internal Sales (the applicant by now had been transferred to the calibration work). It is not disputed that Mr Platts has significant professional electronics experience.
It is not disputed that in about November 2012 the applicant made inquiries with his local CFA in Hampton Park with a view to joining

as a member and that this appears to have been approved in about January 2013 by the CFA.
The applicant assets that he commenced a 6 week recruit’s training course with the CFA in about April 2013 and asserts (see his affidavit filed 8 April 2015 paragraph 7) that before starting he informed the respondent about his intention to participate in that activity. Mr Gangemi accepts that the applicant came to see him in April 2013 and informed him he had joined the CFA. It is common cause that the initial response from Mr Gangemi was entirely positive. It seems undisputed that the applicant asked Mr Gangemi to read a CFA leaflet which he left on the table and Mr Gangemi’s evidence that through pressure of work he failed to do so before the applicant took it later seems uncontradicted.
Although it may not be entirely agreed, and I will return to it, there was at some point discussion between the applicant and Mr Gangemi about the basis upon which he would or would not be permitted

to attend to CFA call-outs.
On 19 June 2013 the applicant met with Mr Gangemi and Mr Anil. There is dispute about some aspects of this meeting but it is clear and agreed that the applicant was taxed by Mr Gangemi and Mr Anil with

a number of aspects of work performance that the former thought were unsatisfactory. They included having meals in the laboratory, personal telephone calls while in the laboratory, personal work performed without authorisation, the borrowing of company tools without permission and carrying his CFA pager when told not to.
On 19 September 2013 the applicant did not attend work at his usual start time of 8:30am but at 9:15am. He had sent a text message

to Mr Anil (exhibit R2) at 8:21am stating:
“Out to a car accident going to be late. Its not me.”
When he arrived at work he was taken to task by Mr Anil, who had in the meantime spoken to Mr Gangemi about the matter and been directed to discuss this matter with the applicant. The terms of the discussion are to an extent in dispute.
On 1 October 2013 the applicant was given a written warning (Annexure B to the applicant’s affidavit filed 8 April 2015). This referred back to the meeting on 19 June 2013 and also to the incident on 19 September 2013. The letter, from Mr Anil to the applicant, concludes:
“I cautioned you that this was your second and final warning

to adhere to all that was discussed and agreed upon in these two meetings. Your employment will be terminated if your conduct does not improve.”
The applicant in October 2013 and again in November 2013 took various actions which might have indicated to the respondent that

he proposed to take action as a result of what he perceived to have occurred to him. There is a dispute about the extent of this. On 19-21 November 2013 the applicant was absent from work due to temporary illness.
When he returned to work on 22 November 2013 an incident took place about whether the applicant should or should not do further calibration work, the subject matter of which is in dispute.
On 25 November 2013 the applicant was dismissed from his employment, ostensibly as the respondent put it on the basis that

he was redundant.

Matters of Disagreement – The Applicant’s Evidence

Not surprisingly, much of what the applicant had to say as to disputed matters related to his involvement with the CFA and the alleged response of the respondent to this. In his affidavit the applicant asserted that when he first received his pager he discussed the matter with the respondent (he did not say who but it is clear that this was Mr Gangemi) and told him that he would only attend emergency services work if he was not busy at work and that his first priority was his employment work. He says he asked how the respondent would process his leave in the event that he attended an emergency event and Mr Gangemi advised that he would process his leave on an ad hoc basis and/or at his discretion.
The applicant asserted in his affidavit that at the 19 June 2013 meeting one of the issues raised related to the applicant attending call‑out requests from the CFA and he says that he “was reprimanded/warned/prohibited from carrying his call‑out pager
at work and/or attending emergency services with the CFA” (paragraph 18 of the affidavit filed 8 April 2015).
The applicant asserted that he mentioned that legislation protected him and entitled him to be engaged in eligible community service and that in response, “Gangemi aggressively leaned over the table towards the Applicant and in an aggressive tone said ‘[y]ou want to try”.
The applicant deposed that he felt intimidated and threatened by this and took sick leave for anxiety and was referred to a Psychologist

by his treating General Practitioner.
The applicant went on to assert that from then until 19 September 2013 he did not bring his call‑out pager to work and/or attend to any emergency services during this time because he feared he would be the subject of adverse action. He continued to attend emergency services outside work hours which rendered him sleep deprived and tired

at work.
The applicant asserted at paragraphs 26 and 27:
“26. On the morning of 19 September 2013, as the Applicant was preparing to attend work, he was paged for an emergency call‑out, which concerned a serious car accident whereby an individual was trapped.
27. Given the severity of the call‑out, and in comparison

to other minor call‑outs, the Applicant decided to attend the accident scene, whilst also having regard to his work-load”.
The applicant went on to depose to his text message sent to Mr Anil

to which he did not receive a reply. He deposed that when he arrived

at work Mr Anil advised him that if he did this again (i.e., attend an emergency service) his employment would be terminated. He deposed that he replied that Mr Anil could not terminate the employment for that reason and that if it occurred he might initiate a process in the Fair Work Commission.
The applicant deposed that he received a written warning from the respondent because he attended the emergency service and because he had indicated that he would initiate a process or proceeding.
The applicant deposed that on 23 October 2013 he caused a number

of Facebook posts which indicated he was considering action under the Fair Work Act 2009. He deposed to a subsequent conversation with

Mr Anil in which he told Mr Anil that he was considering his options and Mr Anil advised him that he (Mr Anil) would have no choice but

to notify Mr Gangemi if the applicant would in fact issue proceedings against the respondent. He deposed that, “At that point in time,
the Applicant asked what would be the result of Gangemi finding out, to which Anil advised him “probably terminate you”” (paragraph 41).
The applicant went on to depose to a further conversation

on 14 November 2013 with Mr Anil in which he told Mr Anil he had thought about their conversation further and could not confirm that he would not be issuing proceedings, in response to which Mr Anil said

he would notify Mr Gangemi.
The applicant was thereafter absent as earlier indicated through illness on 19-21 November 2013, and he deposed that when

he returned to work on 22 November 2013 the first words spoken

to him by Mr Gangemi were, “[y]ou are not to do anymore calibrations” (paragraph 46).
The applicant went on to depose to the termination of his employment on 25 November 2013, including the fact that he was advised that his employment would be terminated effectively immediately due

a shortage of work. He then went on to depose to not being paid correct payment in lieu of notice.
Although the applicant filed on 13 May 2015 a document titled “Applicant’s Reply to Respondent’s Affidavits”, it does not, save

for one matter to which I will return, take the matter much further.

The Applicant’s Submissions and Oral Evidence

The applicant, who represented himself, made an opening address.

He outlined his employment with the respondent and the fact that he joined the CFA. He told Mr Gangemi about this and sought

Mr Gangemi’s instructions on the payment for eligible community service leave. He said he told Mr Gangemi he did not want to be paid. He said he received no definite answer as to how leave would be processed and that Mr Gangemi said “we will see”.
Subsequently there was a break-in at the respondent’s premises and some equipment was needed as a result but it was not there as he had

it in his possession (I think he was referring to an electric drill).
Following this there was a meeting at which numerous matters were discussed and inter alia he was told not to perform work for the CFA during his working hours, or outside working hours if it affected his performance.
On 19 September 2013 he was called out and was 45 minutes late

to work. He got a warning letter in October 2013 which repeated earlier warnings.
The applicant said he had done his research and looked up what the law said, but the respondent found out about his intentions. His employment was terminated on 25 November 2013 and he was told this was because of a downturn in work. He said that

he had been there a year longer than the other employee who was retained and that Mr Gangemi had always said it was last in, first out.
The applicant said there were only two calibration technicians. He said the CFA website follows Fair Work Act 2009 guidelines and that he was entitled to take leave on 19 September 2013. He said that adverse action was the threat to terminate his employment if he took community services leave again.
The applicant said that after the June 2013 meeting and the various warnings later he had looked for alternative employment and found a new job in March 2014. He said he would have given notice and left and he would have accrued annual leave during the meantime. He said he claimed overtime during the time he had worked but that the respondent had a policy of not paying overtime. He said there was an unwritten policy that extra hours were offset by early leaving but he was now claiming for them. He said he was sacked because he told Mr Anil he might make a claim.
In evidence-in-chief the applicant essentially adopted his affidavit as true and correct and gave some more details about the incident on

19 September 2013. He exhibited as exhibit A1 a ‘Member Response Report’ showing that he had indeed attended the accident on

19 September 2013. I note that the description of this call-out is, “Vehicle accident – no injuries”.
Under cross-examination by counsel for the respondent, the applicant admitted that he had been paid money in lieu of notice. He accepted that exhibit R1 reflected his termination pay.
The applicant was cross-examined about his attempts to find alternative employment but in my view this showed nothing unremarkable. He commenced his new employment in 5 March 2014.
The applicant confirmed that when he ceased employment there were only 6 employees of the respondent of whom Mr Gangemi was the Managing Director. The applicant started work at 8:30am but Mr Gangemi sometimes later. It was put to the applicant that minutes had been taken of various meetings of the respondent and that he had been told by Mr Gangemi he was making or taking too many telephone calls. A document marked for identification as MFI-1 (later exhibit R3) was put to him and he confirmed that on one occasion his girlfriend had come to visit him at work to call a Real Estate Agent and that he had not asked for permission.
He confirmed that Mr Chris had been employed to do calibration work and had left and that he had been trained by Mr Gangemi thereafter.
The applicant confirmed that he lived at Hampton Park, about

10 minutes from work, and that he had no CFA call‑outs between April 2013 and 19 June 2013. He said he had told Mr Gangemi in January 2013 about the need to attend call‑outs and the need to take messages on his pager. The pager was for both urgent and non-urgent messages, some of which could be administrative. If paged he did not have to go to the station but the CFA liked volunteers to turn up if they were available.
Although he had received a pager notification in May 2013 this was at 5:01pm so the notification on 19 September 2013 was effectively the first one. This was the only call‑out he had while working. The applicant gave details as to how on that day he received his call, notified Mr Anil, put on his protective clothing and went to the scene of the accident with other volunteers. A total of four persons including himself had turned out. The page said, “Incident code 1, car accident, possible person trapped”, and the location.
He sent a text to Mr Anil at 8:21am while he was in the back of the fire engine. The applicant said that this was sent to Mr Anil because

Mr Anil had told him he would be the contact for any absences, although when pressed the applicant accepted that Mr Gangemi had told him to contact Mr Gangemi and seek permission before he went to any CFA call‑outs.
As it happened there were police at the scene of the incident on 19 September 2013. There were no fatalities but injuries. He was next to the vehicle with an extinguisher. After the incident he went back

to the station, home for a minute and then to work by 9:15am. Every incident is a major incident but this one turned out not to be.

The notification, “possible persons trapped”, was not common and was almost as severe as a car accident could be.
When questioned about his meeting with Mr Anil when he arrived

at work on 19 September 2013 the applicant did not recall Mr Anil saying that the reason for the meeting was that he had not sought permission from Mr Gangemi for his absence. He then conceded however that Mr Anil told him that he had failed to notify

Mr Gangemi. He did not agree he was told he would be disciplined as a result. He said that Mr Anil said, “if you do that again your employment will be terminated”, but conceded that this version of the events was not in his affidavit.

The Evidence of Mr Tony Gangemi

Mr Gangemi’s affidavit filed 30 April 2015 sets out the background to the nature of the respondent’s business as I have earlier paraphrased it. It is clear that the respondent does work for the Australian Defence Force and other organisations providing what might be described

as public services, including the Police and Air Ambulance.

Having deposed to the engagement of the applicant as I have described in the uncontroversial matters above, Mr Gangemi dealt with the applicant’s alleged overtime entitlement. At paragraph 19 of his affidavit Mr Gangemi deposed:
“The Applicant was not asked to work any overtime during that period as he claims. As the time sheets for the months of April 2012 and May 2012 (Exhibit ‘TG-1’) show, the Applicant did not work any ‘overtime’ and was actually late to work on

16 April 2012, 10 May 2012 and 14 May 2012. They also show that he left work early on 8 May 2012. The Applicant was still paid his full salary despite his lateness or early departure.”
I would interpolate and say that looking at the exhibit, Mr Gangemi appears to be correct for at least two of those days, and by rather larger amounts than one or two minutes as the applicant asserted.
Mr Gangemi went on to depose to the applicant’s alleged deteriorating work performance after approximately one year of employment and detailed at paragraphs 21-27 a number of infractions alleged against the applicant between April 2012 and May 2013. It is not necessary for these purposes to descend into too much detail save to note that the matters of which Mr Gangemi complained included difficulties arising out of the fact that the respondent’s equipment in its laboratory is extremely sensitive and could be damaged by interference, whether by food or other electrical interference.
Mr Gangemi deposed to the employment of Paul Platts in May 2012 following the cessation of employment of Arthur Chris and deposed to Mr Platts being a very good worker with whom the respondent has had no work performance issues.
Mr Gangemi went on to depose to his experience of the applicant’s CFA membership. He deposed as is agreed to his enthusiastic response and went on to say at paragraph 32:
“I told him that Aero would pay for his time off for extreme events such as bush fires or flooding which he attended, but not for every situation such as bringing down a cat stuck in a tree in which full time CFA staff or other volunteers could handle.

I told him there was no issue with him volunteering, but that

I needed to know first so that arrangements could be made.

I told the Applicant that he would need to consult with me before he attended a CFA call out so I could decide what would happen with work and take over his work in the laboratory while he was away if necessary. I made it clear from the beginning that he needed to consult with me because of the specialised work Aero was required to perform and which only he and I could carry out at the time. The Applicant asked me to read a CFA leaflet which he left on my table. Unfortunately, it was removed before I had a chance to read it due to my heavy work load at the time.”
Mr Gangemi went on to depose that notwithstanding his failure to read the leaflet he had accessed the CFA website which made it clear that employees were to make employment their main priority, especially for small companies. He then deposed as to the applicant having a pager which he carried at work, and would take the pager and his mobile telephone into the laboratory where they might interfere with the delicate instrumentation.
Mr Gangemi then deposed as to the meeting on 19 June 2013. Mr Gangemi deposed as to traversing the various things with which he was not happy and then dealt with the applicant’s CFA pager

at paragraphs 45 and 46 as follows:
“45. ...I asked the Applicant to stop taking his CFA pager and mobile telephone in to the laboratory because they could interfere with the sensitive electronic test equipment. I told the Applicant that he was to leave the CFA pager and his mobile telephone on James Anil’s desk while he was working in the laboratory and that James would alert him if a call or page was received. At no time did I threaten the Applicant about bringing, or tell him that he could not bring, the CFA pager to work with him as he suggests. The reason I asked the Applicant to leave the CFA pager with James was to ensure that it could not interfere with the sensitive electronic test equipment while

he was working in the laboratory and so it did not distract

his concentration from the specialised work he was doing in the laboratory.
46. I also reiterated that the Applicant needed to get in touch with me if there was a need to attend a CFA call out so I could decide what work needed to be carried out in the laboratory and for me to determine if I would carry out the work myself if

he was going to be away. I indicated that this was necessary because the Applicant and I were the only people trained

to carry out the specialised work at that point in time. The Applicant responded by saying he had the authority to leave work without any notice or permission. I advised him that I had gone on the CFA website which stated that an employee’s work was their first priority especially for small companies such as ours. The Applicant again responded that he didn’t need to seek authorisation and he could come and go as he pleased. The Applicant mentioned that certain legislation entitled him to engage in eligible community service. I responded by saying

I had no issues with that but he needed to communicate with me first. I advised him that we are a small business with only him and myself to handle necessary servicing or repairs for equipment used by essential services such as search & rescue, law enforcement and defence departments and that it was imperative he co-ordinate with me as directed. I said if you want to try and not notify me if he was to attend a CFA call out as requested and disobey my direction, it would be considered insubordination and may result in him being issued a further warning.”
Mr Gangemi went on to depose to the rest of the conversation, which takes the matter little further in the circumstances save to note that

on Mr Gangemi’s version the applicant did not cover himself in glory.
The next material matter dealt with in the affidavit is the events of 19 September 2013. Mr Gangemi confirmed receiving notice from Mr Anil of the delayed arrival of the applicant and he deposed that

he told Mr Anil to talk to the applicant about failing to follow direction to notify Mr Gangemi before going on a CFA call-out. In the ultimate (and leaving aside hearsay) Mr Anil wrote to the applicant on behalf

of the respondent, the letter being reviewed by Mr Gangemi before

it was provided to him (exhibit TG-3).
Mr Gangemi went on to depose at paragraph 59:
“The Applicant had not indicated to me that he would initiate

a process or proceeding and I was not aware that he proposed to do so. The Applicant received the warning and the warning letter to confirm the meetings and as a result of his poor work performance and his failure to follow my directions. Those were the only reasons I considered in my decision to give

the Applicant the warning.”
Mr Gangemi went on to depose to a downturn in business on the part of the respondent throughout the second half of 2013 and a meeting held with staff on 22 October 2013 as a result. At the meeting Mr Gangemi told staff about cutbacks affecting sales and that redundancies were possible but every effort would be made to avoid them. Mr Gangemi deposed that orders had reduced from around

30 per month to 10 and that any improvement might take some time. Notes prepared by Ms Jenny Kormos and distributed subsequently

are exhibited as TG-1 to the affidavit and are consistent with this account.
The applicant being self-represented has not taken any objection

to their admissibility, but even though they are not Mr Gangemi’s notes it is to be inferred that he says that they are a true record of what took place.
Mr Gangemi went on to depose to endeavours made, through Mr Anil, to improve business which proved unproductive. He also deposed,

as indeed the applicant and Mr Anil both did, to his becoming aware that the applicant was contemplating taking the respondent to court. He deposed to being unconcerned by such matters. He went on

to depose at paragraph 81:
“On 22 November 2013 I arrived at work and went to the laboratory intending to train Paul Platts to calibrate

a particular unit. I had asked him previously that he not do the calibration on the unit because I needed it so I could show Paul Platts how to calibrate it. The Applicant had been reminded

of this by James Anil and again by Jenny Kormos so he didn’t forget. It was also written on the whiteboard so there could be no misunderstanding. When I walked in to the laboratory that day, I found the Applicant had started calibrating the unit despite the requests not to do so. I told the Applicant that he had again disobeyed a direction from me. Not only did he disobey me, he also ignored James Anil his supervisor and Jenny Kormos who both told him not to calibrate the unit.

At that time I noticed that not only had he started calibrating the particular unit but he had also left another unit disassembled which he had started the day before and should have been finishing. I told the Applicant that he was not to calibrate the particular unit which I wanted to train Paul on and instructed him to reassemble the unit and go back to finishing off the other unit which he had already started the day before.”
Mr Gangemi deposed at paragraphs 83 and following to his coming

to the conclusion that an employee would have to be made redundant and that the respondent could not gainfully employ both the applicant and Paul Platts full time. At paragraph 84-89 he deposed:
“84. After the Applicant again failed to follow a direction

by calibrating the unit on 22 November 2013, I decided that he and not Paul Platt would be selected for redundancy.
85. The Internal Sales position with Aero was made redundant resulting in the Applicant’s dismissal, because of operational requirements stemming from the downturn in business. Aero did not have sufficient work to supply the Applicant and Paul Platts both with full-time work and there were no available alternative positions at Aero to which the Applicant could be redeployed.
86. I made the decision to make the position redundant and

to dismiss the Applicant as a result.
87. I decided to select the Applicant for redundancy because

of his poor work performance and his repeated failure to follow my directions. In contrast, Paul Platts was a good worker with a strong work ethic and good technical qualifications and skills including an ability to build strong business relationships.
88. It was my decision alone to make the position redundant and to dismiss the Applicant. As noted above, the substantial and operative reason for the Applicant’s dismissal was the redundancy. If Aero was not experiencing a downturn and shortage of work as noted elsewhere in this affidavit,

the position would not have been made redundant and the Applicant would not have been dismissed as a result.
89. It was not an easy decision to make. The business

had invested a lot of time and money in the Applicant.”
Mr Gangemi went on to depose expressly that none of the things

the applicant claimed to have caused his dismissal in contravention

of the legislation played any part in his decision to make the applicant redundant or to dismiss him. Likewise, none of those matters were part of the reason for issuing the applicant warnings during his employment.
The affidavit goes on to describe the dismissal of employment on

25 November 2013. It does not appear to involve any matters of controversy. It is, as earlier noted, clear that the applicant was given two weeks pay in lieu of notice.

The Affidavit of Mr James Anil

Mr Anil deposed as to his employment with the respondent.

He deposed as to the engagement of the applicant in May 2011 and the training of the applicant by Mr Gangemi in calibration. He deposed that he became aware in mid-2013 that the applicant was volunteering for the CFA but could not recall how he became aware.
Mr Anil then went on to describe the meeting on 19 June 2013 in terms essentially consistent with Mr Gangemi's recollection. He further confirmed in similar terms Mr Gangemi's account referrable to the applicant's CFA pager. His description of the difference of opinion between the applicant and Mr Gangemi as to whether the applicant required (in effect) permission to undertake work with the CFA

is entirely consistent with that of Mr Gangemi.
Mr Anil went on to describe the events of 19 September 2013. There is in fact little, as I noted earlier, between the parties as to what was said between him and the applicant when the applicant arrived at work

at about 9:15am. Mr Anil did however disagree with the assertion that he mentioned a threat of dismissal.
At paragraph 30 of Mr Anil’s affidavit filed 30 April 2015 he said:
“...I told the Applicant that it was possible that, if he again disobeyed Tony's direction by not contacting Tony before attending a call out as requested, Tony may decide to terminate his employment for disobeying his request.”
Otherwise in my opinion the affidavit, without doing it any disrespect, essentially (where it touches upon it) confirms Mr Gangemi's affidavit. I note that there was plainly discussion between the applicant and

Mr Anil from time to time as to whether or not the applicant would take legal proceedings against the respondent, which ultimately came to the attention of Mr Gangemi, as Mr Gangemi has described.

The Evidence of Mr Tony Gangemi at Court

Mr Gangemi adopted his affidavit as true and correct, subject to several minor corrections. He tendered formally the minutes of the meeting which become exhibit R3. He further confirmed that the applicant had never contacted him about a call-out.
Under cross-examination by the applicant, Mr Gangemi confirmed that in early 2013 the applicant told him he had joined the CFA and would be trained. By March or April the applicant told Mr Gangemi he was doing a recruiting course and gave him a CFA leaflet in early April.

He said that the applicant told him when training was over he would

be eligible to turn out. He said he thought he had made it clear that severe matters were okay but not minor ones. Mr Gangemi said

he made it clear he would decide on a case-by-case basis. There was cross-examination about the nature of the calibration work and

the extent to which advance notice of it was received, which in my opinion takes the matter no further.
Mr Gangemi said he recalled the applicant's pager going off in the laboratory but could not recall what he said. He said he mentioned that this would be disrupting sensitive equipment and that it would distract the applicant. He denied that the pager was an issue but said the pager being inside the laboratory was the issue.
When pressed by the applicant as to the extent of business downturn Mr Gangemi said he had had downturns in the past but nothing like this.
Mr Gangemi explained that he works mainly upstairs but comes downstairs once or twice a day. He said the applicant was walking around with the mobile telephone in his ear all day and that this was

at a peak when there were problems with the landlord. I should interpolate and say I thought Mr Gangemi's evidence was slightly exaggerated in this regard.
Mr Gangemi confirmed that Paul Platts had no calibration qualifications at the time of dismissal and in fact still has not. At the moment there is just Mr Gangemi, although he is teaching his son.

Mr Gangemi confirmed that he did not get a chance to read the CFA leaflet which was on his desk for three or four weeks before the applicant removed it.
On 19 June 2013 Mr Gangemi repeated that he had told the applicant he had to call him first about CFA call-outs and to notify him so that they could coordinate. He said, "you need to let me know",

and that the applicant said that he had had the right to go whenever

he wished. He said, "we discussed what was urgent and what not". The applicant had indicated that the CFA was more a support role.
When pressed why the warning letter was not sent until October 2013 Mr Gangemi said that he and Mr Anil were busy. It was just a matter of getting round to it. Mr Gangemi was not aware that the applicant had seen a psychologist after the warning on 19 June 2013. He was however aware that the applicant was late on 19 September 2013 and had told Mr Anil that the applicant had failed to follow protocol and that he had told Mr Anil to write the warning letter. He had obtained the CFA telephone number to check that the applicant had indeed attended.

The Evidence of Mr James Anil

Mr Anil adopted his affidavit as true and correct.
Mr Anil was questioned about what had occurred during his absence

on annual leave and it emerged that he was not aware that the applicant had had a key to let himself in while he was away.

He was taken to the working patterns of Mr Gangemi but in my view this was unremarkable.
Mr Anil was cross-examined about what he understood about the CFA and said he had read the applicant's CFA leaflet briefly. He said if

a person is a key person in an organisation they should seek permission before absence was his understanding of the position. He agreed that

a text message he had sent to the applicant was after the fact and the applicant had not sought permission. He had assumed that the applicant was on a CFA call-out on 19 September 2013 and had approached the applicant when he arrived at work. He said he told the applicant he had gone against protocol and that if he did this again he would consult Tony (Mr Gangemi). He said he told him that if he did it again he would be terminated, but he confirmed that it was

Mr Gangemi who hires and fires. The applicant said to Mr Anil that

he had a right to do what he did and that Mr Gangemi could not stop him.
There was then cross-examination about the extent of discussion between the applicant and Mr Anil as to whether or not the applicant was going to take action against the respondent and the extent to which Mr Anil would find it necessary to tell Mr Gangemi. In the ultimate

it is common cause that Mr Anil told Mr Gangemi.

Some Observations about the Witnesses

All the witnesses in this case struck me in the main as being honest.
The applicant (while honest) conceded, for example, that Mr Gangemi had told him to contact him and seek permission before attending CFA matters. He conceded further in final submissions that he was not perhaps the best employee. He struck me as having a tendency to

be pedantic. He is clearly a person very interested in the law and had

a pronounced tendency to what I might describe as a somewhat over-simplified approach to the construction of the Act.
Mr Gangemi generally likewise struck me as being a good and responsive witness. He answered questions from the applicant,

as I saw it, directly and responsively, and although I think his criticism in relation to the telephone call matter as described above was slightly overstated, I have no doubt that he was a witness of truth.
Mr Anil was a particularly excellent witness. His answers were given in a measured and careful way. He struck me as being entirely fair and with an excellent recall, as in the main did Mr Gangemi.

Findings on the Facts

There is no doubt that the applicant commenced employment in 2011 and it is agreed that he was a satisfactory employee at least for about the first 12 months. Although the applicant puts the various complaints of the respondent in another light, I have no doubt that the applicant was not an exemplary employee thereafter. The various complaints advanced by Mr Gangemi, and to a lesser extent by Mr Anil, all have the ring of truth about them. They led to the meeting in June 2013 and the further meeting in September 2013 and the letter of warning in October 2013. There is no reason whatever to presuppose that the October 2013 letter was some kind of fraudulent reconstruction.

I accept that it took some time to create because of pressure at work.

It should be noted that the applicant himself conceded in his submissions that he was not the best employee, and there is no reason overall to doubt the force of the respondent's assertions.
It is also clear that the applicant wanted to become a CFA volunteer. He was clearly avidly eager to do so, attending numerous activities in non-working hours to a degree where he concedes himself that it started to lead to his being tired at work.
It is quite clear that the applicant approached Mr Gangemi as his application for CFA membership, as it were, developed and there is no doubt that Mr Gangemi was initially enthusiastic in his response.
Mr Gangemi, it is clear, did not read the leaflet about the CFA provided by the applicant but informed himself from the CFA website about

the nature of CFA operations and employee obligations as members of the CFA. It should be noted that the CFA itself quite clearly appreciates that in small employers the role of a volunteer must

be more circumscribed. The applicant was one of only two people

in the respondent's operations at the relevant time capable of doing the very important calibration work which I accept required in effect somebody to be either available or on short notice available at all times.
Having seen the parties give their evidence I have no doubt that

Mr Gangemi, as he claims, told the applicant that he must contact him in order to arrange for any absences and that he made it clear that only large scale emergencies would be tolerated as providing an appropriate reason for absence.
I accept, because once again there is no real dispute, that the extent

to which the applicant could as it were insist upon absence was discussed between Mr Gangemi and the applicant at the meeting on

19 June 2013. Contrary to his denials I think Mr Gangemi did become exasperated on that occasion. There is no doubt that the applicant told Mr Gangemi that he was entitled by law (putting the matter in a rather broad phrase) to attend CFA call-outs and that Mr Gangemi took issue with this. Whether he threatened him with dismissal is not a matter

I regard as being established.
There is no doubt that the applicant having heard the code 1 for the first time during working hours on 19 September 2013 decided

to attend forthwith. In breach of what Mr Gangemi had decreed, he failed to contact Mr Gangemi and seek his permission but rather text messaged Mr Anil. No formal request was made by the respondent for the applicant to notify the duration of the absence or its likely duration because Mr Anil did not reply to the text.
The applicant was taken to task when he finally got to work on

19 September 2013 and was given a warning as a result. It should

be noted that I accept that the applicant was upset by the warning

he received in June 2013 and sought assistance as a result.
I accept that the business of the respondent did suffer a downturn towards the end of 2013. The evidence about Mr Anil's trip to Sydney and its unproductive outcome is one which I entirely accept. I repeat, Mr Anil was an excellent witness.
In circumstances where the number of orders had gone from 30 to 10

it is unsurprising that Mr Gangemi reached the conclusion that

he would have to retrench one of Mr Platts or the applicant.
By the time the necessity to make this decision came around Mr Platts had been employed long enough for the respondent to conclude through Mr Gangemi that Mr Platts was much the better bet as

an ongoing employee.
It is clear that Mr Gangemi did become aware of the threat of possible legal action by the applicant, interrelated with his CFA activities, before the decision to retrench Mr Campbell occurred. Nonetheless

I have no doubt, having heard Mr Gangemi and Mr Anil's evidence, that the decision to terminate the applicant's employment had nothing whatever to do with the applicant's activities in relation to the CFA, notwithstanding the earlier differences of opinion between the parties about it and the matters which had given rise to the October 2013 warning.
Insofar as the applicant asserts that he was prohibited from carrying his pager at work, I entirely accept the respondent's evidence. He was not prevented from carrying his pager but was not permitted to take

it into the laboratory where it might interfere with delicate equipment.
Insofar as the applicant asserts that on 19 September 2013 Mr Anil told him that he would be dismissed if he attended a further call-out.

I accept Mr Anil's evidence. He took the applicant to task for disobeying Mr Gangemi's instruction to contact him in the event that he was going to undertake CFA volunteering. He was given the warning for failing to follow that direction.
Insofar as the applicant says he was taken off calibration work, there

is nothing in the applicant's material that suggests, as his claim asserts, that this had anything to do with any attribute contained in s.351 of the FW Act. I mention this matter only briefly in passing because it is so clear that the applicant's claim in this regard cannot be made out.
Further, and in any event, I accept Mr Gangemi's evidence about this incident. The applicant was not removed from the particular calibration work he was doing as a result of any kind of desire

or intention on the part of the respondent to punish him for his CFA activities or as a result of any attribute. The reason was that

Mr Gangemi wanted to train another employee on that piece

of equipment and further to ensure that the applicant completed another task.
This leaves for consideration therefore whether against these findings of fact the respondent otherwise contravened the FW Act.

Did the Applicant Exercise or Seek to Exercise a Workplace Right

The respondent has submitted strongly that the applicant has not actually pleaded any workplace rights within the meaning of the FW Act. Given the applicant's self-representation this is not perhaps of itself very significant, but the respondent also submits that the applicant has not in any event established that he either had such workplace rights or sought to exercise them.
It is clear that the applicant by joining the CFA became eligible

to undertake eligible community service activity within the meaning

of s.109 of the FW Act. The CFA is a recognised emergency management body (see s.109(3)(b), and if necessary (a) also). Likewise, there is no suggestion that the applicant's voluntary work

for the CFA would not be voluntary emergency service activity.
The real dispute between the parties is the purport of s.110 of the

FW Act which relevantly requires:
“Notice
(1)   An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence.
(2)   The notice:
(a)     must be given to the employer as soon as practicable (which may be a time after the absence has started); and
(b)     must advise the employer of the period, or expected period, of the absence.
Evidence
(3)   An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been

or will be engaging in an eligible community service activity.
Compliance
(4)   An employee's absence from his or her employment is not covered by this Division unless the employee complies with this section.”
The entitlement to be absent from employment for engaging in eligible service community activity is set out in s.108 of the FW Act. Leaving aside other matters, pursuant to s.108(b) the period of absence must

be reasonable in all the circumstances.
There is no doubt in my mind that, subject to the qualifications

in s.108(b) and s.110(4), the capacity to take eligible community service activity is capable of giving rise to a workplace right. Pursuant to s.341(1)(a) an applicant such as Mr Campbell would be, "entitled

to the benefit of, or has a role or responsibility under, a workplace law". The FW Act is clearly a workplace law and the entitlement

to eligible community service activity arises therefrom.
In his final submissions Mr Campbell articulated, possibly for the first time in any understandable way, the nature of the adverse action

he said was taken against him. He said that none of his conduct was illegal and that the dismissal was adverse action and so was the threat of it. He also referred to being told not to participate in his usual workplace activities (a reference to the calibration work) which took place after the respondent became aware of possible legal action.
He also said that discrimination took place for a short time and took place because of the different treatment of Mr Platts and himself.

He said that this discrimination was immediately after time off work.

He said that the threat by Mr Gangemi at the 19 June 2013 meeting "you want to try" consisted adverse action and he referred to his social origin as being membership of the CFA.
Dealing with these matters as best I am able in a logical way, the first matter said to constitute a workplace right is the entitlement of

the applicant to exercise his entitlement to community service leave.
I have already dealt with the issues of the applicant’s pager and the like and it is not necessary to return to them.
If Mr Gangemi had responded to the applicant's assertions that he was entitled to take eligible community service leave on 19 June 2013

by saying, "you want to try", it might be capable in my view

of constituting adverse action. The difficulty is that I do not think that

Mr Gangemi said this in the fashion asserted by the applicant. Furthermore, proposed taking of such leave must be reasonable in all the circumstances. The respondent's position that the applicant would only be allowed to attend major emergencies was in my view entirely reasonable and other leave would not, given the small size of the respondent's operations and the very important role played in it by the applicant, have been reasonable.
Accordingly, the requirement that the applicant notify Mr Gangemi and in effect liaise with him to take leave was one that was entirely reasonable. Any other leave would not be reasonable in all the circumstances. Thus for these purposes, not only was the applicant's assertion that he was entitled to take such leave without the employer's consent erroneous, it could not therefore give rise to a workplace right nor adverse action as a result.
Insofar as the applicant asserted somewhat belatedly that the decision to keep Mr Platts in employment rather than himself was related to his sick leave, I can say shortly that I do not accept this at all. Mr Platts was retained because he was the better employee. The applicant's assertion that the boss had always said it would be last on first off was not put to Mr Gangemi and even if Mr Gangemi had said something like that in the past (and there is no evidence of prior redundancies in any event), I make it clear again that I have accepted Mr Gangemi's evidence and that of Mr Anil as to their motivation.
Insofar as the applicant seeks to assert discrimination on the basis of

a social origin (his CFA membership) I do not think that membership of the CFA is capable of coming within the meaning of “social origin”. The terms of s.351 describe a number of attributes that may give rise

to prohibited discrimination. Membership of the CFA simply does not fit within them.
Insofar as the applicant asserts that his termination of employment constituted adverse action because of his involvement in the CFA,

I have already made it clear that I do not accept that is why the respondent acted as it did.
The respondent sought to rely upon the notice requirements of the legislation. Looking at the events of 19 September 2013, the applicant notified the employer (albeit in breach of Mr Gangemi's instruction)

of his absence. He did not notify the likely duration thereof. That was an omission which means he did not comply with s.110(4),

and accordingly he was not entitled to be paid.
That however does not necessarily mean that he was not exercising

a workplace right. For the reasons I have already referred to, however, it would not have been the exercise of a workplace right because it was not reasonable in all the circumstances. I must confess that the picture that emerges to me from the applicant’s demeanour and what he said was that on that day he was highly excited to have an opportunity to travel, as he did, in the fire engine to the scene of what he thought would be a significant accident. This overbore consideration of his employer's circumstances. It should not have done. Mr Gangemi had made it plain that only significant emergencies like bushfires or flooding were appropriate.

Conclusion

These reasons for judgment have not proceeded in an as orderly a way as I would have liked. It has been necessary to try and distil from the applicant's documents, evidence and submissions what it was he was really saying. However, this is not put as a criticism of the applicant given his self-representation, but it has made any kind of orderly judgment more difficult than it might otherwise have been.
Nonetheless and for the avoidance of doubt, I make it clear that the applicant simply has not made out in the main the facts for which

he contends. His case has not established that he had a workplace right that was capable of giving rise to an adverse action. Even if that conclusion is erroneous, I am completely convinced that the reasons why the respondent terminated the applicant's employment had nothing to do with any attribute contained in s.351 or any purported exercise

of a workplace right.
It will be noted that this decision contains no reference to authority.

I am of course conscious of the High Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education
v Barclay (2012) 248 CLR 500 and cases since that have applied it.

I note that “the central question is why was the adverse action taken” (State of Victoria v Grant [2014] FCAFC 184 at [32]). It is because has become my views about the motivation of Mr Gangemi are so clear that more detailed consideration of authority has been unnecessary.
The other elements of adverse action alleged are likewise not established and it follows that the application must be dismissed.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 7 September 2015

[2015] FCCA 2310

7 September 2015

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