Cavanagh v Lexastar Pty Ltd
[2021] FedCFamC2G 375
•22 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavanagh v Lexastar Pty Ltd [2021] FedCFamC2G 375
File number(s): BRG 292 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 22 December 2021 Catchwords: INDUSTRIAL LAW – Adverse action – whether employment converted to casual because of employee’s disability or use of personal, annual and temporary leave – whether employment terminated because employee suffered from a disability – whether adverse action taken because employee exercised a workplace right – whether employer discharged presumption imposed by section 361 (a) of the Fair Work Act 2009 (Cth) – whether employer contravened section 340 of Fair Work Act 2009 (Cth) – application dismissed. Legislation: Anti-Discrimination Act 1991 (Qld)
Disability Discrimination Act 1992 (Cth), ss.5(1), 5(2), 5(3), 6(1), 6(2), 6(3), 6(4)
Fair Work Act 2009 (Cth), ss.12, 13, 14, 44, 45, 65, 65(1), 65(1A), 65(3), 65(4), 87, 88, 96, 97, 117, 323, 335, 340, 340(1), 341(1), 341(1)(c)(ii), 342(1), 342(2), 342(3), 342(4), 351, 351(1), 351(2)(b) 352, 360, 361, 361(1), 536, 536(1), 536(3), 539, 772
Fair Work Regulations 2009 (Cth), r.3.01
Manufacturing and Associated Industries and Occupations Award 2010, cl.41.4, 41.5, 41.10, 42.5Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41; 253 CLR 243
Hodkinson v The Commonwealth [2011] FMCA 171
Ingersole v Castle Hill Country Club Limited [2014] FCCA 450
Jones v Dunkel (1959) 101 CLR 298
Kramer & Anor v Punthill Apartment Hotels Pty Ltd & Anor [2020] FCCA 1617 (19 June 2020)
Kubat v Northern Health [2015] FCCA 3050
Loukis v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281
McIlwain v Ramsey Food Packaging Pty Ltd[2006] FCA 828; (2006) 154 IR 111
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia[1998] HCA 30; (1998) 195 CLR 1
PLA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99
Qantas Airways Ltd v Christie [1998] HCA 18
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Reay v Fuel & Gas Haulage Pty Ltd & Anor [2019] FCCA 2473
Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
Sabapathy v Jetstar Airways [2021] FCAFC 25
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181Division: Division 2 General Federal Law Number of paragraphs: 260 Date of hearing: 20-22 September 2021 Place: Brisbane Counsel for the Applicant: Mr Latham Solicitor for the Applicant: Anderson Gray Lawyers Counsel for the Respondent: Mr Pratt Solicitor for the Respondent: Franklin Athanasellis Cullen ORDERS
BRG 292 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAMES CAVANAGH
Applicant
AND: LEXASTAR PTY LTD ACN 061 613 901
First Respondent
RANALD CILENTO
Second Respondent
PETER CILENTO
Third Respondent
MARY CILENTO
Fourth Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS:
1.The application is dismissed.
2.Within 42 days the parties may make an application for costs under s 570 of the Fair Work Act 2009 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN:
INTRODUCTION
On 19 May 2020 the applicant James Cavanagh (“James”) commenced proceedings under the Fair Work Act2009 (Cth) (“the FW Act”) claiming that the First Respondent Lexastar Pty Ltd (“Lexastar”) took adverse action against the applicant by effecting Conversion and Dismissal and that both actions were taken for a prohibited reason in contravention of sections 340, 351 and 352 of the FW Act. The applicant alleged that the Second Respondent Ranald Cilento (“Ranald”), the Third Respondent Peter Cilento (“Peter”) and the Fourth Respondent Mary Cilento (“Mary”) were each liable as accessories to the First Respondent’s contraventions.
The applicant commenced employment with Lexastar on 3 December 2018 and was employed full time from 28 March 2019. On 13 January 2020 the applicant contends his employment was unlawfully converted to casual. He was dismissed from employment on 3 February 2020.
Documents relied on
The applicant relied on the Further Amended Statement of Claim filed on 27 August 2021 and Reply filed on 7 April 2021, the affidavits of James filed on 11 September 2020, 16 October 2020, 7 May 2021 and additional documents as indexed in the Court Book (Exhibit C1).
The second, third and fourth respondents relied on the Further Amended Response filed 1 September 2021, the affidavits of the second respondent Mary Cilento filed on 9 October 2020, 4 March 2021, 22 April 2021, the affidavits of the third respondent Ranald Cilento filed on 9 October 2020, 22 April 2021 and the affidavits of the fourth respondent Peter Cilento filed on 9 October 2020 and 22 April 2021.
The applicant relied on an Amended Outline of Submissions filed on 13 September 2021 and written submissions filed on 28 April 2021. The respondents relied on an Amended Outline of Submissions filed on 16 September 2021 and written submissions filed on 14 May 2021.
FACTS NOT DISPUTED
The Applicant:
(a)was employed by the First Respondent as a machinist, fitter and turner between 3 December 2018 and 3 February 2020 (“the Employment”);
(b)was a national system employee of the First Respondent as that term is defined in section 13 of the FW Act;
(c)was an employee as that term is defined in section 335 of the FW Act;
(d)was entitled to the benefit of the National Employment Standards as contained within Part 2-2 of the FW Act at all times between 3 December 2018 and 3 February 2020; and
(e)is a natural person with standing to sue pursuant to sections 539 and 540 of the FW Act.
The First Respondent LEXASTAR PTY LTD:
(a)is and was a “constitutional corporation” within the meaning of section 12 of the FW Act;
(b)is and was a “national system employer” as that term is defined in section 14 of the FW Act;
(c)is and was an “employer” as that term is defined in section 335 of the FW Act;
(d)operated at the relevant time and continues to operate a manufacturing and engineering business in Toowoomba in the State of Queensland;
(e)was required to comply with the FW Act and the Fair Work Regulations 2009 (“FW Regs”) in respect of Employment;
(f)employed the applicant during the period of Employment; and
(g)is a corporation duly incorporated in accordance with law, capable of suing and being sued;
The Second Respondent RANALD CILENTO:
(a)is and was employed by Lexastar as operational and sales manager;
(b)was responsible for decision making in relation to the Employment; and
(c)is a person capable of being sued.
The Third Respondent PETER CILENTO:
(a)is and was a Director of Lexastar;
(b)at the relevant time was responsible for decision making in relation to the Employment;
(c)is responsible for ensuring Lexastar complies with its obligations under the FW Act and FW Regs; and
(d)is a person capable of being sued.
The Fourth Respondent MARY CILENTO:
(a)is and was employed by Lexastar as Financial Controller and Office Manager;
(b)was responsible for decision making in relation to the Employment including the calculation of wages and entitlements; and
(c)is a person capable of being sued.
At all material times the Manufacturing and Associated Industries and Occupations Award 2010 was a workplace law within the meaning of section 341(1) of the FW Act.
On 3 December 2018 the applicant and Lexastar entered into an agreement to employ the applicant as a machinist on a casual basis.
On 28 March 2019 the applicant and Lexastar agreed to vary the agreement to employ the applicant on a full time basis as a machinist.
At all material times during the applicant’s employment with Lexastar:
(a)The Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) applied;
(b)The applicant performed the work duties of an Engineering Manufacturing Tradesperson;
(c)The FW Act stipulated minimum entitlements to annual and personal leave;
(d)The Award stipulated minimum rates of pay for overtime;
(e)The Award stipulated minimum rates of annual leave loading;
(f)The applicant worked overtime;
(g)The applicant took annual leave; and
(h)Lexastar was required to comply with the FW Act and the Award.
At all material times, the applicant was entitled to the general protections provided by Part 3 - 1 of the FW Act. The applicant was able to initiate or participate in a process or proceeding under the workplace law and was able to make a complaint or inquiry.
Subsections 340(1), 351 and 352 of the FW Act are civil remedy provisions.
BACKGROUND
Lexastar employed James Cavanagh from 3 December 2018 to 3 February 2020 as a machinist. Lexastar is a company trading as C & C Machining and Engineering (formerly Tasweld Engineering) and is a family based business that has operated for about 34 years. The business commenced operation in Toowoomba in 1982. Peter Cilento is a director of Lexastar and manages the general operations of the business. Lexastar provides manufacturing and engineering services across several industries including precision CNC machining and heavy machining/line boring, metal fabrication, welding and component manufacturing, CAD services, drafting, prototype, design and engineering, large gearbox and pump system rebuilds, agricultural component design and manufacturing and pump skid design and manufacture.
Ranald Cilento handles the day to day operations of the business and describes himself as sales manager. Mary Cilento is the financial controller, accounts and office manager of the business.
FACTS IN ISSUE
The following facts are in issue:
(a)Whether any of the respondents knew the applicant suffered from a disability;
(b)Whether the conversion was agreed to by the applicant and in turn whether he remained a full time employee throughout his employment;
(c)Whether the conversion and dismissal were actions taken for prohibited reasons;
(d)Whether the applicant had accrued leave prior to the annual shut down;
(e)Whether the applicant was required to request to take leave prior to the annual shut down in order for Lexastar to contravene the Award;
(f)Whether the applicant was underpaid annual leave and annual leave loading;
(g)Whether Lexastar knew the pay slips were false and misleading;
(h)Whether Lexastar was required to pay the applicant one or two weeks in lieu of notice of dismissal; and
(i)Whether the respondents were involved in any contravention by Lexastar.
FAIR WORK ACT
The FW Act provides in Part 3-1, general protections to protect inter alia employees and employers with respect to action which may be taken against them on account of certain characteristics they have, activities they may take part in, or rights which they have.
Protection
“s.340(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”
Meaning of workplace right
“s.341(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.”
Meaning of adverse action
“s.342(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse actionis taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b) a law of a State or Territory prescribed by the regulations.
(4) Without limiting subsection (3), adverse actiondoes not include an employer standing down an employee who is:
(a) engaged in protected industrial action; and
(b)employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.”
Meaning of discrimination
“s.351(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(3) Each of the following is an anti – discrimination law:
…..
(ab) the Disability Discrimination Act1992…
…..
(c) the Anti-Discrimination Act 1991 of Queensland…”
Pursuant to the Disability Discrimination Act 1992 (Cth):
Direct disability discrimination
“s.5(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”
Indirect disability discrimination
“s.6(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Pursuant to the FW Act:
Multiple reasons for action
“s.360 For the purposes of this Part a person takes action for a particular reason if the reasons for the action include that reason.”
Statutory presumption
Reason for action to be presumed unless proved otherwise (s. 361)
“s.361(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) Taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
Temporary absence
Section 352 is also found in Division 5 Part 3 – 1 of the FW Act. It provides:
“s.352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
Regulation 3.01 of the FW Regulations 2009 provides:
“3.01 For section 352 of the FW Act this regulation prescribes kinds of illness or injury.”
Applicant’s claims
The applicant contends that the respondents breached section 340, 351 and 352 of the FW Act for a prohibited reason as per the table below. If proved, the Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision under the FW Act.
Reason Prohibited by Relevant Workplace Right (a) Use of Personal Leave s. 340(1) FW ss. 96 and 97 FW (b) Use of Annual Leave s. 340(1) FW ss. 87 and 88 FW (c) Complaints and Inquiries about Employment s. 340(1) FW s. 341(1)(c)(ii) FW (d) Request Flexible Working Arrangement s. 340(1) FW s. 65 FW (e) Disability s. 351 FW (f) Temporary Absence from Work s. 352 FW
In addition, the applicant alleges a number of ancillary breaches discussed below.
LEGAL PRINCIPLES
The principles applicable to contraventions of the FW Act are well settled. The applicant must first prove that adverse action occurred. In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [100] the Court said:
“[100] The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact: see Tattsbet Ltd v Morrow [2015] FCAFC 62 discussed at [16] above. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) [2012] HCA 32; (2012) 248 CLR 500 at 512–513, 524; [2012] HCA 32 at [31]–[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel[2015] FCA 504; (2015) 242 FCR 424 at 447–450; [2015] FCA 504 at [80]–[93] (Perry J). As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action: see Barclay (No 1) at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).”
Under section 361 (1) of the FW Act Kerr J said in Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407 (2 October 2020):
“[64] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay[2012] HCA 32; 248 CLR 500 (Barclay) at [50] French CJ and Crennan J - while acknowledging that Mason J’s remarks had been directed to an earlier expression of the statutory presumption - adopted as applicable to its current expression his Honour’s observation in General Motors-Holden's Pty Ltd v Bowling(1976) 51 ALJR 235 at 241; 12 ALR 605 (Bowling) at 617 that:
“the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
……
…….
[69] If “adverse action” is taken as a result of a decision that has been made by an individual within a corporation, the identification of the reasons for the corporation taking the adverse action requires an inquiry focussed on the actual mental processes of the relevant individual who made that decision: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 (BHP Coal) at [7] (French CJ and Kiefel J), [85] (Gageler J).”
Further in Roohizadegan v Technology One Limited (No 2) (supra) the Court said:
“[71] Section 361 however requires the Court to conclude that the reason the employee has alleged was his or her employer’s reason for taking adverse action against him or her was in fact the reason for that action, unless the employer can establish that the adverse action was not taken for that alleged prohibited reason. Proof in that regard is on the balance of probabilities: Barclay at [56] per French CJ and Crennan J, citing Gibbs J in Bowling at 239.”
The key principles relevant to the determination of the reason for taking adverse action were set out succinctly by Wigney J in Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)[1] as follows:
“[297] First the question is one of fact: Barclay at [41], [45], [101]; BHP Coal at [7];
[298] Second the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision – maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly the question is whether the alleged prohibition reason was a substantial and operative reason for taking adverse action: Barclay at [56] – [59], [104], [127] or an operative or immediate reason: Barclay at [140];
[299] Third the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the Court of its view rather than making a finding of fact as to the true reasons of the decision – maker: Barclay at [121]; BHP Coal at [9];
[300] Fourth, the inquiry is not concerned with mere causation in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18] – [20]. Any such connection however may necessitate some consideration as to the true motivation or reasons of the decision – maker: BHP Coal at [22];
[301] Fifth the question must be answered having regard to all the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7];
[302] Sixth direct testimony from the decision – maker as to why the adverse action was taken is capable of discharging the burden imposed by section 361: Barclay at [45], [71]; BHP Coal at [38]. However declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127];
[303] Seventh it is not necessary for the decision – maker to establish that the reason for adverse action was entirely dissociated from the relevant protected workplace right: Barclay at [62].”
[1] [2017] FCA 1046 at [296] – [303] cited in Salama v Sydney Trains [2021] FCA 251 [88]
The reverse onus aims to assist employees overcome the difficult task of proving what is in the mind of the person alleged to have taken adverse action.[2] Further evidence that the decision maker acted for a non - prohibited reason may be rendered unreliable by the quality of their own evidence.[3]
[2] Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at 449
[3] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
Evidence
James Cavanagh deposed in his affidavit filed 11 September 2020 that he was awarded a Certificate III (Trade) in Engineering from Southern Queensland Institute of TAFE in 2006 and awarded a Certificate IV in Engineering from Outsource Institute of Technology in 2014.
He alleged that he was diagnosed with anxiety by Dr Lynne King in mid - August 2016 when he began to experience panic attacks and symptoms of anxiety after the breakdown of his marriage. He annexed to his affidavit a copy of a medical certificate dated 22 February 2017[4] from Dr King who diagnosed a temporary condition with onset of symptoms from 1 July 2016 of severe anxiety and some panic attacks and poor concentration. The prognosis was “likely to show considerable improvement within 2 years.” The certificate noted that the applicant was unfit for work/study from 20 February 2017 to 17 March 2017.
[4] Applicant’s affidavit filed 11 September 2021 # JC 1.1 p.66
James annexed to his affidavit a copy of a medical record dated 9 January 2018 stating “this 38 year old man presents with recent increased anxiety and panic attacks. He has recently been in gaol. DV (domestic violence) charges. He was given Avanza there. He needs help to manage his distress, personal worries and anxiety.” It was noted that he had three daughters. Reference was made to prescriptions for Diazepam, Mirtanza and Prozac. He said Dr King referred him to a psychiatrist.
He gave evidence that when he returned to Toowoomba he engaged with Dr McLaren and a psychologist. He did not allege that the respondents had been provided with any medical certificates or reports by him prior to commencing employment with Lexastar that confirmed he suffered from a disability and/or anxiety and depression.
James said he returned to work with his previous employer in late November 2018. Around this time his friend Geoff Eldridge (“Geoff”) who was employed as a Product Design Research and Development officer with Lexastar contacted him enquiring whether he would be interested in working with Lexastar. Following the discussion with Geoff about working with Lexastar, he said Geoff undertook to talk to his bosses Ranald and Peter Cilento about a position for the applicant. He said he gave his friend permission “to advise his prospective employers about his pre-existing illness.”
Peter Cilento gave evidence that he and Ranald were approached by Geoff who said he had a friend who had some experience as a machinist and was looking for employment. Geoff told them that James was a recovering drug addict who had recently been in prison and was having trouble returning to his former place of employment. Geoff said James felt that his old workmates were not accepting of him because he had been in prison and he was having some trouble adjusting to life outside prison. Peter said he thought this was “quite understandable given the circumstances.” He said Geoff did not mention anything about James suffering from a mental illness or physical or mental disability or anxiety and depression.
Ranald Cilento gave evidence that Geoff approached both himself and Peter and said he had a friend (James) who was interested in working at Lexastar as a machinist and that James had some experience in that area. Geoff mentioned that James had a criminal history and that he had previously had a problem with drug addiction. Ranald said Geoff told us James had a restraining order that prevented him from seeing his children. He explained that if James could demonstrate that he could stay clean for six (6) months he would be able to see his children again. Ranald said he was not told that James suffered from a medical condition or disability or anxiety and depression.
On 26 November 2018 James was interviewed for a position with Lexastar by Ranald and Peter. According to James “Peter told me he was told by Geoff Eldridge ‘about my situation.’” In response to that statement Peter said during the interview he said to James “Geoff has told me a bit about his situation.” When cross examined about the information provided to Peter by Geoff, Peter said he was told about James’s history of drug use and that he had spent time in gaol. Peter denied that he and Ranald were told that James suffered from a mental illness or mental disability and denied they were told he suffered from depression and a generalised anxiety disorder at the time of interview and/or when they agreed to employ James.
Ranald said that during the interview Peter told James they were aware of his situation which related to the information Geoff provided about James’s criminal history, drug addiction and the restraining order in place. Ranald corroborated Peter’s version of events and denied that they were told that James suffered from a disability or that he suffered from depression and a generalised anxiety disorder at the time of interview and/or when they agreed to employ James. It was not suggested during cross examination that Peter and Ranald had colluded when giving that evidence. I accept Peter and Ranald’s evidence.
Ranald said after walking James through the workshop Peter offered him the position of machinist. They both agreed that James would start on a casual basis.
Geoff Eldridge was not called by James to give evidence in the proceeding though he may have shed light on the applicant’s contention that Geoff made Peter and Ranald aware of James’s “situation” which I infer was that James suffered from a disability and/or anxiety and depression. Consistent with the rule in Jones v Dunkel (1959) 101 CLR 298 [5] it is reasonable to expect that James would call Geoff Eldridge to testify that James gave Geoff permission to advise his prospective employers that he suffered from a disability and/or anxiety and depression. That evidence was relevant to whether Peter and Ranald were aware from the outset through information provided by Geoff that James suffered from a mental illness or disability. No explanation was provided for the absence of that evidence.
[5] In Jones v Dunkel (1959) 101 CLR 298 a negligence case the defence had failed to call a material witness who had survived a traffic accident that killed the plaintiff. The High Court determined that the trial judge had misdirected the jury and ordered a new trial. The Court held that the rule operates where there is an unexplained failure to give evidence by a party. Such failure may lead to an adverse inference that the absent evidence would not have assisted the party’s case. The adverse inference can only be made if the following circumstances are present. The evidence that is missing would have been expected to be called by a party against whom the rule is to be relied on, the evidence that is missing would have been relevant to determining facts in issue and no explanation is given for the absence of the evidence.
The application of the rule in Jones v Dunkel (1959) 101 CLR 298 was discussed in RailPro Services Pty Ltd v Flavel [2015] FCA 504. In that case Perry J considered whether the primary judge had erred in his application of the Jones v Dunkel rule. His Honour noted that notwithstanding that the principle ‘may make certain evidence or the inferences which may be drawn from the evidence more probable’, it does not allow the inference to be made that the uncalled evidence would have been damaging to the party expected to give the evidence [95]. In RailPro the third decision-maker, Mr Yates, was not called to give evidence notwithstanding the fact that he was an important witness that the primary judge considered would have been expected to be called. Perry J, in dismissing the ground of appeal, found all of the appropriate conditions in Jones v Dunkel to be satisfied, including the fact that there was no explanation for Mr Yates’ failure to be called as a witness, including the fact that he had not filed an affidavit in advance of the hearing. As Geoff was an important witness and no explanation was provided why he was not called to corroborate James’s claims that Peter and Ranald were aware from the outset that he suffered from a disability, I infer Geoff’s evidence would not have assisted the applicant.
I am satisfied that Peter and Ranald were told that James had a history of drug use and had spent time in prison and he was having difficulty returning to his former workplace. James was to be employed to operate machinery so the information about drug use had some significance. I am satisfied that when Peter and Ranald offered James a positon with Lexastar they were not aware (and had not been made aware by James, Geoff or any other person) that James suffered from a disability, a mental illness or specifically from anxiety and depression.
Initial casual employment
On 3 December 2018 James commenced working for Lexastar as a casual machinist. Regarding his assertion that he should have been employed as a Level C7 Engineering Manufacturing Tradesperson or alternatively a Level C8 Engineering Manufacturing Tradesperson within the classification structure in Schedule B of the Award and that the respondents failed to comply with the Award during his period of employment in not paying him at the relevant pay rate commensurate with those qualifications, the evidence does not support that conclusion.
The respondents contend that they were not aware that James held Certificates III and IV in Engineering at any time during his period of employment. Peter said he was not aware that James held (or continues to hold) Certificates III and IV in Engineering. He gave evidence that when James was hired he (Peter) was made aware that James had some experience in their area of work but at no time did he receive any documentation either when interviewed or during the course of his employment evidencing that James held those Certificates or any other qualification. Peter said he was aware that James had done an apprenticeship as ten (10) years earlier James had applied (unsuccessfully) for an apprenticeship with Lexastar.
Peter said James was never employed by Lexastar as a C7 or C8 Level under the Award because that was not the type of work James was doing. The job he was offered and accepted was a C9 Level (Tradesperson with experience at Machining). His job consisted of using large boring machines which required some training at the beginning of his employment but was not the kind of work that required any sort of formal qualification. He said that the basic trade Certificate C10 is the level of work required for the job James was employed to do but that a formal trade qualification was not necessary if the person knew how to run the machine and understood the work he was required to perform.
Ranald gave evidence that he was not aware what rate of pay James was paid or what his classification was under the Award as he had little to do with that part of the business. He recalled James receiving training from one of the staff on how to operate Lexastar’s machines. He was not aware that James held any Certificates and was not told about any qualification that James held either when interviewed or during his employment.
Mary said she had never received any documentation that James held any relevant engineering Certificates. She did not have a conversation with James about his employment conditions. Ranald and Peter were responsible for negotiating with James about his employment conditions and she was not involved in deciding what level or classification employees fell under the Award and was not involved in dealing with James’s classification which was Peter’s responsibility. Peter advised her what level or classification James fell into under the Award. Her role was to ensure that James was paid in accordance with the level of employment he was hired by Peter to perform.
When cross examined, James agreed that he did not give the respondents a resume prior to commencing employment with Lexastar and did not provide copies of any trade certificates to Peter or Ranald (or anyone associated with the business) when interviewed for the positon or at all. He agreed that he had not shown the respondents the Certificates or copies of those documents. The Certificates or copies were not adduced in evidence.
I accept Peter’s evidence that the job James was offered and accepted did not require any sort of formal qualification and the work to be performed was at the basic trade Certificate C10 level for which no formal trade qualification was necessary if the person knew how to run the machine and understood the work he was required to perform. I am not satisfied that the respondents failed to comply with the Award and that James should have been employed as a Level C7 or C8 Engineering and Manufacturing Tradesperson. I take this evidence into account in assessing James’s credibility as a witness.
Whether the respondents knew that the applicant suffered from a disability
James contends that shortly after commencing work with Lexastar he had a meeting with Peter while Geoff Eldridge was present. Geoff explained to Peter that James needed to see a psychologist but could not afford to do so. He said “Peter gave me a cash advance of $150 to pay for the first appointment with Ms Donovan psychologist. Peter then organised for the advance to be deducted over a period of time from his wages.”
In response, Peter gave evidence in his affidavit filed 9 October 2021 that in December 2018 “James asked me for a cash advance of $150.” He told him he was short on money due to several weeks of unemployment. Peter then met with Geoff and James to discuss this request. He said “I did not know what James wanted the money for. I thought this was an unusual request however I was aware of James’s tumultuous history.” He said “we agreed that the $150 would be advanced.” James paid back the full amount.
When cross examined on this issue, Peter denied that he was told the money was to enable James to attend an appointment with a psychologist. He said he believed James intended to use the money for a counsellor. I accept Peter’s evidence that James approached him directly about the cash advance prior to the meeting where Geoff, James and Peter were present. I am satisfied that Peter was not told that the money was to be used for James to attend a psychologist’s appointment nor was any mention made that James suffered from a mental illness or disability at that time. I accept Peter’s evidence that he assumed the money was to be used for James to attend a counsellor given the information he had been provided regarding James’s past history of drug use.
James gave evidence that during the time he worked for Lexastar there were usually five other tradespersons in the workshop and two apprentices and a Workshop Foreman named Matt Campbell. He was required to report to the Workshop Foreman however when he did so he was told to report to Peter or Ranald which he did. If he needed a day off he would speak with Peter or if not available then Ranald or Geoff Eldridge. If he was absent he would report important technical work to Ranald by text message. He said Ranald usually attended the workplace after 10 a.m. but did not attend every day.
In response to the claim that James informed Peter if he needed to take a day off work, Peter said his relationship with James was professional and businesslike and he did not have much interaction with him after the interview in November 2018 however he discussed James’s progress with Ranald, Geoff or the Workshop Foreman and occasionally would check in to see how he was going. Peter said James never contacted him via text message and he did not have (and has never had) James’s mobile phone number. He said he did not recall ever speaking to James by phone. He said he was aware that James would usually call Geoff and he would occasionally text Ranald when he wanted to take leave from work. Peter said the major issue for him was that “we rarely knew if James was coming in to work until Ranald talked to Geoff.” Geoff would say “he called me this morning. He’s not coming in.” Peter said he was not aware James had any “mental disability” and was never advised by James that he had mental illness or disability nor did he receive any documentary evidence that James was seeing a doctor or psychologist for any “mental disability.” He said he formed the view that James was unreliable due to his many absences from work. I found Peter to be a frank and truthful witness and I accept his evidence.
Mary gave evidence that she was Lexastar’s financial controller and office manager and worked from home regularly accessing her office remotely. She attended the office rarely, perhaps once a month. She was made aware that James commenced casual work with Lexastar as a machinist. She annexed to her affidavit a copy of a document signed by James “C & C Machining Engineering Rules of Employment Safety Policy and Workshop Induction 2017” dated 3 December 2018[6] which set out the requirements regarding James’s employment with Lexastar.
[6] Affidavit of Mary Cilento filed 9 October 2020 MC – 1 pp.233 - 252
James said he observed that Mary managed the office and was usually there every day. He said the coffee machine was near Mary’s desk and she would engage in personal conversation with him and ask him “how’s your depression Jamie?” “What are you on?” “You don’t want to be on that why don’t you try this?” He said that she spoke to him about her previous medications and would recommend different anti – depressant medications. She explained to him how they worked and recommended her own psychiatrist to him on a number of occasions. He said he felt embarrassed and uncomfortable having those conversations in front of others and if he was having a bad day he would avoid the office if Mary was there. He said he did not want to discuss his illness in front of others.
When cross-examined, Mary said she was rarely in the office as she mostly worked remotely from home. There was a designated area outside the office with a kettle, microwave, and toaster for employees to use. There was no need for James to come into the office to make coffee as the coffee machine was some distance from her office. She said she only occasionally spoke to James and never spoke to James about having a mental illness herself. She said he may have overheard her speaking with Peter and Ranald or scheduling an appointment over the phone. She denied that she spoke to James about his alleged mental illness or “his depression and anxiety” and denied that she made any suggestion regarding any medication he was taking or should take or any psychologist or psychiatrist he should see. She said she never wrote down the names of any medication or psychologists on a piece of paper for him. She was not aware that he suffered from any mental illness or disability and was not aware that he would leave work early to attend upon a psychologist. She denied that she would mark down James’s early exits when he left work early as either annual leave or personal leave. She said when James ran out of personal leave she would ask him if wanted to use his paid annual leave. If he requested to leave for medical reasons he would request that be marked as personal leave.
Mary said when James commenced employment she was made aware that he had a criminal record including having spent time in prison. She was not aware that James suffered from a medical condition, mental illness or disability when he commenced employment. She was never advised by James that he had any disability nor did she receive any documentation that James was seeing a doctor or psychologist for any “disability.” She said “early on in his employment James told us that he was a former drug addict and that he wasn’t allowed to see his kids until he could provide blood tests showing that he had been clean for 6 months.”
The allegations by James that Mary discussed with him his depression, anxiety and/or mental health issues were vague and completely lacking in particularity. At best he claimed that she made comments at unidentified times and dates around a coffee machine in the presence of others that embarrassed him. He did not indicate how it was that Mary came to know about his alleged mental illness or disability as it was not suggested she received any information from Geoff about this nor that he provided Mary with any medical evidence to support that diagnosis. I found Mary to be a credible and reliable witness. I accept that she attended the office about once a month but usually worked from home. I accept her evidence that the coffee machine was a distance from her office and the alleged conversations never took place and she was unaware that James suffered from any mental illness or disability. Mary impressed as a quietly spoken, conservative older woman who appeared affronted by the suggestion that she would speak about her own personal mental health issues or the applicant’s private mental health issues in the presence of others. Their roles were very different. Mary worked in the office and James was a tradesman who worked in the workshop. She said she had little interaction with him which I accept. I reject James’s evidence that Mary spoke about James’s mental health issues openly in front of others for all to hear. Those issues were sensitive and very likely to cause embarrassment. No other persons were called by James to corroborate his claim that these conversations in the presence of others took place and caused him embarrassment.
I am not satisfied on the evidence that the respondents had knowledge of James’s disability or that he suffered from anxiety and depression. James provided no medical evidence during his employment to support that contention save that for a Centrelink form emailed to Ranald by Ms Beattie on 15 January 2020.
Full time employment
Ranald gave evidence that as James had proved to be a talented machinist picking up complex work easily he discussed with Peter about James moving to full time employment and on 28 March 2019 James was offered full time employment at the rate of $33.00 per hour which he accepted. Ranald said at that time James provided them with a blood test to establish that he was clean from illicit drugs. Ranald understood that from this point in time James was able to spend some time with his children. An employment agreement dated 28 March 2019[7] was signed by James. Though James deposed in his affidavit that he was not provided with a contract of employment he corrected that evidence. In his affidavit James said Mary offered him the full time position. I do not accept that evidence. I accept Ranald’s evidence that he and Peter made that decision.
[7] Applicant’s affidavit filed 11 September 2020 JC 1-4 p.97
Work performed by James
James said when he was given an employment contract for full time employment Peter had already signed it. His rostered days and hours of work were Monday to Thursday from 7.30 a.m. to 4.00 p.m. and from 7.30 a.m. to 1.30 p.m. on Fridays. He agreed in cross examination that he operated the “borer machine” used to machine engineer large pieces of steel for mining clients and those clients were “sensitive to deadlines.” He said “they were more entitled to have deadlines.” He denied that large items could not be made on other machines. He agreed that tension about deadlines was conveyed to him by Ranald who often spoke about deadlines and the need to have a particular piece of equipment completed by a certain date. It was not unusual to have to work to deadlines and agreed that if he was two thirds of the way through a job it was not easy for another worker to pick up where he left off. He said “there was only one other person in the shed that knew how to use that (borer) machine.” During re-examination James said “Jason” was the only other person who could use the borer machine.
Trip to Narrabri
James gave evidence that on 14 April 2019 he sprained his right ankle at home and went to the Toowoomba Base Hospital for treatment. He obtained a medical certificate stating that he was unfit for work until 20 April 2019. He did not attend work on 15 April 2019 and notified Ranald however Ranald advised him he was needed for work and to attend work and he would be given a chair to work from. He attended work on 16 April 2019 and was given a chair but was unable to complete his work in that position. He said he felt pressure to remain at work and tried to push through the pain.
On 17 April 2019 he attended work “with a swollen and throbbing ankle.” He wanted to go home but Geoff Eldridge told him he needed him to travel with Geoff to Narrabri to fix a cotton picker that was stuck in a field. He said he accompanied Geoff and they worked for 25 hours straight until 8 a.m. the following morning. James claimed he was not paid for that overtime work performed. He said he was exhausted and did not attend work on 18 April 2019 due to the pain in his ankle and increased anxiety.
Peter confirmed that on this occasion James was offered light duties and Lexastar attempted to accommodate him to make his work more manageable. Peter said James accompanied Geoff to Narrabri on 17 April 2019 to a customer’s premises to fix a piece of machinery. It was usual for two employees to attend those jobs, one to fix the machinery and one to accompany the driver. That type of job was usually allocated to apprentices however James was offered the job as he was performing light duties. He was not required to perform any work for the customer. The arrangements were that Geoff and James would stay in a hotel overnight and fix the machinery the following day. Geoff advised Peter that they had attended the premises on the afternoon of 17 April 2019 and fixed the machinery and intended to return to Toowoomba. They returned to work at 8 a.m. and Peter said he told them both to go home and rest and they would be paid as if they had worked as arranged.
Ranald said he became aware on 15 April 2019 that James had sprained his ankle. He believed Geoff provided this information and could not recall being given a medical certificate. He denied pressuring James to work but said as James had missed a lot of work Ranald gave James an opportunity to continue working on light duties. He said Geoff managed the jobs for James during this period. James was given the option of travelling with Geoff to Narrabri which he accepted.
Mary agreed that in April 2019 James told her that he had sprained his ankle. She received a medical certificate dated 14 April 2019 indicating a right ankle sprain stating James “was partially incapacitated for work.” She said she understood that he was still fit for work as the medical certificate stated he had limited capacity up to 20 April 2019. He was offered light duties to keep him off his feet. Mary denied she gave James a chair to sit on in the workshop. She said she did not go into the workshop and remained in her office. She became aware that Ranald and Peter arranged for James to accompany Geoff to Narrabri and the plan was for James and Geoff to travel on 17 April 2019 and check into a hotel for the night and attend the client’s premises the following day where Geoff would perform the work and return to Toowoomba that afternoon. They returned on the morning of 18 April 2019 and James was paid 12.25 hours normal time, 3 hours at time and a half, 3 hours at double time and 10.5 hours double time and a half for the time worked during this period. I accept the evidence of Peter and Mary. I reject James’s evidence that “he was not paid for that overtime work performed.” I am satisfied that James was paid overtime for the work he performed on this occasion as deposed by Mary in her affidavit.
Absences from work
James gave evidence that Ranald, Mary and Peter were aware that he had regular scheduled medical appointments with his psychologist once a fortnight and regular appointments with his doctor. He said those appointments were usually once a month. He was never asked to provide medical certificates for these appointments. Whenever he needed to leave work he would give Ranald notice by text, verbally or in writing or by writing a message on the whiteboard. He said he would advise Ranald about when he would have to leave and Ranald always agreed. He would often copy in Geoff to any text message so that Geoff could remind Ranald. He would also keep the Foreman informed. No documentary evidence to support his contention that he regularly visited a psychologist was either provided to the respondents during James’s employment or annexed to his affidavits.
James said he would clock off when he left. Sometimes he would make a note on his time card. Mary would put those absences down as either personal leave or annual leave. He requested to be paid annual leave if he didn’t have sufficient personal leave. He said “Mary would decide what leave I received there didn’t appear to be any consistency in Mary’s decisions and I never knew whether I was being paid annual or personal leave until I received my pay slip…There were times when I would not be paid either personal or annual leave even though my pay slips showed that I had accrued annual leave entitlements.” He did not know until he received his pay slip the type of leave recorded. At times he would not be paid either personal or annual leave even though his pay slips showed that he had accrued leave entitlements. In his affidavit filed on 7 May 2021 James claimed that if he was late in the morning or late back from lunch by a couple of minutes “Mary often docked my pay in 15 minute increments.”
On 8 May 2019 James said he attended his doctor due to increased anxiety and was provided with a medical certificate that he was unfit for work from 8 to 10 May 2019. He took leave on 8 May 2019. He said Ranald pressured him to return to work early. He worked full days on 9 and 10 May 2019 despite handing in the medical certificate on 9 May 2019. He did not suggest that he was not paid for the work he undertook on 9 and 10 May 2019. No leave is recorded for James for 9 and 10 May 2019 in Mary’s affidavit filed in April 2021 and no challenge was made to the accuracy of those records.
James said in July 2019 he applied for two days annual leave at half pay. When he checked his pay slip on 18 July 2019 he found that he had been paid his leave on full pay. He said Mary told Karen (who worked in the office) that he should be given full pay. It is unclear on the evidence whether this occurred and I am unable to make any finding.
James said he was not paid leave loading when he took annual leave on 26 April 2019 and said “I was paid out my accrued annual leave after being dismissed.”[8] He said his timesheet records 6 hours annual leave which was pre-approved and formed part of the Anzac day long weekend. Mary deposed in her April 2021 affidavit that James had the benefit of paid leave on 26 April 2021. I accept her evidence.
[8] Affidavit of James Cavanagh filed 7 May 2021 at [5]
On 12, 13 and 14 June 2019 James said he was absent from work on pre-approved annual leave. He went into work for 40 minutes on 13 June to help with a job and over the three days spent time on the telephone with Matt, Jason and Cheyne helping with programming and job set up. He said he was not paid for his time. James did not produce a timesheet to indicate that he was working remotely or entitled to any payment for work allegedly performed during leave. Mary recorded in her April 2021 affidavit that James took partial or full personal leave days on the days specified. No timesheet was provided. No claim was made by James prior to the commencement of these proceedings that his leave entitlements should have been altered to reflect the work he performed during this period.
On 5 and 12 July James took pre-approved annual leave to look after and spend time with his children during the school holidays and submitted a leave form on 26 June 2019 which was approved. That does not appear to be in dispute.
On 30 July 2019 James said his timesheet shows personal leave of 45 minutes. He started work at 7.24 a.m. and had to leave at 7.30 a.m. to go and get his daughter’s clarinet from home and get it to her at school. He made work aware of this and was back by 8.16 a.m. He worked until 1.29 p.m. and then took fifteen minutes for lunch. He restarted work at 1.44 p.m. and finished at 3.59 p.m. and worked 7 hours and 34 minutes that day. The time sheet was not annexed to his affidavit. No personal, annual or unpaid leave is recorded for James for 30 July 2019.
On 14 August 2019 James deposed that he had a psychologist’s appointment at 3.30 p.m. and left work at 2.30 p.m. Mary deposed in her affidavit filed in April 2021 that partial unpaid leave was recorded for 14 August 2019. The amount of leave is not specified and the timesheet was not annexed to James’s affidavit.
On 25 September 2019 James said he had a psychologist’s appointment at 3 p.m. and his timesheet records one (1) hour of personal leave and that he worked seven (7) hours. Mary deposed in her affidavit filed in April 2021 that partial or full personal leave was recorded for 25 September 2019. The amount of leave is not specified and the timesheet was not annexed to James’s affidavit.
On 18 and 27 September 2019 and 4 October 2019 James said he took annual leave which was pre-approved to spend time with his children during the school holidays. No annual leave was recorded by Mary in her affidavit filed in April 2021 for 27 September 2019. Otherwise annual leave taken by James is recorded for 18 September and 4 October 2019.
On 4 November 2019 James said his timesheet records eight (8) hours of annual leave however he was absent from work because he was sick. Mary deposed that when James had exhausted all his sick leave entitlements he requested his leave be recorded as annual or personal leave. That appears to have occurred on 4 November 2019.
On 20 November 2019 James said he had a psychologist’s appointment at 9 a.m. and returned to work after that appointment. The timesheet records three (3) hours personal leave and that he worked five (5) hours. James is recorded by Mary as having taken partial or full time personal leave but the time taken is not specified nor was the timesheet made available.
On 26 November 2019 James indicated his timesheet records eight (8) hours annual leave however he was absent from work because he was sick. Mary deposed that when James had exhausted all his sick leave entitlements he requested his leave be recorded as annual or personal leave. That appears to have occurred on 26 November 2019.
On 28 November 2019 James said he was late to work as he had been unwell. He notified Ranald by text message that he had been unwell overnight and would come to work when his headache eased. He said his timesheet records work of seven (7) hours and one (1) hour of annual leave. Mary records that James took partial or full time annual leave but the time taken is not specified nor was the timesheet made available.
Though James referred to timesheets in his affidavit those documents were not produced. No challenge was made to the accuracy of leave recorded by Mary in her affidavit filed in April 2021. The record of leave taken by James was unchallenged.
Mary gave evidence that she was never notified when or why James was absent from work. She became aware of his absences from managing the accounts and what she was told by staff including that James would frequently arrive late for work, leave early or not come to work at all. On the few occasions that she was in the workshop she observed James make a sign to Geoff that he was leaving. This was usually a wave. She was not aware he was seeing a psychologist.[9] I accept that evidence.
[9] Affidavit of Mary Cilento filed 9 October 2021 at [17]
Mary denied that she was in charge of allocating personal leave to employees. She said she did that on occasion but the person responsible for allocating entitlements for employees’ leave was the bookkeeper. Lexastar had twelve (12) employees and she did not recall specifically being responsible for allocating annual or personal leave to anyone including James. She said James usually requested that leave be recorded as personal leave or when that ran out annual leave or when that ran out leave without pay. She annexed to her affidavit a copy of leave requests submitted by James for February to July 2019 which appear to have been approved by Ranald.
In her affidavit filed on 22 April 2021 Mary identified the personal and annual leave taken by James between April and 20 December 2019 as follows:[10]
(a) Partial or full days of personal leave[11]:
3 and 15 April 2019 (8 hours); 8 May (8 hours) and 28 May 2019; 3, 11, 12, 13, 14 and 27 June 2019; 5 and 26 August 2019; 6, 9 and 25 September 2019; 9, 10, 11 and 30 October 2019; 20 November 2019; and 10 (5 hours), 11 (8 hours), 12 (8 hours) and 13 December 2019 (6 hours).
(b) Partial or full days of annual leave[12]:
26 April 2019; 5 and 12 July 2019; 18 and 19 September 2019; 4 October 2019; 4, 26 and 28 November 2019; and 5 and 6 December 2019.
(c) Partial or full days of unpaid leave[13]:
4, 8 and 24 April 2019; 3 July 2019; 9, 14 and 29 August 2019; 18, 23 and 31 October 2019; 1, 14 and 19 November 2019; and 17 and 18 December 2019.
[10] Affidavit of Mary Cilento filed 22 April 2021 at [6] – [8] pp. 354 - 355
[11] Affidavit of Mary Cilento filed 22 April 2021 #6
[12] Affidavit of Mary Cilento filed 22 April 2021 #6
[13] Affidavit of Mary Cilento filed 22 April 2021 #6
Mary said in addition James took the following leave in 2020:
·6 January 2020 (8 hours personal leave);
·7 January 2020 (7 hours personal leave);
·8 January 2020 (6 and ¾ hours personal leave);
·9 January 2020 (8 hours personal leave);
·10 January 2020 (6 hours personal leave);
·14 January 2020 (8 hours personal leave);
·15 January 2020 (8 hours personal leave); and
·3 February 2020 (8 hours personal leave).
Mary’s record of the leave take by James was unchallenged. I find that James’s leave was accurately recorded and he was paid leave in accordance with his entitlements. In so far as he alleges he was not paid or underpaid I reject his evidence.
Mary said she was not informed by James the reasons for his leave and did not know whether any of the absences were because of any alleged “disability” or because he was managing his anxiety and depression.
Peter gave evidence that he was never notified when or why James was absent from work. In December 2019 Ranald expressed concerns to Peter that he believed James was on “some sort of drugs.” Peter said that Ranald told him that James was observed as agitated and acting out of character in early December 2019.
Ranald said on 10 December 2019 James turned up for work. He (Ranald) believed James was on some sort of drugs and approached him. James was agitated and would not be still and behaved completely out of character and according to Ranald he asked him if he was on drugs and “he confirmed it.” After speaking with him Ranald told James “I can’t have you in here like this” and told him to go home and take the rest of the week off to recover. He said he did this as the following week they needed to keep on schedule or they would be left with unfinished jobs over the Christmas break. James was paid leave during this period.
During cross examination James was asked about his absences from work. He said in November or early December 2019 he was required to perform his usual work in addition to the work undertaken by Jason and Cheyne as they were on leave. He worked overtime during the week and also on Saturdays. He said in November or early December 2019 Lexastar had more work than it could handle. Ranald requested James work overtime on Fridays and weekends. He could not work on Fridays as he collected his children from school. Ranald told him that Mary could collect his children and offered to pay for a babysitter so James could continue to work.
James said Ranald suggested this on six occasions during this period and he and Mary “continued to hound me about working overtime.” James said that on one Friday he made arrangements for his former wife to collect the children however as a result his children could not stay with him over that weekend. On 26 and 28 November 2019 he took time off work because he was ill. In his messages to Ranald he did not complain about the excessive workload or demands that he work overtime.
James said another worker Jason refused to work overtime and told him Lexastar should have organised the work earlier rather than simply demand overtime.
On Monday 9 December 2019 James said he came to work feeling unwell. He arrived at work “at my usual time of 7.30 a.m. feeling exhausted. I thought I left work around lunchtime but it was actually around smoko I left work around 10.30 a.m. and went straight to the doctor.” He worked 8.45 hours on 9 December (Monday) not 10 December 2019. He agreed that he took the rest of the week off. He said the time sheets show that he had the rest of the week off.[14] He provided a medical certificate for the period 10 to 13 December 2019 inclusive. It was suggested to James that Ranald confronted him on 10 December 2019 as he (Ranald) thought James was “very under the weather and he asked you if you had been taking drugs?” James denied that and said “No I spoke to his mum.” It was suggested to James in cross examination that Ranald was not satisfied with his response and said to him “go home. Take the rest of the week off?” He denied that and said he spoke to Mary and went up and made a doctor’s appointment during “smoko.” He told Mary he was feeling unwell and she told him to make a doctor’s appointment. He took the rest of the week off “because the doctor said I should take the rest of the week off to try and get over my anxiety.” He said his anxiety was caused by the lead up to Christmas and the pressure of work. A contributing factor to his anxiety was that there was a lot of work on at the time. It was not so much the work but the pressure that was being put on him and he had a lot of stuff going on as well.[15] James said he was paid 10.27 hours in personal leave.
[14] Transcript of proceedings 20 September 2021 at pp. 21
[15] Transcript of proceedings 20 September 2021 at pp.23.35 - 40
I accept Ranald’s evidence that on 10 December 2019 he advised James to go home and take the rest of the week off and that James received paid leave for this period. I reject James’s evidence that Mary was involved at all on this occasion. If James was overworked due to the amount of overtime he was working he did not raise that with Ranald or Peter at the relevant time.
Text messages
Ranald said on some occasions James would inform him of his absence from work usually via text message or phone call. James would notify us “less than half the time.” He said he recalled one or two medical certificates being presented but none of those disclosed that James suffered from any “disability.” Most of the time Ranald was told James had a “headache” and would often say he was not coming in. Ranald referred to the following text messages sent by James relating to his absences from work:
9 September 2019: “Hi Ran I won’t be in today. I’m still crook. Jamie.”
4 November 2019: “Hi Ran I won’t be in today. Jamie.”
26 November 2019: “Hi Ran I won’t be in today.”
28 November 2019: “Hey I’ve been up and down all night with a c### of a headache. I’ll come in when it eases up a bit.”
8 January 2020: “Hi Ran I just finished at the doctors and I won’t be back today. Sorry but I’m crook af. Jamie”
9 January 2020: “Hi Ran I won’t be in until tomorrow.”
10 January 2020: “Hi Ran I won’t be in today either. I will be back on Monday if there’s a job for me to return to. Jamie.”
14 January 2020: “Hi Ran I have slept in even after everything that you guys said to me yesterday. Whatever you decide to do I understand. I just need to have today to myself. Sorry.”
15 January 2020: “Hi Ran, I’m trying to get into the doctors atm. I don’t think that I will be in today.”
28 January 2020: “I slept through my alarm but I’m still coming in.”
3 February 2020: “Hi Ran I won’t be in today.” Ran replied “Why” James responded “because I can’t get out of bed.”
Ranald said he believed that James’s absences were due to James being hung over or recovering from drinking the night before. I accept Ranald’s evidence that most of the reasons given to Ranald for James’s absences were unrelated to James suffering from any disability and/or anxiety and depression. James did not allege that notwithstanding the text messages he told Ranald that he was suffering from anxiety and depression. I am satisfied that Ranald was not aware nor made aware that James was suffering from a disability nor was he aware that James’s disability and/or anxiety and depression was the reason James was absent from work.
Medical evidence
James annexed to his affidavit filed on 11 September 2021 a Centrelink Medical Certificate dated 22 February 2017 stating James “has severe anxiety and some panic attacks, poor concentration” with the prognosis “likely to show considerable improvement within 2 years.” He was said to be unfit for work from 20 February 2017 to 17 March 2017.[16] It was not suggested to any of the respondents in cross examination that they had seen that Medical Certificate nor been provided with a copy of that Certificate prior to James commencing his employment or at any time during his employment and/or prior to the commencement of these proceedings.
[16] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.1 p.66
Mary acknowledged that she was aware of the medical certificate from “Toowoomba” (presumably hospital) recording that James suffered from a right ankle sprain on 14 April 2019 and “was partially incapacitated for work on 14 April 2019 and will be limited up to 20 April 2019 and including that date.”[17] Ranald was unsure whether he had seen that certificate but accepted that James had sprained his ankle at the time.
[17] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.5 p.99
A medical certificate from Dr McLaren from Goolburri Aboriginal Health Advancement Co Ltd dated 8 May 2019 was annexed to James’s affidavit. The certificate recorded that James “suffered with increased stress in the last few weeks and I would recommend he have a day off and reduced hours from 8 May 2019 to 10 May 2019 in the hope he can have some time to recover.”[18] The Certificate did not indicate James suffered from a mental illness or disability.
[18] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.5 p.99
James completed a leave form for annual leave at half pay for the period 4 July to 8 July 2019 and 11 July to 15 July 2019.[19]
[19] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.6 p.100
A medical certificate from Goolburri Aboriginal Health Advancement Co Ltd dated 10 December 2012 was annexed to James’s affidavit and recorded that James would be unfit for work due to “a medical condition” from 10 December to 13 December 2019 inclusive.[20] In his affidavit he said he was “feeling exhausted from all the overtime.” Ranald was concerned James was affected by “some sort of drug” and advised him to take time off on this occasion. Up until December 2019 James did not provide Lexastar with any medical certificate evidencing that he suffered from a mental illness, disability and/or anxiety and depression.
[20] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.8 p.104
From 21 December 2019 to 5 January 2020 Lexastar was shut down for the Christmas break. James deposed in his affidavit that he had full time care of his children between 20 December 2019 and 4 January 2020 and upon dropping them back to their mother he suffered a severe anxiety attack and sought treatment at Toowoomba Base Hospital. No medical certificate was provided to support this.
James said on 6 January 2020 he returned to work but was feeling physically and mentally ill and left work about half an hour after starting. He told someone in the office and the foreman that he was unwell and needed to go home. No medical certificate was provided to support this.
James said on 7 January 2020 he went to work and began to feel sick and anxious after an hour and notified Matt that he was not coping and that “my anxiety was high. I told him I could not work.” A medical certificate from Dr McLaren from Goolburri Aboriginal Health Advancement Co Ltd dated 8 January 2020 was annexed to James’s affidavit.[21] The certificate recorded that James “has a medical condition and will be unfit for work from 8 January to 9 January 2020 inclusive.”
[21] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.9 p.199
On 9 January 2020 James sent Ranald a text message. He said he was feeling physically and mentally sick at the time. On 10 January 2020 James sent Ranald a text message. He said he was not feeling any better.
On 11 January 2020 James recorded a “note to self” on his phone.[22] The note related to matters concerning his former partner and children and included “went to the hospital for anxiety/panic attacks Sunday 4 January 2020.” The note includes a reference to his children going to Melbourne, his father’s illness, the machines at work and a comment “I don’t know if I’ve just got the flu or if my anxiety has caused it to be so bad.” It was not suggested that the respondents were aware of this note.
[22] Affidavit of James Cavanagh filed 11 September 2021 JC – 1.12 p.203
James’s response to the issue of absences from work
James agreed that on 8 January 2020 he sent Ranald a text message which said he would not be in as he was “Crook AF” and Ranald responded “Any chance you will be in tomorrow? It would be good to get those rims done.” He agreed that Ranald was conveying to him that the work relating to the rims needed to be completed and agreed that Ranald was concerned about who was going to do that work. James said the rims were for a different client (not a mining client) but agreed the work was performed on the borer for that job. He did not recall if the rims were close to completion.
On the following day (9 January 2020) James sent a text message “I won’t be in until tomorrow.” On Friday 10 January 2020 he sent a text message “I won’t be in today either. I will be back Monday if there’s still a job for me to return to.” [23]
[23] Transcript of proceedings 20 September 2021 at pp.17
James agreed during cross examination that in the past he had exercised his right to sick leave. It was suggested to James in cross examination that he was very aware that he let down Ranald (and the business) about the job regarding the rims and that is why he commented with the remark “if I still have a job to return to.” James disagreed and said it was because “he had harassed me about it (the job).” It was suggested to James that Ranald had simply told him that the job needed to get done. He agreed but said he felt pressure from Ranald about delivering the work.
I am satisfied that prior to 13 January 2020 the respondents were not aware that James had been diagnosed with a disability, mental illness or anxiety and depression nor did James provide any medical evidence to support that diagnosis.
Meeting on 13 January 2020
Ranald said he and Mary organised a meeting with James to address James’s frequent absences from work and the fact he was both unreliable and unpredictable in attending for work. When they met with James on 13 January 2020 it was for the purpose of addressing his attendance record. Ranald told James he was a good machinist and that he really wanted to keep him in employment but they needed him to be more reliable. He said he wanted to know if there was any way James could regularly turn up for work as this was critical for the business. They discussed how it was difficult to manage James’s absences around the existing workload. James said “he understood if we wanted to fire him.” Ranald said “there must be other options. Surely we can help you out. Perhaps if you take a break or work part time or casual.”
I accept that James made a complaint to Mary on 31 January 2020 about his employment and I accept that he had a workplace right to make that complaint. I do not accept that on 31 January 2020 James was unaware that his employment status had been changed to casual. That assertion is inconsistent with Ms Beattie’s email dated 28 January 2020 where she made reference to James “incorrect” casual rate of pay. Moreover I accept the evidence of the respondents that James had accepted an offer to work three days a week as a casual rather than cease employment. I find that he was annoyed or dissatisfied with the rate of pay he received as a casual employee when he made the complaint to Mary on 31 January 2020.
I accept that Mary approached James on 31 January 2020 to discuss “his casual rate of pay.” The issue for James was his rate of pay and not his employment status. I accept that James accused Mary of “changing his employment status to casual without asking.” I am satisfied that James falsely accused Mary of altering his employment status without his knowledge because he was dissatisfied with his rate of pay as a casual. I am satisfied that Mary advised Ms Beattie by phone that the Award rate (including 25% loading) was $29.26 per hour and that Lexastar was paying James $33 per hour. I accept Mary’s evidence.
I do not accept that James was dismissed because he exercised a right to make a workplace complaint on 28 and 31 January 2020. I rely on my reasons discussed earlier in this judgment. I am not satisfied that any of the complaints made by either James or by Ms Beattie on his behalf were “operative or immediate” reasons for terminating James’s employment. James was dismissed because of his absences from work was his unpredictability and unreliability which was impacting on the operation of the business. The respondents had given James an opportunity to demonstrate that he could undertake the work he was required to perform predictably three days a week on specific days. He had failed to do so. He had not attended work at all after 13 January 2020 though he provided a medical certificate for the period up to 17 January 2020 on the basis that he suffered from a medical condition (unspecified). He did not attend work at all in the week commencing 20 January 2020 which was to be the first week he was to attend on reduced hours. No medical certificate was provided for the week commencing 20 January 2020. He did not attend work again on Monday 3 February 2020 and provided no explanation other than that he “could not get out of bed.”
I am not satisfied that James was dismissed because he made an inquiry about the Work Arrangement through Ms Beattie, or made an inquiry regarding his rate of pay and/or made a complaint to Mary on 31 January 2020 about the conversion and his rate of pay. I am satisfied that James was dismissed for a lawful reason.
Flexible work arrangement
Pursuant to subsection 65(1) of the FW Act an employee may request a change in working arrangements if the circumstances referred to in subsection (1A) apply and the employee would like to change his or her working arrangements because of those circumstances. Those circumstances include:
(1A)
(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b)the employee is a carer (within the meaning of the Carer Recognition Act 2010 );
(c) the employee has a disability…”
Subsection 65(3) provides that a request must be in writing and set details of the change sought and of the reasons for the change. Subsection 65(4) provides that the employer must give the employee a written response within 21 days stating whether the employer grants or refuses the request. A request may only be refused on reasonable business grounds.
James contends he made a request for flexible work arrangement under section 65 due to his disability through Ms Beattie and that the respondents took adverse action against him because he made that request. Mary said at no time did she receive a written request from James for flexible working arrangements during the course of his employment. She did not construe the correspondence from Ms Beattie as a request for a flexible working arrangement as James had already agreed to work a minimum of three days a week as a casual employee. The only outstanding matter remained which days James would elect to work. Following the agreement between James and the respondents after the meeting on 13 January 2020 James requested that Tursa assist him to maintain his employment on the basis that he believed he was at risk of losing his employment. The email of 15 January 2020 from Ms Beattie was in writing but it was not a request and did not set out details of the change sought for James or the reasons for the change. I am satisfied that Ms Beattie’s email was confirmation of an agreement reached between James and the respondents that James would work three days a week building up his hours. The medical certificate provided on 15 January 2020 indicated that James suffered from a medical condition but did not specify that he had been diagnosed with a disability and/or depression and anxiety. I am not satisfied that James exercised a right to request a flexible working arrangements in accordance with section 65 of the FW Act nor at any other time. The email sent by Ms Beattie did not comply with the requirements for formality under subsection 65(3) of the FW Act. Peter said no written request was ever received from James for flexible working arrangements during his employment. Ranald agreed that James had never made any written request for flexible working arrangements in writing. I accept that evidence.
Annual close down
James said it was a requirement to take annual leave in the annual close down period and the leave form stated this.[49] He did not request payment of annual leave during the Christmas shut down period as in November 2019 Mary told him he had not accrued sufficient leave nor did he lodge a leave form over the Christmas close down period. He said “no one did…we weren’t required to.” He said leave during the Christmas close down period was “automatic” and an employee was paid automatically with whatever holiday pay they had left. On 19 December 2019 James said he received a pay slip from Lexastar that recorded 22 hours of accrued annual leave.[50] After issuing these proceedings and pleading an underpayment he received an amended version of the same pay slip that recorded 9.54 hours of accrued annual leave.
[49] Affidavit of James Cavanagh filed 7 May 2021 at [4]
[50] Applicant’s affidavit filed 11 September 2020 [35]
Peter gave evidence that Lexastar closed down for about two weeks over Christmas and had done so for the past 23 years. He said many employees had school aged children and the shutdown period was aligned to allow employees to take annual leave during this school holiday period. He did not recall signing a leave form for James for the annual shutdown period in December 2019. He said the dates for the shutdown period were posted on the calendar and when employees were due to take leave this was posted on a calendar that hung on the wall near his desk which he used as a reference to schedule jobs.
Ranald said he was not usually the person who approved James’s leave however if an employee asked him to sign a leave form he would do so.
Mary gave evidence that Lexastar regularly closed down for a period over the Christmas holidays. In October or November 2019 she told James that he did not have enough leave for the Christmas shut down period scheduled for Saturday 21 December 2019 to Sunday 5 January 2020. She said the usual practice is that employees request annual leave during the Christmas shutdown period. She denied that leave is automatically deducted over this period. She said an employee sometimes made a verbal request or used a leave request form to request leave. Employees of long standing may verbally request taking annual leave during shutdown, some employees had worked for them for twelve years and she was aware they would take annual leave at this time. She sometimes approved leave and agreed that not all employees made a written request for annual leave during this period. James did not request that he be paid annual leave during this period.
Mary said James had never complained to her about his annual leave entitlements before, during or after the close down period until the current proceedings were commenced. She said she did not prevent James from taking annual leave for this period nor could she force him to take annual leave over the shutdown period. For the most part she approved employees taking leave and normally they took annual leave during each close down period. Lexastar had a form that employees were required to fill out when requesting leave and all leave application forms specified that Lexastar closed over the Christmas shut down period. James had signed a number of those forms. She said no employee was required to take annual leave during the shutdown period but could decide whether to be paid or not. Some employees decided not to be paid. Those employees who wanted to be paid annual leave were required to lodge a leave form including James. James agreed he did not lodge any form requesting annual leave nor did he request to be paid annual leave over the close down period. Mary was asked about her statement “Around October or November 2019 she told the applicant he did not have enough leave for Christmas.” She was shown a payslip for 19 December 2019 for James that related to the period 5 to 18 December 2019. She said she was unable to say whether the payslip shown to her was the payslip that James received at the time. She said “there was a discrepancy in the two lots of payslips due to our Reckon program and the copies that Anderson Gray was sent were different from the originals.” [51] She agreed that James’s payslip showed 22 hours of accrued leave and that would have covered a portion of the shutdown period over Christmas. She said James was paid for any accrued leave owing to him. I am satisfied that James did not request to be paid leave during the close down period. I accept that a payslip was forwarded to James after the proceedings were commenced which was incorrect with respect to the amount of leave James had accrued. I accept that the original payslip provided to James was correct and that James received payment for his accrued leave of 22 hours.
[51] Transcript of proceedings 20 September 2021 at pp.61
Overtime
James claimed that Lexastar was required to pay him for ordinary hours worked and overtime at the minimum rates of pay at C7/C8 rate. As discussed above, James failed to establish that the rate of pay he was paid under the Award during his employment was not the correct rate but rather that he should have been paid at the rate of a C7 or C8 Tradesperson.
It is common ground that James would occasionally work over time. Mary said she was never involved in any directions to James requiring him to work over time. She denied that she pressured James to work overtime as she was rarely in the office and had nothing to do with operational decisions.
Peter said he became aware that James would spend time with his children on weekends from around March 2019 but before this he had very little contact with them. On the weekends he was to spend with his children James was not asked to perform over time work. Occasionally James was asked to work overtime on the alternate Friday/Saturday. Peter said James worked over time on 29 and 30 November 2019 and on 6 and 7 December 2019. He said on this occasion James was “way behind on scheduled jobs.” He said the machines used for manufacturing were extremely detailed and very expensive and the machine James worked on was worth $400,000. He recalled that James told him he did not have his children for the weekend of 30 November 2019 and volunteered to work the following weekend. Peter said he was surprised when James told him his children had a prior engagement and would not be staying with him so he “might as well be working here.”
Ranald denied pressuring James to perform over time and said he would never pressure an employee into working if they were ill or injured. In response to James’s complaints about overtime, Ranald said the reason why Lexastar had “more work than it could handle” was because James was not turning up for the work they had booked in for James to perform or where he was half – way through a job and was not turning up to work to complete the job. Ranald said often a machine would be set up by James with a job but then he would fail to turn up. The machine was tied up until James returned to work meaning the machine was “out of action.” Often they would waste hours removing an incomplete job from the machine and setting it up for another job. Ranald said he occasionally asked James to work over time to make up for the back log of work and never received any complaints from him regarding those requests. On one occasion he offered to collect James’s children when they had an urgent job to complete. Ranald denied the allegation that he did not accommodate the employees’ needs. I am not satisfied on the evidence that James was not paid at the correct rate under the Award for ordinary hours worked or for any overtime work he performed.
Employment records
In her affidavit filed on 4 March 2021 Mary deposed that Lexastar used “bundy cards” that were printed from a local print shop. The company did not retain those cards. The bundy cards were used for two purposes. Firstly, the card is a copy of how the employee has recorded their hours of work. Secondly, it is a record of how much time that the employee spent on each job they worked on that day. The raw data from the bundy card is entered into an electronic timesheet for each job and they use that to work out how much time is needed to bill the client. The timesheet is also useful when it comes to quoting for other jobs. Mary said she did not recall James ever having written “approved notations” in respect of his “pre-approved leave for medical appointments” on the timesheets. She did not recall James writing anything on the bundy cards beyond the hours worked, the job number and the client.
The bundy card procedure had been in place since 1986. Each employee uses one bundy card for each day worked taking a blank bundy card from the box located at the workshop. The employee writes their name on the card and during the day the employee punches in and out between jobs. They insert the bundy card into the bundy clock so that a date and time stamp is recorded so there is a record of when the employee started and finished working on each job they are allocated to work on that day. At the end of the day the employee puts the completed bundy card in a document wallet marked in their name in the workshop.
The bookkeeper collects the bundy cards either that afternoon or early morning and manually enters the raw data on the bundy cards into their accounting system. Mary said she had done that job on rare occasions. Once the data has been stored the bundy cards are stored in an archive box under the bookkeeper’s main office. The bundy cards are disposed of every three months as too many cards accumulate. The bundy cards are recycled. Mary denied discussing the storage of bundy cards with Geoff Eldridge and said they have never stored the cards on their farm.
Mary said during the period that James worked full time with Lexastar his ordinary hours of work were eight (8) hours Monday to Thursday and six (6) hours Friday. Anything additional to those hours for each day was calculated as overtime. Timesheets were kept as employee records and the bookkeeper Karen Hillocks processed employee pays for the most part. Mary said on occasion she processed a pay. At the end of each fortnight when pays were processed the bookkeeper worked out any over time sums and made hand written notes on the printed out time sheets regarding what hours were worked overtime. A copy of the hand marked timesheets were kept in archive boxes in the office. Mary said she had not received any request from James for a copy of James’s record of overtime hours worked for each day. A request was made for documents relating to James’s absences, copies of any medical certificates James had provided and copies of pay slips but no request was made for overtime records. I am not satisfied that James was not paid overtime when he worked overtime hours during the course of his employment. Ranald said he had nothing to do with record keeping or the provision of payslips and was not involved with payslips, timesheets, wages or how leave was paid or accrued.
Timesheets
Mary deposed in her affidavit filed on 9 October 2020 that Lexastar was transitioning from Quickbooks to Accentis which caused some clerical issues and many problems due to running two systems and transferring information between them. Since providing James’s lawyers with copies of timesheets in August 2020 Mary became aware that Quickbooks “back-dated” any changes to employment status when reproducing older records. She said she was not aware of this when printing duplicate copies for the lawyers. The payslips James received at the time of his employment were accurate. The duplicate payslips provided in August 2020 were not accurate.
False and misleading payslips
James claims that the respondents contravened section 536 of the FW Act in providing to him payslips that were false and misleading in a material particular. He argued that the payslips were false and misleading from 13 January 2020 because James’s employment status was recorded as “casual” when in fact he remained a full time employee because his employment was unlawfully converted to casual.
Mary gave evidence that as a result of their agreement on 13 January 2020 that James would work casually starting that day “either myself or the bookkeeper made the change on the accounting system to give effect to that agreement.” James’s payslips were then issued in accordance with that agreement and indicated his employment status as “casual” on or from 13 January 2020. I have found that James agreed to accept employment as a casual and he was paid at the casual rate from 13 January 2020. I find that the payslips that were issued to James from 13 January 2020 that recorded his employment status as “casual” were not false and misleading in a material particular because James was employed as a casual employee from 13 January 2020.
James alleges that the payslips that were provided to his lawyers on 20 August 2020 that were false and misleading in a material particular because the payslips recorded James as casual from 12 December 2019 and falsely recorded that he had accrued only 9.54 hours of accrued leave wherein in fact he had accrued 22 hours.
On 20 August 2020 Mary provided duplicate copies of payslips to James’s lawyers which were printed out. She said at the time these were provided she was unaware that they were incorrect. The payslips provided were not the original payslips but duplicates. She gave evidence that Lexastar changed their payroll system at that time and she discovered after providing the duplicate payslips that they were incorrect. She said “Reckon” had applied the change of status to “casual” to some of the payslips that were reproduced including those for the period of employment when James was employed full time and prior to James being made a casual employee on or about 13 January 2020. Lexastar had provided payslips to James’s lawyer that recorded James’s status as casual from 12 December 2019 which were incorrect and provided a payslip that recorded that James had accrued 9.54 hours of annual leave by 19 December 2019 which was also incorrect.
Subsection 536(1) of the FW Act provides that an employer must give a pay slip to each of the employees within one working day of paying an amount to an employee in relation to the performance of work. Subsection 536(3) provides that an employer must not give a pay slip for the purposes of this section that the employer knows is false and misleading. I am not satisfied that there has been a contravention of section 536 of the FW Act. I accept Mary’s evidence that she was unaware that the duplicate payslips provided on 20 August 2020 were incorrect. Any incorrect reference to “casual” status on the duplicate payslips was not known to Mary or any of the respondents when provided in August 2020.
Lexastar’s obligation under subsection 536(3) of the FW Act was to provide a payslip to an employee “within one working day of paying an amount to an employee in relation to the performance of work.” As was held in Kramer & Anor v Punthill Apartment Hotels Pty Ltd & Anor [2020] FCCA 1617 (19 June 2020) at [179] “there is no obligation either in the FW Act or in the FW Regs that an employer retain copies of or provide pay slips to an employee on request. Once provided to the employee at the time of payment the employer has discharged their obligation under s 536(1). On the applicant’s own evidence the payslips that were provided to the applicant at the time of his employment under 536(1) were not false or misleading in any material particular.”
I am satisfied that the respondents did not knowingly give false and misleading payslips to James’s lawyers and did not contravene section 536 of the FW Act. I accept Mary’s evidence that upon discovering the error with respect to 9.54 hours of accrued leave she ensured that James was paid his proper entitlements under the Award. I accept her evidence.
Annual leave and leave loading
James contends that under the Award he was entitled to annual leave and leave loading of 17.5% during any period of annual leave taken pursuant to clauses 41.4 and 41.5 of the Award and upon termination Lexastar was required to pay him his accrued annual leave. He claimed that during his employment Lexastar did not pay him leave loading on each and every occasion when he took annual leave and leave loading on his accrued annual leave. He claimed he was entitled to be paid 129.95 hours of annual leave and was paid only 116.2 hours. He claimed that the respondents contravened sections 45 and 323 of the FW Act and clause 42.5 of the Award by failing to pay him leave loading when he took leave and upon termination. In addition he contends that he was entitled to be paid 17.5% loading on 129 hours and 57 minutes of annual leave.
The basis of James’s claim that he was underpaid annual leave and leave loading appears to be that he worked an average of 38 hours each week between 28 March 2019 and 3 February 2020 and was entitled to be paid 129.88 hours of annual leave. He claims that he was underpaid 13.688 hours of annual leave in contravention of the National Employment Standards. In his affidavit, James made vague assertions about not being paid annual leave or leave loading in reference to timesheets not produced in evidence. The allegation that he was not paid 129.95 hours but rather only 116.2 hours of annual leave appears to be based on a global figure of leave James assumed was accrued over the course of employment. Based on that assumption he then appears to arrive at a figure that he alleges he should have been paid including his accrued leave entitlements upon termination.
Mary denied that James worked on average 38 hours per week between March 2019 and February 2020. It was suggested that he was entitled to be paid 130 hours of annual leave at the end of his employment. She could not answer that. She said during the course of his employment James did not raise any issue that he was not being paid his proper leave entitlements or leave loading. She said James used a great deal of personal leave entitlements as and when leave accrued. The period of the annual Christmas closure was a period where James was not paid annual leave because he did not elect to take, nor did he take annual leave on that occasion. That leave accrued and was subsequently used by James. Mary said James was paid annual leave loading of 17.5% on each and every occasion when he took annual leave and was also paid annual leave entitlements upon termination of his employment.[52] She said when the error with respect to James accrued leave (i.e., 9.54 hours) was brought to their attention he was then paid his correct entitlements. She said James received a lump sum of 31.21 hours for holiday pay upon termination.
[52] Affidavit of Mary Cilento filed 22 April 2021 at [14] p.356
Peter said he had no involvement with the way Lexastar did its timesheets, payslips or calculations and payment of employees’ entitlements. He had no involvement with the provision of payslips to James during his employment nor did he have any involvement in providing James with payslips upon the request from his lawyer in August 2020.
I am not satisfied on the evidence that James was not paid his leave entitlements, leave loading or his accrued leave entitlements either during his employment or upon termination.
Payment in lieu of Notice
James contends that he was not given notice of the dismissal nor was any payment made by Lexastar in lieu of notice and as such Lexastar contravened sections 117 and 44 of the FW Act by failing to make a payment in lieu of notice of the dismissal. The underpayment is alleged on two levels; that James’s period of continuous service with Lexastar was less than one year and as such he was entitled to wages in lieu of one week’s notice or where his period of continuous service was greater than one year and less than three years he was entitled to wages in lieu of two weeks’ notice. I am satisfied that there was no requirement to provide James with any payment in lieu of notice as at the time James employment was terminated he was employed as a casual employee.
Accessorial liability
It is unnecessary to address whether the respondents are liable for Lexastar’s contraventions as accessories given my findings set out above.
Wrongful dismissal
James did not press his claim for wrongful dismissal.
CONCLUSION
For the reasons stated about I am not satisfied that the applicant has made out his claims pursuant to the further amended statement of claim filed on 27 August 2021. The application is dismissed.
I certify that the preceding two hundred and sixty (260) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Dated: 22 December 2021
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