Clarke v Premier Youthworks Pty Ltd
[2020] FCCA 105
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARKE v PREMIER YOUTHWORKS PTY LTD | [2020] FCCA 105 |
| Catchwords: INDUSTRIAL LAW – Fair Work – Application regarding Applicant’s status of employment and dismissal – where the Applicant claims he was employed on a permanent or full-time basis – Applicant questions the legality and status of directions given to him during his employment – Applicant claims adverse action taken against him by virtue of his dismissal – irrefutable evidence supporting casual (not permanent) employment – where supposed offer for permanency allegedly came from an employee who does not have authority to offer such a contract – where Applicant’s evidence was selective, incomplete and often inconsistent – finding of casual employment pursuant to a signed contract – where adverse action and Applicant’s claims cannot be supported where casual employment is found – Application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 346, 351, 361, 570. |
| Cases cited: Banque Commerciale SA (en liq) v Akhil Holdings Pty Ltd (1990) 169 CLR 270 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 Fox v Percy (2003) 214 CLR 118 Hamzy v Tricon International Restaurants (2001) 115 FCR 78 Horton v Jones (1935) 53 CLR 475 Jones v Dunkel (1959) 101 CLR 298 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Melrose Farm Pty Ltd v Milward (2008) 175 IR 455 Miles v Wakefield Metropolitan District Council [1987] AC 539 National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 Thompson v Big Bert Pty Ltd (2007) 168 IR 309 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Visscher v Giudice (2009) 239 CLR 361 Workpac Pty Ltd v Skene (2018) 264 FCR 536 Other materials cited: Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (J.D. Heydon, M.J. Leeming, P.G. Turner) (Fifth Edition) (Sydney: LexisNexis Butterworths, 2015) |
| Applicant: | RYAN CLARKE |
| Respondent: | PREMIER YOUTHWORKS PTY LTD |
| File Number: | CAG27 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 13, 14 & 15 June 2018 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr J Darams |
| Solicitors for the Respondent: | Cantle Carmichael Legal, Newcastle |
ORDERS
The Applicant’s Initiating Application, filed on 12th April 2017, be dismissed.
Absent any application being filed within 14 days of the date of these Orders, being by 14th February 2020, there be no Order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG27 of 2017
| RYAN CLARKE |
Applicant
And
| PREMIER YOUTHWORKS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
During these proceedings, the Applicant, Mr Clarke, has been self-represented. According to his curriculum vitae, he graduated with a Bachelor of Law degree from the Australian National University in 2015.[1] For a time, prior to this litigation, he held a practicing certificate, but did not do so at the time of the hearing.
[1] A copy of his CV is Annexure NR2 to the Affidavit of Ms Riches, filed 23rd May 2018.
Mr Clarke brings proceedings against the Respondent under the provisions of the Fair Work Act 2009 (Cth) (“the FW Act”), and otherwise. In general terms, and subject to what is said later in these reasons, his claims relate to (a) the status of his employment (e.g. casual or permanent), (b) the legality and status of directions given to him during his employment, (c) his dismissal from employment, (d) whether there was any breach of alleged workplace rights, (e) whether the Applicant was the subject of any coercion at the hands of his former employer, and (f) subject to the findings in relation to the matters just noted, whether the Applicant is entitled to any relief, such as compensation and or the imposition of a pecuniary penalty against the Respondent.
More formally, as set out in his Form 2 Application, filed 12th April 2017 (and as amended and filed 13th June 2017), the Applicant’s Grounds were as follows:[2]
(i)Ground 1: The Applicant was employed by the Respondent as a full-time employee from 9th August 2016 to 3rd January 2017;
(ii)Ground 2: Pursuant to section 342(1)-(2) of the Fair Work Act 2009, the Respondent took adverse action against the Applicant; the reasons that the Respondent provided for taking adverse action were insubstantial, misleading and deceptive; and the Respondent engaged in coercion against the Applicant;
(iii)Ground 3: Pursuant to section 341(1)-(2) and in breach of sections 340(1) and 343(1) of the Fair Work Act 2009, the Respondent took adverse action and engaged in coercion against the Applicant because the Applicant exercised workplace rights, and because the Respondent wished to prevent the Applicant’s exercise of these workplace rights.
[2] At par.224 of his Form 2, Mr Clarke also alleged that, in breach of s.351(1) of the FW Act, he was a solicitor and as such, he contended, meant that he belonged to a “class” of persons, being legal practitioners. This “class”, he said, deemed such legal practitioners to “constitute a part of the meaning of “social origin” within this section.” Apart from the appearance of something akin to public interest advocacy, which also relevantly applied to the declarations sought in Annexure B to this Application, as noted later in these reasons, the Applicant’s position as a solicitor was not a consideration that was part of the reasons for his employment being terminated. The fact of him being part of the legal fraternity featured, at best, only marginally in matters before the Court.
For the reasons that follow, Mr Clarke’s Application must be dismissed. None of his claims are supported either by the facts he asserted, or by any principle of law.
Absent any Application being filed within 14 days, pursuant to s.570 of the FW Act, there should be no Order as to costs.
Overview
Pursuant to a Letter of Offer from the Respondent, dated 15th July 2016, and an acceptance dated and signed by the Applicant on 17th July 2016, Mr Clarke was employed as a “casual Residential Care Worker” looking after young people.[3] Copies of that letter and acceptance are annexed to Mr Clarke’s twice-filed Affidavit, affirmed 1st February 2018 (Annexure 1).[4] It is also part of Annexure NR18 to the Affidavit of Ms Riches, filed 23rd May 2018. At all relevant times, Ms Riches was a Case Manager employed by the Respondent, Premier Youthworks Pty Ltd (“Premier”).
[3] “Residential Care Worker” was defined in the Premier Youthworks Pty Limited Residential Care Worker Enterprise Agreement 2016 (“the EA”). A copy of that EA is at both Exhibit 3 and Exhibit 4 to Mr Clarke’s Affidavit, affirmed 1st February 2018. The EA was provided to the Applicant after his acceptance of the Offer of Employment. See par.8 of Mr Clarke’s Affidavit.
[4] Mr Clarke’s Affidavit, affirmed 1st February 2018, was first filed on 19th February 2018, and again on 31st May 2018. The February-affirmed Affidavit, filed on 31st May 2018, is the document that was used during the trial and will be the principal point of reference for current purposes.
Although there was some agreement between the parties (and much to the contrary) regarding the issues to be determined, almost all matters ultimately related to the proper construction of the contract of employment between the parties in the light of the evidence. Also, the evidence of both parties was crucial regarding (a) allegations by the Applicant that the Respondent represented to him that he had been (or perhaps was to be) made a permanent employee, and (b) the cessation of Mr Clarke’s employment with the Respondent.
Certain terms of this contract of employment are set out in more detail later in these reasons. For current purposes it is sufficient to note that Clause 3.1 of the contract provided that there was a probation period that applied for the first six months of the Applicant’s employment. There was a “position description” attached to the Letter of Offer.
Clause 3.1 also provided for there to be an assessment by the Respondent of Mr Clarke’s “progress and performance in this position.”
Clause 3.2 provided that during “the probationary period either party can terminate the employment by providing one weeks’ notice.”
Part 9 of the contract dealt with “termination of employment” in more detail. Clause 9.1 referred in particular to termination of employment as provided under the National Employment Standards (“the NES”) in the FW Act and Part 10 of the EA. Copies of both of these documents were said to be attached to the Letter of Offer but were provided later by the Respondent to the Applicant.
On 23rd December 2016, pursuant to a letter from the Respondent to the Applicant, Mr Clarke’s employment was terminated.[5]
[5] A copy of this letter, headed “Probation review outcome”, is the penultimate annexure (unfortunately without any annexure identifier) to the Applicant’s Form 2. A copy of the same correspondence is Annexure NR24 to the Affidavit of Ms Riches, filed 23rd May 2018.
On 12th April 2017, Mr Clarke filed an Application under the FW Act and a Form 2, which comprised 227 paragraphs and, in general terms, 3 Grounds of Review but with multiple sub-grounds. Primarily, however, Mr Clarke’s action against the Respondent was, he said, as a result of Premier taking adverse action against him for exercising his workplace rights, which are particularised later in these reasons. Further, among other things, Mr Clarke said that his employment changed from being a casual, to a full-time, employee for the period from 9th August 2016 until 3rd January 2017. The Respondent challenged this and all other claims by the Applicant.
At the suggestion/direction of the Court, the parties, over a period of time, ultimately agreed upon a more refined list of issues for determination. The document that records this list is set out below. There were multiple iterations of it, and even more references to it (and the issues it contained) in the Transcript, to all of which I will refer in due course.
Procedurally, between the hearing and the filing of final submissions, the Applicant ran an unsuccessful recusal Application before me, and a similarly unsuccessful appeal from that judgment in the Federal Court of Australia.[6] For present purposes, nothing turns on those matters other than to explain the apparent delay between the hearing of the matter and its final resolution.
[6] Clarke v Premier Youthworks Pty Ltd [2018] FCCA 2938; Clarke v Premier Youthworks Pty Ltd [2019] FCA 551.
Procedural Matters
There are two matters to note here.
First, the Respondent provides residential care for young people. In some of the Applicant’s material he referred by name to a certain “young person” for whom he provided care at various times. To speak generally, concerns were raised by the ACT Office of Children, Youth and Family Services regarding the privacy/identification of this young person during the proceeding. Accordingly, a lawyer from that Office attended the hearing, effectively as an amicus curiae. It was because of the Applicant’s identification of this “young person” by name that led to Mr Clarke filing an Amended Statement of Claim.
Secondly, as noted below, the parties agreed to a list of issues to be determined. However, in written submissions, the Applicant raised issues that had not been raised during the hearing, and similarly, he did not address certain issues on the Agreed list. Unsurprisingly, as noted in submissions, the Respondent (a) objected to issues being raised by the Applicant in written submissions that were not the subject of evidence (or otherwise) during the trial, and (b) took the view that matters not addressed by the Applicant in his submissions were no longer in issue.
As I note later in these reasons, the Applicant filed no submissions in Reply to the Respondent’s objections raised in the previous paragraph. That being so, and subject to what is said later in these reasons, the Court has little other option than to proceed on the basis that the challenges raised by the Respondent to the Applicant’s submissions (and not challenged in reply by the Applicant) are correct and need not otherwise be addressed by the Court.
Agreed Issues for Determination
Subject to later comment in these reasons, during the hearing, and after various earlier iterations, the parties finally reached an agreement of sorts, but which was sought to be somewhat regularly revised, regarding the specific issues to be determined by the Court. The last version of this document listing those agreed issues, filed in Court on 15th June 2018, but which still remained the subject of comment during the hearing, was in the following terms. It was a convenient point of reference of the issues in dispute. It was plainly a point of reference for cross- examination, especially of the Applicant, Mr Clarke. Because it gave (and gives) much needed structure to, and order and focus of, the issues in dispute, I set it out below, thus:
CLARKE v PREMIER YOUTHWORKS (CAG27/2017)
AGREED ISSUES FOR DETERMINATION
Issues related to employment status
1. At any time during the period 17 July 2016 to 30 November 2016, did the Applicant's employment status change from that of a casual employee to a permanent full-time employee?
2. If so, did the Respondent at any time after the Applicant's change decline to recognise that status or decline access to any entitlements attached to that status?
3. If so, did that amount to an "injury" to the Applicant in his employment for the purposes of Item 1 of s342(1) of the Fair Work Act 2009 (Cth) (FW Act)?
4. If so, did the Respondent do that for a reason or reasons that included that the Applicant had or had exercised any workplace rights found to arise in paragraph 12 or 13 below?
Dismissal of the Applicant
5. Was the Applicant dismissed for a reason or reasons that included that:
a. he had or had exercised any "workplace right" referred to either paragraphs 12 or 13 below;
b. he had requested a full-time employment contract or to access full-time employment entitlements; or
c. he was considering commencing legal proceedings against the Respondent?
d. He was at the time a legal practitioner?
Instruction to Applicant to cease to perform his ordinary work rotation commencing on 3 December 2016
6. As at 30 November 2016, did the Applicant have an "ordinary work rotation"?
7. If so, did the Respondent give instructions altering that pattern of work and did this instruction by the Respondent amount to "adverse action" in that it either:
a. constituted an "injury" to the Applicant in his employment for the purposes of Item 1 of s342(1) of the FW Act; or
b. constituted an alteration of the position of the Applicant to his prejudice for the purposes of Item 1 of s342(1) of the FW Act?
8. If so, did the Respondent do that for a reason or reasons that included that the Applicant had or had exercised any workplace rights found to arise in paragraph 12 or 13 below?
The allegation that the Respondent declined to allow the Applicant to access TCI Training on 11 November 2016
9. Did the Respondent "decline to allow" the Applicant to access TCI Training?
10. If so, did that amount to an "injury" to the Applicant in his employment for the purposes of Item 1 of s342(1) of the FW Act?
11. If so, did the Respondent do that for a reason or reasons that included that the Applicant had or had exercised any workplace rights found to arise in paragraph 12 or 13 below?
Alleged workplace rights
12. Were the following “workplace rights” for the purposes of s341(1)(a) of the FW Act:
a. The production of incident reports and shift reports about the wellbeing of children in the Respondent’s care;
b. The making of inquiries and complaints to the respondent in relation to the risk of harm posed by placement walls and floors that were made of asbestos?
c. The making of inquiries and complaints to the Respondent in relation to the lack of counselling and psychological assistance that was being provided to the children in the Respondent’s care?
d. Making a request to take time off work on 22 November 2016?
e. Making requests to be provided with a full-time employment contract and to access full time employment entitlements?
13. Were the following "workplace rights" for the purposes of s341 (1)(c)(ii) of the FW Act:
a. the making of inquiries and complaints to the Respondent in relation to the risk of harm posed by placement walls and floors that were made of asbestos?
b. making a request to take time off work on 22 November 2016?
Coercion
14. Did the Respondent engage in coercion for the purposes of s343 of the FW Act in respect of any workplace right said to exist pursuant to paragraph 12(a)?
Relief
15. Has the Applicant proved that he has suffered any compensable loss?
16. Is the Court empowered to otherwise grant any of the relief that has been sought by the Applicant in the proceedings, including declaratory relief?
17. Is a pecuniary penalty appropriate?
The Applicant’s Evidence
In the light of the agreed issues to be determined, as opposed to the Applicant’s more expansively drawn Form 2, I summarise his oral evidence as follows.[7]
[7] Mr Clarke’s evidence is located at Transcript (13th June 2018) pp.22 – 89.
At the time he applied for employment with Premier, Mr Clarke held a Bachelor of Commerce degree, and had not yet obtained his law degree.
Mr Clarke also agreed that he had no educational qualifications (a) in “care work” generally, or (b) in youth care work more specifically. He confirmed further that when he applied to work for the Respondent, he indicated an interest only in casual work, and that he was offered, and he accepted, a position as a “casual” employee.
In the course of his studies, the Applicant confirmed that he had never studied “employment law.”
Mr Clarke said that by December 2016 he had become familiar with the FW Act, including its provisions that deal with “adverse action.” He commented further that, soon after “adverse action” had been taken against him by Premier, he started to research his rights as an employee. This included, he said, looking at the unfair dismissal provisions because, in his view, he was removed from the “full time line position”, a position which, he claimed, had been promised to him.
He said that he made these inquiries regarding unfair dismissal, initially in general terms prior to 30th November and more earnestly and with greater specificity after that date. Mr Clarke said that, in his view, he was entitled to certain statutory rights to protection regarding his employment provided he had worked in a systematic role for 6 months.
Mr Clarke confirmed that he (a) read and understood the Letter of Offer to work for Premier; (b) understood that the offer was for casual work, which had no set hours of employment, nor any guarantee of hours to work; and (c) understood that the contract provided for a probation period of 6 months. This said, Mr Clarke said that he did not think much about the probation period, nor did he consider the contract in much detail at all. He confirmed that he was prepared to, and did, sign the contract.
Mr Clarke said that he did not accept the proposition that the probation period under the contract was designed, in part, to allow him to determine whether he wished to keep working with Premier. He thought there were other practices, for example a “buddy system”, which would assist him to “get a feel” for whether he wanted to keep working in the job, or not. He acknowledged that the probation period under the contract was a period in which the Respondent could/would work out whether the Applicant was someone it would wish to employ permanently or on a full-time basis.
One area of complaint by Mr Clarke, categorised by him as “adverse action”, related to Premier not allowing him to access internal training.[8] He confirmed that: (a) he had indicated his interest to an administrative officer of Premier in attending a TCI (“therapeutic crisis intervention”) training course in November 2016; (b) he could not recall the detail of that conversation; (c) he generally recalled being told that in order to advance or progress to a full-time position it was necessary to complete this training; (d) he recalled that he was advised that there were limited places available for this course, that he had been unsuccessful in his application to attend the next course but he was advised that another course was arranged for January 2017; and (e) he was surprised that he had missed out on getting into the immediate course because of what he says his supervisor had told him, which included that completing this course was crucial to progression in his employment.
[8] This claim is outlined at pars.54 – 58 of the Applicant’s first Affidavit, affirmed 1st February 2018 (filed 19th February 2018).
Mr Clarke confirmed that he had/has no record of the conversations referred to (e.g. regarding the TCI training course and or his discussions with one or more of his supervisors regarding it), other than a single SMS message, and otherwise there was limited detail in his Affidavit in relation to these matters. He said he was “re-constructing” or para-phrasing the conversations to which he referred in the paragraphs noted in his Affidavit.
I simply note that in his February 2018 Affidavit, at pars.54 – 58, Mr Clarke referred to and annexed a series of SMS messages between himself and an unnamed administrative officer, on the one hand, and between himself and Ms Morrison, on the other. As between the former, it is plainly obvious that from his side, Mr Clarke described it as an “application” for him to do the course; from his correspondent, it is equally plain that it was treated as an “expression of interest” (and clearly nothing more) together with the information of a further course to be held early the following year.
As between Mr Clarke and Ms Morrison, he also clearly advised her (on 11th November 2016) that he had been advised that “people on full-time contracts were given priority over those on casual contracts” in relation to admission to the training course. This was one of many instances where, on his own evidence, various contentions raised by Mr Clarke were patently insustainable.
In his oral evidence, Mr Clarke conceded that Ms Morrison may have only given him the information that he records in par.53 of his February 2018 Affidavit, namely that he should apply for the training that was scheduled for November, and that he needed to complete it “before she would engage in further discussions in relation to the provision of a full-time contract.”
In his oral evidence, Mr Clarke conceded that his original inquiry about the November training course could have been taken as an expression of interest. Similarly, he acknowledged that the response he received (noted in par.56 of his Affidavit) could be taken as indicating that (a) there were limited position available for the course; (b) priority was given to full-time employees;[9] (c) there was another course being held early the following year; and (d) he confirmed that he did not think much or at all about applying for the following year’s course.
[9] See Annexure 59 to his February 2018 Affidavit where there is a copy of a “screen shot” of the relevant SMS message to Ms Morrison.
In response to the proposition that his claim to be “blocked” from attending a training course was difficult to maintain in circumstances where he was advised of another course only a few months away, Mr Clarke said that he did not know if the response he received was a generic response or specific to him. In my view, it did not matter at all whether the response was addressed to him solely or to a group of other unsuccessful employees. It was clear that Premier was informing him that, having missed out on a place in the November course, there was another course available early the following year for which he could apply.[10]
[10] See T 30 – 37 regarding the conversations in relation to inquiries concerning the “training course.” Unfortunately, and in no abjectly critical way, circumlocution was a somewhat regular feature of Mr Clarke’s evidence. Another instance of this is readily evident in the discussion, at T 38 - 40, regarding Mr Clarke’s desire to change his roster in the course of which he was also seeking to secure some days off.
The next series of questions to Mr Clarke related to pars.60 – 63 of his February 2018 Affidavit. In those paragraphs, he repeatedly used the word “representations” or some variation thereof. In his oral evidence, he confirmed that he was simply referring (or intending to refer) to “conversations”, rather than “representations”, with the person mentioned.
Mr Clarke confirmed that he had sent, via SMS, a message to Ms Morrison on 20th November 2016 informing her that he wanted to “drop down” the number of his shifts which he was then working; this was in circumstances where he said that work was having a “somewhat adverse effect on him personally at this time.” He followed this up with a further SMS on 22nd November to similar effect about taking some time off.
To these messages Ms Morrison replied, via SMS/email, to Mr Clarke on 22nd November 2016, in which (according to Mr Clarke) she confirmed that he was a casual employee, who had asked for some time off, and that Premier was reviewing the roster. Mr Clarke said that, later that same day, Ms Morrison said, among other things, that she had been promoted to Residential Case Manager (from the position of Residential Team Manager), and that Ms Fraser would [again] be his Residential Team Manager and direct supervisor.
Mr Clarke said that he hoped his request to take a few shifts off did not cause too much difficulty for formulating rosters.[11] He said his recollection was that Ms Morrison did not want him to take any time off.
[11] See the detail in pars.60 and 62 of his February 2018 Affidavit.
Mr Clarke acknowledged that, consistent with his employment contract, there could be, and were, changes to the roster. He confirmed that, under his contract of employment, there was no guarantee of regular work on a particular roster. He acknowledged that there was nothing in writing which promised him regular work, and clearly no such thing in what he described as his letter of casual employment; nonetheless, he maintained that he had had promises made to him verbally in this regard. Further, he said that he did not consider himself to be a casual employee at the time (in November 2016) because he was working on a “full-time line” and he had been promised, he said, a full-time position. He said that this promise had been made to him in early August 2016.
He confirmed that he was being paid casual rates, which (he acknowledged) were higher than a full-time rate of pay. He was asked if he intended to pay any of these funds back; he said he did not.
Mr Clarke was asked that, as a lawyer, he would have had an understanding of contracts, and that until he had been provided with something in writing, there was nothing to confirm that he was, or wold be/become, a full-time employee. To these general propositions he said that he had “serious reservations” about the validity of the casual employment contract because, he said, it did not contain “essential terms.” He said that he started to form these “reservations” in July and August 2016. It was at this time, he said, that he was considering whether he would like to continue as a residential care worker on a full-time basis. He said that he decided to wait until he received a copy of the EA, at which time he seemed to infer that he expected to receive a full-time contract.
The Applicant said that he interpreted his situation in August 2016 as one where he had effectively been moved into full-time employment. He said that he thought that a written contract would simply formalise the work and position he had in August 2016 because he was, he said, on the “full-time line”. He confirmed that he did not receive any documentation from the management of Premier to confirm his understanding.
Mr Clarke further confirmed that from August 2016, as a result of being moved to the “full-time line”, he did not consider himself bound by the casual letter of offer. This was because, he said, of conversations he had had with his “team manager.” All of this was so, notwithstanding that he had read and understood his contract for casual employment with the Respondent.
I note the following exchanges, it being part of a larger discussion (emphasis added):[12]
[12] See T 40 & 41 - 42.
HIS HONOUR: Sorry. Could you – yes or no?‑‑‑I didn’t consider myself a casual employee at that stage. I had been promised a full-time contract. Been put on a full-time line.
Sorry. Can you just explain to me ‑ ‑ ‑?‑‑‑Yes.
If you’ve signed this letter of offer?‑‑‑Yes, your Honour.
And it specifies terms and conditions. And if I understand your evidence just now, you didn’t regard yourself as being bound by what you signed?‑‑‑I didn’t regard myself as being bound?
Correct. Did you or did you not?‑‑‑In a – in a – following the signing of this document, a letter of offer, conversations were had around the beginning of August, that I would be made a full-time employee. At that stage, my – nothing ever in writing. I accept that. But at that – or at least sent to me. I sent them plenty of stuff in writing. And at that stage I was then said, okay, I was told, okay, we’re – we’re changing you to a full-time employee and we’re putting you on a full-time line. The two were separate. But a full-time line, me going on to it, I would have thought that was my way of providing the consideration in terms of actually becoming a full-time status employee. So at that stage, the casual letter of offer – my understanding was, I was still just waiting for a full-time contract – a full-time letter of offer to be provided.
…
Now just, in relation to the full-time employment contract, there are correspondence, as you’ve indicated, between you and employees of the respondent, where you were asserting that you had been offered full-time employment. You accept that? That’s your case? ‑‑‑I was asking for them to provide the contract that they promised.
Yes. Well, let’s just focus on that important factor. You knew that, for you to be a full-time employee that, you would have to be provided with a contract to sign. Correct?‑‑‑I was – I was relying on the promises that had been made to me, that this contract would be provided.
And you were never provided with a full-time contract, were you?‑‑‑No.
No. And I want to put this to you. As a lawyer, with your training at this time, and understanding agreements and the like, you understood that, you know, unless and until you were provided with this contract to consider its terms and agree to whether you would want to take up what was being put to you, there was no agreement for you to be a full-time employee?‑‑‑No. I wouldn’t accept that.
You don’t?‑‑‑I had serious reservations as to the validity of the casual contract because it didn’t contain essential terms that it referred to.
HIS HONOUR: So sorry. When did you formulate these reservations?‑‑‑The letter of offer, it refers to the provision of an EA and a position description.
No, no. No. Please answer my question. When did you start to formulate these reservations that you refer to about the letter of offer?‑‑‑When I started to have conversations with the respondent’s managerial staff about becoming a full-time employee.
So when was this?‑‑‑It would have been ‑ ‑ ‑
Late in 2016?‑‑‑No. It – it would have been around the beginning of August.
So you start in July?‑‑‑Yes.
And then in August you start to have these reservations?‑‑‑Yes. Well, that’s when I started to consider, okay, would I like to do this? Would I personally want to do this as a full-time employee? And that’s when I started to think, okay, well, what have I – what – what status am I at the moment? This says casual. I still haven’t got an EA. Is that valid? At that time I had another job to go on to this full-time line that – that was when it was asking me to, I had to move away from that job. So it put me in quite a difficult position in the sense that, I had been told okay, yes, we will make you a full-time employee. I’m saying to them, look, I’m dropping down other work to do this. Saying, yes, yes, that’s fine. We’re waiting for this EA to be finished. Once the EA comes out we will give you a full-time contract, no trouble. We will put it in writing, basically.
MR DARAMS: I just want to ask you. But you were under no misunderstanding that, to the extent that you would move to full-time employment, you would be given a contract?‑‑‑I – I had interpreted it, as in early August, I had been moved to full-time employment. I had been put on a full-time line.
Just focus on the question about whether or not you understood the full-time employment that the respondent would be giving or providing or offering you – was offering, an employment contract for a full-time role?‑‑‑I thought the written full-time contract was formalisation of a position that I was already working in.
HIS HONOUR: So you signed the letter of offer?‑‑‑Yes.
And then, within approximately a month, you started to have reservations about the validity of it. Correct?‑‑‑Yes.
But you don’t receive any other formal documentation from management, either – well, to the letter of termination. Correct?‑‑‑Any other form of documentation? Not that I can recall at the moment. No.
Mr Clarke confirmed that his conversations regarding a full-time contract were primarily with Ms Fraser. He also confirmed that he did not consider himself formally bound by the letter of offer, which he signed on 17th July 2016.[13]
[13] See T 43.
The Applicant said that, as a general proposition, he accepted that as an employee he was required to comply with a legal direction, such as a request to him to attend a meeting. He accepted, somewhat generally and rather qualified that, if he was a full-time employee, he would not be able to tell or advise his employer what hours he wished to work. His response was somewhat ambulatory, saying that in such a position he would be able to take leave and or to alter his shifts, as well as to access his leave entitlements.
The following exchange should also be noted, regarding the distinction between a “full-time line position” and that of a full-time employee; this distinction was accepted by the Applicant (emphasis added):[14]
[14] T 44.
… if you were a full-time employee and you regarded yourself as a full-time employee, you wouldn’t have any right to say to the employer, “Well, I want to stop – I don’t want to continue working these hours. I want to work less hours”? ‑‑‑I think that I would be able to access leave and take a shift off here and there.
But in terms of dictating what hours you wanted to work – if you were a full-time employee, you would just have to take those hours that were – that you had agreed, arguably, to work?‑‑‑As in working a full-time line?
Well, working as a full-time employee? ‑‑‑On a full-time line, yes.
HIS HONOUR: No, no; there’s a difference between the two. Please, please, don’t keep eliding the two. It has been a clear distinction since day 1, that a full-time line is different to a full-time employee? ‑‑‑Yes.
You accept that? ‑‑‑Yes.
Mr Clarke confirmed that on the morning of 30th November 2016 he received a SMS message from Ms Fraser in which she indicated that she wanted to go over the roster and possibly make some changes.[15] He said he was somewhat surprised by this message in the light of his earlier exchanges with Ms Morrison, which included, he said, his impression (noted earlier) that Premier did not want him to take any time off.
[15] Mr Clarke’s account of what he described as “representations” between himself and Ms Fraser, are set out in pars.64 – 71 of his February 2018 Affidavit. Again, throughout this section of his Affidavit, Mr Clarke used the word “represented/representation” when referring to any discussion with employees/management of the Respondent. As he indicated earlier in his oral evidence, I take such description as a reference to “conversations” unless otherwise specified.
The remainder of Mr Clarke’s evidence revolved around the following issues (there was some overlap and or inter-mingling of these matters from time to time):
a)an incident involving a young person on 30th November 2016 at the end of one of Mr Clarke’s shifts (Mr Clarke maintained that he held no responsibility for this incident); attempts by one or more of Premier’s managers to meet with him about the incident, who suggested that there may have been some “policy breaches”; and Mr Clarke seeking clarification about this proposed meeting (ultimately, no meeting ever took place);
b)the validity of Mr Clarke’s contract as a casual Residential Care Worker, dated 7th July 2016, with the Respondent; Mr Clarke had doubts about its validity because, he said, it did not contain, among other things, essential terms;
c)Mr Clarke’s understanding of certain conversations which he said contained representations made by one of Premier’s lower-level managers (Ms Fraser) about him securing a full-time position with the Respondent. Although there was some flexibility about his understanding, Mr Clarke confirmed that, from the perspective of the Respondent, he accepted that (i) he never received any full-time contract, and equally confirmed that (ii) whatever he believed about any representations made by Ms Fraser, he was never going to receive a full-time position with the Respondent;
d)Mr Clarke being invited in December 2016, in writing, to a probation review meeting; Mr Clarke seeking to put this meeting off until January 2017 (no such meeting ever took place);
e)Mr Clarke’s claims of being [deliberately or otherwise] deceived or misled about the proposed probation review meeting, and perhaps also about his employment status;
f)Mr Clarke’s concern about the safety and care provided by the Respondent to one young [named] person in care in the light of, among other things, the alleged exposure to asbestos.
The meeting regarding the incident on 30th November 2016
Regarding this “incident”, on or around 30th November 2016 involving a young person resident with, and under the care of, the First Respondent, and which also involved Ms Fraser, Mr Clarke’s evidence was as follows.[16] In the incident in question here, Ms Fraser was struck by the young person with a pair of scissors.
[16] The Applicant’s earlier account of matters concerning this “incident” is set out expansively at pars.64ff and 109 of his February 2018 Affidavit.
In my view, I do not understand that the Applicant seeks any “relief” arising from this particular incident. Rather, according to the Applicant’s account, its relevance relates really only to the further doubts he had in his mind regarding the reliability and certainty he had about the Respondent’s intended actions regarding his future employment. It also seemed to form something of a preliminary skirmish between the parties, and in particular, from the Applicant’s perspective, how or why this meeting was in fact sought.
He said that the request by Ms Fraser was, in his view, phrased as though he had committed some breach of Premier’s policy as a result of the incident with the young person, which meant that a meeting was required. He understood or took it to be not just a “chat” but more of a disciplinary meeting that was proposed. He said that it was his view that the Respondent wished to remove him from his employment and was looking for a reason to do so. He said that he did not accept that Premier wanted to speak with him about the incident involving the young person in question because other similar incidents had occurred during his employment without issue. He also said that for the incident in question he took or felt almost nil responsibility.
When asked if he doubted what Ms Fraser had said had happened, Mr Clarke said that he doubted everything that the management of Premier said. He commented that injuries were not uncommon for a residential care worker. When asked whether injury suffered by a worker was a reasonable matter to be discussed, the Applicant said that he was taken aback that this particular incident led to “management” wanting to talk to him about it and that he would be required to attend a meeting to do so.
When asked, not for the first time, whether the Respondent was entitled to ask him to attend a meeting to discuss this incident, the Applicant (also not for the first time) did not give a direct answer. He said that he thought the request was “suspicious” and that he found it curious that the incident report did not actually involve or refer to “sharps or scissors.” He said that the “request” for the meeting should have outlined, as a matter of procedural fairness, the “policy breach” allegations. In the result, Mr Clarke did not go to this meeting sought with him.
Regarding a proposed, re-scheduled meeting on 2nd December 2016, Mr Clarke said that he did not recall saying that he would, or would not, attend this meeting. Rather, he said, it was the case that he again requested details of the allegations.[17] He confirmed, with varying degrees of reluctance, that a request or direction from his employer to come to a meeting to discuss a workplace incident was reasonable.[18] Mr Clarke also confirmed that there was nothing in his contract of employment that entitled him to put conditions upon his attendance at any meeting requested/directed by his employer.[19]
[17] Among other places, see T 50.
[18] E.g. T 47. See also T 79.
[19] T 47.
Mr Clarke confirmed that on 2nd December 2016, he was asked by Ms Fraser to attend a meeting; he asked her to tell him what the alleged “policy breaches” were. Mr Clarke confirmed that he received no information. There followed, he confirmed, a long email he sent to Mr Cowling on 5th December 2016,. Mr Cowling was the ACT Program Manager for the Respondent.[20] In that letter, Mr Clarke inquired, among other things, as to whether or not he had been dismissed or stood down.
[20] A copy of this email is Annexure 67 to Mr Clarke’s February 2018 Affidavit. In his oral evidence, Mr Clarke said that he recalled sending a SMS message on 3rd December to Ms Morrison, inquiring from her whether she knew what was going on regarding his employment. He said that he received no reply from her, and that he did not communicate further with Ms Fraser, even though she was his supervisor at the time. See T 48 – 49.
Mr Clarke’s correspondence with Mr Cowling on 5th December also claimed that, or inquired about
a)Ms Fraser had indicated to him what he described as “inconsistent reasons” for the “adverse action” taken against him (I simply observe that, on its face, the contents of this email are inconsistent: Mr Clarke first inquired whether he had been stood down or dismissed, then proceeded to make assertions about adverse action, thereby seeming to presume the answer to his own question);
b)Whether Mr Cowling was aware of Ms Fraser having “verbally represented” to Mr Clarke “a number of times” that she would arrange for him to be transferred to “full-time employment status if I was to begin to undertake ‘PM shifts’ and perform a full-time line with PYW.” Mr Clarke said that Ms Fraser said that she would pass this information on to Mr Cowling. Mr Clarke inquired of Mr Cowling in this correspondence of 5th December 2016 whether this information had in fact been passed on to him. Subject to what is said later in these reasons, for my part, based just on this correspondence from Mr Clarke to Mr Cowling in early December 2016, I have significant difficulty seeing how Mr Clarke could assert, at the time or since, that he was employed by the Respondent on a full-time basis in circumstances where he was inquiring of senior management if they were even aware of the alleged representations made by Ms Fraser to Mr Clarke regarding such a change in legal/employment status;
c)Mr Clarke suggested to Mr Cowling that Ms Fraser had (in his view erroneously and misleadingly) not put any of her alleged representations to him in writing;
d)Mr Clarke further asserted – it might almost amount to a threat of some kind to the Respondent – that if legal proceedings were commenced by him, this would expose the Respondent’s allegedly dubious “employment practises” (which were not particularised) “in the light of the recent media scrutiny that PYW has been subjected to”;
e)Mr Clarke’s correspondence concluded with him saying that “I will foreshadow that I will be disinclined to deal with PYW at this time other than in writing.” He said he hoped that the matter may be able to be resolved without “recourse to legal proceedings.”
Notwithstanding what was set out in his letter to Mr Cowling on 5th December, in particular that he was “disinclined to deal with PYW … other than in writing”, in his oral evidence, Mr Clarke said on a number of occasions that he did not think he had ever said that he was not going to come in to have a meeting with the Respondent.[21] He confirmed that by this time (at least early December 2016, and more likely even back in August when, he said, there were some discussions with Ms Fraser about him moving to a full-time position) his trust in his employer had “completely broken down.”[22] He also confirmed that any belief he had in Ms Fraser’s “honesty” was almost completely gone by the end of August.[23]
[21] See T 50.
[22] T 50.
[23] T 51.
Again, I observe that, on the one hand, Mr Clarke relied upon alleged representations by Ms Fraser, his then supervisor, regarding him obtaining a full-time position. On the other hand, however, he stated that he could not rely upon Ms Fraser’s honesty as early as August 2016. How one might reasonably rely upon any alleged representation from Ms Fraser, and yet equally assert (at the same time) that one also could not/cannot rely upon that person’s honesty (which most would equate with that person’s “word”), was not explained.
Mr Clarke rejected the proposition that he could simply have attended a meeting to explain his position. He said he did not because, in his view, any meeting that was set up, or would be set up, was for the purpose to come up with reasons to “effect a dismissal.”[24]
[24] T 50.
Regarding (a) his relationship with his then supervisor, and (b) his understanding of his contractual position with the Respondent, the following exchanges are instructive (emphasis added):[25]
HIS HONOUR: When do you say that that started?‑‑‑I began to question the honesty of my manager, probably, around the time of these full-time contract conversations, when I was saying “Look” ‑ ‑ ‑
So this is August?‑‑‑That specific employee in relation to the full-time contract in mid-August – late August was when she said, yes, I think, in text messages, “By the way, about that full-time contract – I’m going on leave” and didn’t come back for another three weeks, and by that time, I had been moved to another team manager. So at that stage ‑ ‑ ‑
Ms Morrison?‑‑‑No. I was moved from Ms Fraser to Ms Morrison, and my view on Ms Fraser’s honesty by that stage, by the end of August, was almost – specifically in relation to that full-time-contract matter, almost completely gone, at the end of August.
So within approximately six weeks of signing that contract, you basically – not only did you have a contention or a view that you weren’t formally bound by the contract?‑‑‑Yes.
Secondly, you had no relevant trust with your immediate supervisor; correct?‑‑‑In relation to her actually providing that contract, because ‑ ‑ ‑
What about otherwise?‑‑‑I mean, otherwise – I suppose it would depend on the particular situation, but I thought – I have to say I didn’t think she was the one making the decision as to what was going on with the full-time contract. Anytime I mentioned it to her, she would talk about referring it on or speaking with Jake and Nez, which I believed to be Mr Cowling and Ms Richards. So I thought it was all being passed on to them. So what she was saying: I thought it was very misleading, because each time I sent her a text message, she wouldn’t respond to it, and then we would have a verbal conversation, a telephone conversation, and I wanted her to put something in writing that she was saying to me during these conversations, and she just didn’t do it, and then on 30, 31 August or whatever it was, she just went “I’m going on for leave for a week” and didn’t come back for three; so ‑ ‑ ‑
Was there something sinister about her taking three weeks leave?‑‑‑Nothing at all. It’s just – she had been telling me for more than a month or whatever it was that – “Yes; look. I’m going to give you this contract. I will a follow up with HR. I’m just doing these forms” and then – and I’m sending her messages. By the time I get the EA or see it in my inbox, email inbox, late August, I sent her a text message saying “Look. I’ve got EA now. You’ve been” – in writing, this all is – “been saying to me that we were waiting for the EA. Can you please send me the contract?”. No response again. The next day, I send her another follow-up text message; we have a verbal conversation where she says words to the effect “Yes, we will follow it up” ‑ ‑ ‑
[25] T 51.
Mr Clarke further confirmed the following matters, vis-à-vis (a) his relationship with his then supervisor (Ms Fraser) and (b) his expectation regarding a full-time position with the Respondent. He said (emphasis added):[26]
[26] T 55.
HIS HONOUR: And – sorry. And this is also against a background where you said before lunch that you had no confidence in Ms Fraser from approximately late August?‑‑‑Yes, I didn’t believe that she was genuine in her promises to provide a contract. I didn’t think that was going to happen.
No, I understand that, but your view about her had not changed since late August; correct? In terms of the lack of confidence, trust, etcetera; correct? ‑‑‑My lack of trust was really only in relation to the provision of the contract. Generally I ‑ ‑ ‑
But you trusted it in everything else? ‑‑‑No, I wouldn’t say that, your Honour.
That’s what I’m asking. Did you or did you not? Either you did or you didn’t? ‑‑‑I would think there’s a certain spectrum. In relation to the contract, I didn’t trust her at all. In relation to other matters, my trust in her had diminished based on what had happened with the contract. In relation to this specific phone call, this request, I thought it was highly dishonest, because prior to that ‑ ‑ ‑
Mr Clarke was questioned further about his July 2016 contract with the Respondent. He said, for example, that notwithstanding the contract not having (in his view) “essential terms”, and him not at the time being provided with a copy of the EA, he was prepared to – and did - sign the casual contract. This said, he distinguished between him signing the contract (the letter of offer, signed by him) and the doubts about its “validity”. He confirmed, however, that upon reading the terms of the EA, he saw nothing that provided for a progression (automatic or otherwise) from casual to full-time employment.[27] He also said (emphasis added):[28]
… when you review the EA, you didn’t see any clause in there or any provision in there that talked about the transition from casual employment to full-time?‑‑‑I don’t recall seeing – seeing one, but again, I didn’t actually look into this area in a great deal of detail.
Then you mustn’t have had any concerns about the validity of the casual employment agreement you signed then if you weren’t concerned to look into the EA whether there was anything in there?‑‑‑When I received the EA I simply thought that was, “Okay, we’ve got the EA sorted now. Now the letter of the – full-time letter of offer will come out.” I thought it was – would be as simple as that.
[27] T 58.
[28] T 59 – 60.
A little later in his oral evidence, and still on this subject of his belief that a full-time contract would be provided to him (but which never came), Mr Clarke said:[29]
There was no progression clause in your casual employment contract; you accept that?‑‑‑Yes. I’m talking about – yes, sorry, so nothing in the ‑ ‑ ‑
Yes. And there’s no progression clause in the EA; correct?‑‑‑Nothing that I – not – not to my knowledge.
[29] T 60.
Mr Clarke’s understanding of the status and nature of his “contractual negotiations” with Ms Fraser was succinctly put in the following answers he gave to Counsel for the Respondent (emphasis added):[30]
I guess what I’m just exploring with you. Given your training as a lawyer and given your – you would have understood offer and acceptance and the like when you did contract law; correct? ‑‑‑I would like to – like to hope so.
Yes. Yes. And you were offered a written contract – sorry. You were provided with a letter of offer for the casual role; correct? ‑‑‑Yes.
And I want to suggest to you that, in order for you to have been offered or being offered full-time employment with the respondent, part of that or a condition of that would have been provision of the contract of employment which set out the terms the respondent was wanting you to agree to; you agree with that? ‑‑‑Well, in an ideal setting, yes. I mean, again, I thought the terms would be essentially the same as the casual contract and the offer was – and the acceptance was made between myself and Ms Fraser in a verbal sense.
[30] T 61.
Mr Clarke confirmed that he was invited to attend meetings with management personnel from the Respondent. There followed a series of claims made by Mr Clarke about the misleading and deceptive conduct of named persons on behalf of the Respondent. This led to some concerning exchanges, which culminated in a formal caution to the Applicant by the Court because of (a) the claims not having been particularised previously, and (b) as a legal practitioner (although at the time not holding a practicing certificate), in the light of his duty to the Court, the gravity and risk of making such claims. Briefly stated, these matters were as follows.
There were two main discussions about what Mr Clarke considered to be misleading and deceptive conduct on the part of the employees/management of the Respondent, specifically in relation to whether he was to be offered a full-time contract of employment. The first was as follows:[31]
[31] T 62 – 63.
HIS HONOUR: While you’re looking at that, can I ask this that relates to one of your earlier answers and something that you’ve repeatedly stated that you consider that you were the subject or subject to dishonest and misleading statements; correct?‑‑‑Yes. Yes.
Is it fair to say that, at least in terms of personnel, you attribute all of that to Ms Fraser only?‑‑‑Respectfully, no, your Honour. I thought the conduct of my immediate supervisors was being directed by their superiors. So ‑ ‑ ‑
So are you saying therefore all of the respondent’s personnel engaged in deceptive and misleading conduct?‑‑‑No. Respectfully, no.
Well, I’m just asking. Who do you say engaged in misleading and deceptive conduct? Ms Fraser?‑‑‑Directly with myself, yes, Ms Fraser, Morrison.
Well, that’s all I’m interested in. I mean, you’re the one who is in the witness box?‑‑‑Yes.
I’m not asking about anyone else?‑‑‑Yes.
Who else?‑‑‑Ms Fraser.
Ms Fraser. Who else?‑‑‑Ms Morrison.
Ms Morrison?‑‑‑And I believed Ms Riches and possibly Mr Cowling, in terms of directing their conduct. Everything that – of any substance that I discussed with either Ms Fraser or Ms Morrison was always in relation to referring it to Mr Cowling and Ms Riches.
MR DARAMS: Could I just ask you on that. So to the extent that – I just need to understand this in your case – to the extent that Ms Morrison might have been saying something or Ms Fraser was saying something to you in your employment, particularly those things you take issue with now, are you saying that they would have been – your case is they were at the direction of either Ms Riches or Mr Cowling or both of them?‑‑‑That’s – I mean, it would depend on what things you’re actually referring to, but that would – that would be my ‑ ‑ ‑
I’m just trying to understand if that’s the case you’re running.
HIS HONOUR: That’s the case that you’re running though, isn’t it?
MR DARAMS: Yes?‑‑‑That the – the deceptive conduct was directed by superiors.
Well, yes. So the deceptive conduct – or tell me if I’m wrong about this – the deceptive conduct relates to the employment contract?‑‑‑The provision of it, yes.
Yes. So your ‑ ‑ ‑?‑‑‑It extends beyond that.
Following this discussion, Mr Clarke was taken to correspondence he received from Ms Riches, dated 12th December 2016.[32] Ms Riches was relevantly the Case Manager for seven houses run by the Respondent in the ACT.[33] This [emailed] letter invited Mr Clarke to attend a meeting on 15th December 2016 with her and Mr Cowling. The letter attached information regarding the meeting, a copy of his contract, and a Probationary Appraisal Template, which the Applicant was asked to complete prior to the meeting. The letter went on to note that if he had any questions about the meeting, Mr Clarke should feel free to contact Ms Riches or the Employee Assistance Program if he needed further support.
[32] This correspondence, with its attachments, is Annexure 71 to Mr Clarke’s February 2018 Affidavit.
[33] The evidence of Ms Riches, like that of Mr Cowling (and others) is set out later in these reasons).
Mr Clarke responded to Ms Riches’ letter by email dated 13th December 2016.[34] In this letter he repeated his contentions about what Ms Fraser had allegedly promised him regarding a full-time position. He also said that he considered Ms Riches’ invitation to a meeting as being less than “entirely candid.” He advised her that, based on her actions of inviting him to attend a meeting on 15th December, (a) he had been stood down, and (b) in consequence, the Respondent had taken adverse action against him, which was likely to lead to him taking action against Premier. He also sought to have the meeting go over until the new year.
[34] See Annexure 74 to Mr Clarke’s February Affidavit.
In his oral evidence, Mr Clarke said that he accepted the Respondent could, during his probationary period of employment, ask him to attend a meeting to discuss his employment. He maintained however that he considered the circumstances that surrounded the invitation as being “highly deceptive.” He also said that he wanted to arrange for someone to attend any such meeting with him. At that time he said that he was a member of the Union but he could not recall if he discussed with the Union about someone coming to a meeting with him. His main focus was, in his oral evidence, to highlight his dissatisfaction with the “Respondent’s conduct”.
Associate:
Date: 31 January 2020
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