Coling v Programmed Integrated Workforce Limited

[2020] FCCA 1368

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLING v PROGRAMMED INTEGRATED WORKFORCE LIMITED [2020] FCCA 1368

Catchwords:
INDUSTRIAL LAW – Adverse action application – workplace injury – labour hire agreement – workplace right to complain – discrimination – no matters of principle– application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.342, 351, 361,386.

Applicant: BENJAMIN COLING

Respondent: PROGRAMMED INTEGRATED WORKFORCE LIMITED
(ACN 085 701 962)

File Number: MLG 3351 of 2018

Judgment of: Judge Riethmuller

Hearing date: 16 and 17 December 2019

Date of Last Submission: 17 December 2019

Delivered at: Melbourne

Delivered on: 29 May 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Tracey

Solicitors for the Respondent: KHQ Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3351 of 2018

BENJAMIN COLING

Applicant

And

PROGRAMMED INTEGRATED WORKFORCE LIMITED
(ACN 085 701 962)

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application made pursuant to the provisions of the Fair Work Act2009 (Cth) (‘the Act’) which prohibit adverse action against employees. The applicant seeks compensation by way of $55,910.40 for twelve month’s lost wages, $4,353.60 for twelve month’s lost superannuation, $30,000 for hurt, humiliation and distress and a pecuniary penalty.

2. The substance of the case is about whether the applicant was dismissed, and if so, whether that action was taken because of an injury he sustained during the course of his employment, or because of some other reason.

3. The applicant was employed by the respondent, Programmed Integrated Workforce Ltd, an Australian owned multi-purpose labour hire company. The respondent’s business was to employ people that could be provided as workers to other businesses. In accordance with a labour hire arrangement between the respondent and one of its clients, Reece Group (‘Reece’) a plumbing and bathroom supplies business with work sites in Mulgrave and Dandenong, the applicant worked on an assignment between 30 July 2015 and mid-2018. 

4. During this placement at Reece, on 23 March 2018 the applicant sustained a back injury while lifting a bath. He claims that the respondent subsequently engaged in adverse action by dismissing him from his employment, failing to provide him with suitable employment, and failing to return him to pre-injury employment. The applicant also claims  he was discriminated against. The applicant alleges that the respondent dismissed him from employment because he exercised a workplace right in relation to his sustained injury, which gave rise to a physical disability in the form of a back injury, affecting his work which was of a physical nature. In addition,  the applicant believes that he was dismissed for exercising a work place right to complain.

5. The respondent denies any of the alleged contraventions of the Act. In essence the respondent’s case is that it did not take the initiative to end the employment of the applicant, but rather, it was the choice of the applicant to abandon his own employment and that on this version of events, adverse action is not made out.

6. Importantly, in an application of this type, if adverse action has been taken against the applicant, the respondent bears the onus of proof under s.361 of the Act which provides:

   361 Reason for action to be presumed unless proved otherwise

   (1) If:

   (a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

7. The applicant alleges adverse action in four particularised forms: (i) that the respondent dismissed him from his employment; (ii) that the respondent failed to provide him with suitable employment; (iii) the respondent discriminated against the applicant; and (iv) the respondent failed to return the applicant to his pre-injury employment at Reece pursuant to section 342 of the Act. It was alleged that the respondent took these actions on the grounds that firstly, the applicant had a work place injury and secondly, because the applicant made complaints.

8. The crux of the applicant’s case is that he wanted to return to his role at Reece. His believes that someone else is still undertaking his role and that at no time was he informed his position would conclude when the Reece Mulgrave site closed and Reece relocated to a Dandenong site. 

9. Much about this case appears more in the nature of an unfair dismissal style claim, however, unfair dismissals are not within the court’s jurisdiction, as was explained to the applicant at the start of the case.

10. On the respondent’s version of events it took extensive action to assist the applicant in the management of his injury, and reasonable steps to provide suitable alternative duties for the applicant and find other placements for him.

11. The respondent suggests that the applicant did not “come to the party” in making himself available for placements, in that he did not communicate with the respondent or provide the necessary paperwork for a further placement. The respondent says it was therefore the applicant’s choice to “treat his employment as being at an end” on 3 September 2018. It was the applicant’s decision to cease all communication with the respondent and by doing so he ended the employment relationship by way of resignation, not dismissal.

12. The respondent points out that a reverse onus is not enlivened unless adverse action is shown to have been undertaken. In this case the respondent says that no adverse action was taken against the applicant, as he resigned. In any event, the respondent says that the actions (however they may be categorised) were not for prohibited reasons.

Course of events

1. On 30 July 2015 the applicant commenced employment with the respondent with a placement at Reece, a major plumbing and bathroom supplies business.  The applicant worked 5 days a week.  He was never placed with another business during his period working for the respondent.

2. On 23 March 2018 the applicant sustained a workplace injury in the form of a back injury while lifting a bath tub. As a result of the injury the applicant stopped attending work for a period: see CB p.29 at [5].. The applicant attended medical appointments on 24 March and 28 March 2018.

3. On 28 March 2018 the applicant received a return to work plan by email from Ms Budd, an Injury Management Advisor working for the respondent.  The applicant was scheduled to work in accordance with a return to work plan on 31 March 2018, but as a result of Reece moving their National Distribution Centre (‘NDC’) site from Mulgrave to Dandenong, there was no driving shift available for the applicant, so it was arranged he would attend Reece’s Rework division located in Dandenong: see CB p.314.

4. On 3 April 2018 the applicant was offered light duties in the ‘Rework Department’ at Reece, an arrangement put in place until he could return to his normal duties. On that day the applicant said his back pain increased and he had to cease work and attend further medical appointments. The applicant received a certificate to cover him until 15 April 2018: see CB p.29.

5. On 3 April Ms Tran (an employee of Reece) and Ms Budd spoke on the phone to discuss the applicant’s return to work, during that discussion Ms Tran expressed that she ‘was not happy with the Applicant’s performance during his shift as he had made a number of complaints about Reece and [the respondent]’: see CB p.451 at [17]..

6. Mr McKenzie (an Operations Delivery Manager employed by the respondent) had also received a telephone call from Ms Tran who advised him that the applicant’s position at Reece’s Mulgrave site was no longer required to be undertaken. Ms Tran also told Mr McKenzie that even if there was an assignment available, Reece did not want the applicant due to him having a bad attitude and his not being a team player: see p.223.

7. The applicant’s claim for Workers Compensation was accepted on 4 April 2018.  On 4 April Ms Budd sent an email to a number of staff and copying in Mr Glenn Syrett, the respondent’s Health and Safety Coordinator, providing an update in relation to the applicant, saying:

   […] I have spoken to Hieu [Ms Tran] at the RTW site (Reece NDC) and advised we won’t be having Ben back there at this stage.

   Hieu also brought up the fact that Ben had been complaining to her and others about Programmed; Pay issues, communication issues and the fact that he’d been working for Reece for 3 years and hasn’t been made perm.

   Hieu advised she wasn’t that impressed by the complaints and doesn’t want her team disrupted by this if he was to return there for duties. And nor would we want to jeopardise a relationship with the client or RTW site by placing a worker out there that is disruptive.

   Given that Hieu has concerns about the workers conduct while he is placed there on the RTW site, there might be potential for the relationship to be damaged as he doesn’t seem to be a good fit currently, therefore my opinion at this stage would be that we need to explore other options for RTW placements which may be returning Ben to the pre-injury site (Mulgrave) or branch. Or an alterative RTW site if possible.

8. As a result of this email and feedback received, Ms Turner (an Account Manager of the respondent) says she, ‘understood that it would not be possible for the applicant to be placed at Reworks for his return to work. The Mulgrave site did not have suitable light duties for the applicant and as such [she] was unable to arrange for the applicant to attend the Mulgrave site for light duties’: see CB p.315 at [27].

9. On 11 April 2018 Mr Syrett inspected Reece’s Mulgrave site and then emailed Mr Anderson (of the respondent) and advised him the applicant was still off work, that the injury was being classified as a ‘Lost Time Injury’, and that he would be conducting an Incident Cause Analysis investigation: see CB p.260 at [9]. Mr Anderson replied indicating there was a prospect the applicant could perform light duties in Reece’s Rework department.

10. On 12 April 2018 Mr Syrett met with the applicant at the respondent’s Croyden office.

11. On 16 April 2018 Ms Turner emailed Ms Budd after reviewing the applicant’s restrictions and informed her ‘there was nothing available for the applicant at Reece: see CBp.316 at [29]. The following day Ms Budd asked Ms Turner to arrange for the applicant to work light duties at the respondent’s Notting Hill branch and the applicant was sent an updated work plan and placed there accordingly.

12. Mr McKenzie gave evidence in his affidavit filed 5 July 2019 that in or around April 2018 he was advised by Ms Turner that Reece ‘were unhappy with the Applicant’s conduct and workmanship and that it no longer wished to have the applicant placed on its sites’: see CB p.223 at [18].

13. On 19 April the applicant began undertaking clerical work 2 hours per week at the respondent’s Notting Hill branch, which continued until 16 August 2018: see CB p.30 at [11].

14. On 4 May 2018 Ms Turner received an email from the Senior Injury Management Advisor, Toni Maselli advising her that the applicant’s expected recovery time had been extended a further 6 weeks and asking her to follow up with Reece if they could assist with return to work duties: see CB p.316 at [31].. On 5 May 2018 Ms Turner emailed the Reece National Distribution Manager, Mr Rob Hubai, in relation to the applicant’s injury related work limitations, she received a reply from Mr Hubai two days later informing her (at CB p.381):

    …unfortunately as you are aware all duties involved at the DC require a degree of manual handling so there isn’t a role here that encompasses all the restrictions listed below pertaining to Ben.

15. The applicant notes that at this time Reece’s ‘Bathroom Life Logistics’ facility was relocated from the Mulgrave site to a new location in Dandenong.

16. On 7 May 2018 Ms Turner forwarded the response from Mr Hubai advising that Reece did not have suitable duties for the applicant to Mr Maselli. Following this Ms Budd provided an updated return to work plan for the applicant. On 30 May 2018, Ms Budd emailed Ms Turner (at CB p.594):

    [The applicant] has recently had a change in capacity to what I think may be his full duties…

    Could you please contact the client advising he has the following restrictions and see if they can offer him some shifts to get back to work/

17. Ms Turner replied:

    [Reece] do not want him to return.

18. Ms Budd followed up:

    Could you please advise who you spoke to, their title and the reason they can’t accommodate these duties?

19. There was no follow up email from Ms Turner providing an answer. On 5 June 2018 Ms Turner received a follow up email from Ms Budd, to which she responded advising her that the Mulgrave Distribution Centre site at which the applicant had worked had moved and that he would not be returning to Reece. Later that day Ms Budd emailed Ms Turner with an updated return to work plan for the applicant: see CB p.317 at [40] and p.454 at [31]..

20. On 6 June 2018 Mr Syrett emailed Ms Turner to update her on the applicant’s ability with his injury and he noted (at CB p.303):

    […] Please be mindful that Ben is upset that he hasn’t been offered permanency with Reece whereas other drivers have.

    Reece have advised me “in confidence” that Ben’s more than capable of doing the job and does it well.

    Unfortunately Ben’s inflexible “not a team player” attitude have ruled him out for permanence ever being offered.

21. In an email later that day in the same thread Mr Syrett further added:

    I’m confident Reece have the ability to assign Ben to lighter deliveries in order to ease him back into work.

    Remembering also, I don’t think Ben has had any leave/holiday in the 3 years he’s been at Reece.

    I’m saying Ben may also have been suffering “burn out”.

    Using this just as an opportunity to rest and recuperate.

    Just my thoughts.

22. On the same date Mr Tony Hankinson, Custom Delivery Manager, emailed My Syrett informing him (at CB p.301):

    From a Reece point of view it’s fairly clear they don’t want Ben back with them, it’s been evident for a while.

    We’ll need to work on a strategy for him to be positioned elsewhere.

23. Mr Syrett replied:

    I wasn’t aware the Reece don’t require [the applicant] back.

    I’d suggest placing a site exclusion in Ben’s Fasttrack file, just in case he was inadvertently placed as a Reece Ute drive.

    This could be very awkward.

    Suggestion – perhaps working for Citywide truck driving/ general labouring role may be something Ben may be better suited to. He’s fit and strong and he may enjoy the physical work.

24. On 20 June 2018 Ms Budd received an updated certificate of the applicant’s capacity for work which provided for a progressive increase of duties. Ms Budd noted this prevented the applicant from being placed in roles with new clients as it was not a full clearance: see CB p.454 at [34].

25. On 5 July 2018 the applicant received an SMS from Ms Turner informing him that his possessions from Reece were under her desk. The applicant replied asking (at CB p.30 at [16]:

    So am I no longer going back to Reece[?]

26. The applicant says he received a reply from Ms Turner, which is clearly about his possessions and assuming he was aware he was not returning to Reece, to the effect of

    ‘It’s my fault I took [your things] from [Reece’s former] MULGRAVE [site] and forgot about it.’

27. Ms Budd’s records in her phone notes (Exhibit 2):

    13/07 Spoke to [applicant] about progress. [Applicant] thinks he might be cleared at the end of the month but to speak to his physio. [Applicant] …asked about going back to Reece to trial duties which I have explained this is not possible until he has a full clearance and we also need to consult with the client whether the duties are still available as the nature of casual assignments mean jobs can be filled by others when there’s an absence as the client needs to continue production etc.

28. Ms Budd says at this stage she was aware it was not an option to provide the applicant with a graduated return to work because the applicant’s pre- injury role no longer existed and a full medical clearance was required, which he did not yet have from his physiotherapist: see CB p.455 at [39].

29. On 18 July 2018 the respondent sent an email to the applicant’s physiotherapist explaining it would not increase his hours or duties because ‘The host site is unable to accommodate’: see CB p.30 at [17].

30. On 31 July 2018 the respondent sent a letter by fax to the applicant’s physiotherapist notifying him the respondent intended to return the applicant to suitable employment.

31. On 6 August 2018 the applicant attended an appointment with his physiotherapist who provided him a certificate of capacity to return to pre-injury employment: see CBp.31 at [19].

32. On 13 August 2018 the applicant attended an Independent Medical Assessment and after that appointment attended the respondent’s Notting Hill branch to deliver his return to pre injury duties clearance certificate and his medical certificate for a few days of work missed due to illness.

33. On 22 August Ms Budd sent an email to some staff of the respondent,  copying Mr Syrett (at CB p.642):

    Ben has clearance now and can be placed back out to work.

    I understand the Mulgrave site may not be operating anymore, but are there any other positions at REECE or other client site available?

    If you have anything, could you please call him as he’s available to start ASAP.

34. Mr Syrett replied to Ms Budd by email (at CB p.308):

    Ben’s last assignment (pre-injury) was with Reece was at their Melbourne Distribution Centre (MDC). It could have easily become a permanent role for Ben with Reece but his attitude got in the way. He’s not required back at Reece MDC and I would be confident in saying not welcome back at any Reece site. Sadly Ben caused his own demise at Reece by not being a team player, being disrespectful to their staff and generally having poor attitude.

    Notting Hill staff - under no circumstance should Ben to be put out to work as a driver for Reece or Tradelink for that matter.

    I would strongly recommend diary noting this and site excluding him from Reece, Tradelink, even DRJ in Fasttrack. Ben would take every opportunity to slander Reece to Tradelink and this would be highly damaging….

    I appreciate Ben’s ongoing employment with PSW is not my call I know, however…

    Having met Ben and listened to his distorted view of the world, I would not be offering him anything ongoing or where he’s likely to be working with others – if you can avoid it.

    Short term assignments, working solo, something different from truck driving and doing deliveries.

    Just my thoughts everyone but you need to make the call.

35. On 22 August 2018 the applicant received a call from Ms Budd. The applicant says he believed that as a result of this conversation the respondent was sorting out a return to his pre-injury employment due to his clearance: see CB p.31 at [24].

36. On this same date Mr McKenzie says he told the Team Leader, Jess Graham to place a site exclusion on the applicant so he would not be placed at the Reece site, but would be labelled as ‘available’ in their internal database: see CB p.223 at [22]..

37. On 24 August 2018 the applicant called EML insurance to enquire as to why his workers compensation payments had ceased, given he had not been returned to his pre-injury employment. He was advised that the insurance company would liaise with the respondent: see CB p.31 at [26].

38. On 27 August 2018 Ms Budd sent EML insurance an email containing the following update (at CB p.644):

    [The applicant] has advised he has not been working and was available to work again.

    I advised Ben that the branch are looking for something for him and encouraged him to contact the branch to advise of his availability.

    …

    The position at the pre-injury site is no longer available and I believe Ben has been aware of this since early in the claim as the site was shutting down and moving to Dandenong.

    We facilitated RTW duties early in the claim at the same employer (except the Dandenong site) which he was removed from (by the client) because he was disrupting and making negative comments about Programmed.

    The branch are looking for another suitable placement for Ben, so all I can do at this stage is wait until they have something.

1. On the same date EML insurance contacted the applicant to inform him that his payments had ceased because of his clearance and that the respondent would not return him to his pre-injury employment because of the advice they had received from Ms Budd (quoted above): see CB p.31 at [27].:

2. That day the applicant contacted the Fair Work Commission, Fair Work Ombudsman and Work Safe Victoria. He described the series of events and was referred to Legal Aid Victoria and Job Watch.

3. On 28 August 2018 the applicant contacted Job Watch and was informed the situation ‘didn’t quite sound right’, so that evening he sent Ms Budd an email, saying (at CB p.32 [30]):

   “Hey Tamara, i received information yesterday from EML that my position at Reece is no longer available. I must have misheard you when we last spoke, I apologise I had just woken up. So, I’m just wondering what’s next? Have i got a placement somewhere? If not, do you think I’ll be waiting long before something comes up?”

4. The applicant said he received no response. The applicant says that after a few days of no response he formed the view that the respondent had no intention of trying to find full time suitable employment..

5. On 3 September 2018 the applicant contacted a law firm and attended an initial appointment the following day. The applicant says he was advised that he had a strong case. The applicant says on this day he formed the view he had been dismissed within s.386 of the Act: see CB p.32 at [31] to [33]

6. Mr McKenzie gives evidence that on or around 5 September 2018 Ms Thomas, a Resourcing Specialist at the time, informed him that she had identified a role that would suit the applicant, but that the respondent did not have the applicant’s ‘work rights’, a legal requirement.  As a result, on the same day the applicant received an SMS from the respondent seeking further personal documents in relation to his work rights, saying (at CB p.3, [34]):

   “We are required by law to have on file your birth certificate or passport as a valid right to work in Australia”.

7. Ms Thomas telephoned the applicant shortly after the text message but the applicant did not respond to either the phone call or text message: see CB p 244 at [30]..

8. On 10 September 2018 the applicant’s solicitors contacted Ms Budd by phone to enquire why the respondent had not replied to his email sent on 28 August 2018.  On that date Ms Budd sent an email to the applicant:

   As discussed on 22/08/2018, I advised the branch of your clearance and they are currently looking for a suitable placement to open up for you.

   This can take some time depending on our clients and their open positions however as also outlined in that conversation, I suggest you place a call to the branch and advise them of your availability and the work you are open to as well.

   If you wish to discuss further, you can contact me on the below number. If I do not, answer, please leave a voicemail message. 

9. On 26 September 2018 Ms Graham sent the applicant another text message asking him to urgently provide his work rights documents and advised that failure to do so by 5 October 2018 would result in no offer of work: see CB pp.225 to 226 at [32]. Neither of the documents (a copy of his passport or birth certificate) were ever provided.

Evidence of the witnesses

1. The evidence in chief was given by way of affidavit and most witnesses were cross-examined during final hearing proceedings. 

Benjamin Coling

1. Mr Coling was quite forthright in his evidence and presented as a very confident witness. However, aspects of his evidence indicated a degree of lack of cooperativeness. For example, he never provided a copy of his birth certificate or passport to the respondent, upon their request that he prove his work rights before arranging a new placement. Whilst the applicant said in evidence that he had provided a birth certificate extract around 3 years earlier he never told the respondent’s staff this, nor offered to provide a further copy.  It seems that by this stage he had formed the view that the dispute was destined for litigation and did not engage with the respondent.

2. In a meeting with Mr Syrett the applicant admits that he swore at Mr Syrett (even though he was wanting to continue work and denying any difficulties in his attitude at Reece) although says that he apologised. He denied greeting Mr Syrett as ‘Baldie’ nor asking, ‘What’s the go with Programmed employing all you bald guys?’ Having seen the applicant and Mr Syrett in the witness box, I prefer Mr Syrett’s evidence in this regard.

3. I accept that the applicant was upset by the course of events, but am also of the view that he would have presented as a difficult person for the other staff at the respondent’s business to deal with. 

4. Mr Coling denied being negative in the workplace about Reece and said that in his discussion with Ms Tran, she had told him that she used to work for the respondent and so he mentioned he believed he was being underpaid and he says she offered to look into it. Mr Coling also mentioned he was disheartened by the fact he had not been offered a permanent role after nearly 3 years of longevity and reliability: see CB p.29 at [8].

5. Neither party called Ms Tran to give evidence.

6. I accept that the applicant has never received any formal complaint about his work conduct at Reece and that this is very frustrating for him.  However, this must be seen in the context of the relationships: Reece is a customer to whom the respondent supplies labour and not the applicant’s employer.

Alexander Knight-Coling

1. Mr Knight-Coling provided an affidavit in support of the applicant’s case and was not required for cross-examination. As a result I generally accept the matters set out in his affidavit. 

2. He worked for Reece through the respondent, and said that when he took 2 days off to do some training (in an attempt to improve his prospects of permanent work) he was told that Reece no longer required him. His evidence indicates that Reece were not particularly generous with respect to him. He was, however, an employee of the respondent and not Reece.

Tamara Budd

1. Ms Budd was employed as an Injury Management Advisor with the respondent for approximately 4.5 years. In this role Ms Budd was responsible for ensuring an employee who had been injured at work was supported during recovery and placed on an appropriate return to work plan. To do this she would liaise with the injured employee, their treating medical practitioner and communicate the injured employee’s restrictions with the employee’s manager at the ‘branch’. She said it was part of her role to consider options to help facilitate the injured employee’s return to the workplace: see CB pp.449 to 450.. Ms Budd emphasised that the ability to decide where the injured employee would be placed was outside the scope of her role and that decision is made by the respondent’s branch which recruited the affected employee.

2. Ms Budd had significant involvement with the applicant’s return to work plan. Once he sustained the injury, in accordance with her duties she said she collated the relevant information, ensured incident reports were completed and provided information to the relevant staff members of the respondent. The applicant’s claim for Workers Compensation was accepted so his medical treatments were paid for and he received compensation to ‘top up’ his salary until he received medical clearance on 6 August 2018.

3. Ms Budd says that she believes that the delay in her response to the applicant’s email she received on 28 August 2018 was because (at CB p.456, [46]):

   …from what I can recall, I discussed with the Programmed branch in person that the applicant had followed up in relation to his job at Reece and enquiring about placement elsewhere, trusting in them that they would consult with the applicant at their earliest convenience…. I believe it was my responsibility to inform the relative Programmed branch of their employee’s full clearance ….

4. Ms Budd also notes that in her telephone call to the applicant on 22 August 2018 she explained to him he needed to contact the branch. From that point on Ms Budd says she no longer considered it her responsibility to find the applicant work as he had received clearance and was now being treated as an ordinary worker of the respondent: see CB p.457 at [49(a)]. 

5. It was her view that it was not her role to tell the applicant about the problems with Reece, but the role of the branch.

6. I generally accept her evidence.

Glen Syrett

1. Mr Syrett was the Health and Safety Coordinator for the respondent. He says he became aware of the applicant after he was informed of the applicant’s injury on a Reece site.

2. Mr Syrett alleges that during a meeting with the applicant on 12 April 2018 he did not gain a good impression of the applicant, who he says made no effort to demonstrate manners and referred to Mr Syrett and another colleague as a ‘baldie[s]’: see CB p.260 at [10].. Mr Syrett said that the applicant commenced swearing heavily during the meeting and that he had to ask the applicant to tone down the language: see CB p.260 at [11].

3. Mr Syrett said that while he was aware of the progress of the applicant’s recovery from his injury, and commented on occasion in emails on the applicant, he did not play an active role in the applicant’s return to work process, as this was handled by ‘the branch’.

4. Mr Syrett was impressive in the witness box.  I accept his evidence.

Karen Turner

1. Ms Turner was an Account Manager for the respondent. One of her main responsibilities with the respondent was to work with Reece. Her role was to look after a number of their sites including the Mulgrave site, which housed a NDC for Reece Bathroom Life and Reece Onsite warehouse and the Dandenong site. During her employment Reece moved its NDC to the Dandenong site: see CB p.312 at [10].

2. Both sites utilised labour from the respondent and it was Ms Turner’s role to ensure all vacant positions were filled. She was based at the respondent’s Notting Hill office and would visit Mulgrave a least once a month to ensure the client Reece was happy with the services provided by the respondent.

3. The contact with whom Ms Turner said she liaised with most at Reece was Ms Tran, a previous employee of the respondent and Mr Rob Hubai, the Manager of the Mulgrave site.

4. The two casual labour hire employees at Reece at the Mulgrave site were the applicant and his brother, Alexander Knight-Coling. Ms Turner said in her affidavit (at CB p.313, [16]):

   It was my observation that the Applicant and his brother did not have a good relationship with Mr Hubai...

5. In early March 2018 Ms Turner says the applicant’s brother ceased attending shifts and as a result she ceased placing him at that site. Her understanding was (at CB p.313, [17])):

   the main reason the Applicant’s brother lost his position was that Reece did not find him to be a reliable worker. 

6. Ms Turner says she observed the applicant to be upset at the respondent as a result of his brother losing this position. She also says that while she had a good working relationship with the applicant and would describe him as a ‘good employee’ she did receive feedback from Reece that he was not a team player.

7. I found that Ms Turner presented well as a witness and I accept her evidence.

Justin McKenzie

1. Mr McKenzie was an Operations Delivery Manager employed by the respondent for over 7 years. Mr McKenzie gave evidence on the placement patterns of the respondent in relation to employees. He said the respondent predominantly hires and places casual employees for temporary labour hire assignments and that the company’s mandate is to provide clients the ‘right person for the right job’, based on employee’s qualifications and work experience. He also said that in practice, it is ultimately the client’s decision as to whether or not they accept the employee the respondent presents to them: see CB p.221 at [10].. He explained that the respondent would not usually take action against an employee if a client did not wish to have the employee continue with that client.

2. Mr McKenzie also noted that it is not unusual for an employee of the respondent to have to wait before they are provided another assignment once they have completed one with a client and that Reece was a very important client for the respondent.

3. In relation to the applicant, Mr McKenzie said that prior to the applicant’s injury, he did not know much about him, which is not unusual given the large size of the company, but said he was told by Ms Turner and Ms Tran, in separate conversations which occurred approximately in February 2018, that Reece were concerned that the applicant had a high level of absenteeism: see CB p.222 at [17]..

4. I accept the evidence of Mr McKenzie.

Anthony Hankinson

1. Mr Hankinson is a Customer Delivery Manager for the respondent. In this role he says his job is, essentially, to maintain the respondent’s relationships with its clients.  He said that it quickly became apparent to him that protecting the respondent’s relationship with Reece was of paramount importance because Reece makes up approximately 15 per cent of Mr Hankinson’s portfolio: see CB p.430 at 6]..

2. Mr Hankinson said that he commenced his role about the same time as the applicant’s injury, but that he was only involved at a ‘high level’ and never spoke to the applicant personally.

3. Mr Hankinson remained informed in relation to the applicant by Ms Turner. He received an email from Ms Budd on 22 August 2018 advising the branch that the applicant had capacity to return to pre-injury duties. He emailed one of the Account Managers, Rebecca Hood, and a recruiter Regan Clark, instructing them ‘to commence placing the Applicant in a role, but not with Reece or Tradelink’ because in his opinion ‘it wasn’t worth the risk to the business’: see CB p.431 at [10].. Mr Hankinson says he was not aware of the specific reason why Reece was unhappy with the applicant. He did not think that anyone had followed up with Reece about why they did not want the applicant back.

4. I found Mr Hankinson to be an honest witness.  He was not centrally involved in the detail of the applicant’s issues and as such could not give evidence in detail.  However, it was clear that he was not setting out to, nor acquiescing to any adverse action against the applicant for a prohibited reason. 

Reece employees

1. The employees from Reece were not called by either party to give evidence in the proceedings.  Thus, there has been no opportunity to test their evidence or even hear from them directly.  Given the nature of the business relationship between the respondent and Reece it is quite understandable that the respondent would not want to trouble Reece employees to give evidence in a case such as this. A core part of the service provided by a company like the respondent is to relieve clients from the onerous and complex problems of industrial relations. There was not similar impediment for the applicant. Whilst the two named staff members at Reece were not called, their comments made to staff of the respondent remain admissible. The statements are admissible to prove that those things were said to staff of the respondent – whether what was said was true or not the respondent’s staff believed it and acted upon it.  There was nothing about the statements that would be likely to lead the respondent’s staff to challenge them. 

2. Put simply, the relevance of those statements was that they were customer feedback which the respondent heeded.

Summary

1. Reflecting upon the witnesses as a whole I generally prefer the evidence of the respondents witnesses. As indicated above I specifically prefer Mr Syrett’s evidence over that of Mr Coling with respect to their meeting.

2. It is also important to review and consider the documents (primarily emails) as discussed above to determine what inference flow from the documents in the context of the oral and affidavit evidence.

Dismissal

1. In relation to dismissal allegations, the evidence strongly supports the conclusion that, on the balance of probabilities, that on or about 3 September 2018 the applicant decided he did not want to work any longer for the respondent. He took the view he had been constructively dismissed and chose not to return to work, in spite of communication from the respondent in early September treating the employment relationship as continuing to be on foot.

2. The respondent puts that the applicant’s failure to respond and deal with the Notting Hill branch any time after 22 August 2018 is conduct whereby the applicant abandoned his employment, or resigned from the respondent. The respondent points to the attempted communication by its Ms Budd with the applicant, by telephone on 22 August in which she directed him to communicate with the Notting Hill branch and to provide further personal documents necessary for that placement. The respondent also points to communication by email from Ms Budd on 10 September 2018 to the applicant, again advising the applicant that he needed to take positive steps to receive a placement.  During this period the applicant had obtained some legal advice, which he thinks prompted Ms Budd’s email. I am not persuaded that the respondent’s employees were reacting to any concerns that the applicant had obtained legal advice. On the evidence the applicant abandoned his employment and was not dismissed.

3. Even if there were a dismissal, what is clear from the evidence is that the reasons for that action did not include any of the proscribed reasons in the Act. There is no evidence that suggests the respondent’s reason for acting as it did was anything other than forming a view that Reece no longer required or wanted the applicant to be placed with them. I find that this was the reason that the respondent was not placed with Reece again.

4. There is no evidence that the injury formed any part of the respondent’s reasons not to place the applicant at Reece. On the contrary the respondent took many steps to accommodate the applicant’s recovery time and limitations. 

Suitable employment

1. On the evidence the injury occurred on 23 March 2018 and subsequently Ms Turner and Ms Budd’s evidence demonstrates that the respondent found work and duties for the applicant in the form of return to work arrangements with Reece Rework. Following that, the respondent found limited work and duties (described as ‘lighter duties’) for the applicant at its own Notting Hill branch.

2. When the applicant was asked to provide documents confirming his work rights he failed to do so. Failing to provide work because an employee does not provide confirmation of work rights is not a prohibited form of adverse action under the Act.

3. In the context of this case I do not accept that the request for documents (either a copy of a passport or birth certificate) was such as to be a ruse or unreasonable imposition upon the applicant.  Thereafter, the applicant considered himself dismissed, despite the respondent still intending to find work for him. 

4. I reject the claim that the respondent failed or refused to provide suitable work for the applicant.  It was not realistically open to the respondent to send the applicant back to Reece and no other work was available at that time.

Discrimination

1. To be treated unfairly, of itself, does not amount to unlawful discrimination: unlawful discrimination is limited to the categories set out in s.351 of the Act which provides:

   351   Discrimination

   (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.

   (2)    However, subsection (1) does not apply to action that is:

   (a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

   (b)    taken because of the inherent requirements of the particular position concerned; or

   (c)     if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

   (i)     in good faith; and

   (ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

1. Other provisions provide remedies for unfair dismissal.

2. There is no evidence of discrimination in this case. There is nothing to suggest that the applicant was treated differently as a result of physical disabilities (save as was required to accommodate his injuries) and no other basis for discrimination within the meaning of s.351 was alleged or appears on the facts of this case.

Failure to return applicant to pre-injury employment

1. The respondent did not return to work at Reece. On the evidence it appears clear that this was because the respondent formed the view that Reece did not want the applicant back at their sites and that the respondent acted to protect its business relationship with Reece.  There was clear evidence that the relevant decision makers were acting in response to the business needs of the respondent in preserving the relationship with a major customer.  It does not appear that the respondent was motivated to do anything in particular to the applicant. 

2. It may be that the applicant wanted to remain at Reece. However, the respondent understood that he was not welcome at Reece. It was the attitude of Reece that drove the decision making. The respondent has satisfied me that no conduct they undertook amounts to adverse action for a prohibited reason under the Act.

Workplace complaints

1. Whilst workplace complaint issues were raised in the hearing there was little evidence on the topic. The applicant argues that any complaints he made about working arrangements to Reece employees. This misconceives the nature of the protection offered under the Act. Section 341 provides:

   341 Meaning of workplace right

   Meaning of workplace right

   (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

2. Complaining to employees of customers is not a workplace right under the Act, which also accords with common sense. The act protects rights to raise issues or complaints with the relevant person in the employer business or ‘a person or body with capacity under a workplace law to seek compliance’. A customer of a business does not fall within this category, save in the most unusual cases (for example the Fair Work Ombudsman’s office may receive a complaint from an employee of a stationary supplied who supplies stationary to the Ombudsman’s office, although in these cases there will clearly be different divisions of the business that are relevant).

3. I am not persuaded that raising complaints or concerns with Reece employees is protected action. To the extent that the applicant relies upon his dealings with two employees of the respondent, I am persuaded that  adverse action was taken as a result of him raising any concerns or complaints.

Conclusions

1. When looking at the evidence as a whole it becomes clear that the applicant and respondent were viewing the relationships through different lenses. From the applicant’s perspective he was effectively employed by Reece and should have all of the rights that an employee of Reece would have against Reece.  From the respondent’s perspective Reece was a significant client to whom they provided services, and it was crucial to maintain customer satisfaction with respect to the services they provided and the respondent became aware that Reece was dissatisfied with the services provided by the applicant. 

2. There was nothing about the oral evidence of the witnesses to indicate that adverse action was taken against the applicant for a prohibited reason. 

3. The number of managers involved, the nature of the business relationship between the respondent and Reece, the emails and fractured information sharing may have made the conduct of the respondent appear somewhat Kafkaesque to the applicant, however frustrating workplace bureaucracies are not prohibited adverse action.  Similarly, even if the information or opinions of Reece employees were unfair or untrue, there is nothing to suggest that the respondent’s relevant managers did anything but act upon the information that they received from Reece as their business customer nor did they have reason to doubt the genuineness of the Reece employee views and preferences.

4. In the circumstances, I therefore dismiss the application.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 29 May 2020