Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd
[2013] FCCA 473
•27 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v ENDEAVOUR COAL PTY LTD | [2013] FCCA 473 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – alteration of employee’s position to his prejudice – reasons for adverse action not prohibited reasons – proximate cause of adverse action – not adverse action where step consensual. INDUSTRIAL LAW – Fair Work Act 2009 transitional provisions – agreement-based transitional instrument – civil remedy provisions. INDUSTRIAL LAW – Fair Work Act 2009 – personal/carer’s leave – precondition to entitlement. INDUSTRIAL LAW – Fair Work Act 2009 – statutory construction – s.540(3) an exception to exclusion found in s.540(2). |
| Legislation: Fair Work Act 2009, ss.55, 97, 107, 340, 341, 342, 351, 360, 361, 539, 540 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, items 2, 22, 23, 24 of sch.3, items 2, 16 of sch.16 |
| Cases cited: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union v Visy Packaging Pty Ltd (No 2) (2011) 213 IR 48 |
| Applicant: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| Respondent: | ENDEAVOUR COAL PTY LTD ABN 38 099 830 476 |
| File Number: | SYG 1373 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 2, 3, 15 November 2011, 28 and 29 February 2012, 15 March 2012 |
| Date of Last Submission: | 15 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Howell |
| Solicitors for the Applicant: | Mr A. Thomas, Construction, Forestry, Mining & Energy Union |
| Counsel for the Respondent: | Mr S.E.J. Prince |
| Solicitors for the Respondent: | Ashurst |
ORDERS
The matter stand over for further directions to 12 July 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1373 of 2011
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
Applicant
And
| ENDEAVOUR COAL PTY LTD ABN 38 099 830 476 |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION................................................................................................ [1]
RELEVANT LAW................................................................................................ [4]
WORKPLACE AGREEMENT.......................................................................... [12]
ALLEGATIONS AND RESPONSE.................................................................. [15]
EVIDENCE......................................................................................................... [18]
Alan McDermott........................................................................................... [19]
Helina McDermott........................................................................................ [54]
David McLachlan......................................................................................... [58]
Warwick Young............................................................................................ [65]
Mark Peace.................................................................................................... [80]
Heath Hannigan............................................................................................. [98]
SUBMISSIONS AND CONSIDERATION
Threshold question – particularisation of claim.................................... [115]
Threshold question – standing................................................................. [124]
September 2010 shift changeAdverse action?..................................................................................... [128]
Workplace right / family or carer’s responsibilities?...................... [139]
Did a prohibited reason motivate the shift change?........................ [159]
Breach of agreement?Clause 13.3...................................................................................... [179]
Clause 28......................................................................................... [187]
November 2010 agreement
Adverse action?..................................................................................... [194]
April 2011 shift change
Adverse action?..................................................................................... [201]
Workplace right?................................................................................... [204]
Did a prohibited reason motivate the shift change?........................ [213]
Breach of agreement?Clause 13.3...................................................................................... [223]
Clause 28......................................................................................... [226]
Final written warning
Adverse action?..................................................................................... [228]
Prohibited reason?................................................................................ [231]
Breach of agreement?........................................................................... [234]
CONCLUSION................................................................................................. [235]
Introduction
The applicant (“CFMEU”) brought proceedings against the respondent (“Endeavour”) under the Fair Work Act 2009 (“FWA”) alleging that Endeavour had breached ss.340 and 351 of the FWA in respect of one of its employees, Alan McDermott, who was employed as a maintenance fitter at its West Cliff Colliery (“Mine”). The breaches were said to arise out of
a)changes which Endeavour made to Mr McDermott’s rosters in September 2010 and April 2011;
b)Endeavour’s requirement that Mr McDermott sign an agreement concerning his attendance at work before it would return him to his original shifts; and
c)Endeavour issuing a final warning to Mr McDermott.
The CFMEU also alleged that Endeavour had breached certain provisions of the West Cliff Colliery Workplace Agreement 2008 (“Agreement”) which amounted to breaches of item 2(2) of sch.16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”).
The CFMEU sought:
a)declarations that Endeavour contravened ss.340 and 351 of the FWA and cls.13.3 and 28 of the Agreement;
b)the imposition of pecuniary penalties for the contraventions;
c)an order that Endeavour pay Mr McDermott compensation for his loss of income and other losses arising out of the alteration of his shifts in September 2010 and April 2011;
d)an order that Endeavour credit to Mr McDermott the hours of accrued annual leave he lost by reason of the alteration of his shifts;
e)an order that Endeavour restore Mr McDermott to the weekend shift;
f)an order that Endeavour remove from Mr McDermott’s file, and take no action in reliance upon, the “Final Warning Letter” dated 1 April 2011; and
g)interest.
Relevant law
Upon the repeal of the Workplace Relations Act 1996 (“WRA”) and the commencement of the FWA, the Agreement became a transitional instrument governed by item 2 of sch.3 to the FW (TPCA) Act. Item 2(1) of sch.3 to the FW (TPCA) Act provided that such transitional instruments were to continue in existence in accordance with that schedule despite the repeal of the WRA. Item 2(2) of sch.16 to the FW (TPCA) Act provides that a person is not to contravene a term of an agreement-based transitional instrument which applies to that person.
The effect of items 22(2) and 23 of sch.3 to the FW (TPCA) Act was that from 1 January 2010, when the “bridging period” concluded, the National Employment Standards under the FWA applied to transitional instruments. Section 107 of the FWA is part of the National Employment Standards and relevantly provides:
107Notice and evidence requirements
Notice
(1)An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a)must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b)must advise the employer of the period, or expected period, of the leave.
Evidence
(3)An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a)if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or
(b)if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or
(c)if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).
Compliance
(4)An employee is not entitled to take leave under this Division unless the employee complies with this section.
Modern awards and enterprise agreements may include evidence requirements
(5)A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.
Part 3-1 of chapter 3 of the FWA provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340-342 of the FWA are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
Employees, employers, outworkers and outworker entities
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
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; …
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Division 5 of pt.3-1 provides for other protections. Section 351 of the FWA is found in that division and relevantly 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 preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.. …
Division 2 of pt.4-1 of the FWA allows for applications for orders in relation to contraventions of civil remedy provisions. As affected by item 16 of sch.16 to the FW (TPCA) Act,[1] s.539, which is found in div.2 of pt.4-1, relevantly provides:
539 Applications for orders in relation to contraventions of civil remedy provisions
(1)A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.
(2)For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
[1] Amongst other things, item 16 provides that item 40 of the table set out in item 16 is taken to be incorporated into the table set out in s.539 of the FWA.
Standing, jurisdiction and maximum penalties Item Column 1
Civil remedy provisionColumn 2
PersonsColumn 3
CourtsColumn 4
Maximum penalty40 [item] 2(2) [of sched.16 to the FW(TPCA) Act] …[2] (a) an employee;
(b) an employer;
(c) an employee organisation to which the collective agreement-based transitional instrument concerned applies;
(d) an inspector
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) an eligible State or Territory court
60 penalty units [2] Item 2(2) of sch.16 of the FW (TPCA) Act is referred to above at [4].
Section 540 of the FWA is also found in div.2 of pt.4-1 and relevantly provides:
540 Limitations on who may apply for orders etc.
Employee organisations and registered employee associations
(2)An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:
(a)the employee is affected by the contravention, or will be affected by the proposed contravention; and
(b)the organisation or association is entitled to represent the industrial interests of the employee.
(3) However, subsection (2) does not apply in relation to:
(a)items 4, 7 and 14 in the table in subsection 539(2) … [3]
[3] Item 16 of sch.16 to the FW (TPCA) Act relevantly provides:
(1)Part 4-1 of the FW Act applies as if:
…
(d)the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to item 40 in the table …
(e)
Section 361 of the FWA is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FWA. It 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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Workplace agreement
Clause 13 of the Agreement dealt with the allocation of employees to shifts and rosters. It relevantly provided:
13.3Allocation of Employees to Rosters and Shifts
The Company will determine the allocation of Employees to shifts and rosters, subject to the operational needs of the business, recognising Employee skills and performance. Employees employed after the date of lodgement of this Agreement will be allocated to shifts / rosters at the discretion of the Company.
Shift and roster movements will be self managed, on a volunteer first basis, by affected Employees and Workforce Representatives.
The Company will determine the final Employee allocation to shifts and rosters, subject to operational needs of the business.
The Company will give an affected Employee one (1) weeks notice of a change of shift or roster or such lesser period as agreed.
Clause 16 of the Agreement dealt with personal/carer’s leave. It relevantly provided:
16.1 Definition
Personal / Carer’s leave is defined as:
I. paid leave (sick leave) taken by an Employee because of a personal illness, or injury, of the Employee; or
II. paid or unpaid leave (carer’s leave) taken by an Employee to provide care or support to a member of the Employee’s immediate family, or a member of the Employee’s household, who requires care or support because of:
·a personal illness, or injury, of the member; or
·an unexpected emergency affecting the member.
For the purpose of Personal / Carer’s leave, immediate family is defined as:
·a spouse, child, parent, grandparent, grandchild or sibling of the Employee;
·a child, parent, grandparent, grandchild or sibling of a spouse of the Employee.
…
16.6 Notification
When an Employee becomes aware that they will be unable to attend for work, they shall notify West Cliff Colliery as soon as reasonably practicable.
16.7 Proof of illness or injury
If required by the Company an Employee must prove to the satisfaction of the Company that the absence from work was on account of such illness or injury to themselves or an illness or injury or unexpected emergency suffered by a member of the Employee’s immediate family or household.
Clause 28 of the Agreement provided:
28 Absenteeism Management Process
Absenteeism management will be in accordance with the Absenteeism Management Process flow chart as agreed between the Company and Workforce Representatives.
Allegations and response
The CFMEU’s allegations were originally contained in the Form 4 claim form filed with the initiating application. On 31 January 2012 the CFMEU was granted leave to amend its Form 4 by adding two further occasions of alleged adverse action in support of its allegation that Endeavour had breached ss.340 and 351 of the FWA and by making consequential amendments to the attachment to the Form 4 document. The two additional occasions of alleged adverse action are referred to above at [1(b)] and [1(c)]. Leave to amend was granted by reference to a proposed amended Form 4 which was annexed to the CFMEU’s application in a case filed on 23 November 2011 but no amended Form 4 was subsequently filed. Nevertheless, after 31 January 2012 the matter proceeded as if the amendments in question had been made.
The CFMEU alleged that:
a)Mr McDermott was an employee of Endeavour and a CFMEU member. Prior to September 2010 he worked three shifts a week, on Friday, Saturday and Sunday, being the weekend shifts. During a period prior to September 2010 Mr McDermott was absent from work on a number of occasions because he was ill or because he needed to care for his wife. Mr McDermott was entitled to, and took, personal/carer’s leave under cl.16 of the Agreement for the purpose of caring for his wife and because of his own occasions of ill health. On and from about 10 September 2010 Endeavour removed Mr McDermott from the weekend shift and placed him on the weekday afternoon shift purportedly because of his absences from work;
b)in November 2010 Endeavour required Mr McDermott to sign a document headed “Agreement Between Alan McDermott And Endeavour Coal Pty Ltd” (“November 2010 agreement”) as a precondition to him again working on the weekend day shift. On and from about 8 November 2010 Endeavour returned Mr McDermott to the weekend day shift;
c)on about 7 April 2011 Mr McDermott was again advised by Endeavour that he was to be removed from the weekend day shift and placed on a weekday afternoon shift;
d)on or about 1 April 2011 Endeavour issued a final written warning to Mr McDermott;
e)Endeavour’s actions in
i)removing Mr McDermott from the weekend day shift;
ii)requiring him to sign the November 2010 agreement as a precondition to returning to weekend day shift; and
iii)issuing him with a written “final warning”
were taken for reasons which included the facts that he had taken personal leave and had carer’s responsibilities within the meaning of s.351 of the FWA and that he was entitled to the benefit of a workplace instrument within the meaning of s.341(1)(a) of the FWA;
f)in altering Mr McDermott’s rostered shifts because of the personal leave he had taken, Endeavour contravened cl.13.3 of the Agreement. The CFMEU further alleged that Endeavour did not follow the steps set out in the Absenteeism Management Process flow chart with respect to the management of Mr McDermott’s absences from work and that, by failing to apply those steps, it had contravened cl.28 of the Agreement; and
g)the shift change caused Mr McDermott to lose significant remuneration and to encounter significant and ongoing difficulties and expense in arranging alternative childcare for his children.
Endeavour denied that it took adverse action against Mr McDermott because he had exercised a workplace right by taking personal/carer’s leave or because he had carer’s responsibilities. It denied that it had breached the Agreement and contended that under the Agreement it had the right to determine the allocation of employees to shifts in accordance with the terms of the Agreement.
Evidence
In the background of the events relevant to these proceedings was Endeavour’s “Absenteeism Management Process” flow chart which applied to the Mine by virtue of cl.28 of the Agreement. It provided:
Alan McDermott
Mr McDermott deposed that he had worked at the Mine since 2002, initially employed by a contractor. In mid 2004 he commenced employment with Endeavour on a full time fixed term basis and in November 2005 he became a full time permanent employee.
Mr McDermott deposed that from 2002 to 2006 he was employed on the weekday day shift roster, working from Monday to Friday and that in 2006 he changed to the weekend day shift roster working from Friday to Sunday.
Mr McDermott deposed that on 25 September 2009 he had a meeting with Anne de-Leuw, Endeavour’s then-Human Resources Officer. The purpose of the meeting was for Mr McDermott to inform Endeavour that his wife was unwell and that her illness might require him to be absent from work from time to time and at short notice.
Mr McDermott deposed that he was absent from work on 22 January 2010 because he had rolled his ankle and found it difficult to walk. On 26 March 2010 he was absent from work in order to care for his wife, who was ill, as well as his children since his wife was unable to look after them.
Mr McDermott deposed that on 11 April 2010 he attended a meeting with Warwick Anderson, the Weekend Day Shift Undermanager, Wayne David, the Weekend Day Shift Engineer, and David McLachlan, the CFMEU West Cliff Lodge President. Mr McDermott deposed that although the “Record of Discussion” of that meeting stated that the meeting was step 1 in the Absenteeism Management Process, there was no discussion of that at the meeting and he said that he had not understood it to have been step 1 in the Absenteeism Management Process. He said that he had understood that the issue had been his period of unplanned leave.
Mr McDermott deposed that he took a day of carer’s leave on 14 May 2010 to care for his wife who was again ill.
Mr McDermott deposed that when he arrived at work on 29 May 2010, Mr David called him to a meeting. In addition to Mr David, the meeting was attended by Joe Parsons, Mr McDermott’s undermanager, Jason Wichelow, the CFMEU West Cliff Colliery Lodge Secretary, and Mr McLachlan. Mr McDermott deposed to a conversation to the following effect:
Mr Parsons: Righto, this is a meeting about your absenteeism. The record shows you have taken 5 periods of unplanned absenteeism to the week ending 15 May 2010.
Mr McLachlan: … why is carers leave taken into consideration?
Mr McDermott: I can’t understand how it can be fair that you take carers leave into account given the file note about my situation. (file note from his meeting with Ms de-Leuw)
Mr Parsons: The note has been taken into account but whichever way you look at it, it was an unplanned absence.
Mr McDermott: How can you sit there and tell me that this is fair.
Mr Parsons: One of these carers leave with a certificate [sic] where you say that you had to look after the kids because your wife was ill; that wouldn’t cut it with HR.
Mr McDermott: Well, with no family on the coast, who am I supposed to get to look after my kids.
Mr Parsons: We’ve still got to follow the process. You’ve got to supply a medical certificate when either you or your wife are ill.
Mr McDermott: It doesn’t seem to matter whether I supply a certificate or not. When I do you still bring me in. I went and saw HR; I told them there were problems and you’re still bashing me for that.
Mr Parsons: One of the reasons they’re jumping up and down is that your leave is closely followed by or preceded by overtime.
Mr McDermott: I can’t plan these things. No worries. I won’t do any more overtime.
Mr McDermott deposed that Mr Parsons told him that if his record did not improve, he could lose his weekend shift. Mr McDermott recalled that the meeting was said to be in accordance with step 2 of the Absentee Management Process. Mr McDermott said that at that meeting he had given a commitment to Mr David to provide medical certificates to support his absences.
Mr McDermott deposed that on Friday 11 June 2010, he contracted whooping cough and received permission from Mr David to leave work early. He attended a doctor who gave him an injection. Mr McDermott said that he told the doctor that he had a bad cough and also said that he had been coughing in front of the doctor. He could not explain why the doctor’s notes of 11 June 2010 had no record of him having a cough. He said that the doctor did not tell him to stay away from his pregnant wife or to not go down the Mine. Mr McDermott denied the suggestion that he had not had a cough on 11 June 2010.
Mr McDermott deposed that he attended work on 12 and 13 June 2010 even though he was feeling unwell. Mr McDermott said he had not obtained a doctor’s certificate excusing him from work for the Saturday and Sunday because he had not wanted another period of sick leave.
Mr McDermott deposed that when he attended work on Sunday 13 June 2010 he went below ground and performed a number of duties although continually coughing and spluttering. When he had completed his work, he returned to the surface where Endeavour was holding a barbeque. Mr McDermott deposed that as the day went on he felt worse and could not work properly, so he left a couple of hours before the normal finishing time.
Mr McDermott was on parental leave from 18 June to 20 June 2010 for the birth of his daughter. Initially, the leave was erroneously recorded as carer’s leave.
On 23 July 2010 Mr McDermott had a meeting with Mr Parsons. At that meeting Mr Parsons stressed to Mr McDermott the need to produce medical certificates explaining his absences and raised the issue of Mr McDermott having left work early on Sunday 13 June 2010 without notifying Endeavour that he was leaving. Mr McDermott deposed that he replied to the effect of:
Fair enough. I did the wrong thing by not notifying you. I was not happy that nobody seemed to care about my coughing fits whilst they were enjoying a barbeque. I recall someone saying ‘That’s a bad cough you’ve got there, mate’. They knew I’d had a vaccination on Friday.
Mr McDermott deposed that he had been a member of the Mines Rescue Team for four or five years and that he was generally required to attend training approximately every two months. He deposed that the length of the training on each day varied. He said that Mr Parsons also participated in the training for the Mines Rescue competition, for which there was training additional to the usual training. Mr McDermott deposed that when he attended training on a day he was rostered to work, another maintenance fitter was rostered to cover his shift and if he returned to the Mine after training there would only be thirty to sixty minutes of work time left. He deposed that it was the usual practice at that time that production employees would not return to work if they had attended training during a rostered shift. Mr McDermott deposed that it had not been clear in 2010 that he had been expected to return to the Mine after training. He deposed that on a number of occasions he had gone home after training to undertake some further study in first aid.
Mr McDermott deposed that he first became aware that there was a problem with him going home after training when Mr David had said to him in mid-August 2010:
Terry’s [Terry Troy, Shift Resources Controller] wondering why Joe [Parsons] can come back to work and you can’t. He’s got you in his sights. Be careful.
Mr McDermott deposed that shortly after commencing work on 3 September 2010 he suffered a severe case of vertigo. He informed Endeavour at 9.30am and rang his wife to collect him as he was unable to drive. He deposed that he visited a doctor and was diagnosed with an ear infection. Due to the ear infection he was absent from work on 4 and 5 September 2010 and produced a medical certificate for the absence.
On 10 September 2010 Mr McDermott attended a meeting with Warwick Young, the Maintenance Engineer, and Mr McLachlan. Mr McDermott deposed that Mr Young told him that his attendance record was “not good enough” and raised the issue of Mr McDermott leaving work early on 13 June 2010. Mr Young also informed Mr McDermott that he was being moved to the weekday day shift.Mr McDermott deposed that prior to the meeting on 10 September 2010 he had not been approached by management with any complaint that he had failed to notify Endeavour properly of any unavailability to work.
Mr McDermott said that he was aware at the 10 September 2010 meeting with Mr Young that there were concerns about the genuineness of his 3-5 September 2010 leave and early departure from work on 13 June 2010 but said that he did not recall Mr Young saying at that meeting, in answer to Mr McLachlan’s query about Mr McDermott’s issues with his pregnant wife, “Yes, we have. We don’t believe that it is a factor in our decision here”. Mr McDermott said that at that meeting he offered an explanation to Mr Young for his early departure from work on 13 June 2010 because he understood that Mr Young was concerned about the legitimacy of his early departure from work on that day.
Mr McDermott deposed to receiving a telephone call from Mr Young after the meeting on 10 September 2010 directing him to attend a meeting with Mr Young and James Stewart, the Manager Mining Engineering, on 13 September 2010. Mr McDermott deposed that he attended the Mine on 13 September 2010 but found that no meeting had been arranged. He deposed that he was very upset and emotional at the time. He went to Mr Young’s office and informed him that he (Mr McDermott) was not handling things very well. Mr McDermott deposed that Mr Young said to him:
You need to make a conscious decision to come to work. You only work 3 days a week. For your wife to be getting sick on a Friday and you doing overtime before that, creates a pattern. The pattern’s there. Your [sic] need to speak to community groups that can assist your family situation.
Mr Young again raised the issue of Mr McDermott leaving work early on 3 September 2010.
Mr McDermott said that he visited a doctor on 20 September 2010 and raised the question of the legitimacy of having time off. He said that Mr Young had questioned the legitimacy of at least one instance of leave and he must have told the doctor this.
Mr McDermott said that a few weeks after the 10 September meeting, Mr Troy handed him a written warning which identified itself as step 3 of the Absenteeism Management Process and stated:
· This warning is given with regard to:
o 6 Periods of unplanned absence from September09 till september10
o Leaving work on a Sunday without notification
o Rescue station training on Friday and then not returning to work after 4 hours of training …
· Step 3 management of this issue is thru maintenance engineering Manager (Warwick Young) process is to change Alan McDermott roster from W/E day shift to weekday day shift as of Monday 13th September .It is management right to manage the workforce and due to issues raised by Alan in regards to his wifes problems at home with raising 3 under school age children has caused Alan issues with unplanned attendance. Alan will be positioned on a maintenance crew where he will be supported by other trades and it is viewed that 4 x 9.5 hour shifts Monday to Thursday will have less impact on Alan issues at home as there are more community support mechanisms available during the week. …
· Repetition of this action, or failure to improve, may result in: Management by the Operations Manager with a potential final worning.
(errors in original)
Mr McDermott admitted that the warning document stated that it was step 3 in the Absenteeism Management Process and that he was aware that that step was going to be a change in his shifts from weekends to weekdays.
Mr McDermott’s evidence was that he attended another meeting on 27 September 2010, this time with the Mine Manager, Heath Hannigan, Mr McLachlan and Mr Wichelow. The warning letter had prompted Mr McDermott to seek that meeting where he queried why he was still in the Absenteeism Management Process if there was no question about the legitimacy of the leave he had taken. Mr McDermott said that as far as he had been concerned, at the time of that meeting there was no issue about the legitimacy of his sick leave or carer’s leave. Mr McDermott deposed that he was upset at the meeting and gave Mr Hannigan a letter written by his wife explaining his absences from work and outlining the impact Endeavour’s actions had had on his family. Mr McDermott deposed that Mr Hannigan agreed to make up to him the difference between the wages paid to an employee on the weekend day shift roster and the weekday day shift roster. Mr McDermott said that he understood at the meeting that his situation would be kept under review and that if he improved his roster arrangements would be looked at again.
Mr McDermott agreed that he had been approached by management in October 2010 indicating that they were willing to put him back on the weekend shift on certain terms. On 8 November 2010 he attended a meeting with Mr Young where he was asked to sign a document returning him to the weekend day shift roster subject to conditions. He deposed that given the impact of the shift change on his family, he felt that he had had no choice but to sign the agreement so that he could put his personal life back into balance. Mr McDermott recommenced working on the weekend day shift shortly after signing the document.
Mr McDermott agreed that even though he said that he had signed the November 2010 agreement under duress, he had not subsequently made a complaint or lodged a grievance about it. He agreed that he had first raised questions of duress at a meeting in 2011. He said that he would have “signed damn near anything” to get back on the weekend roster and agreed that he had been happy to take the benefit of the agreement and return to the weekend shift. Mr McDermott agreed that he had taken the benefit of the agreement, had willingly conformed with it until March 2011 and did not complain about it until then. He said that he had not objected to the November 2010 agreement until March 2011 because he had filed it away and forgotten about it.
Mr McDermott deposed that on 8 March 2011 he telephoned Mr Troy and sought annual leave from 18 to 20 March 2011. He was told that it was not possible for him to take leave on those days. Mr McDermott gave evidence that he drove his mother-in-law from Wollongong to the Gold Coast on 16 and 17 March 2011 to increase the private use kilometres on his leased vehicle. He also travelled to Adelaide, Melbourne and back to Wollongong between 21 and 25 March 2011 to further increase the private use kilometres. He said that he had asked Mr Troy for leave so that he could take “the trip” to build up the kilometres on his car without stress.
Mr McDermott deposed that he had severe stomach pains on Friday 18 March 2011 and applied for sick leave to cover that day. He said that he had been constipated and was in discomfort for the whole weekend. Mr McDermott denied that he had not gone to work on 18 March 2011 because he had been tired from his drive to and from the Gold Coast.
Mr McDermott deposed that he had telephoned the Mine on 18 March 2011 at 5.35am and had spoken to a person in the control room who had informed him that he would pass the message on. He had telephoned again at 5.56am and told Lyle Maxwell, the night shift Leading Hand, that he would not be attending work. Mr McDermott deposed that he telephoned the Mine for a third time at 11.52am to make sure that Mr David had been made aware of his absence but Mr David had not been available. He said that he had not spoken, or asked to speak, to his undermanager, Mr Parsons, but said that the control room, which he had telephoned, communicated with the undermanager. Mr McDermott deposed that it was the normal practice to telephone the control room to notify an absence and that in his case, he had always telephoned the engineer’s desk, which was in the same room as the undermanager’s desk, to make sure that the shift engineer would be aware of his absence too.
Mr McDermott agreed that he had not provided a medical certificate for his absence on 18 March 2011. He said that he had attended the Dapto Medical and Family Practice to see his doctor, Dr Leon Wright, but Dr Wright had been unavailable. Mr McDermott said that even though he was aware that Endeavour required him to provide a medical certificate for his absences, he did not see any other doctor at the practice because he had not wanted to deal with anyone other than Dr Wright. He said that he looked to Dr Wright for anything he considered personal. Mr McDermott agreed that he had seen other doctors at the medical practice on other occasions but said that after seeing Dr Wright about some other issues in September 2010, he had developed a rapport with him and only wanted to see him for issues he felt were sensitive and he had felt that his illness had been a sensitive issue.
Mr McDermott denied that he had not consulted a doctor on 18 March because he had not been sick. He said that he had not gone back to see Dr Wright later in that weekend and that he had started to feel better on the Sunday afternoon.
Mr McDermott said that on 18 April 2011 he had consulted Dr Anju Hanchate about some pain in his hip region. He admitted that she had examined his groin but said it was not at length and said that he had not considered this to be as sensitive an issue as an examination in his bowel area. He also admitted that he had obtained a medical certificate from Dr Hanchate on 18 July 2011.
Mr McDermott accepted that the fact he had taken unplanned leave on 18 March 2011, when he had previously been denied planned leave for that day, had been a matter of concern to Endeavour. He accepted that Endeavour had had concerns about the legitimacy of his leave on that day. He agreed that there had been no objection or problem with him taking leave not long after 18 March 2011 when his daughter had surgery.
Mr McDermott deposed that he attended a meeting on 1 April 2011 with Mr Stewart, Mr McLachlan and Mark Peace, the Engineering Manager, where Mr Stewart said:
We’re moving you back to day shift indefinitely. You had an agreement with Heath Hannigan – that will not be upheld on this occasion. You applied for holidays – you got knocked back – you still took a sick day.
Mr McDermott understood the reference to “an agreement with Heath Hannigan” to mean the arrangement whereby he had been paid the weekend day shift rate for part of the time that he was on the weekday day shift roster. Mr McDermott deposed that he said words to the following effect:
I was sick; I couldn’t get into my own doctor; the issue was personal; I wanted to see him. My sick leave was for one day, the annual leave I wanted was for 3 days.
I called control and let them know. I called the engineer’s office but did not get an answer, I did notify.
Mr McDermott deposed that Mr Stewart handed him a document which was a final warning. Mr McDermott deposed that he refused to sign it and said that he was not in a fit state to return to work. He went home after the meeting, taking sick leave and subsequently annual leave. He deposed that he saw a counsellor on a regular basis during this time.
Mr McDermott denied that Mr Peace had said at the 1 April 2011 meeting that he was being moved to the weekday shift because he had failed to comply with the November 2010 agreement.
Mr McDermott deposed that he commenced work on the weekday afternoon shift on 7 June 2011 and was still on that shift at the time he swore his affidavit of 24 August 2011.
Mr McDermott deposed that Endeavour’s act of moving him from the weekend shift to the weekday shift had affected him financially. He estimated that that for the weeks that he had spent on the weekday day shift roster, he was paid an approximate average of $800 gross less than what he was paid on average on the weekend day shift and that for each week that he spent on the weekday afternoon shift he was paid an average of approximately $470 gross less than he was paid on average on the weekend day shift. Mr McDermott deposed that the transfer from the weekend day shift had affected his entitlement to annual leave in that on the weekend day shift he was entitled to six weeks annual leave for each year of service whilst he was only entitled to five on the weekday afternoon or day shifts. He deposed that when working the weekend shift he had been able to take care of his three children from Monday to Thursday but since he was no longer available to do that, his wife’s capacity to operate her business had been severely hampered.
Helina McDermott
Mrs McDermott deposed that in June 2010 Mr McDermott and one of his colleagues, John Miller, had regularly car-pooled for the purpose of getting to work because they worked the same shift. She deposed that as a friend of Mr Miller and his wife, she saw Mr Miller at least three or four times a week at that time.
Mrs McDermott deposed that for some time before 11 June 2010 she noticed that Mr Miller had been coughing frequently on the occasions she saw him. She deposed that in the week leading up to 11 June 2010 she noticed that Mr McDermott was also developing a cough, which she initially thought was a cold or mild flu, but which by 11 June 2010 had worsened. Mr McDermott went to work that day but telephoned her later, saying that Mr Miller had been diagnosed with whooping cough. Mr McDermott was concerned that he might have contracted it too and asked Mrs McDermott to make a doctor’s appointment for him, which she did for that afternoon. Mrs McDermott deposed that Mr McDermott visited the doctor and was given a vaccination.
Mrs McDermott deposed that on 12 June 2010 she observed that Mr McDermott’s cough was worsening, that he looked sweaty and appeared to be running a temperature. She deposed that she suggested that he not attend work but that he did nevertheless. Mrs McDermott deposed that Mr McDermott attended work on 13 June 2011 too but that he telephoned her during the day saying that he was feeling sick. She told him that he should come home.
Mrs McDermott accepted the medical records put to her indicating that Mr McDermott had presented at a medical surgery with a four day history of a cough on 24 August 2010. She also agreed that there was nothing in the doctor’s notes concerning Mr McDermott to indicate a history of a week long cough leading up to 11 June 2010. However, she denied that she was mistaken in her recollection that Mr McDermott had had a cough for four days leading up to 11 June 2010. She said that the week was pretty clear to her because it was the week leading up to the birth of her child and whooping cough was a very serious illness.
David McLachlan
Mr McLachlan deposed that he had been employed by Endeavour at the Mine as a maintenance fitter since 2000. He deposed to being a financial member of the CFMEU, the Mine’s Lodge President and a National Councillor of the CFMEU.
Mr McLachlan deposed that as the Lodge President he attended a meeting called by Endeavour on 11 April 2010 to discuss Mr McDermott’s leave situation. Also present at the meeting were Mr McDermott, Mr Anderson and Mr David. Mr McLachlan deposed that Mr Anderson said:
Oh, this is just a joke. I don’t know what to do here. But the rules say I’ve got to go through this. Everyone is aware of the situation with the complications your wife has during pregnancy. It’s got me beat why we’re here. You have gone to the lengths of notifying Human Resources that your wife may have complications during pregnancy. You’ve done the right thing.
Mr McLachlan deposed that Mr David nodded in agreement with Mr Anderson.
Mr McLachlan deposed that on 10 September 2010 he attended a further meeting with Mr McDermott arranged by Endeavour. Mr Young and Mr Stewart were also present. He deposed to the following conversation having occurred:
Mr Young: I am extremely disappointed in you. You left work early on a Sunday afternoon without notifying anyone.
Mr McDermott: I was on the surface just walking around the yard picking my arse as there was no work to do. I’d contracted whooping cough from John Miller who already had it but came to work because he had just come back to the weekend shift and was scared take [sic] the day off even thought [sic] he was ill. I went home. I should have notified somebody, I apologise.
Mr Young: Alby, you also did not come back to work on a Friday afternoon after attending the rescue station.
Mr McDermott: Yes, I accept that, I won’t deny it. Again I apologise.
Mr Young:Because of your previous attendance record and the latest indiscretions, we will be moving you to dayshift.
Mr McLachlan: You are kidding me. The punishment doesn’t fit the crime. Have you spoken to HR about Alby’s previous issue with his wife’s pregnancy?
Mr Young: Yes we have. We don’t believe that it is a factor in our decision here.
Mr McLachlan: How could it possibly not be taken into consideration? Surely there is some other avenue.
Mr McLachlan deposed to having attended a further meeting later in September 2010 to discuss Mr McDermott’s situation at which Mr Hannigan, Mr McDermott and Mr Wichelow were also present. Mr McLachlan deposed that he asked that Mr McDermott be returned to the weekend shift and that Mr Hannigan refused. He deposed that Mr McDermott handed Mr Hannigan a letter written by Mr McDermott’s wife and that after reading it Mr Hannigan said:
Well look, and it’s not to leave this room – we understand the money drop and we’ll allow you to be paid at the weekend day shift rate. But it’s not to get out – if it gets out we’ll stop it.
Mr McLachlan deposed that Mr McDermott called him on 8 November 2010 and said that he had been given a document to sign returning him to the weekend day shift. Mr McLachlan said that Mr McDermott told him a few days later that he had signed the document under duress but he did not take any steps, and Mr McDermott did not ask him, to bring that allegation to Endeavour’s attention.
Mr McLachlan deposed that on 1 April 2011, at the request of Mr McDermott, he attended a meeting at which Mr Stewart and Mr Peace were present. At that meeting Mr Stewart said that Mr McDermott would be working on the weekday day shift roster indefinitely because he had not followed the November 2010 agreement. Mr McLachlan deposed that he told Mr Stewart that Mr McDermott had signed that agreement under duress and asked him to reconsider on the basis that Mr McDermott’s absences did not warrant such an action, a request Mr Stewart refused.
Mr McLachlan deposed that the Absenteeism Management Process flow chart was jointly developed by Endeavour and the CFMEU in 2006 and had been in operation since January 2007. Mr McLachlan deposed that cl.28 of the Agreement entitled “Absenteeism Management System” referred to that flow chart.
Warwick Young
Mr Young deposed that he was employed by Endeavour as the Engineering Manager at the Mine and that prior to that he had been the Maintenance Manager and responsible for all trades and engineers.
Mr Young deposed that throughout late 2009 and early 2010 Mr McDermott took some days off work to care for his wife. He deposed that a number of discussions were held with Mr McDermott to ensure that he was being supported and that he was not disadvantaged by taking personal/carer’s leave. Mr Young deposed that he did not doubt the genuineness of Mr McDermott’s absences to support his family but had had concerns about other aspects of Mr McDermott’s performance, particularly his commitment to work. He was aware of instances when Mr McDermott left work without authorisation and had absented himself without prior notification. Mr Young deposed that such conduct by an experienced tradesman such as Mr McDermott was frustrating and operationally inconvenient, particularly on the weekend shift.
Mr Young deposed that the management of resources on weekends was more difficult than during the week because of the limited ability to call upon other employees to work overtime in the event of an employee absence. He deposed that Endeavour expected employees to manage their affairs to ensure that they could meet their rostered work commitments. He said that the disruption of the weekend shift was an important consideration for him as the safety of the Mine was affected if there were not enough employees at work.
In relation to the “Record of Discussion” concerning a meeting between Mr David and Mr McDermott dated 29 May 2010, Mr Young said that at that time, although there were no concerns about the legitimacy of Mr McDermott’s sick leave, his absences were having an effect on the weekend shift and other people. However, by June 2010 he began to have concerns about Mr McDermott’s commitment to his work.
Mr Young deposed that after a period of monitoring Mr McDermott he had a meeting with him on 10 September 2010 at which Mr Stewart and Mr McLachlan were also present. Mr Young said that before that meeting he had meetings with Mr Hannigan in which he advised that he was proposing to move Mr McDermott from the weekend day shift, an action with which Mr Hannigan agreed. Mr Young said that he told Mr Hannigan that Mr McDermott was causing problems for the weekend shift and that his absences over the preceding eighteen months to two years were causing concern.
In his affidavit, Mr Young deposed that the 10 September 2010 meeting had been prompted by Mr McDermott leaving work early on 13 June 2010 without notifying anyone although there was still surface work to be done; by him leaving work after Mines Rescue Training rather than returning to work; and by an incident on 3 September 2010 when he left work early before completing a task. In his cross-examination, Mr Young said that the meeting on 10 September 2010 was driven by things that had been happening continually from 2009 in relation to Mr McDermott’s absences. He said that by the 10 September meeting Mr McDermott had had seven periods of absence in a twelve month period.
As to the first of the three matters referred to in his affidavit, Mr Young said that Mr David told him about Mr McDermott leaving work early on 13 June 2010 within a week of it happening. Mr David told him that Mr McDermott had a severe cough on that day. As to the second, Mr Young said that to his knowledge, the issue of Mr McDermott leaving work after Mines Rescue Training was raised with Mr McDermott for the first time at the meeting on 10 September 2010. As to the third, Mr Young deposed that when he left work on 3 September 2010, Mr McDermott did not give a reason although he had earlier indicated that he did not want to perform the task to which he had been assigned. Mr Young originally had concerns about the legitimacy of that leave on 3-5 September 2010 but upon provision of a medical certificate accepted its legitimacy.
Mr Young deposed that at the 10 September 2010 meeting he informed Mr McDermott and Mr McLachlan that a formalised improvement plan had been implemented in relation to Mr McDermott and that it would be reviewed within six months. However, he went on to say that he did not know what a formalised improvement plan, as referred to the Absenteeism Management Process flow chart, was. He said that he agreed with Mr Hannigan’s email of 10 September 2010 that moving Mr McDermott from the weekend day shift was not a form of discipline.
Mr Young deposed that the decision to move Mr McDermott from the weekend shift was not because of the personal/carer’s leave he had taken or because he needed time for his family responsibilities but to give him time to think about how he could improve his attendance performance. In cross examination Mr Young said that it was thought that the weekday shifts would help Mr McDermott with the issues he was dealing with and with his inability to turn up to work because of family issues, although the absences which were taken into account in this regard did not include days which Mr McDermott had taken off to care for his wife. Mr Young said that the move to weekday shifts gave Mr McDermott the opportunity to be flexible with his shifts if he had family issues in that if he had such issues he could notify Endeavour and another shift could be arranged and he would not have to use his sick leave or carer’s leave.
Mr Young said that Mr McDermott was moved to weekday shifts for reasons which included his six periods of unplanned absence from September 2009 to September 2010, some of which were due to family reasons. He said that the real reason for the action taken in relation to Mr McDermott was his poor attendance, regardless of the justification. Mr Young said that Mr McDermott’s absences were causing operational problems for the Mine.
Mr Young agreed that the reasons for Mr McDermott’s absences did not matter to him, rather it was the fact of those absences that mattered. He said that Mr McDermott’s record of absences going back two years was unsatisfactory and that this was part of the reason he was removed from the weekend day shift.
On 13 September 2010 Mr Young had a further meeting with Mr McDermott and told him that the situation would be reviewed before Christmas and that if everything was “okay” he would be allowed to go back to the weekend shift.
Mr Young said that there had been concerns about the legitimacy of Mr McDermott’s absences and in September 2010 he was placed on a formalised improvement program, namely the November 2010 agreement he signed agreeing to comply with certain conditions on his return to the weekend day shift. Mr Young said that although the document did not state that the plan was for six months, Mr McDermott was informed of that in discussions. Mr Young later said that when Mr McDermott was removed from the weekend shift, he was not placed on an improvement plan. He said that the November 2010 agreement was not an improvement plan, but rather a step Mr McDermott had to take to be returned to the weekend day shift. He said that if Mr McDermott had refused to sign, there would probably have been nothing to take its place.
Mr Young deposed that Mr McDermott seemed keen to sign the agreement and disputed the proposition that Mr McDermott had had no real choice but to do so, saying instead that Mr McDermott did not seem reluctant to sign because he wanted to move back to the weekend shift as soon as possible. In cross-examination Mr Young agreed that Mr McDermott had had to sign the 8 November 2010 agreement in order to be returned to the weekend day shift.
Mr Young said that for a person to get to stage 4 of the Absenteeism Management Process, there had to be concerns about the legitimacy of their absences. However, he conceded that regardless of the reasons for leave, if a person’s record did not improve, they could end up at stage 4 of the process. Mr Young said that he was not sure that the action taken in relation to Mr McDermott could be classified as stage 4. Mr Young said that he did not know what the relevant industrial instrument referred to in the Absenteeism Management Process flow chart was in 2010 and 2011 and was not aware of there being any other attendance management procedures that had to be applied at that point. He said that he had never reached stage 4 with another employee.
Mark Peace
Mr Peace deposed that he had been the Maintenance Manager of Underground Operations at the Mine since January 2011 and that prior to that he had been the Engineering Services Co-ordinator. Mr Peace deposed that as Maintenance Manager he was responsible for the maintenance aspects of underground operations, including the management of weekend maintenance employees such as Mr McDermott.
On or about 18 March 2011 Mr Peace was advised by Mr David that Mr McDermott had failed to attend work and had not notified Mr David of his absence. Mr Peace deposed that this concerned him. A few days later he became aware that Mr McDermott had requested, but had been denied, leave from 18 to 20 March 2011 and was also advised that although Mr McDermott had said that the reason for his absence on 18 March 2011 was that he had been unwell, he had not provided a medical certificate. Mr Peace deposed that Mr McDermott’s failure to provide a medical certificate in respect of his absence breached his November 2010 agreement with Endeavour. He also had concerns as to the legitimacy of the leave given the lack of a medical certificate.
Mr Peace said that he had been aware of poor attendance by Mr McDermott in the past. In his affidavit he deposed that he was aware of a number of occasions when Mr McDermott had failed to follow correct procedures with respect to the taking of leave by leaving work early, by failing to turn up to a shift without notice and by failing to provide a medical certificate to explain an absence. Mr Peace referred to Mr McDermott attending six hours of Mines Rescue Training in about July 2010 and leaving work afterwards without notification or authorisation even though his shift was ten or twelve hours long and he was expected to return to work after the training.
Consequently, when Mr McDermott had another unexplained absence, Mr Peace invoked the November 2010 agreement. Mr Peace said that when subsequently recommending to Mr Hannigan that Mr McDermott be moved from the weekend day shift he took into account his suspicions about the legitimacy of Mr McDermott’s sick leave on 18 March 2011. He said that his suspicions that Mr McDermott’s illness was not genuine were partly based on the latter’s history of absenteeism.
In late March 2011 Mr Peace met with Mr Stewart and Ms Bailey, the Human Resources Manager, when it was decided to move Mr McDermott from the weekend day shift. He said that in that meeting there was a discussion about the fact that Mr McDermott had failed to comply with the November 2010 agreement and that they would “utilise the fact that he didn’t comply with the agreement” to move him from the weekend shift to a weekday shift.
Following that preliminary meeting, Ms Bailey sent Mr Peace an email attaching Mr McDermott’s attendance and discussion histories for the previous three years, a partially completed “Record of Discussion” form, a partially completed written warning and Mr McDermott’s attendance calendars for the previous three years. Mr Peace said that it had been agreed, apparently between him and Mr Stewart, that Mr McDermott would be given a written warning.
After the meeting Mr Peace also spoke to Mr Hannigan and recommended, in accordance with the decision made in the meeting with Ms Bailey and Mr Stewart, that Mr McDermott be removed from the weekend day shift, and sought Mr Hannigan’s approval of that proposed action. Mr Peace deposed that Mr Hannigan agreed to and authorised the transfer. Mr Peace agreed that he took no steps to get Mr McDermott’s side of the story before making his recommendation to Mr Hannigan.
On 1 April 2011 Mr Peace convened a meeting with Mr McDermott, Mr Stewart and Mr McLachlan. Mr Peace deposed that at that meeting he informed Mr McDermott that from 4 April 2011 he was being moved to the weekday day shift because of his failure to follow the November 2010 agreement. Mr McDermott was also given the final written warning.
At that meeting Mr McDermott said that he had tried but failed to see a doctor in connection with his 18 March 2011 absence. Mr Peace deposed that he did not believe this; it was his view that Mr McDermott had not “tried very hard” and that if someone genuinely wanted to see a doctor in the Illawarra they would be able to. Mr Peace said that Mr McDermott was guilty of not proving his illness as required by the November 2010 agreement.
Mr Peace also said that he had been told by Mr David that Mr McDermott had not notified the Mine of his absence on 18 March 2011. He deposed that he had not seen any record of Mr McDermott attempting to notify Endeavour of his absence and did not believe that Mr McDermott had made such attempts. Mr Peace admitted that at the 1 April 2011 meeting Mr McDermott said that he had telephoned the Mine on 18 March 2011 to notify his absence but said that he did not take any steps to verify this claim because Mr McDermott had not complied with other parts of the November 2010 agreement. In cross-examination Mr Peace stated that he remained unaware that Mr McDermott had telephoned the control room, saying that the control room had a log of people who rang in sick and that Endeavour did not seem to have any documentation to support Mr McDermott’s assertion that he had called.
Mr Peace deposed that he considered that Mr McDermott had “abused the system” by not providing a medical certificate to support his absence when taking leave on a day that he had previously been denied leave and that he doubted the genuineness of Mr McDermott’s claims to illness. He deposed that it was for these reasons that he moved him to the weekday shift. At one point in cross-examination Mr Peace also said that the three year history sent by Ms Bailey was part of the reason for moving Mr McDermott from his shift but he later said Mr McDermott was taken from the weekend shift because he had failed to conform to the November 2010 agreement. Mr Peace said that another factor in his decision to change Mr McDermott’s shifts was that it would be easier to manage his absenteeism on weekdays where he could be more closely monitored.
Mr Peace deposed that at the 1 April 2011 meeting Mr McDermott said that he had not been mentally fit to sign the November 2010 agreement and that he could not make decisions.
Mr Peace gave evidence that the “rolling” twelve months in the Absenteeism Management Process flow chart referred to any twelve month period rather than to a calendar year. He said that the process was triggered by five periods of planned or unplanned absence in a twelve month period, regardless of whether the absences were legitimate or not. He agreed that after stage 1 an employee needed only to be absent for one more period within twelve months, legitimately or not, to trigger stage 2 in the process.
Mr Peace said that an employee’s improvement was continually monitored over a period of time, one criterion for improvement being a lack of further unplanned absences. He said that where there was a further legitimate absence, with notification before the shift and provision of a medical certificate then that would be an improvement, although if an employee had a further five legitimate periods of absence after stage 2 then that was not considered an improvement.
Mr Peace said that an employee could reach stage 4 of the process if there was no improvement, even though they had a series of legitimate absences.
Mr Peace gave evidence that if there were questions of legitimacy after stage 2, then the process would move to stage 3. Stage 3 required the implementation of a formalised improvement plan that would give an employee an opportunity to show improvement in six months.
Mr Peace said that in Mr McDermott’s case, the industrial instrument referred to at stage 4 was the November 2010 agreement that Mr McDermott had signed. He said that where an employee had not signed an agreement such as Mr McDermott’s, at stage 4 the employee would have a “face to face” with their supervisor at first instance and then it would progress up the level of command.
Mr Peace deposed that if he had been satisfied that Mr McDermott had had a genuine problem or illness, he would not have recommended that he be removed from the weekend day shift.
Heath Hannigan
Mr Hannigan deposed that he was the General Manager of the Mine and responsible for its overall performance and day to day operations. He had a leadership team reporting to him comprising the Production Manager, the Maintenance Manager and the Engineering Manager.
Mr Hannigan deposed that the Mine operated twenty-four hours every day of the week. He deposed that matters relating to employees were generally dealt with by supervisors or, where appropriate, the managers of the relevant departments, and that he only became involved if there were serious issues or a manager raised an issue with him. Managers were encouraged to deal with issues themselves but in the case of a sensitive matter or where disciplinary action was involved, managers often sought his approval for a course of action.
Mr Hannigan deposed that in late 2009 or early 2010 he became aware from Mr Young and Ms de-Leuw that following the birth of his child Mr McDermott was having difficulties attending work which required him to take carer’s leave.
In late 2010, through day to day reports, Mr Hannigan was aware that Mr McDermott had not been complying with Endeavour’s attendance requirements. He deposed that he was told that Mr McDermott was leaving work early, was unreliable in notifying absences and had not returned to work following Mines Rescue Training. Mr Hannigan deposed that he was concerned by Mr McDermott’s performance, particularly as he worked on the weekend shift.
Mr Hannigan’s concern stemmed from the fact that the coverage of absences on the weekend shift was generally not as comprehensive as on weekday shifts and that it was extremely important from an operational point of view that employees complied strictly with attendance requirements. He said that to manage the safe operation of the Mine, Endeavour tried to place people on “the right shift”. Mr Hannigan stressed that Mr McDermott’s absences were creating a problem in managing the weekend shift. Because more supervising staff worked on weekdays it was decided that the matter could be better managed then.
Mr Hannigan deposed that in early September 2010 Mr Young advised him of a plan to speak to Mr McDermott. Mr Young indicated that he was going to move Mr McDermott from the weekend day shift to a weekday shift because he had failed to meet attendance requirements, a course of action Mr Hannigan agreed with and approved. Mr Hannigan said that although it was Mr Young’s decision to remove Mr McDermott from the weekend day shift, he could have vetoed it. Mr Hannigan deposed that he believed that Mr McDermott’s failure to meet attendance requirements justified the course of action suggested by Mr Young.
Mr Hannigan said that Mr McDermott’s unreliability in turning up to work on weekends was a concern and that it was not only his absence from 3 to 5 September 2010 which prompted the decision to move him from the weekend day shift. Mr Hannigan said that in September 2010 he reviewed Mr McDermott’s record of attendance for the previous three years, excluding the time that Mr McDermott had to care for his child. Mr Hannigan denied that he had been unconcerned by the reasons for Mr McDermott’s leave, saying that he needed to understand why people were taking leave in order to make the appropriate decision. He said that he always reviewed the reasons for leave and in Mr McDermott’s case it had become difficult because of his attendance issues. He said that he had thought that a weekday shift would assist Mr McDermott but conceded that this was not a view Mr McDermott shared.
Mr Hannigan agreed, when shown Endeavour’s records of Mr McDermott’s attendance at work between 4 September 2009 and 4 September 2010, that there had been six periods of unplanned absence: 18 September 2009, 22 January 2010, 26 March 2010, 14 May 2010, 13 June 2010 and 3-4 September 2010. He also agreed that it was a reasonable assumption that these were the six periods of absence referred to in the September 2010 warning letter but that Mr McDermott was nevertheless within his sick leave entitlement.
On 27 September 2010, after Mr McDermott was moved from the weekend shift to the weekday shift, a meeting was held with Mr McDermott and representatives from the CFMEU to discuss some personal issues relating to the decision to move Mr McDermott, including the fact that the remuneration of the weekday shift was lower than that of the weekend shift. Mr Hannigan deposed that he was sympathetic to the personal circumstances raised by Mr McDermott in the meeting and agreed to maintain his remuneration at the level which would have applied if he had remained on the weekend shift. He also encouraged Mr McDermott to seek counselling for his personal issues.
Mr Hannigan said that on 27 September 2010 he had suggested, based on his own personal experience, that Mr McDermott seek out community groups to help with his family situation to improve his ability to attend work. He said that the community groups were available during the week but not necessarily during the weekend. Mr Hannigan agreed that at that meeting Mr McDermott had told him that he had two children in pre-school which he could no longer afford and that he felt he was being punished.
Mr Hannigan deposed that he was aware that Mr McDermott was keen to return to the weekend shift and, after he had been on the weekday shift for approximately ten weeks, Mr Hannigan authorised his return to the weekend shift on certain conditions. Mr Hannigan deposed that it was his understanding that Mr Young had a meeting with Mr McDermott on 8 November 2010 and that Mr McDermott signed the November 2010 agreement setting out the conditions he was required to meet on his return to the weekend shift. In accordance with that agreement, Mr McDermott returned to the weekend shift from mid-November 2010.
Mr Hannigan said that the November 2010 agreement signed by Mr McDermott was based on similar documents that had been used at the Mine and was drafted by him, the Human Resources Manager and the department manager. Mr Hannigan said that cl.4 of the agreement, which provided: “I agree to arrange an alternate shift during the week when I have taken periods of unplanned absence, unless otherwise agreed by the Maintenance Manager”, was meant to help Mr McDermott maintain his record so that he could access an alternative shift with the consequence that an absence would not be classified as an unplanned absence. Mr Hannigan said that his understanding of cl.4 was that it was a shift swap and that Mr McDermott would be paid for the shift that he would be absent and then work another shift for which he would receive no payment.
Mr Hannigan deposed that in late March 2011 he was advised by Ms Bailey and the new Maintenance Manager, Mr Peace, that Mr McDermott had failed to notify an absence from work, had failed to present a medical certificate and had been absent on a day for which he had earlier been refused annual leave. Mr Peace indicated that in light of Mr McDermott’s breach of the November 2010 agreement, he wished to transfer Mr McDermott from the weekend shift to the weekday shift, a course of action Mr Hannigan approved after reviewing the matter. Mr Hannigan deposed that he approved the course of action because Mr McDermott had failed to comply with Endeavour’s requirements in respect of taking leave.
Mr Hannigan said that his discussions with Mr Peace had centred on Mr McDermott’s absence on 18 March 2011 and denied that the real or most substantial reason Mr McDermott was moved from the weekend day shift was that because of his absences he was not reliable enough. He said that the real and substantial reason that Mr McDermott was moved from the weekend shift in April 2011 was that, in respect of his absence on 18 March 2011, he had failed to notify the shift manager and provide evidence of his illness as agreed in November 2010, in the context of the fact that he had unsuccessfully applied to take leave on 18 March 2011. He said that one of the factors influencing his decision was that he was suspicious about whether Mr McDermott’s absence related to a genuine illness.
Mr Hannigan denied that Endeavour had sought to treat Mr McDermott adversely because he had taken personal/carer’s leave or because he had family responsibilities. Mr Hannigan deposed that he believed that Endeavour had been extremely supportive of Mr McDermott in relation to his personal issues and where possible had endeavoured to assist him in dealing with those issues.
Mr Hannigan said that Endeavour had a formal disciplinary process and agreed that, as a general proposition, there would be a warning before a final warning. He said Mr McDermott’s final warning was based on previous discussions listed in that final warning. He said that it was because of Mr McDermott’s history referred to in that warning that he was removed from the weekend shift.
Although saying that he could not specifically say how many days of personal/carer’s leave Mr McDermott was entitled to in a year, Mr Hannigan said that under the Agreement, employees accrued a number of personal/carer’s leave days during the year. He agreed with the proposition that an employee could take less than their entitlement of personal/carer’s leave days in a twelve month period and nevertheless fall under the Absenteeism Management Process. He said that the flow chart was meant to check if there were any issues with an employee and that if the reasons for the leave were legitimate, there might be no need to move to the next formal step. Mr Hannigan said that to his knowledge in September 2010 Mr McDermott had not taken his entire accrued entitlement of personal/carer’s leave.
Submissions and consideration
Threshold question – particularisation of claim
As a threshold issue, Endeavour submitted that s.361 of the FWA did not permit “a conflation of reasons or imprecision as to the … reasons” alleged to have motivated adverse action against an employee. In this regard it referred to the CFMEU’s particularisation of its allegation of breach of s.340 of the FWA by reference to the roster changes in September 2010 and April 2011, the November 2010 agreement and the final written warning of about 1 April 2011.
Although the requests for further and better particulars and the replies passing between the solicitors acting for the parties were not tendered as exhibits, they were annexed to the parties’ written submissions. As no objection was taken to that course, it provides an adequate basis for the Court to take the content of that correspondence into account. Relevantly, in their letter of 29 July 2011 Endeavour’s solicitors made the following request:
1.3If you say that adverse action was taken against Mr McDermott because he exercised the workplace right, please provide details of the instances of the exercise of the workplace right that are relied on …
In its reply, the CFMEU stated:
1.3… The workplace right was exercised on the following days.
18-20 March 2011 – Sick Leave
3-5 September 2010 – Sick Leave
18-20 June 2010 – Parental Leave
14 May 2010 - Carers Leave
26 March 2010 – Carers Leave
22 January 2010 – Carers Leave
18 September 2009 – Sick Leave
12-14 June 2009 – Sick Leave
5-7 June 2009 – Sick Leave
22 August 2008 – Sick Leave
30 May 2008 – Half day – Sick Leave
31 May – 1 June 2008 – Sick Leave
23-25 May 2008 – Sick Leave
11-13 January 2008 – Sick Leave
21-23 December 2007 – Sick Leave
The CFMEU disclaimed reliance on the instances of leave prior to August 2008 on the basis that the Agreement was not on foot then.
Endeavour submitted that because the CFMEU did not disaggregate each instance of what it alleged was the exercise of a workplace right, it had failed to prove that a workplace right had been exercised. The CFMEU submitted that it was not required to do this.
The substance of Endeavour’s argument was that if the CFMEU alleged that adverse action had been taken against Mr McDermott because he had exercised a workplace right to take leave and identified certain occasions of leave as the relevant exercise of that workplace right then the CFMEU had to prove not only that every occasion of leave was the exercise of a workplace right but also that it was because of each and every one of those exercises of the right to leave that Endeavour took adverse action against Mr McDermott. It was argued that this obligation arose because s.361 of the FWA imposed a reverse onus of proof on Endeavour and it was entitled to know the case it had to meet and what matters it had to disprove.
It is true that a respondent in Endeavour’s position is entitled to be told of the particular matters alleged to constitute the basis of a contravention of the FWA: Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531 at 557-558 [26]. However, that is not to say that before the contravention alleged can be proved, every one of a number of matters said to have motivated certain adverse action must be found, say, to have constituted the exercise of a workplace right and to have motivated the adverse action. It will depend on how an applicant presents their case.
In these proceedings, the CFMEU did not suggest that each of the particularised occasions of leave, or all of them in combination, caused the changes to Mr McDermott’s shifts, the November 2010 agreement or the final warning letter. Rather, its case was that a certain number of occasions of leave had occurred in the period preceding each of the alleged adverse actions, that the particularised occasions of leave which occurred during that period involved the exercise of a workplace right and that if an adverse action had been taken because a set of circumstances existed which included the fact that the applicant had on one or more of the particularised occasions exercised a workplace right then a contravention of the FWA would be proved.
The CFMEU could have pleaded its case more clearly than it did by stating in its amended Form 4 claim form, in the attachment to that document or in its further and better particulars that one or more of the particularised events was part of the reason why the alleged adverse action was taken. However, it was sufficiently clear from the way the CFMEU presented its case at the hearing that that was its relevant substance. In effect, it did “disaggregate” those particulars.
Consequently, Endeavour was placed on notice that, to the extent that the CFMEU proved that adverse action had been taken and that the particularised occasions of leave were exercises of a workplace right or represented the discharge of family or carer’s responsibilities, it would have to prove that the exercise of that workplace right or the fact of those responsibilities were not the reason or included amongst the reasons for taking that adverse action against Mr McDermott.
Threshold question - standing
Endeavour accepted that the CFMEU was an employee organisation to which the Agreement applied but submitted that it had no standing to bring the application to the extent that it relied on the alleged breaches of that agreement. It submitted that as the Agreement was an agreement-based transitional instrument whose contravention was prohibited by item 2(2) of sch.16 to the FW (TPCA) Act, its breach founded a civil remedy action pursuant to item 40 of the table contained in item 16 of sch.16 to the FW (TPCA) Act. Endeavour submitted that s.540(2) of the FWA permitted the CFMEU, as an employee organisation, to bring civil remedy proceedings but that s.540(3) of the FWA excluded s.540(2) from operating in respect of item 40 of the table contained in item 16 of sch.16 to the FW (TPCA) Act. It submitted that that the exclusion of s.540(2) by s.540(3) was fatal to the CFMEU’s application for civil penalties in relation to the alleged breaches of the Agreement.
Endeavour submitted that for the purposes of s.540(3), item 40 of the table contained in item 16 of sch.16 to the FW (TPCA) Act was treated in the same way as items 4, 7 and 14 in the table in s.539(2). It submitted that as s.540(3) excluded the matters referred to in items 4, 7 and 14 in the table in s.539(2) – and thus also the matters referred to in item 40 of the table in item 16 of sch.16 to the FW (TPCA) Act – from the operation of sub-s.540(2), the CFMEU could not bring these proceedings.
Clause 13.3 did not prevent Endeavour from moving Mr McDermott from the weekend shift once it concluded that this was an appropriate step to take in the context of the operational needs of its business. Nor, for that matter, did cl.28 of the Agreement which provided for an Absenteeism Management Process. Notwithstanding the CFMEU’s submissions to the contrary, cl.28 did not prevent the operation of cl.13 according to its terms because those provisions could operate together. The consequence of that finding is that because cl.13.3 permitted Endeavour to move Mr McDermott on one week’s notice, it did not need to apply the Absenteeism Management Process sanctioned by cl.28 although that process could be used, as it was in Mr McDermott’s case, to provide a procedure by which an employee could be demonstrated to have failed to meet Endeavour’s requirements regarding attendance on the weekend day shift and to be removed from it against his wishes.
Endeavour’s use of the Absenteeism Management Process also disposes of the CFMEU’s submissions concerning any lack of definition in what Endeavour meant when it said that employees needed to be “reliable”. The use of that process made Endeavour’s requirements objectively determinable.
The CFMEU’s submission that the fact that an employee had taken his or her entitlements to personal leave could not render them unreliable mixes two ideas: an employer’s assessment of an employee’s performance and the parties’ rights under the law and any applicable instrument. An employer may classify an employee as unreliable because of their record of absences but whether the employer can act on this characterisation depends on the parties’ rights under the law and any applicable instrument. For instance, such a characterisation might in truth be an intolerance of the employee’s exercise of his or her workplace rights in contravention of the FWA, which is the characterisation given by the CFMEU to Endeavour’s conduct in this case. Alternatively, an instrument applicable to the relationship in question might have provisions which would prevent the employer from acting on “unreliability” except in particular circumstances and so any action would amount to a breach of that instrument. As the CFMEU’s submission that the exercise of a workplace right could not render an employee “unreliable” was not made by reference to either of those contexts, it lacks material substance.
For these reasons I conclude that the removal of Mr McDermott from the weekend day shift did not breach cl.13.3 of the Agreement.
Clause 28
The CFMEU also referred to cl.28 of the Agreement which provided:
28 Absenteeism Management Process
Absenteeism management will be in accordance with the Absenteeism Management Process flow chart as agreed between the Company and Workforce Representatives.
and submitted that Endeavour had failed to apply the Absenteeism Management Process flow chart in that it did not implement a formalised improvement program of six months’ duration once Mr McDermott was considered to have reached stage 3 of the Absenteeism Management Process with questions as to the legitimacy of his leave. It submitted that the subsequent November 2010 agreement had not been a formalised improvement program because it had never been identified as such, was an optional agreement which Mr McDermott could have accepted or rejected and was of indefinite rather than the six months duration referred to in the Absenteeism Management Process flow chart. It was submitted that Endeavour’s failure to follow the Absenteeism Management Process was a contravention of cl.28 of the Agreement.
The CFMEU also submitted that Mr McDermott’s treatment had a disciplinary quality which was inappropriate to the extent that he was disciplined for absences which were legitimate.
Endeavour submitted that it was impossible to ascertain what the obligations contained in cl.28 of the Agreement and the flow chart involved and that as a result it was impossible to ascertain whether there had been a breach of the clause. It submitted that the phrase “formalised improvement programme of six months duration” was not explained and the CFMEU had not suggested what such a plan would involve or how its requirements had not been satisfied.
Endeavour submitted that the evidence plainly indicated that an improvement plan had been put in place, in either September or November 2010, and that there was no suggestion on either occasion that it would be for a period exceeding six months. Endeavour submitted that it was unsurprising that it had not implemented the relevant industrial instrument or referred to the then-current attendance management procedure referred to at stage 4 of the Absenteeism Management Process flow chart because there was no indication of what that involved.
Endeavour further submitted that the CFMEU had not proved a breach of cl.28 by establishing that it had taken disciplinary action. In this connection, it submitted that cl.28 did not prohibit it from taking disciplinary steps or any other management steps arising from its employees’ conduct. Endeavour submitted that, contrary to the CFMEU’s submissions, there was evidence that its concerns about the legitimacy of Mr McDermott’s absences were dealt with at the September 2010 meeting. It referred to Mr Young’s evidence that he had concerns about the legitimacy of Mr McDermott’s leave in September 2010 and his file note of the meeting on 10 September 2010. Endeavour submitted that Mr Young also clearly had concerns about Mr McDermott’s failure to return to work following Mines Rescue Training.
An improvement program implies a process of improvement over a period, with achievement or non-achievement being assessed at the end of that period. The Absenteeism Management Process required that when Mr McDermott reached its stage 3 in September 2010, such a program was to be implemented if there were questions as to the legitimacy of his absences, as there were in respect of his early departure from work on 13 June 2010 and his failure to return to work after Mines Rescue Training. The November 2010 agreement did not meet that description because it served only to set certain explicit standards of conduct, although these were little more than requirements that Mr McDermott was to speak to his supervisors when he might be ill at work, what information he had to provide to substantiate a claim to sick leave and who to notify and when in the event that he was too ill to attend work on any particular day. These were not matters which had to be dealt with as part of a moderately lengthy procedure but had to be addressed immediately if Mr McDermott was to be permitted to return to the weekend day shift, which was the purpose of him entering into the November 2010 agreement.
As nothing other than the November 2010 agreement was identified by Endeavour’s witnesses as being the “formalised improvement programme of six months duration” referred to in the Absenteeism Management Process, I find that Endeavour breached the Agreement by failing to arrange such a program with Mr McDermott once it had determined that he had reached stage 3 of that process.
November 2010 agreement
Adverse action?
The CFMEU submitted that the requirement that Mr McDermott sign the November 2010 agreement altered his position to his prejudice in that, in order to work the weekend day shift, he had to comply with a number of conditions which it described as onerous. It was submitted that Mr McDermott was unable to work the weekend day shift without the conditions imposed by that agreement, including the requirement that he work a substitute shift if he took unplanned leave and that he attend discussions with the Maintenance Manager after any absences. The CFMEU submitted that the imposition of those requirements meant that Mr McDermott was in a worse position after he signed the November 2010 agreement than he had been beforehand.
The CFMEU submitted that the November 2010 agreement also made Mr McDermott’s position less secure as he could be removed from his shift arrangements at Endeavour’s discretion. It submitted that the November 2010 agreement would only have had no impact as long as Mr McDermott did not exercise any right to take personal or other unplanned leave. The CFMEU submitted that Endeavour’s suggestion that the agreement had no impact on Mr McDermott was contrary to authorities which established that a direct and immediate alteration of position is not required in order to satisfy the test of prejudicial alteration of position.
Endeavour submitted that the CFMEU had identified no evidence to establish that the requirement for Mr McDermott to enter into the November 2010 agreement had altered his position to his prejudice. It further submitted that the allegation that Mr McDermott had family responsibilities was relied on without any particular circumstances being identified.
Endeavour referred to Mr McDermott’s evidence that he did not object to the November 2010 agreement because he “pretty much put [it] in a filing cabinet and forgot about it” and submitted that this indicated that the agreement had no impact on him. It submitted that the real and operative reason why Mr McDermott was required to sign the November 2010 agreement was to ensure that he understood its requirements and expectations rather than because he had taken leave.
Because of the terms of ss.340 and 351 of the FWA, the CFMEU’s argument in relation to the November 2010 agreement depends on that agreement having been adverse action taken by Endeavour “against” Mr McDermott. However, an agreement is, by its very nature, not action taken by one party against another. In this case, before the November 2010 agreement was entered into Mr McDermott was rostered to a weekday shift, having been removed from the weekend shift several weeks earlier. Endeavour did not require him to return to the weekend day shift; that was something he wanted which Endeavour was willing to grant pursuant to its power to allocate employees to particular shifts, but on terms. Mr McDermott was free to reject those terms and remain on weekday shifts but he did not take that course.
Because it was consensual, the November 2010 agreement was not action taken by Endeavour “against” Mr McDermott and was thus not adverse action.
In those circumstances it is not necessary to consider the parties’ submissions concerning what might have motivated Endeavour if the November 2010 agreement had been adverse action.
April 2011 shift change
Adverse action?
The CFMEU submitted that in April 2011 Mr McDermott was again removed from the shift of his choice, had his remuneration reduced, lost one week per year of annual leave and was required to work longer hours. It submitted that this constituted a prejudicial alteration of his position.
In its written submissions Endeavour argued that Mr McDermott’s higher rate of pay whilst he worked the weekend shift reflected the inconvenience of giving up his weekend. It submitted that the difference in pay resulting from the shift change in April 2011 had not altered his position to his prejudice because he was remunerated at the rate appropriate to the work he was required to do. Endeavour submitted that the penalty rates did not represent some windfall gain which Mr McDermott had lost.
In its oral submissions Endeavour accepted that Mr McDermott’s position had been altered by the April 2011 shift change and that the CFMEU’s case on this point was strong. That was an appropriate concession. For the reasons given in relation to the shift change in September 2010, I find that the further shift change in April 2011 was also adverse action for the purposes of the FWA.
Workplace right?
The next question is, at least in part, whether the leave which Mr McDermott took in March 2011, and which prompted the April 2011 shift change, represented the exercise of a workplace right.
The CFMEU submitted that, to the extent that Mr McDermott had not complied with cl.16.7 of the Agreement, he had nevertheless taken leave pursuant to cl.16 and had exercised a workplace right at the time of his absence. The CFMEU submitted that the steps taken after such an absence could not affect the character of the leave and that although a failure to prove the reason for an absence to Endeavour’s satisfaction might mean that the employee had contravened the Agreement, it did not affect the existence and exercise of the workplace right.
The CFMEU submitted that the supposedly onerous nature of the requirement, which was entirely dependent on Endeavour reaching a subjective state of satisfaction, demonstrated that it could not have been the intention of the parties to the Agreement that compliance with the requirement be a precondition to the exercise of a workplace right. The CFMEU submitted that Mr McDermott had sought to see his family doctor on 18 March 2011 but was unable to and that Mr Peace was made aware of this at the meeting on 1 April 2011. It submitted that Endeavour had not required Mr McDermott to take any further steps to prove to its satisfaction his reasons for taking personal leave.
The CFMEU submitted that the evidence also established that Mr McDermott had in fact been sick on 18 March 2011 and that his leave therefore fell within cl.16.1.
Endeavour disputed the CFMEU’s characterisation of Mr McDermott’s absence on 18 March 2011 as the exercise of a workplace right. It submitted that Mr McDermott had failed to prove to its satisfaction that his absence on 18 March 2011 had resulted from illness or injury. It submitted that it had required Mr McDermott to produce a medical certificate in relation to his absence on 18 March 2011 and that Mr McDermott had been aware in March 2011 that the November 2010 agreement required him to provide medical certificates for his absences. It submitted that as Mr McDermott had failed to comply with the preconditions to his entitlement to sick leave he had no such entitlement and, having no such entitlement, there was no relevant exercise of a workplace right.
Endeavour additionally submitted that Mr McDermott’s evidence that he was sick on 18 March 2011 was unconvincing and unsatisfactory and ought not be accepted. It noted Mr McDermott’s evidence that he had gone to a medical centre but had not seen a doctor because his doctor was unavailable although there had been instances when he had seen other doctors for personal reasons and received medical certificates from them. It further submitted that because Mr McDermott had been tired following a drive from the Gold Coast, his absence on 18 March 2011 was not due to personal illness or injury.
The relevant operation of the Agreement and of s.107 of the FWA have been considered earlier in these reasons where it was held that the Court’s view on whether Mr McDermott was ill on a particular occasion was of no relevance and that the November 2010 agreement evidenced Endeavour’s requirement that, thereafter, Mr McDermott substantiate his claims to sick leave with doctors’ certificates. Additionally in relation to the latter issue, Mr McDermott’s evidence made clear that in March 2011 he understood that Endeavour required substantiation of his claims for personal/carer’s leave. Consequently, before he was entitled to treat the 18 March 2011 leave as personal/carer’s leave by reason of illness, Mr McDermott had to provide evidence substantiating his claim to be unfit for work as a result of such illness.
In the present case it makes no difference whether the person to be satisfied that the leave was legitimate was Endeavour, under the Agreement, or the statutory reasonable person, under s.107(3) of the FWA. Mr McDermott provided Endeavour with no evidence of the genuineness of his illness sourced from third parties such as doctors and I am not of the view that, in the circumstances, his own statements to Endeavour asserting his illness independently met either test.
Because Mr McDermott failed to meet the s.107(3) and cl.16.7 tests, his absence on 18 March 2011 was not leave which he was entitled to have treated as personal/carer’s leave and was thus not taken in exercise of a workplace right.
Did a prohibited reason motivate the shift change?
The CFMEU submitted that the question whether Mr McDermott had been exercising a workplace right on 18 March 2011 was not determinative of whether Endeavour had taken adverse action against him because, it argued, his earlier absences were also taken into account. The CFMEU submitted in that connection that those earlier occasions of leave fell within the definition of personal/carer’s leave in cl.16.1
The CFMEU submitted that the consideration at the 1 April 2011 meeting of Mr McDermott’s attendance history over the previous three years indicated that the decision to remove him from the weekend day shift for a second time was not based purely on the events of 18 March 2011. It submitted that in addition to noting Mr McDermott’s absence on 18 March 2011, the file note prepared for Messrs Peace and Stewart to use in that meeting recorded that Mr McDermott had had five periods of unplanned absences in twelve months. The CFMEU further noted that the final written warning prepared in association with that meeting also referred to previous disciplinary action having been taken in relation to “[that] issue”. The CFMEU submitted that the documents prepared for the meeting showed that the decision to remove Mr McDermott from the weekend day shift had been made before the meeting on 1 April 2011 and was not the result of his absence on 18 March 2011 alone but of his history of absenteeism more generally. The CFMEU also referred to Mr Peace’s evidence that Mr McDermott’s history of absences was something which he considered to be relevant.
The CFMEU submitted that had it not been for his attendance history, Mr McDermott’s contravention of the November 2010 agreement, by failing to notify his absence and provide a medical certificate, would not have caused Endeavour to act in the manner it did. It submitted that Endeavour’s lack of interest in Mr McDermott’s efforts to notify his absence and obtain a medical certificate confirmed that his absence on 18 March 2011 was not the main reason for his removal from the weekend day shift. It submitted that whilst in these proceedings Endeavour had sought to challenge the genuineness of Mr McDermott’s illness on 18 March 2011, it had not done so at the time and had not been interested in Mr McDermott’s version of events because it had already made up its mind prior to the 1 April 2011 meeting.
For its part, Endeavour submitted that the shift change in April 2011 resulted from Mr McDermott’s failure to prove, to its satisfaction, that his absence from work on 18 March 2011 was because of personal illness or injury. Endeavour submitted that all of the people involved in the process which resulted in Mr McDermott being moved from the weekend day shift in April 2011 saw the real issue as the events of 18 March 2011. It argued that the shift change in April 2011 revolved around this single instance of absence, submitting that it was artificial to say that previous events had been relevant to the decision.
The effective decision-maker in relation to the removal of Mr McDermott from the weekend shift in April 2011 was Mr Peace. Although he took the action in consultation with the Production Manager, Mr Stewart, it was Mr Peace who had managerial responsibility for Mr McDermott and it was he who sought approval from Mr Hannigan for Mr McDermott’s move from the weekend day shift.
Mr Peace acknowledged that when making the decision to move Mr McDermott from the weekend day shift for a second time he was aware of and had some regard to the fact that Mr McDermott had previously had a poor attendance record. However, I have concluded that it was Mr McDermott’s breach of the November 2010 agreement which was the reason for Mr Peace’s decision and that, for the purposes of his decision, the record of earlier absences served only as background to the existence of that agreement.
The decision to remove Mr McDermott from the weekend day shift was prompted by Mr McDermott’s absence from work on 18 March 2011 and by his related failure to report that absence in the manner prescribed by the November 2010 agreement together with his failure to substantiate its legitimacy by a doctor’s certificate. Also relevant to Mr Peace’s concerns was the fact that the absence coincided with a period of annual leave which Mr McDermott had unsuccessfully requested, in that the coincidence of dates cast some doubt on the genuineness of the absence. At least as far as Mr Peace was concerned, it is apparent that Mr McDermott’s absence, which was neither substantiated by a medical certificate nor, in Mr Peace’s understanding, notified in accordance with the November 2010 agreement, was unacceptable in light of the existence of that agreement.
The fact that these events in March and April 2011 did not occur in a historical vacuum and that Mr Peace was aware of this does not mean, however, that the earlier absences were part of the reason for his decision to move Mr McDermott from his weekend day shift for a second time. I accept Mr Peace’s evidence that if Mr McDermott had substantiated the genuineness of the March 2011 absence as sick leave, he would have discussed that with him and would not have taken the action he took.
The inference to be drawn from the fact that if a medical certificate had been supplied Mr Peace would have been willing to discuss Mr McDermott’s situation with him and would not have removed him from the weekend day shift is that Mr Peace was concerned with the legitimacy of Mr McDermott’s absence rather than with the fact that he had been absent. This attitude is somewhat different from that which Messrs Young and Hannigan expressed in relation to the absences preceding the September 2010 shift change but it nevertheless indicates that Mr Peace would not have taken action against Mr McDermott because he had exercised a workplace right but rather took the action because Mr McDermott had breached the November 2010 agreement. That inference is strengthened by Mr Peace’s evidence that a move to the weekday shift would have permitted Endeavour to better assist Mr McDermott to manage his absenteeism, echoing the burden of parts of the evidence of Messrs Young and Hannigan, that the nature of the leave sought or taken was not the reason for the decision to change Mr McDermott’s shifts. In those circumstances, I am not of the view that the character of many of Mr McDermott’s previous absences as exercises of a workplace right was of any particular significance to Mr Peace when he made his decision in March 2011.
Consequently, I accept Mr Peace’s evidence that the reason why he decided to move Mr McDermott from the weekend day shift was because the 18 March 2011 absence, coupled with its immediate circumstances, amounted to a breach of the November 2010 agreement which he was not willing to tolerate. Put another way, Endeavour has displaced the presumption that the reason or part of the reason for its decision to move Mr McDermott from the weekend day shift in April 2011 was the fact that in 2009, 2010 and 2011 he had exercised his workplace rights to take personal/carer’s leave, whether because of illness or because he had family responsibilities.
Breach of agreement?
Clause 13.3
The CFMEU submitted that Endeavour’s reason for changing Mr McDermott’s shifts was that he did not provide a medical certificate to support his absence on 18 March 2011 and that as a consequence he was considered to be not “reliable”. Endeavour submitted that the April 2011 alteration of Mr McDermott’s shift was based on the operational requirements of its business. It submitted that, as in September 2010, Mr McDermott’s performance in terms of compliance with attendance requirements, including the requirement to provide evidence for the reason for his 18 March 2011 absence, was the reason for the shift alteration in April 2011.
For the reasons given earlier, cl.13.3 of the Agreement did not prevent Endeavour from allocating employees to shifts which it considered appropriate for the operational needs of its business. It was open to Endeavour to conclude in this case that operational requirements dictated that Mr McDermott not be on the weekend day shift if, given the staffing and safety difficulties inherent in that shift, he failed to comply with the November 2010 agreement.
Consequently, the removal of Mr McDermott from the weekend day shift in April 2011 did not breach cl.13.3 of the Agreement.
Clause 28
The CFMEU also submitted that Endeavour did not implement the relevant industrial instrument or refer to the then-current attendance management procedure as referred to at stage 4 of the Absenteeism Management Process flow chart. Endeavour submitted that the CFMEU had not suggested that any step which ought to have been taken under stage 4 had not been taken and that in such circumstances it was impossible for the CFMEU to establish any breach of the Agreement.
The CFMEU was correct to submit that in April 2011 Endeavour did not, as part of stage 4 of the Absenteeism Management Process, “Implement relevant industrial instrument or refer current Attendance Management Procedure”. Nevertheless, the CFMEU did not suggest how this might have been done or what should have been done instead of what was done. This would appear to reflect the fact that the relevant industrial instrument, the Agreement, referred to the Absentee Management Process which in turn referred to an Attendance Management Procedure of which there was no evidence. In the absence of such evidence doubt must attach to its existence. As it was not demonstrated that there was such a procedure to implement, the CFMEU has not demonstrated that the requirement to do so was breached.
Final written warning
Adverse action?
The CFMEU submitted that the final written warning constituted adverse action in that it made Mr McDermott’s employment less secure than it had been before the warning and therefore constituted an alteration of his position to his prejudice. Endeavour submitted that there were differences in the decisions of single judges of the Federal Court regarding whether a final warning letter alters an employee’s position to his prejudice. The parties referred to Blair v Australian Motor Industries; Construction, Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131; Finance Sector Union v ANZ Banking Group (2002) 120 FCR 107; and Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union v Visy Packaging Pty Ltd (No 2) (2011) 213 IR 48 at 53 [24].
Notwithstanding Endeavour’s submission, the principle which may relevantly be drawn from the line of authorities cited by the parties is that a final warning does alter an employee’s position to his or her prejudice. As Branson J said in CFMEU v Coal & Allied:
Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment. (at 156-157 [95])
I consequently find that the final written warning did alter Mr McDermott’s position to his prejudice.
Prohibited reason?
The CFMEU submitted that the final warning was issued not only because of Mr McDermott’s exercise of a workplace right on 18 March 2011 but because of his family or carer’s responsibilities and his exercise of his workplace rights on a number of occasions. It submitted that the final written warning was also a step in a process whose earlier steps included discussions with Mr McDermott on 11 April 2010, 29 May 2010 and 10 September 2010.
Endeavour submitted that the CFMEU had not established that Mr McDermott’s absence on 18 March 2011 involved the exercise of a workplace right. It further submitted that as the real and operative reason for Mr McDermott being given a final written warning was his absence on 18 March 2011, the warning had been issued for reasons other than a prohibited reason.
The final written warning was part of the process associated with the removal of Mr McDermott from the weekend shift in April 2011 and I see no reason to doubt that the same considerations motivated both steps. Consequently, for the reasons given earlier in relation to the reason for the shift change, I find that Endeavour has displaced the presumption that it issuing the final written warning because Mr McDermott had exercised his workplace rights to take personal/carer’s leave, whether because of illness or because he had family responsibilities.
Breach of agreement?
For the reasons given above in relation to the April 2011 shift change the final warning letter did not amount to a breach of cls.13.3 or 28 of the Agreement.
Conclusion
The CFMEU has demonstrated that Endeavour breached the Agreement by failing to implement a “formalised improvement programme of six months duration” as required by the Absenteeism Management Process once it had determined that Mr McDermott had reached stage 3 of that process with questions attaching to the legitimacy of some of his absences. In all other respects it has not made out its claims against Endeavour.
The matter will stand over for consideration of what, if any, penalties and orders for compensation should be made consequent upon the above findings.
The matter will stand over for further directions to 12 July 2013.
I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 27 June 2013
4
5
0