Daw v Schneider Electric (Australia) Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAW v SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

[2013] FCCA 1341

Catchwords:
INDUSTRIAL LAW – Claim alleging dismissal in contravention of general protection – where employee dismissed for failing to follow directions – where directions would cause employee to act contrary to State law – where employee constructively dismissed for failing to follow directions – whether employee’s entitlement to refuse to follow direction a workplace right – no workplace right established – adverse action taken against employee not taken in contravention of Fair Work Act2009 (Cth).

WORDS AND PHRASES – Workplace law.

Legislation:

Crimes Act 1914, s.4AA
Fair Work Act 2009, ss.12, 340(1), 341, Item 1 of s.342(1), 361, 361(1), 539(1), 539(2), 540(1), 545(1), 545(2)(b), 546(1), 546(2)(b), 546(3)(c), 546(5), 547(1), 547(2), 547(3)

Professional Engineers Act 2002 (Qld), ss.115, 115(1), 115(2)

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526
Barnett v Territory Insurance Office (2011) 196 FCR 116
Bayford v Maxxia Pty Ltd (2011) 207 IR 50
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
O’Meara v Stanley Works Pty Ltd [2006] AIRC 496
R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1938) 60 CLR 601
Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341
Power v Robot Trading Company Pty Limited TA Robot Building Supplies [2013] FCCA 21

Applicant:

SAMI DAW

Respondent:

SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

File Number:

BRG 524 of 2012

Judgment of:

Judge Jarrett

Hearing date:

14, 15 November 2012

Date of Last Submission:

15 November 2012

Delivered at:

Brisbane

Delivered on:

17 September 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr McLeod

Solicitors for the Respondent:

Baker McKenzie

ORDERS

The application filed on 8 June, 2012 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 524 of 2012

SAMI DAW

Applicant

And

SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Between 1 March, 2011 and 15 March, 2012 Mr Daw worked for Schneider Electric (Australia) Pty Ltd. He claims that he was dismissed from his employment with Schneider on 15 March, 2012. Schneider argues that Mr Daw was not dismissed, but rather he chose to bring his employment to an end on that day.
In these proceedings Mr Daw claims that his dismissal was in contravention of a number of general protections provided for in the Fair Work Act 2009. He seeks orders for compensation and the imposition of a pecuniary penalty upon Schneider for its alleged breaches of the Fair Work Act.
Mr Daw alleges that he was dismissed from his employment because in two instances, he exercised a workplace right. In particular he alleges that he was dismissed:
a)because he exercised a workplace right to refuse to perform work that would expose him to liability said to arise under s.115 of the Professional Engineers Act2002 (Qld) (“the Engineers Act”); and/or
b)because he lodged a complaint against his managers Mr Robert Pine and Mr Carlos Moyano.
I have come to the conclusion that, although Mr Daw has established that Schneider took adverse action against him, that action was not taken against him because he exercised, or attempted to exercise, a workplace right for the purposes of the Fair Work Act.

The Facts

Mr Daw was employed by Schneider on a full-time basis as a Project Design Engineer in the Primary Substations unit within the Energy Division of Schneider.
At the time Mr Daw was employed by Schneider, Mr Carlos Moyano was the Technical (Engineering) Manager for Schneider, Primary Substations unit. Part of Mr Moyano’s duties included overseeing the technical day-to-day operations of the Primary Substations unit. He managed about seventeen employees. Mr Moyano was Mr Daw’s immediate manager from the commencement of his employment in March, 2011 until October, 2011.
Soon after he commenced his employment, Mr Daw says that he experienced bulling and harassment from a number of employees. He says the offensive behaviour commenced in about May, 2011 and continued until his employment ended on 15 March, 2012. Mr Daw claims that Mr Moyano “bullied” him on 10 August, 2011. Mr Moyano denies that he ever bullied Mr Daw. However, it is not important to set out the detail of the behaviour that Mr Daw characterises as bulling or harassing because Mr Daw was at pains to point out during the hearing in this matter that his complaints in this case are not about that behaviour. That he had those concerns merely sets the context for what later occurred.
Mr Daw says that on 12 August, 2011 he spoke with Mr Moyano’s direct superior, Mr Warren Utteridge, and raised his concerns about Mr Moyano’s behaviour. There is a dispute in the evidence about the details of the discussions between Mr Daw and Mr Utteridge. The subject matter of the discussions according to Mr Daw was the way in which Mr Moyano delegated work to Mr Daw. According to Mr Utteridge, the subject matter was unreasonable pressure that Mr Daw perceived was being applied to him from Mr Moyano. However, the detail is unimportant. Mr Daw and Mr Utteridge do agree that Mr Utteridge said that he would speak to Mr Moyano privately and address the problem in such a way that Mr Moyano did not feel as if Mr Daw had made a complaint against him.
Mr Utteridge was the Operations Manager of the Primary Substations unit of Schneider. Mr Utteridge gave evidence that he was never Mr Daw’s immediate supervisor or manager and nor was he Mr Moyano’s immediate supervisor or manager. He described himself and Mr Moyano as “management peers” both of whom reported to the general manager of Schneider. I accept that evidence.
Mr Moyano swore that in or around August, 2011 Mr Utteridge approached him to discuss Mr Daw. Mr Moyano gave evidence that during that conversation, Mr Utteridge indicated to him that Mr Daw had raised some concerns regarding his work deadlines and some of Mr Moyano’s actions as his manager. However, Mr Moyano says that at no stage during these conversations did Mr Utteridge suggest that Mr Daw was making a formal complaint against him.
During the week commencing 15 August, 2011 Mr Daw says that Mr Moyano made three separate complaints against him to Mr Utteridge and accused him of underperformance. However, Mr Moyano denies that he made three separate complaints about Mr Daw to Mr Utteridge. According to Mr Moyano, in August, 2011 he had several discussions with Mr Daw about “prioritising and completing” a document needed for a particular project referred to in the evidence as the “Wycarbah substation”. What transpired between the two gentlemen is the subject of dispute but a resolution of that dispute will not assist the ultimate resolution of this case.
Mr Moyano took up the difficulty that he was having with Mr Daw with Mr Utteridge. He says that he said to Mr Utteridge words to the following effect: “I have been working with Sami this week on a job. The job has taken him 20 hours and he has been unable to complete the task without the assistance of a designer. I expected this task to be completed within 8 hours but he has been unable to complete the task. His attitude towards me has been far from professional. He did not accept any feedback. In fact he reacted aggressively towards me and other in the team. In one case Sami entered my office when I was talking with a Project Engineer. I asked Sami to leave and I would discuss the problem alone with him later, but he was confrontational and aggressive. I am having trouble getting work out of Sami in time to meet customer deadlines”. I accept that evidence.
Mr Utteridge gave evidence that he did not recall being approached by Mr Moyano three times regarding three separate complaints as Mr Daw alleges. He does recall being approached on more than one occasion by Mr Moyano about Mr Daw’s ability to produce work product to meet customer deadlines.
On a date in August, 2011 but which is not otherwise particularised in the evidence, Mr Daw had a meeting with Mr Brad McPaul, Mr Utteridge and Mr Moyano. Mr McPaul was the “Human Resources Business Partner” for Schneider.
Mr Moyano recalls the meeting, but denies that it was a “formal one”. Mr Moyano recalls that Mr Daw was told to follow his instructions.
Mr Utteridge recalls attending the meeting between Mr McPaul, Mr Moyano and Mr Daw. According to Mr Utteridge the meeting was informal, occurred at Schneider’s Eagle Farm premises and took place in late August, 2011. Mr Utteridge gave evidence that the purpose of the meeting was to discuss “a work issue that existed between Mr Daw and Mr Moyano”. According to Mr Utteridge the conversation was primarily about drawings that Mr Moyano had asked Mr Daw to check and rectify. Mr Utteridge gave evidence about the conversation that took place at that meeting. Mr Daw did not accept Mr Utteridge’s version of those conversations in their entirety, but again, a resolution of the dispute about those matters will not be useful.
Mr McPaul recalled attending the same meeting. He was asked to attend the meeting by Mr Moyano, essentially as a witness. Mr McPaul says that a conversation occurred between those present and Mr Moyano and Mr Daw discussed at length a number of technical work-related issues. Mr McPaul recalls that at the conclusion of the discussion, Mr Moyano and Mr Utteridge told Mr Daw that he needed to complete the work as directed by Mr Moyano.
Mr Daw says that on the same day there was another meeting attended by Mr Utteridge, Mr McPaul and Mr Daw. Mr Daw alleges that Mr Utteridge told him that he would not care if Mr Moyano tried to “settle scores” against him as a result of the concerns that Mr Daw raised with Mr Utteridge two weeks earlier. Mr Utteridge told him to get along with Mr Moyano no matter what.
However, Mr Utteridge denies that there was a second meeting that took place on the same day. He swears that at the conclusion of the meeting to which I have just referred, all participants stood up to leave the room. He says that Mr Moyano left the meeting but the conversation between those still present continued. Mr Utteridge recalls that words to the following effect were said:
Daw: Do you and Brad mind if we continue the conversation for another five minutes.
McPaul: That’s fine.
Daw: Look I think Carlos is asking me to do something that is too hard.
Utteridge: Sami, I disagree the task is too hard. Yes it is a longer task than if the intelligence had been in the drawings. All that you are being asked to do is manually check the data. Carlos has asked you to do this. I think this is a reasonable direction.
Daw: It’s too hard.
Daw: I think that it is unfair for Carlos to ask me to complete this work. I think he is asking me to do this because I’ve raised concerns with you about his style of management.
Utteridge: I am not interested in behaviour where are people (sil. where people are) trying to settle scores. We have a lot of work to do. We need to get on with it. Carlos is your manager and we need to will work together.
Daw: Carlos and I do not get along. He is being unfair.
Utteridge: We need to work together to get this job finished.
Mr Utteridge denies that he said to Mr Daw that he “would not care if Carlos tried to settle scores” or that Mr Daw should “get along with Carlos no matter what”. I accept his denials.
Further, Mr McPaul says that as the initial meeting with Mr Moyano was breaking up and Mr Moyano had left, the following conversation with Mr Daw occurred where words to the following effect were said:
Daw: Do you have a further 5 minutes?
McPaul: Of course.
Daw: I don’t think Carlos is really being fair. He has it in for me.
McPaul: Can you provide me with an example?
Daw: I just don’t like him and he doesn’t like me.
Utteridge: We’re here to work with you. We want a nice working environment but I want both of you to do your job. I’m not interested in people settling scores. We are here to do a job. I don’t care much for bickering. We all need to get along.
Daw: Carlos is not being fair to me.
McPaul: Is this an issue you want me to escalate?
Daw: No
Mr Utteridge: I will work with both you and Carlos to sort out any work issues. There is lots of work to do and we need to work together and get along.
Daw: He asks me to do things I don’t think are very good. I don’t think he’s very good at his job.
Mr McPaul says that at the conclusion of the conversation he formed the view that there was no formal grievance being raised by Mr Daw that required further investigation or input from him.
Mr Daw denies that the conversations as recorded by Mr Utteridge or Mr McPaul took place. He says that the meeting took place sometime after the first meeting on that same day. Mr Daw says that there was a second meeting “later on that day”. However, he does not suggest that there was any formal grievance raised by him against Mr Moyano.
I am satisfied that the interaction between the parties that took place on that day occurred as set out by Mr Utteridge. I reject Mr Daw’s version of the conversations and how they occurred.
Mr Daw claims that Mr Moyano bullied him via emails in September, October and December, 2011. Mr Moyano denies the allegations of bullying. Mr Daw seemed particularly concerned that Mr Moyano had a practice of sending his emails to others as well as Mr Daw. But, ultimately, this evidence was of no particular importance because Mr Daw drew to my attention that his case did not rest upon his bullying allegations and as far as he was concerned those matters were irrelevant.
On 28 October, 2011 the Primary Substations unit of Schneider underwent an organisational restructure. A number of changes were implemented in an attempt to increase Schneider’s “flexibility and agility”. In cross-examination Mr Daw agreed that the restructure was a “realignment of reporting lines”. A new organisational chart was circulated by email on 28 October, 2011. Mr Utteridge, Mr Moyano and Mr McPaul all appear to have retained the same positions that they occupied before the restructure.
Mr Robert Pine is described in the organisational structure as “Senior Design Engineer (Elec)”. Mr Pine has been employed by Schneider or Areva T&D Australia Limited (a company that Schneider took over in around April, 2011) since 2005. He holds the degrees of Bachelor of Information Technology and Bachelor of Engineering. He completed both degrees in 2005. Between October, 2011 and June, 2012 Mr Pine performed the role of Senior Design Engineer, reporting to Mr Moyano. There is no dispute that between October, 2011 and 15 March, 2012 Mr Pine was not a registered professional engineer for the purposes of the Engineer’s Act.
In his role as Senior Design Engineer (Elec), Mr Pine was responsible for a team of nine other employees, including Mr Daw. Whilst Mr Daw says that Mr Moyano continued to directly manage a “small percentage” of his tasks after the restructure, Mr Moyano’s evidence is that he continued to oversee Mr Daw’s day-to-day tasks until about January, 2012 because Mr Pine was predominately working on another, unrelated, project. Mr Pine’s evidence is to the same effect. He says that he did not commence to assign work to Mr Daw or manage his work on a day-to-day basis until late January, 2012.
Mr Daw claims that Mr Moyano’s behaviour towards him continued and so by 15 December, 2011 he had had enough of Mr Moyano’s behaviour. He responded to one of Mr Moyano’s emails by sending his response to all of the people to whom Mr Moyano had sent his email (which included Mr Pine). By doing so, Mr Daw hoped to demonstrate to all of the recipients of the email that Mr Moyano’s complaints about Mr Daw were without foundation. Mr Moyano responded to that email on the same day and he too, sent a copy of his response to all of those people who had received Mr Daw’s email. The dispute escalated and according to Mr Daw, Mr Moyano escalated the dispute because Mr Daw had been able to demonstrate that his previous complaints were baseless. Mr Daw replied by email, again sending a copy of his response to all email recipients. The email correspondence continued.
Mr Utteridge was also copied into the email exchange between Mr Moyano and Mr Daw. Mr Utteridge swears that he formed the view that there was an issue between Mr Moyano and Mr Daw that needed to be dealt with as quickly as possible. He swears, and I accept, that he resolved to convene a face-to-face meeting to allow the issues to be discussed and resolved.
On 19 December, 2011 a meeting was convened as a result of the email exchange between Mr Daw and Mr Moyano. The meeting was attended by Mr Utteridge, Mr McPaul, Mr Moyano, Mr David Malcolm (a union representative for Mr Daw) and Mr Daw.
Mr Utteridge says that he recalls that during the meeting those present went through in detail the work issues that were the subject of the emails sent on 15 and 16 December, 2011. I accept his evidence set out in paragraphs 15 and 16 of his affidavit filed on 15 October, 2012.
Mr McPaul also gave evidence about the meeting. During the meeting, he says, the following conversation took place:
McPaul: The purpose of today’s meeting is to discuss the email exchanges between Sami and Carlos last week I believe that there is an issue between the two of you and we need to find an appropriate way to move forward.
Daw: Carlos sent an email that cc’d in a number of people who didn’t need to be cc’d on the email. I’m really frustrated because I believe Carlos kept changing his concerns each time I responded to prove that what he was saying in his email was without foundation. I was able to prove in my emails that his accusations were baseless. Carlos kept carbon copying a number of people who did not need to be included in the emails. These emails were defamatory.
Moyano: It was appropriate that I cc’d the relevant people into that email. They were managers and senior people within the business.
Daw: Not everyone was a manager. There was also another email which was sent to multiple people about my sick leave and accusing me of not notifying anyone. I had sent an email to Carlos from my personal email account. I also have a sick leave certificate that I got from my doctor. When I returned to work I had all these employees coming up to me and asking me where I was because Carlos had been looking for me on that day. I’m also concerned that when we had the meeting at the Eagle Farm office that the matters we discussed during that meeting were not kept confidential. I have been asked questions about what happened in that meeting. I believe this is against HR policy and might in fact be illegal. I know that Nirav Patel [Project Engineer] knows that I attended a HR meeting and I believe that other people know what we discussed during that meeting.
McPaul: Sami, why don’t we catch up about your concerns regarding rumours at a later point?
Moyano: I’m sorry Sami for including a person not a member of management in the email correspondence. That was not appropriate to have him on the email cc list, however the other people were managers and therefore it was appropriate that they be cc’d onto the email.
Daw: I accept your apology.
Utteridge: I think we can agree that this is a communication issue. Going forward, we need to be clear about the delegation of work and that a senior engineer is a team leader or supervisor and can ask you Sami to perform relevant work.
Daw: I don’t like emails between myself and Carlos being broadcasted to other parties.
Moyano: The other parties are management and supervisors. They need to have an understanding of what is happening in relation to different work tasks or business matters and by including them in the email chain it reinforces the seriousness of the matter.
Utteridge: We need to be clear about the distinction between a manager addressing an issue with an employee or reprimanding an employee for wrongdoing and being bullied. We as a business have the right to provide feedback to our employees regarding their work and general performance. Carlos is Sami’s manager and Sami ultimately reports to him in his current position. Carlos is entitled to provide him with feedback. What we have here is a communication issue that we need to resolve so that we understand each other’s expectations going forward.
Malcolm: I don’t believe the debated issue or the email content is necessarily the issue. I think the issue is that other people were copied into the relevant emails.
McPaul: I agree with that statement and I think that each party had a role to play with the communication with one another. I think this is something that needs to be addressed going forward. I think that if we can agree on how you communicate going forward that would be useful.

Mr McPaul says that the meeting concluded on the basis of some agreed resolutions including:
a)each party would communicate better with one another. Both Mr Moyano and Mr Daw believed that their relationship could be repaired and that they could continue working together;
b)Mr Moyano and Mr Daw would write all emails to each other as if they were customer facing and agreed that should an issue arise in the future, the issue would be discussed verbally; and
c)Mr Daw and I would separately discuss rumours which Mr Daw was concerned had been circulating between some employees.
Mr McPaul emailed the participants a summary of the meeting on 21 December, 2012. However, Mr Daw disputed Mr McPaul’s summary of the meeting and he sent Mr McPaul an email on 2 January, 2012 explaining to him why he did not agree with his summary of the meeting. Mr Moyano and Mr Utteridge agreed that Mr McPaul’s summary of the meeting contained in his email was accurate. Mr Utteridge swore, and I accept, that Mr Daw did not raise any concerns with him regarding the conduct of the meeting on 19 December, 2011 or the agreed resolutions that arose from the meeting and that were recorded by Mr Paul in his email.
Mr Daw alleges that on 20, 21 and 22 February, 2012 he was “bullied” by Mr Pine. He alleges that Mr Moyano knew about it and did nothing to prevent that behaviour. Mr Moyano denies the allegations against him, as does Mr Pine.
On 23 February, 2012 Mr Daw sent Mr McPaul another email concerning Mr McPaul’s email summarising what had been agreed at the meeting of 19 December, 2011. Mr Daw requested a meeting with Mr McPaul.
On 24 February, 2012 Mr McPaul and Mr Daw had a further meeting to discuss his response to Mr McPaul’s email of 21 December, 2011. During that meeting Mr Daw made it clear to Mr McPaul that he did not agree with the matters set out in Mr McPaul’s email. However Mr McPaul insisted that the email was an accurate reflection of what occurred at the meeting. Mr McPaul asked Mr Daw if he wished to discuss his “concern regarding rumours in the workplace?”, however Mr Daw told Mr McPaul that he did not wish to discuss that matter and he was “happy to leave that issue.” Mr Daw told Mr McPaul that he did not think that Mr Moyano or Mr Pine were qualified to do their jobs. He told Mr McPaul that he thought that they were doing illegal things and that they were making the team do illegal things. Mr Daw told Mr McPaul that he was encouraging others in the team not to do work for Mr Pine and Mr Moyano. Whilst Mr Daw accepted that this meeting took place he took issue with Mr McPaul’s recollection of that meeting. However, I accept that Mr McPaul’s recollection of that evidence was accurate.
Mr Daw took sick leave from about 23 February, 2012 to 12 March, 2012 due to the “harassment and the bullying” he says he experienced from Mr Pine and Mr Moyano.
On 4 March, 2012 Mr Daw wrote an official complaint against Mr Moyano and Mr Pine, but he did not give it to anybody at Schneider.
On 7 March, 2012 Mr Daw sent an email to Mr McPaul asking that he be relocated from his current position where he reported to both Mr Moyano and Mr Pine. Mr Daw’s email made it clear that his request was an informal request. He asked for Mr McPaul to meet with him upon his return to work on 12 March, 2012 so as to discuss his request.
On the same day, Mr McPaul responded to Mr Daw’s email. He acknowledged Mr Daw’s request to change positions and suggested that the request could be further clarified when the parties met once Mr Daw returned to work. Mr McPaul also recorded that until that point the discussions had been informal. Insofar as Mr Pine and Mr Moyano were concerned, Mr McPaul pointed out that Mr Daw could make a formal complaint in respect of their conduct in accordance with Schneider employee policy and procedures.
On Sunday, 11 March, 2012 Mr Daw sent an email to Mr McPaul. The email contained a formal complaint against Mr Pine and Mr Moyano in relation to:
a)bullying and harassment;
b)breaching Schneider policies; and
c)breaching the Workplace Health and Safety Act1995 (Qld).
The email attached the written complaint dated 4 March, 2012. In the complaint Mr Daw alleged bullying and harassment by Mr Moyano and Mr Pine and he attached what he claimed to be evidence of bullying to his complaint letter. He also informed Mr McPaul that Mr Pine should not be his supervisor because Mr Pine is not “a registered engineer” and that he was in breach of s.115 of the Engineers Act. He requested relocation to any other position in the company while the company was investigating his allegations.
Mr Daw returned to work on 12 March, 2012. On that day he met with Mr McPaul. Mr McPaul told him that he was going to a start formal investigation into his allegations on 15 March, 2012. Mr McPaul asked him to work under Mr Pine for the meanwhile. Mr Daw told Mr McPaul that he would not work for Mr Pine because Mr Daw would be in violation of the Engineers Act if Mr Daw did any engineering work under the direct supervision of Mr Pine. Mr Daw was also concerned about the safety of Schneider’s technicians on the factory floor because they were not practicing engineering “in a safe manner”. Mr Daw claimed that Schneider was not performing its work in accordance with the law. He thought that there were a lot of shortcuts and compromises of fundamental safety procedures. He claimed that the engineering team at Schneider often produced incompetent engineering documents and designs due to lack of supervision, and designs issues. He claimed that the technicians often rejected, corrected or refused to implement most of the engineering designs issued by Schneider’s engineers; and they often sent the documents back to the engineers for redesign.
On 13 March, 2012 Mr McPaul sent an email to Mr Daw. In the email he told Mr Daw that:
a)he had read Mr Daw’s complaint;
b)he would be commencing an investigation into the complaint; and
c)whilst the investigation was under way, Mr Daw would continue to report to Robert Pine.
On 13 March, 2012 Mr Daw sent another email to Mr McPaul, this time relating to the fact that Mr Pine was not a registered engineer.
On the same day, Mr Pine had a conversation with Mr McPaul and Mr Utteridge about whether Mr Pine could assign work to Mr Daw. Mr McPaul asked Mr Pine not to assign any further work to Mr Daw until Schneider had received some advice that it had sought concerning Mr Pine’s ability to supervise Mr Daw in the completion of his tasks given that Mr Pine was not a registered engineer or “RPEQ qualified”.
Mr McPaul undertook some enquiries about that and said in evidence that he satisfied himself that Schneider was not acting in contravention of any law. He sent Mr Daw an email to that effect. By another email, also dated 13 March, 2012, Mr Daw said that he did not accept Mr McPaul’s assurances and that he refused to do any engineering work for Mr Pine.
Later that day Mr McPaul had a further conversation with Mr Pine. Mr McPaul told him that he had undertaken the enquiries he needed to and Schneider was satisfied that the appropriately qualified people were in place and that Mr Pine did not need to be RPEQ qualified to supervise Mr Daw’s work.
Schneider did not lead any other evidence of the advice that Mr McPaul said he received to satisfy himself that the appropriately qualified people were in place and that Mr Pine did not need to be RPEQ qualified to supervise Mr Daw’s work.
Later again on 13 March, 2012 Mr Pine asked Mr Daw to do some work for him. Mr Daw refused to do that work and told Mr Pine that he was not “compliant” or “RPEQ qualified” and was in breach of the Engineers Act.
Mr Pine told Mr Utteridge that Mr Daw would not take any work from him. Mr Utteridge went with Mr Pine to see Mr Daw. Mr Pine again asked Mr Daw to perform some work for him but he refused. Mr Utteridge says that words to the following effect were exchanged between he and Mr Daw, in Mr Pine’s presence:
Utteridge: Sami, I understand that you are refusing to perform work as directed by Robert.
Daw: I will not accept any work from Rob. He is not qualified. It is illegal for him to provide me with any work. It is in breach of the law.
Utteridge: Sami, I am satisfied that Rob is able to provide you with work. What is it that you are intending to do?
Daw: I will not take any work from people who are not qualified to give it to me.
Utteridge: For the sake of getting work done, I am going to get Carlos to give you work.
There is no dispute that Mr Moyano was “RPEQ qualified”. I accept Mr Utteridge’s recollection of that conversation.
On 14 March, 2012 Mr Daw had a performance appraisal meeting for the 2011 year. The evidence reveals that for each year all employees of Schneider are required to participate in a performance appraisal process. The process includes an annual review that occurs sometime between December and February and an interim review in August. As part of the performance appraisal process, individual employees complete a self-assessment and then attend a meeting or meetings with their manager to discuss their performance against the performance objectives. Employees are paid a bonus, the level of which depends upon their performance appraisal.
Mr Daw’s performance appraisal meeting was chaired by Mr Moyano. Mr Pine was present as was Mr McPaul. Mr Daw told Mr McPaul that he thought that it was unreasonable that Mr Moyano and Mr Pine should conduct his performance appraisal meeting. Mr Daw was concerned given the fact that they knew that he had lodged a formal complaint against them two days earlier. Mr McPaul discounted Mr Daw’s concerns. Mr McPaul says the following conversation occurred where words to the following effect were said:
Daw: I don’t want to go through this process.
McPaul: Sami, I think it’s important that we follow normal processes. The review process was meant to be completed in February. I want to make sure that you have an opportunity to be appraised and that you have an opportunity to seek feedback on your performance over the past 12 months. The purpose of this meeting is to give Carlos and Rob an opportunity to talk about your performance this past year and you will be given an opportunity to respond.
Daw: I can’t believe that I am sitting here in front of you guys. You are not registered, I am being asked to perform work in breach of the law. It is not appropriate that I be supervised by Rob.
McPaul: Sami, the business is satisfied that you are able to perform work for Rob. The company is investigating your written complaint, however, it is important that we proceed with this performance appraisal process.
Mr McPaul says that at the commencement of the meeting he noticed in Mr Daw’s top shirt pocket a blue line going across the screen of Mr Daw’s mobile telephone, as well as the light on the screen being permanently illuminated. Mr McPaul formed the view that Mr Daw was recording the conversation as he had a similar phone and was familiar with its operation when recording. Mr McPaul asked Mr Daw if he was recording the meeting. I accept that the following conversation then took place:
Daw: No, why would you say that?
McPaul: I can see in your top pocket the light on your phone indicating that it is recording.
Daw: No. Whenever my phone goes near a telephone wire the transmission goes weird. I can’t believe you are accusing me of this. This is a conspiracy against me.
Mr Daw’s own evidence confirms that some little way into the meeting Mr McPaul asked Mr Daw if he was recording the meeting on his mobile phone. Mr Daw denied the accusation, was affronted by it, and felt the meeting was a “setup to frame me”. He therefore ended the meeting and walked out of the meeting room. (See Reference 7X)
Mr Daw was called to another meeting on 14 March, 2012. This meeting was attended by Mr Utteridge and Ms Annabelle Wood, “Human Resources Business Leader Infrastructure Business” of Schneider. I am not sure what that means, but I am satisfied that Ms Wood was high up in the chain of managerial responsibility within Schneider.
Ms Wood gave evidence that prior to her attendance at the meeting with Mr Daw and Mr Utteridge, she prepared a letter to Mr Daw which she gave to him at the commencement of the meeting. Relevantly, the letter was in the following terms:
Dear Sami,
Schneider Electric (Australia) Pty Ltd (the Company) acknowledges that you have lodged an official complaint against Robert Pine and Carlos Moyano on the basis of harassment and bullying. Such formal complaints are taken seriously by the Company and we are actively investigating. Since you have lodged this official complaint with Human Resources, your behaviour of intimidation towards other employees is making this investigation difficult to do in a fair way. Also, we request, with immediate effect, that you do not discuss this matter with other employees, or request other employees to lodge similar complaints, whilst we investigate.
Your Manager for 2011 and your current Supervisor have attempted to conduct a performance review for the 2011 calendar year. As you are aware, this is a process which every employee is required to complete with their manager on an annual basis. You continue to avoid these meetings and we cannot provide you with relevant feedback on your performance. As such, we are limited with our ability to conduct other processes including the STIP calculation and annual salary review for you.
The Company, via the management team at E House Solutions, have requested you to work on reasonable tasks appropriate for your position. You have refused this on the basis of the current harassment and bullying claim and on the basis that the respective supervisor does not carry the correct qualifications. We have sought advice and are comfortable that we are not imposing any undue risks on you and we take our duty of care to our employees seriously. We request that you complete the tasks provided in an orderly manner as discussed with you by your manager.
If you are not willing to adhere to the aforementioned directions and continue to conduct yourself in a manner which is unacceptable in the office, we will have no other option than to review your current employment status with the Company.
Ms Wood says that at the meeting:
a)Mr Utteridge, at the commencement of the meeting, sought clarification from Mr Daw and said words to the effect “You are continuing to refuse to accept work from your direct supervisor, Rob, the business has a qualified person within the team”;
b)Mr Daw expressed the view that he would not perform work under the direction of his direct supervisor Rob Pine, which was the subject of the meeting;
c)there were discussions about qualifications and the job description of Mr Daw. Mr Utteridge said to Mr Daw: “It’s part of your job description and I am comfortable that you are able to perform work for Rob”;
d)after some discussion, Mr Daw said words to the effect “I will not work for Rob” and, after referring to the “Engineering Act” and saying again “I’m not going to do it.”; and
e)Mr Utteridge attempted to encourage Mr Daw to change his mind but Mr Daw repeatedly said: “I’m not going to do it”.
Mr Daw says that both Mr Utteridge and Ms Wood asked him to immediately recommence work under Mr Pine and they handed a letter to him. He says that Annabelle Wood accused him of intimidating employees at Schneider. Indeed, the text of the letter is to that effect. Her evidence agrees with that of Mr Daw that he asked for the details of the employees who had been allegedly intimidated by him but he says that all she said was that a number of employees had complained. She would not tell him who they were. On that point, Ms Wood says that in response to Mr Daw’s aggressive questions seeking the identity of the relevant persons, she said words to the effect: “Sami, we don’t normally discuss the identity of people who come forward, in the same way that we don’t go discussing your matter and concerns with others. Employees are concerned about your behaviour. They do feel intimidated.”
Mr Utteridge gave evidence about this meeting. He swears that the purpose of the meeting was to discuss with Mr Daw his refusal to perform work for his direct supervisor, Mr Pine. He says that during the meeting words to the following effect were exchanged:
Utteridge: Sami, you continue to refuse to accept work from Rob. Robert is your direct supervisor. It is part of your job to do work for him as directed. I am comfortable that you are able to perform work for Rob. Schneider has a RPEQ qualified person and I believe that this meets our legal requirements.
Daw: I will not work for Rob Pine. It is in breach of the Queensland laws. Section 115 of the Queensland Professional Engineering Act states that I am not able to accept work from Rob. I am not going to do it.
Utteridge: Sami, we need to move forward. What we want you to do is get on with the job. We need you to complete the work that we are giving you. We have a lot of work to do. You have the skills to do that work. We just need the work to be done.
Daw: I’m not doing it.
Utteridge: Sami, what is it that you want to achieve out of these actions?
Daw: I want you people to be exposed for what you are.
Whilst there is really no dispute between Mr Daw on the one hand and Ms Wood and Mr Utteridge on the other as to what occurred at this meeting, I accept that Ms Wood’s and Mr Utteridge’s recollections of the conversation are likely to be more accurate than those of Mr Daw.
Mr Utteridge recalls that Ms Wood spoke to Mr Daw regarding the complaint that he had lodged regarding his allegations of harassment and bullying by Mr Pine and Mr Moyano. She told him that the complaints were being taken seriously by Schneider and were being investigated. She also spoke to him about the attempts being conducted by Schneider to conduct a formal performance review of Mr Daw.
I reject Mr Daw’s evidence that Ms Wood was dismissive about his accusations against Mr Pine and Mr Moyano, and that Schneider did not, or did not intended to, investigate Mr Pine or Mr Moyano in relation to Mr Daw’s allegations of bullying against them.
On 15 March, 2012 Mr Utteridge again asked Mr Daw to work under Mr Pine’s supervision. For the reasons he had given on the previous day, Mr Daw refused. Mr Utteridge says that he had the following conversation with Mr Daw, in the presence of Mr McPaul:
Utteridge: Sami, will you work for Rob and do what you have been employed to do?
Daw: No. I refuse to do any work for Rob. I cannot do it as it would be a breach of section 115 the Queensland Professional Engineering Act.
Mr McPaul also gave evidence of this conversation. His evidence is slightly different to that of Mr Utteridge’s. Mr McPaul says that words to the following effect were said:
Utteridge: Sami, it’s a new day and let’s all get back to work. Sami, you will be reporting to Rob and you will need to accept work from Rob as he is your supervisor.
Daw: I will not accept work from Robert as he isn’t qualified.
I am satisfied by the evidence of Mr Utteridge and Mr McPaul that Mr Daw was given the opportunity to confirm that he would take work from and be responsible to Mr Pine, but he refused to do so.
On 15 March, 2012 a second meeting took place between Mr Utteridge and Mr Daw. Mr McPaul was also present. Mr McPaul gave evidence that during the course of that meeting words to the following effect were said:
McPaul: Sami, it is important that you work as directed. We have done everything that we need to do as a company and you are refusing to do work. We want you to do work for Rob. Sami, we want to have a discussion about your work and working with Rob Pine. We have a letter for you, and this letter sets out the company’s position and our expectations of you. I want you to read it.
Daw: There is nothing wrong with my performance. I just refuse to do work for these guys. I will not report to my managers. I’ve said this so many times and you already know the answer. I confirm that I will not accept work or perform work for Robert. He is not qualified. It is a breach of the law. I feel stressed by being in this meeting.
McPaul: Sami, I would ask you to reconsider your position on not reporting to or taking direction from your supervisor.
Daw: I will not.
McPaul: Sami, I would ask that you read this letter so you understand the position of the company.

Mr McPaul then gave to Mr Daw what Mr Daw describes as “a warning letter”. The letter was in the following terms:
Dear Sami,
As you are aware we have been discussing with you various performance related issues. These discussions have not been successful in that you appear to refuse to accept the reality of our
perceptions. At the same time you have attempted by various means to avoid the active supervision of your manager Robert Pine.
More recently you have refused to take direction from your manager and you have now refused to work as directed, in circumstances where we have comprehensively addressed your concern.
A failure to work as directed can only be regarded as you bringing the employment to an end. The purpose of this letter is to formally direct you to return to your duties under the supervision and direction of your manager.
If you refuse to observe this direction immediately we will regard you as having brought the employment to an end.
We are providing you this opportunity to reflect upon the stance taken by you and would urge you to carefully reconsider the strategies that have been adopted by you in relation to our attempts to address what we believe to be legitimate and unresolved performance and behavioural concerns.
Mr Daw was given the opportunity to read the letter. Mr Utteridge swears that the following conversation then took place:
McPaul: Sami, have you read the letter. Do you understand it?
Daw: Yes. If you want to sack me then sack me.
Utteridge: Sami, this is not about sacking you. We want you to continue to work for us. There is plenty of work. We simply want you to get on with the work that is being assigned to you. Do you understand?
Daw: Yes, but I am not going to work for Rob. It is illegal.
Utteridge: The business is satisfied that you can perform the work.
Daw: No.
McPaul: In these circumstances, by taking this position you are terminating your own employment.
Mr McPaul says that conversation was along these lines:
McPaul: Have you read the letter?
Daw: Yes and there are no performance issues. I don’t know what you are referring to.
McPaul: There have been a number of requests from your manager and other senior members within the business for you to perform work which either wasn’t done or wasn’t done to a satisfactory level or where you have refused to accept work I would ask that you read the entire letter as this is the position of Schneider Electric.
Daw: I have read the letter but I refuse to report to Robert.
McPaul: Sami, I would ask you to reconsider your decision.
Utteridge: Sami, there is plenty of work for you to do. I would ask that you reconsider your position.
McPaul: Have you re-read the letter?
Daw: Yes. I will not report to or do any work for Robert.
Utteridge: Sami, there is plenty of work and I would urge you to reconsider.
McPaul: That is unfortunate. That means that you have brought your employment to an end by not following the reasonable directions of Schneider Electric.
Utteridge: It is now time for you to leave the offices.
Daw: I would like to collect my personal books which are at my desk.
McPaul: We will escort you to your desk to allow you to collect your personal belongings.
Later that evening Mr Daw sent an email to Mr McPaul and Mr Daw asked him for “a termination letter”.
Mr McPaul sent him the termination letter on 16 March, 2012, but Mr Daw claims that he back dated the letter to 15 March, 2012. Mr McPaul says that he drafted the letter on 15 March, 2012. Whatever is the case the date upon which the letter was drawn is neither here nor there.

The Statutory Framework

This application arises against the statutory framework set out in the Fair Work Act. The Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision of the Act: s.545(1) of the Act. Section 340(1) of the Act is a civil penalty provision for the purposes of s.545(1): s.539(1) of the Act.
The orders the Court might make if it is satisfied that the provision relied upon by Mr Daw has been contravened include an order for compensation for the loss that Mr Daw has suffered because of the contravention: s.545(2)(b) of the Fair Work Act.
Further, the Court may order a person to pay a pecuniary penalty that the Court considers is appropriate if the Court is satisfied that the person has contravened a civil remedy provision: s.546(1) of the Act. In the case of a body corporate, the pecuniary penalty must not be more than 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2) of the Act: s.546(2)(b) of the Act. A penalty unit is currently set at $110.00: s.4AA of the Crimes Act1914. Thus the maximum pecuniary penalty that can be imposed on the respondent in this case is $33,000.
The Court may order that the pecuniary penalty, or a part of the penalty, be paid to the applicant: s.546(3)(c) of the Fair Work Act. The Court may award compensation and order the payment of a pecuniary penalty: s.546(5) of the Fair Work Act.
In making an order (other than a pecuniary penalty order) the Court must, on application, include an amount of interest unless good cause is shown to the contrary: s.547(1) of the Act. The Court must take into account the period between the day the relevant cause of action arose and the day the order is made when fixing the amount for interest: s.547(3) of the Act.
Section 340(1) of the Act provides as follows:
340 Protection
(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.
Workplace Right is defied in s.341 of the Fair Work Act, which relevantly provides:
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Item 1 of s.342(1) of the Fair Work Act provides that adverse action is taken by an employer against an employee if the employer dismisses the employee.
Section 361(1) of the Act is important. It provides:
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.

Consideration

In the present case, Mr Daw says that the adverse action was taken against him because he exercised two workplace rights, namely:
a)his right not to comply with a direction from his employer that was unlawful or unreasonable or would require him to perform work that was illegal or unlawful under the Engineers Act; and/or
b)his right to make a formal complaint against fellow employees about their behaviour towards him.
Schneider’s response is that:
a)it did not dismiss Mr Daw from his employment, but rather he terminated his own employment;
b)in any event, if he was dismissed:
i)Schneider was entitled to dismiss him because he refused to comply with a reasonable direction concerning the performance of his work;
ii)his dismissal had nothing to do with the complaint that he made against Mr Moyano and Mr Pine.
c)in any event if Mr Daw proves his case, he has not proved any loss.

Adverse Action

A constructive dismissal, in the sense described in cases such as Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 and O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 is sufficient to engage item 1 of s.342(1) of the Fair Work Act: Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341 and Power v Robot Trading Company Pty Limited TA Robot Building Supplies [2013] FCCA 21.
I am satisfied that Mr Daw was constructively dismissed from his employment by Schneider. The circumstances leading up to the final confrontation between he and Mr Utteridge and Mr McPaul suggest that Mr Daw was given no choice but to either accept Schneider’s position that Mr Daw should be directly supervised by Mr Pine or, as Ms Wood so euphemistically put it in her letter of 14 March, 2012, “…we will have no other option than to review your current employment status with the Company”. I asked Ms Wood what that meant when she gave evidence. After initially avoiding answering my question, she suggested that it could mean one of four things, namely:
a)Mr Daw could resign;
b)Schneider could terminate his employment;
c)Mr Daw could be placed on leave without pay until the issue was resolved; or
d)Mr Daw could be placed on leave with pay until the issue was resolved.
I reject Ms Wood’s evidence. In my view, the intent of her letter of 14 March, 2012 carried an implied threat that if Mr Daw did not accept instructions from Mr Pine, his employment would be terminated. The first option identified by Ms Ward was not really an option at all because the words of her letter extracted above referred to “we”. That was clearly a reference to Schneider’s management. In my view it was not a reference to what Mr Daw might do. Of the other three possibilities, the two possibilities that Mr Daw might be placed on leave, with or without pay, was never once suggested to him in the course of any of his meetings, discussions or emails with Mr McPaul, Mr Utteridge or Mr Pine.
There was no serious suggestion in the evidence that Schneider took Mr Daw’s concerns seriously or took appropriate steps to investigate his claim that he was not permitted by the Engineers Act to perform the work that he was being asked to undertake. The only evidence about what Schneider did to investigate Mr Daw’s concerns was given by Mr McPaul who said, in cross examination, that he had spoken to a man he only identified as “Mr Hitching”, who apparently assured him that he was one of the managers and was RPEQ qualified and that was all that was necessary. I asked Mr McPaul if his evidence meant that one person who was RPEQ qualified was sufficient to supervise all the work performed by Schneider in Queensland and he replied that he thought that it was.
There was no attempt by Schneider to assuage Mr Daw’s concerns. All that Mr Utteridge, Mr Pine and Mr McPaul did was to insist that Mr Daw undertake work as directed by Mr Pine. Despite being repeatedly told by Mr Daw that he would not, and the reasons for his refusal, there was no attempt revealed by the evidence by any of those gentlemen to come to grips with Mr Daw’s concerns. Whilst having Mr Daw take leave (whether that be paid or unpaid) while his concerns were the subject of proper consideration was certainly an option open to Schneider as Ms Wood suggests, I am satisfied that the first time that solution presented itself to any of Schneider’s management team was when Ms Wood identified those options in the witness box.
The letter presented to Mr Daw by Mr McPaul on 15 March, 2012 is consistent with the letter that Ms Wood presented to him on 14 March, 2012. The statement in the letter “If you refuse to observe this direction immediately we will regard you as having brought the employment to an end.” is disingenuous. In my view, whatever Mr McPaul or Mr Utteridge might have thought about Mr Daw bringing his employment to an end, it was in fact Schneider’s actions that brought the employment to an end.

A Workplace Right

Was the adverse action that I have found was taken by Schneider against Mr Daw taken because he sought to exercise, or because he exercised, a workplace right?

A right to refuse to perform illegal acts

The extent of an employee’s obligation to comply with directions given by an employer was discussed by Dixon J (as his Honour then was) in R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621–622. In that case, his Honour said:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
There can be no doubt, I think, that an employee is entitled to refuse an employer’s request for the employee to carry out any act that is either illegal or, even though not illegal, not reasonable in all of the circumstances. Schneider did not contend to the contrary.
Mr Daw’s claim is that what he was being asked to do was illegal because he was asked to perform work in contravention of the Engineers Act. In this respect, Mr Daw’s case is built on the following propositions:
a)the work he was carrying out for Schneider was professional engineering services work for the purposes of the Engineers Act;
b)Mr Daw was not a registered professional engineer for the purposes of the Engineers Act;
c)Mr Daw’s direct supervisor was not a registered professional engineer for the purposes of the Engineers Act;
d)Mr Daw was not carrying out the professional engineering services under the direct supervision of a registered professional engineer who was responsible for his work;
e)by performing the professional engineering services that Schneider required him to perform, his employer was asking him to act in a way that would expose him to liability under the Engineers Act;
f)Mr Daw had a workplace right to refuse to do that work and was entitled to complain about having to perform that work.
Mr Daw’s case relies upon certain provisions of the Engineers Act. Relevantly that Act provides:
115 Who may carry out professional engineering services
(1) A person who is not a registered professional engineer must not carry out professional engineering services.
Maximum penalty-1000 penalty units.
(2) However, a person does not commit an offence under subsection (1) if the person carries out the professional engineering services under the direct supervision of a registered professional engineer who is responsible for the services.
(3) A person who is a registered professional engineer must not carry out professional engineering services in an area of engineering other than an area of engineering for which the person is registered under this Act.
Maximum penalty- 1000 penalty units.
(4) However, a person does not commit an offence under subsection (3) if the person carries out the professional engineering services under the direct supervision of a registered professional engineer who is registered in the area of engineering and responsible for the services.
(5) For this section, a person carries out professional engineering services under the direct supervision of a registered professional engineer only if the engineer directs the person in the carrying out of the services and oversees and evaluates the carrying out of the services by the person.
…
Schedule 2 Dictionary
…
prescriptive standard means a document that states procedures or criteria—
(a) for carrying out a design, or a construction or production activity, relating to engineering; and
(b) the application of which, to the carrying out of the design, or the construction or production activity, does not require advanced scientifically based calculations.
Examples—
• AS1684—Timber framing code, published by Standards Australia.
• AS/NZS 3000:2007—Electrical installations (known as the Australian/New Zealand Wiring Rules), published by Standards Australia.
…
professional engineering service means an engineering service that requires, or is based on, the application of engineering principles and data to a design, or to a construction or production activity, relating to engineering, and does not include an engineering service that is provided only in accordance with a prescriptive standard.
…
registered professional engineer means a person registered as a registered professional engineer under this Act..
Mr Daw contends, and Schneider accepts, that Mr Daw was, generally speaking, required to carry out professional engineering services as that term is defined by the Engineers Act. Schneider says that although Mr Daw was performing professional engineering services, he did so under the direct supervision of a registered professional engineer who was responsible for the services. However, the identity of that registered professional engineer was never revealed by the evidence.
In my view, Schneider’s position is misconceived. Mr Pine was not at the relevant time a registered professional engineer for the purposes of the Engineers Act. There was a suggestion in the evidence that Mr Moyano was a registered professional engineer for the purposes of the Engineers Act but there was no direct evidence (such as a certificate of registration for example) led by Schneider to prove that suggestion. In any event, even if Mr Moyano was a registered professional engineer, he was not directly supervising Mr Daw’s work after January, 2011. Moreover, the fact that there was another person within the Schneider organisation in Queensland (for example Mr Hitching) does not assist Schneider’s case because, apart from anything else, there was no evidence that any other person supervised Mr Daw’s professional engineering services as required by s.115(2) of the Engineers Act.
Further, Schneider made no real attempt to establish that the work that Mr Daw was performing was not within the definition of professional engineering services because his work was an engineering service that was provided only in accordance with a prescriptive standard. Mr Daw cross-examined Schneider’s witnesses about that matter but their evidence particularly that of Mr Moyano, was entirely unconvincing.
I find that Schneider required Mr Daw to perform services which were properly described as professional engineering services for the purposes of the Engineers Act. I further find that by requiring Mr Daw to complete that work at the direction of and under the supervision of Mr Pine, Schneider required Mr Daw to provide professional engineering services whilst he was not a registered professional engineer in breach of s.115(1) of the Engineers Act.
However, by refusing to carry out what Mr Daw correctly saw as illegal or unlawful acts which had the potential to expose him to liability under the Engineers Act, was he exercising a workplace right for the purposes of the Fair Work Act?
In my view, the answer to that question is “no”. As will be seen from the definition of workplace right set out above, Mr Daw has a workplace right if he is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body, or he is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.
There can be no doubt that Mr Daw is entitled to the benefit of the general law relationship of employer and employee as discussed in R v Darling Island Stevedoring and Lighterage Co Ltd (above), but the issue is whether that law is a workplace law for the purposes of the Fair Work Act. If it is not then Mr Daw has not exercised, or attempted to exercise a workplace right for the purposes of that Act.

The meaning of workplace law is supplied by s. 12 of the Fair Work Act in the following definition:
workplace law means:
(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
The right that Mr Daw exercised was not a right which accrued under the Fair Work Act, the Registered Organisations Act or the Independent Contractors Act 2006. In my view the only possibility is that the right that he sought to exercise engaged the phrase “any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees”.
However, in my view, the right that he sought to exercise was not a right that arose under “any other law of the Commonwealth… that regulates the relationships between employers and employees”.
There is no doubt that the law as expressed in in R v Darling Island Stevedoring and Lighterage Co Ltd (above) regulates the relationships between employers and employees. The issue is whether it is a law of the Commonwealth, a State, or of a Territory. Neither party addressed me on this issue. I am aware of no cases that have discussed this issue directly.
However, in Bayford v Maxxia Pty Ltd (2011) 207 IR 50 Riley FM (as her Honour then was) accepted that a contract of employment was not a workplace instrument for the purposes of the Fair Work Act because the contract was not made under a workplace law or recognised by a workplace law but was made under the common law.
In Barnett v Territory Insurance Office (2011) 196 FCR 116 Mansfield J considered whether a common law contract of employment is an instrument recognised as a workplace law for the purposes of the Fair Work Act. Whilst his Honour’s decision is not directly on point, he said:
29. Consequently, as a contract of employment at common law must underlie every employment relationship to which the FW Act applies, it is unlikely that the concept of recognition by a “workplace law” was intended to refer to the contract itself. As noted above, there are clear expressions in the FW Act that assume an underlying existence of a contract of employment, the terms of which might, but will not necessarily be suppressed or superimposed by an instrument made under the FW Act. That is apparent more generally in various provisions in Pts 2-6, 2-7, 2-9 and 3-2 (including s 382).
30.    In my view, the concept of recognition by a workplace law in the definition of “workplace instrument” has a more refined meaning than that contended for by the applicant. I accept the respondent’s contention that it is intended to refer to instruments which are given particular “legal effect” or “legal life” (terms used by Barker J in the ALAEA case in the passage quoted above) by a statutory enactment. The FW Act does not enliven the contractual rights of the parties as expressed within the contract of employment, unlike the ITEA which was considered in the ALAEA case and which was given legal effect by the Transitional Act. That case therefore informs the concept of recognition in relation to an instrument which was given effect by the Transitional Act and was encompassed within the definition of “workplace law”, particularly by (d) of that definition which extends to any other law which regulates relationships between employers and employees, and to avoid doubt includes laws dealing with occupational health and safety matters.
31.    In my judgment the expression “an instrument made under or recognised by a workplace law...” in the definition of “workplace instrument”, in conjunction with the definition of “workplace law” means an instrument must be given legal significance by reason of a particular workplace law.
32.    The definition of “workplace law” refers to enactments of a particular character. The specified enactments may give particular legal significance to an instrument or to a role adopted under an instrument. It is the status of the instrument or of the activity under an instrument to which attention is drawn by the particular “workplace law”. The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of “workplace instrument”. If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of “made under or recognised by” would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of “workplace law”, “workplace instrument” and “order made by an industrial body” in s 341(1)(a) that the reference to recognition by a workplace law in the definition “workplace instrument” should refer to an instrument that is given legal effect or legal life by a provision of an enactment. Those three sources of the existence of a “workplace right” may be taken to have a common type of origin, or genus, in either an enactment or some formal process provided for by an enactment. That, too, is consistent with the genus in the “workplace law” definition, as (d) of that definition is confined to enactments as distinct from private contracts. That interpretation also avoids the potentially idiosyncratic outcome that a written contract of employment might contain a term which would give rise to a workplace right (if the argument for the appellant were accepted), whereas an oral contract of employment providing for the same term would not because it could not be an instrument.
(my emphasis)
Further, in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526, Barker J pointed out at 282:
When one comes to the s 340 proscribed reasons, they depend on an understanding of the expression employed in the FW Act provisions — “workplace right”. That expression is given meaning by s 341 of the FW Act. It speaks, as we have seen, to an entitlement or an ability to do certain things under a workplace law or workplace instrument, as those latter expressions are defined by the FW Act. They do not of themselves speak to an entitlement or ability that arises under the FW Act itself, or at the time the identified adverse action occurred. Rather, having regard to the proper construction of the meanings given to the expressions “workplace law” and “workplace instrument”, they encompass adverse action taken because of entitlements or abilities arising under earlier Commonwealth or State legislation of a particular type.
(my emphasis)
Those observations are, in my view, consistent with cl.1360 of the Fair Work Bill Explanatory Memorandum which provides:
Paragraph 341(1)(a) provides that a person has a workplace right if the person 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. Workplace law, workplace instrument and industrial body are defined in clause 12 in a way that is intended to ensure that this Division protects entitlements, roles and responsibilities under Commonwealth, State and Territory laws, and instruments made under those laws, that regulate employment and similar relationships and industrial associations.
The reference in the above paragraph to “instruments made under those laws” reinforces the notion that the reference to Commonwealth, State and Territory laws is a reference to statute law. It is not intended, it seems, to be a reference to the general law of contract or the private rights and entitlements that accrue between employer and employee pursuant to the employment contract.
In my view, whilst Mr Daw establishes that he was entitled to refuse to perform the work which Schneider wished him to perform under the guidance of Mr Pine, it is not established that in doing so he was exercising a workplace right for the purposes of the Fair Work Act.

The Complaint

There is no dispute between the parties that Mr Daw was entitled to make a complaint to Schneider about Mr Moyano and Mr Pine. In making that complaint he was exercising a workplace right.
Counsel for Schneider conceded that insofar as this aspect of the matter was concerned, the facts raised by Mr Daw in his case engaged s.361(1) of the Fair Work Act so that the onus fell to Schneider to establish that it did not take the adverse action taken against Mr Daw for a proscribed reason.
In my view, Schneider discharges the onus of proof upon it. It has demonstrated, in my view, that Mr McPaul or Mr Utteridge did not take the adverse action complained of by Mr Daw (his dismissal) because he made a complaint about Mr Moyano and Mr Pine. I accept the evidence given by Mr McPaul and Ms Wood that Mr Daw’s complaint was to be properly investigated. I accept that their evidence about that was genuine.
The real reason for Mr Daw’s dismissal from Schneider’s employment was that he would not accept instructions from Mr Pine. The complaint that he formally made on 11 March, 2012 did not have any part to play in the decision made by Mr McPaul and Mr Utteridge to cause the termination of Mr Daw’s employment.
Although Mr Daw’s formal complaint was made at a point which was very close to the date upon which he was dismissed, the approach taken by Mr Utteridge and Mr McPaul during 2011 and 2012 when Mr Daw made informal complaints, about Mr Moyano’s conduct in particular, is inconsistent with a desire on their part to terminate Mr Daw’s employment because of the formal complaint. A much more pressing matter was to get Mr Daw back to work and to have him accept instructions and supervision from Mr Pine. That he would not accept instructions or supervision from Mr Pine was, in my view, the only reason that Schneider constructively dismissed Mr Daw from its employment.

Conclusion

Whilst Mr Daw establishes that Schneider took adverse action against him, he does not establish that the adverse action was taken against him in contravention of the Fair Work Act. Consequently, his application must be dismissed.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment

Associate:

Date: 17 September 2013

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established