Dixon v Watpac Ltd

Case [2022] FedCFamC2G 778

Federal Circuit and Family Court of Australia

(DIVISION 2)

Dixon v Watpac Ltd [2022] FedCFamC2G 778

File number(s): ADG 149 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 16 September 2022
Catchwords:

INDUSTRIAL LAW – general protection application – nature of workplace right asserted – burden of proof – involvement of third parties

PRACTICE & PROCEDURE – Statement of claim – interlocutory application – applicant seeks to amended filed statement of claim – application for discovery – application previously subject to summary dismissal application – summary dismissal application unsuccessful – previous docket judge determined issues arising could be sufficiently delineated in affidavits –  affidavit evidence has now been filed – amendment and discovery sought in context of affidavit material filed – overarching principle applicable to court’s conduct of civil litigation – discovery not in interests of the administration of justice – trial  refixed – application dismissed – costs reserved
Legislation:

Fair Work Act 2009 (Cth) Pt 6 – 4, ss 340, 341, 342, 351, 361, 546, 550, 789FD, 789FC, 789FF

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 174, 190

Federal Circuit Court of Australia Act 1999 (Cth), s 17A

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Magistrates Act 1999 (Cth) s 45

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 7, r 1.04

Federal Circuit Court Rules 2001 (Cth), rr 4.05, 45.08

Federal Court Rules 2011 (Cth)
Cases cited:

Abrahams v Qantas Airways Limited (No 2) [1](2007) 210 FLR 314

Aon Risk Management Limited v Australian National University (2009) CLR 175

Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281

Bruce v Oldhams Press Ltd [1936] 1 KB 697

Caason Investments Pty Ltd v Cao [2015] FCAFC 94

Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306

CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

Dixon v Watpac Ltd [2021] FCCA 622

Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17

Gaven & Gaven (No 2) [2012] FMCAfam 1005

Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399

Kakayzich v Santa Sabinda College & Anor [2020] FCCA 11

Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271

Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081
Division: Division 2 General Federal Law
Number of paragraphs: 151
Date of hearing: 10 June 2022
Place: Adelaide
Counsel for the Applicant: Ms Billich
Solicitor for the Applicant: RSA Law
Counsel for the Respondents: Mr Spence
Solicitor for the Respondents: DWF (Australia) Pty Ltd

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Details
AGLC
Dixon v Watpac Ltd [2022] FedCFamC2G 778
Case
[2022] FedCFamC2G 778
Decision Date

CaseChat Overview and Summary

In the matter of Dixon v Watpac Ltd, the plaintiff, Terry Dixon, an Occupational Health and Safety Manager for Watpac, alleged that his employment was terminated due to adverse actions taken against him, in violation of workplace rights under the Fair Work Act 2009 (Cth). Dixon's claim stems from his termination by Watpac on 24 April 2020, following a standing down from his role on 6 December 2019, which he attributed to his refusal to engage in activities that could be construed as union-related misconduct. The defendants, Watpac and two of its executives, Craig Dearling and Timothy Tape, denied these allegations, asserting that the termination was due to the outcome of an internal investigation into misconduct. The legal issues before the court involved whether Dixon had established a workplace right under the Fair Work Act, and if so, whether Watpac's actions constituted a contravention of such rights. The court needed to determine if the plaintiff could identify a specific workplace right that was contravened and whether the adverse actions taken by Watpac were indeed connected to this right.

The court examined the nature of the workplace rights Dixon claimed to have been contravened and the specifics of the adverse actions he alleged. It was noted that Dixon had to identify the workplace right and the adverse action taken against him, with the onus then shifting to Watpac to prove the substantive and operative reason for the adverse action. The court expressed concerns over the timing of the discovery application and its potential to delay the proceedings further. The court concluded that the discovery application was not an efficient use of resources for determining what Dixon claimed to be the workplace right contravened by Watpac. Instead, it was Dixon's responsibility to clearly identify the workplace right and the adverse action taken against him, which would then shift the onus to Watpac to justify their actions. The court also highlighted that the amendment application would require Watpac to file an amended defence, potentially causing further delays in an already protracted case.

The court denied both the amendment and discovery applications, stating that these actions would not facilitate the efficient administration of justice and could further delay the proceedings. The court emphasized that the case was a general protection application under the Fair Work Act and not an inquiry into the activities of the CFMMEU. The central issue of why Dixon was terminated remained to be resolved at trial, based on the evidence provided by both parties. The court's decision underscored the importance of clearly identifying workplace rights and adverse actions in such claims and the need for efficient use of court resources in resolving disputes.

Orders

Orders of the court

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Background

Background to the litigation

Section 550(2) of the section provides a definitive list of circumstances in which a person is to be treated as being involved in a contravention. They include a person being knowingly concerned in or a party to the contravention or having aided, abetted, counselled or procured such a contravention.Background In order to resolve the various controversies arising between the parties, in the context of the pleading and discovery issues, it is necessary for me to detail the background to the current proceedings. As has previously been indicated, significant controversies arise as to the nature of the rights asserted by Mr Dixon and whether they can be characterised as workplace rights and what was the motivation for the adverse action taken. The respondents’ position has been consistently that Mr Dixon has not identified any such right under the Act and that the substantive and operative reason for its actions are not proscribed by the FWA. In each case, the principle respondent is Mr Dixon’s former employer Watpac, a large Australia wide construction company. Also named in each proceedings, as the second and third respondents respectively are Craig Dearling and Timothy Tape. Mr Dearling was Watpac’s National Workplace Relations Manager; whilst Mr Tape was Watpac’s State Manager for South Australia. Mr Dixon was employed by Watpac as its Occupational Health & Safety Manager, for its South Australian operations, between early June 2018 and 24 April 2020. He was directed in this role by Mr Dearling and Mr Tape, who were his superiors. In this capacity Mr Dixon worked predominately at the Adelaide Airport, as well as at a building site in Glenelg. At each site, Watpac was engaged in large civil building projects. Workers at each site included members of the CFMMEU. It is the essential underpinning of Mr Dixon’s case that the CFMMEU was a fractious industrial organisation, with a reputation [for] using bullying, harassment and intimidation to advance [its] industrial interests.[12][12] See First Statement of Claim filed 17 April 2020 at page 9 [5.3]. In general terms, Mr Dixon was responsible for ensuring Watpac’s health and safety obligations were discharged at each of the Adelaide Airport and Glenelg sites. This involved his regular interaction with both members and organisers of the CFMMEU. There is no controversy between the parties that Mr Dixon’s employment was terminated by Watpac on 24 April 2020. On 17 April 2020, Mr Dixon commenced his first action against Watpac and the related respondents. On 6 December 2019 Mr Dixon was stood down from his position by Mr Dearling, whilst investigations of misconduct, levelled against the applicant were investigated. The standing down was the first act of adverse action alleged by Mr Dixon against Watpac. The standing down related to allegations that Mr Dixon had caused threats to be made against a member and delegate of the CFMMEU, Emosi Veron (“Mr Veron”). On 10 September 2019, an unsigned and computer generated note was found on the desk of Tim Wright, the Site Manager at Watpac’s Glenelg site. The note read as follows:My name is Johno. I was paid by Terry Dixon to threaten Moss and his Family. Terry is a liar and a thief. I was told the union threatened Terry and that’s why I did this on behalf of him.[13][13] See Annexure TD12 to affidavit of Terry Dixon filed 23 July 2021; Annexure CD1 to affidavit of Craig Dearling filed 20 August 2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition, these proceedings have been outstanding for a significant period of time and were able to be fixed for hearing with the implicit imprimatur of Mr Dixon without issues of discovery having been previously ventilated in circumstances in which he bears the onus of establishing the workplace right germane to him, said to have been contravened. I am concerned that the discovery application is an effort to find support for his case and its potential expense may outweigh its utility, certainly in terms of facilitating the efficient administration of justice.Conclusions In the context of both the amendment application and the discovery application, I consider that I must focus on the nature of the application before me. It is a general protection application under the FWA. It is not an inquiry, per se, into the activities of the CFMMEU. It is incumbent on Mr Dixon to identify what is the workplace right on which he relies and the adverse action taken against him in contravention of such right. It would not be an efficient use of the court’s resources if Mr Dixon seeks to utilise discovery in an attempt to ascertain what he asserts is the workplace right contravened by him. It is at this stage, if both such incidents are identified that the onus shifts to Watpac and it must demonstrate, on the balance of probabilities what was the substantive and operative reason for it taking the impugned adverse action and establishing it was not for a protected reason. In this context, it is necessary to emphasise again that this is not a review generally of the fairness of Watpac’s conduct, vis-à-vis Mr Dixon and the union. Counsel for Mr Dixon asserts that the amendment sought by him causes no prejudice to Watpac. I do not agree. It will be necessary for Watpac to file an amended defence in respect of the amendments, regardless of the gravamen of their significance. This may further delay the proceedings, which have already been subject to significant delay. Neither outcome, in my view, is in keeping with the overarching principle to which litigation in this court is subject. I have taken some time to delineate the evidentiary issues which the case throws up. That Mr Dixon was terminated cannot be doubted. The central issue is why did that occur? Watpac asserts that it was because of the outcome of the inquiry conducted by Mr Curnow. Mr Dixon asserts that it was because of some form of covert influence from the CFMMEU, who wanted Mr Dixon gone from the relevant building sites. In my view, this evidentiary issue, although not without its challenges in the legal context, has been thoroughly delineated in the material before the court – firstly in pleadings and then secondly, in lengthy affidavits prepared by all the major actors in the incident, apart from those associated with the CFMMEU, who are not parties to the proceedings. It will be resolved at trial. It has been consistently the position of Watpac that the evidence as it is currently framed does not disclose a workplace right germane to Mr Dixon. He does not agree. At the summary dismissal stage, this issue was canvassed before Judge Heffernan, at some length. His Honour did not favour Watpac. Rather, he determined that the appropriate mechanism by which the relevant controversy between the parties was to be quelled was through a trial based on firstly affidavits of evidence in chief and then cross-examination.

Ratio Decidendi

Legal Principle Established

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