Dwyer v Broken Hill Musicians Club Ltd
[2016] FCCA 95
•23 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWYER & ANOR v BROKEN HILL MUSICIANS CLUB LTD & ANOR | [2016] FCCA 95 |
| Catchwords: INDUSTRIAL LAW – Dismissal from employment – adverse action – consideration of the reason for the dismissal. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 340, 341, 342, 343, 346, 347, 361, 387 |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 |
| First Applicant: | KEVIN WILLIAM DWYER |
| Second Applicant: | THE BROKEN HILL TOWNEMPLOYEES’ UNION |
| First Respondent: | BROKEN HILL MUSICIANS CLUB LTD (Subject to a Deed of Company Arrangement) |
| Second Respondent: | ROBERT BRENNAN |
| File Number: | ADG 253 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 3, 4 September, 14 October 2015 |
| Date of Last Submission: | 9 December 2015 |
| Delivered at: | Sydney, via telephone to Adelaide |
| Delivered on: | 23 February 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Mr A Knox of The Broken Hill Town Employees’ Union |
| Counsel for the Respondents: | Mr S A McDonald |
| Solicitors for the Respondents: | Registered Clubs Association of New South Wales |
ORDERS
The application filed on 10 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 253 of 2014
| KEVIN WILLIAM DWYER |
First Applicant
| THE BROKEN HILL TOWN EMPLOYEES’ UNION |
Second Applicant
And
| BROKEN HILL MUSICIANS CLUB LTD |
First Respondent
| ROBERT BRENNAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 10 July 2014 under the Fair Work Act 2009 (Cth) (Fair Work Act), the first applicant (Mr Dwyer) makes a “general protections” claim (Claim) 9relating to the dismissal from his employment with the first respondent (the Club) and the events leading up to his dismissal. Mr Dwyer’s employment was terminated on 22 May 2014. The Club was then, and continues, under a Deed of Company Arrangement (DOCA) which was entered into on 10 April 2014.
Although there was some uncertainty, in terms of the evidence given by particular individuals at trial, it appears to be accepted that the decision to dismiss Mr Dwyer was made by the Deed Administrator under the DOCA, the second respondent (Mr Brennan).
The respondents maintain that Mr Dwyer’s employment was terminated for misconduct on account of his role in an incident which occurred on 17 April 2014 involving the theft of about $500 from a membership card. The decision to dismiss him followed investigations over several weeks by employees of the Club, an unprompted confession by another employee involved in the theft in which she named Mr Dwyer as having been involved, and an interview with Mr Dwyer at which he was informed of the general nature of the allegation against him.
The focus of these proceedings under Part 3-1 of the Fair Work Act must be, and can only be, the reason or reasons for which the Club acted in terminating Mr Dwyer’s employment. Questions such as whether Mr Dwyer in fact engaged in the misconduct for which he was dismissed and whether the termination was fair or reasonable are not relevant except insofar as they might bear evidentially upon a finding as to whether the true reason for the dismissal was that stated by the Club[1].
[1] See Dahler v Australian Capital Territory & Anor (No 2) [2015] FCCA 845 at [22]-[23]
The applicants’ claims
The general terms of the applicants’ claims are as follows:
a)Mr Dwyer was dismissed because he sought the assistance of the Fair Work Commission’s anti bullying powers[2];
[2] Claim at [9] and [22]
b)Mr Dwyer was dismissed because he made a WorkCover claim[3];
[3] Claim at [15] and [22]
c)the Club breached clause 35 of the Broken Hill Musicians Club Limited Enterprise Agreement 2011 (the Enterprise Agreement)[4];
[4] Claim at [20]
d)Mr Brennan “embarked on a course of behaviour to bully, harass, demean and belittle” Mr Dwyer, and to alter Mr Dwyer’s position to his detriment, because Mr Dwyer refused to relinquish his entitlement to work 37.5 hours per week[5];
[5] Claim at [21]
e)Mr Brennan “embarked on a course of behaviour to bully, harass, demean and belittle” Mr Dwyer, and to alter Mr Dwyer’s position to his detriment, in order to coerce Mr Dwyer to resign and abandon his employment[6];
[6] Claim at [21]
f)Mr Dwyer was dismissed because[7]:
[7] Claim at [30], [31]
i)he had sought to be represented by the second applicant (the Union);
ii)he was a member of the Union;
iii)the Union had requested certain material and information concerning the alleged misconduct of Mr Dwyer;
g)the Club failed to provide the Union with the material and information that it had requested concerning the alleged misconduct of Mr Dwyer because[8]:
i)Mr Dwyer had sought to be represented by the Union;
ii)Mr Dwyer was a member of the Union;
iii)the Union had requested that material and information.
[8] Claim at [24], [29], [31]
The respondents deny these claims and submit that the very large number of claims advanced by the applicants itself tends to undermine their credibility[9]. In particular, the applicants claim that the Club and Mr Brennan, in dismissing Mr Dwyer, did so for each of the following reasons:
a)Mr Dwyer was a member of the Union;
b)Mr Dwyer had sought to be represented by the Union;
c)the Union had requested certain material and information about the alleged misconduct;
d)Mr Dwyer had made an application to the Fair Work Commission concerning bullying by Mr Brennan; and
e)Mr Dwyer had made an application for workers compensation.
[9] Tame v New South Wales (2002) 211 CLR 317 at 345 [70] per McHugh J
Moreover, the respondents assert that some of the claims are simply unrealistic. For example, the idea that the Club failed to provide material and information to the Union because the Union had requested such material and information is said to border on the absurd.
Likewise, the claim that the Club terminated Mr Dwyer’s employment because the Union had requested such material is said to have about it an air of unreality; the non-provision of information or material could conceivably negatively affect a decision-making process, but it can hardly seriously be contended that the request itself was a reason for the decision to terminate Mr Dwyer’s employment.
Relevant documents
Mr Dwyer relies upon his application and supporting Form 2 filed with it, as well as his affidavit made on 11 February 2015. Mr Dwyer was cross-examined on his affidavit.
The respondents rely upon their response filed on 30 July 2014 and the following affidavits:
a)the affidavit of Christopher Ronald Turner made on 23 April 2015;
b)the affidavit of Aaron William Gould made on 17 March 2015;
c)the affidavit of Robert Michael Brennan made on 17 March 2015;
d)the affidavit of Jarrod Wayne Lehman made on 16 March 2015; and
e)the affidavit of Michelle Frances Kennedy made on 17 March 2015.
All of the deponents were cross-examined on their affidavits.
I also received the following exhibits:
·A1-23 Applicants’ Draft Book of Exhibits;
·A24 Payroll advice, 03.04.2014;
·A25 Report of Michelle Kennedy;
·A26 Mr Dwyer’s drawing of the floor plan of the Club;
·A27 Bundle of documents relating to Industrial Instruments relating to the Club;
·A28 Letter of 26.05.2014 from Clubs NSW to Fair Work Commission;
·A29 Statement of Witness – Skye Nankervis, 06.02.2015;
·A30 Photographs of Cameras;
·MFI A31 Statement of Witness – Christopher Ronald Turner;
·A32 Statement of Witness – Ally Chambers, 08.05.2015;
·R1 Bundle of transcripts.
Some of the exhibits were contentious. In particular, I received and viewed in court CCTV footage of the Club bar area at the time of the alleged theft. I also received (but gave limited weight to) a statutory declaration and a subsequent statement made to the NSW Police by Ms Skye Nankervis, who was Mr Dwyer’s alleged accomplice in the alleged theft. Ms Nankervis did not personally give evidence in these proceedings and, to the extent that her statements conflict with evidence given in these proceedings which I have accepted, that accepted evidence prevails.
The parties made both written and oral submissions, including post-hearing written submissions which I found helpful and for which I thank the representatives.
Consideration
Relevant statutory provisions
Claim for breach of the Enterprise Agreement
Section 50 of the Fair Work Act, a civil penalty provision, provides that a person must not contravene a term of an enterprise agreement.
General protections claims
Section 340 of the Fair Work Act provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right;
(ii) has, or has not, exercised a workplace right;
(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;
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Section 342 (Item 1) provides that an employer takes “adverse action” against an employee if 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.
Section 341 provides:
(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.
It is accepted by all parties that Mr Dwyer had, and exercised, workplace rights insofar as he was able to, and did make an application for workers compensation and an application to the Fair Work Commission regarding alleged bullying. The respondents deny that any adverse action was taken against him for the reason that he made either of those applications.
It is also accepted by all parties that Mr Dwyer, as a full time employee, had a right to work at least 37.5 hours per week, and that this was probably a “workplace right”. The respondents deny that any adverse action was taken against him for the reasons that he exercised that right (ie, by declining to agree to a reduction in his hours when he was asked to consider that).
The respondents deny that either Mr Dwyer or the Union had or exercised a “workplace right” by reason of a Union official, Rosslyn Ferry, requesting to be provided with information and material relating to the proposed termination of Mr Dwyer’s employment, and in any event, deny that any adverse action was taken against him for the reason that that request was made.
Section 343 of the Fair Work Act relevantly provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to exercise or not exercise a workplace right, or to exercise a workplace right in a particular way. The meaning of “with intent to coerce” in this context was recently summarised by Tracey J in these terms[10]:
[10] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 at [50]-[52].
In State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172 the Full Court considered that the meaning to be accorded to the phrase “intent to coerce” had become settled (see at 187). The Court referred, with approval, to Merkel J’s statement in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378 at 388 that:
“... there must be two elements to prove ‘intent to coerce’ under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.”
The first of these elements was explained in greater detail by Weinberg J in National Tertiary Education Industry Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114. Speaking of this element his Honour said (at 143) that:
“The approach to the expression ‘intent to coerce’ taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.”
The second element was considered by Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; (2012) 218 IR 436. His Honour pointed to the common law origins of this element in the torts of coercion and duress. In doing so he referred (at 443) to the judgment of McHugh J in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46 where McHugh J had equated the three categories saying (at 46) that:
“Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed ...”
Section 346 of the Fair Work Act relevantly provides:
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Section 347(a) and (b) relevantly provide that a person “engages in industrial activity” if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
…
(vii) seek to be represented by an industrial association …
It is accepted by all parties that Mr Dwyer “engaged in industrial activity” insofar as he was a member of the Union and sought to be represented by the Union. The respondents deny that any adverse action was taken against him for either of those reasons.
The “reverse onus”
The applicants rely upon the “reverse onus” provision in s.361 of the Fair Work Act. Section 361 relevantly provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay)[11], the High Court considered the operation of s.361 of the Fair Work Act.
[11] (2012) 248 CLR 500
Section 361 deals with the question of which party bears the onus of proof on the issue of whether an employer has acted for a prohibited purpose. That onus is not made heavier by reason of the fact that the employee had, for example, shortly before the dismissal made an application for workers compensation or applied to the Fair Work Commission in relation to alleged bullying. In Barclay, French CJ and Crennan J said[12]:
[I]t is erroneous to treat the onus imposed on an employer by s.361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. Further, the history of the relevant legislative provisions reveals no reason why the onus must now be different if adverse action is taken while an employee engages in industrial activity – like a person who happens to be an officer of an industrial association, a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers.
[12] (2012) 248 CLR 500 at 523 [60]-[61] per French CJ and Crennan J. See also (2012) 248 CLR 500 at 522 [56] per Gummow and Hayne JJ; General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note); 51 ALJR 235 at 239 per Gibbs J
The High Court in Barclay held that the term “because” in the expression “because the other person engages … in industrial activity”, in s.346 of the Fair Work Act, requires focus upon “the reasons of the decision-maker at the time the adverse action was taken”[13]. The relevant “reasons” are the conscious reason(s) of the relevant decision maker — in this case, in relation to Mr Dwyer’s dismissal, Mr Brennan[14]. A decision will only be by reason of a prohibited consideration if that consideration was “a substantial and operative factor in those reasons” or an “operative or immediate reason”[15]. “Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”[16].
[13] Barclay (2012) 248 CLR 500 at 542 [127] per Gummow and Hayne JJ
[14] Barclay (2012) 248 CLR 500 at 541 [124]-[125] and 543 [134] per Gummow and Hayne JJ and at 545-6 [144]-[146] per Heydon J
[15] General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note); 51 ALJR 235 at 239 per Gibbs J and at 241 per Mason J; Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at 342 [54]-[55]; Barclay (2012) 248 CLR 500 at 530 [85], 531 [88] and 535 [103]-[104] per Gummow and Hayne JJ
[16] Barclay (2012) 248 CLR 500 at 544 [140] per Heydon J
The onus will be discharged if the relevant decision-maker gives evidence that the relevant action was taken because an employee was guilty of misconduct and that they were not influenced by the alleged impermissible considerations, and if that evidence is accepted[17]. Much, therefore, turned on the Court’s assessment of Mr Brennan’s evidence in the light of other objective evidence that supports it.
[17] Barclay (2012) 248 CLR 500 at 517 [44] per French CJ and Crennan J, at 534 [101] per Gummow and Hayne JJ
Resolution
As is pointed out in the respondents’ closing submissions, the main issue in these proceedings is the reason for the dismissal of Mr Dwyer. The focus of attention is therefore the state of mind of the person who made the decisions in issue (Mr Brennan). This centres in particular on the decision made by Mr Brennan to terminate Mr Dwyer’s employment.
Also, as is pointed out in the respondents’ closing submissions, much of the applicants’ case at trial was directed to the question of whether Mr Dwyer did in fact commit the theft for which his employment was terminated. There are separate criminal proceedings against Mr Dwyer in relation to the alleged theft and it is neither necessary nor appropriate for me to make any finding on that issue. The real question to be resolved is whether Mr Brennan genuinely believed that Mr Dwyer had committed the theft and whether this was the reason for his dismissal.
The applicants also devoted considerable effort at trial to establish that the investigation of the alleged theft was both procedurally unfair and technically flawed and that Mr Dwyer’s dismissal from his employment was “unfair”, as that term is understood in the Fair Work Act. This is, of course, not an unfair dismissal claim, which could have been (but was not) brought before the Fair Work Commission. I make no finding on the question of whether Mr Dwyer’s dismissal was unfair. Further, the mere fact that a dismissal may have been unfair does not establish a general protections claim in respect of that dismissal[18]. To my mind, the only relevance of an unfair dismissal in respect of a general protections claim would be to assist in establishing that the employer’s proffered reason for the dismissal was not the real reason. That is what the applicants have attempted to establish but, as appears below, they have not succeeded in that attempt.
[18] See Dahler v Australian Capital Territory (No 2) op cit
Mr Brennan’s evidence
The evidence that is most directly relevant is Mr Brennan’s own evidence of his conscious reasons for acting. Mr Brennan’s evidence is that:
a)he terminated Mr Dwyer's employment on the ground that he believed that he had participated in the theft of money from, or fraud against, the Club or a member of the Club[19]; and
b)his belief as to Mr Dwyer's involvement in that theft or fraud was his only reason for deciding to terminate Mr Dwyer's employment[20].
[19] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [54]
[20] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [55]
Mr Brennan specifically denied that each of the alleged prohibited reasons played a part in his decision[21]. Those denials were repeated in cross-examination.
[21] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [54]-[62]
I have found Mr Brennan’s evidence, that he terminated Mr Dwyer’s employment only for the reason that he believed that he had been involved in the theft of money to be persuasive and I accept it.
I accept the respondents’ submission that the following objective matters support Mr Brennan’s evidence.
First, the evidence concerning the development of the investigation into the theft of $500. That investigation began with Ms Kennedy, Mr Lehman and Mr Gould, independently of Mr Brennan. When the report of the theft came to Mr Brennan’s attention, he asked Mr Lehman to provide him with a report. Whatever criticisms might be made of the investigation there was, undoubtedly, a genuine report of a theft of money, and a genuine investigation, which was not controlled by Mr Brennan, at least initially, and not closely monitored by him, since he was in Sydney, which had extended over almost a month.
Secondly, the theft was reported to the police by at least 16 May 2014. Ms Nankervis’ employment was terminated on the basis of her statement to the Club, which also implicated Mr Dwyer. This demonstrates that the Club was taking the allegation of Mr Dwyer’s involvement in the theft seriously, well before any suggestion of a bullying application.
Thirdly, there was objective evidence tending to implicate Mr Dwyer: in particular, the statutory declaration (and later interview) of Ms Nankervis and the video footage of the cashier station. Although aspects of that evidence may be open to criticism on a close forensic analysis, that does not mean either that it was unsafe to act on Ms Nankervis’ account and the video footage. Nor, a fortiori, does it mean that Mr Brennan did not in fact do so. (The evidence implicating Mr Dwyer, although only indirectly relevant, is further addressed below.)
Fourthly, in assessing whether Mr Brennan did indeed reach the state of mind that he did, it is pertinent that at least two other persons who had considered the evidence, or aspects of the evidence, (Mr Turner and Mr Lehman) had reached the same conclusion. It is particularly significant that Mr Lehman, a long-time friend of Mr Dwyer, had also reached (and expressed to Mr Brennan[22]) the conclusion that Mr Dwyer was involved in the theft of money, on the same evidence as was available to Mr Brennan but even without Ms Nankervis’ confession[23]. Under cross-examination, Mr Lehman was prepared to concede that he may have been unfair to Mr Dwyer but his original conclusion was neither a far-fetched conclusion, nor one that could not have been reached bona fide.
[22] Exhibit RMB-3, page 22 (email dated 28 April 2014 from Jarrod Lehman to Robert Brennan).
[23] Mr Lehman’s view, expressed in his email, that the money was “divided between the two of them” was a view expressed only by reference to what he had seen on the CCTV footage only and did not take into account anything said by Ms Nankervis
Fifthly, insofar as it is suggested that Mr Brennan’s decision was made because he had received the bullying application, Mr Brennan’s evidence is that he had made a decision, on the morning of 22 May 2014, that Mr Dwyer’s employment should be terminated for misconduct relating to the theft[24].
[24] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [43]-[44]
I have taken into account the course of the investigation and evidence about the process leading up to Mr Brennan making his decision. It was not merely a “spur of the moment” decision.
At least from early May onwards, the possibility of dismissal was present, and in Mr Brennan’s mind. In a letter dated 9 May 2014 to Mr Dwyer he stated that termination of his employment was being considered[25].
[25] Exhibit A1
On 19 May 2014, by email from Sydney, Mr Brennan was marshalling the evidence to consider, apparently for the purpose of making a decision. That is when he requested that Mr Turner provide him with a copy of Ms Nankervis’ statement[26].
[26] Exhibit RMB-13, page 47
On 20 May 2014, Mr Brennan sought advice from his industrial adviser as to whether he was able to terminate for misconduct, notwithstanding that the employee was on sick leave and receiving worker’s compensation[27]. So, at that point, too, he clearly had termination of employment in mind as an option, and the contemplated reason for considering termination was the alleged theft.
[27] Exhibit RMB-13, page 46
It is inconsistent with that history prior to 22 May 2014, and with the termination of Ms Nankervis’s employment in connection with the same incident, to suppose that the alleged theft was not the true basis for the termination of Mr Dwyer’s employment.
On 22 May 2014, Mr Brennan flew to Broken Hill. He began actively considering the evidence relating to the theft. He called Mr Baxter, apparently to tie up some of the loose ends. Considering the evidence relating to the theft, and trying to get an understanding of what occurred, was apparently a central purpose for Mr Brennan being in Broken Hill at that time. He arranged for Ms Nankervis to attend for an interview with him later in the morning. All of this is consistent with Mr Brennan being about to make a decision whether to terminate Mr Dwyer’s employment on the ground of his involvement in the theft.
Mr Brennan’s evidence is that he reached his decision to terminate Mr Dwyer’s employment on the morning of 22 May 2014. The decision was on that basis made even before he had spoken to Ms Nankervis in person[28]. That evidence is corroborated by the fact that, after discussing the matter with Mr Turner on the morning of 22 May 2015, Mr Brennan sent a draft termination letter to his industrial adviser, Mr Langton for confirmation[29].
[28] Had she recanted, the decision might have been “unmade” before it was communicated
[29] RMB-18, sent at 11:15am EST / 10:45am Broken Hill time
Sixthly, insofar as it is suggested that Mr Brennan’s decision was made because Mr Dwyer was on worker’s compensation, Mr Brennan’s evidence is that “[t]he workers compensation issue did not enter my head”[30]. In fact it was on his mind as he had sought advice about it. I infer that Mr Brennan received advice that the dismissal was open. I draw no adverse inference from Mr Brennan’s evidence under cross-examination. Mr Brennan had known for some time that Mr Dwyer was on, or would be seeking, workers compensation, but had not earlier decided to terminate him. The very fact that Mr Brennan had specifically sought industrial advice as to whether he could terminate Mr Dwyer’s employment for theft notwithstanding the fact that Mr Dwyer was on sick leave and worker’s compensation[31] supports his bona fides.
[30] Transcript, page 170, line 41. See also Affidavit of Robert Michael Brennan sworn on 17 March 2015 at [58]
[31] Affidavit of Robert Michael Brennan sworn on 17 March 2015 at [23] and [36]; Exhibit RMB-13, page 46 (email dated 20 May 2014 from Robert Brennan to Craig Langton); Exhibit RMB-4, page 23 (email seeking advice as to whether the Club was able to “progress its enquiries” while Mr Dwyer was on sick leave)
Process flaws
During the course of cross-examination of several witnesses, Mr Dwyer succeeded in establishing that there were flaws in the Club’s investigation. There is no doubt that the interview between Mr Turner and Mr Dwyer left something to be desired. A very broad brush approach was taken. The general thrust of the allegation against Mr Dwyer was put to him, but elements of detail were not. The process flaws may be explained (though perhaps not justified) in part by reason of the fact that Mr Turner had evidently already formed a strong view about Mr Dwyer’s guilt and saw the interview primarily as providing an opportunity to Mr Dwyer to “come clean”.
Mr Brennan understood that Mr Turner had met with Mr Dwyer, the allegations had been put to Mr Dwyer and Mr Dwyer had denied them and given his version of events in writing. Mr Brennan had regard to Mr Dwyer’s written statement[32]. He had Mr Turner’s summary to the effect that Mr Dwyer had refused to make any admission and had told him that “I will wait and see what you have on me, first”[33]. It is clear enough, though, that Mr Brennan did not know exactly what had taken place in the interview with Mr Turner[34].
[32] Affidavit of Robert Michael Brennan sworn on 17 March 2015 at [33]; Exhibit RMB-11
[33] Mr Dwyer’s evidence was that just couldn’t remember but that it “could have been possible” that he said words to that effect: Transcript, pages 42-3
[34] Exhibit RMB-22, an email to Craig Langton of Clubs NSW on 22 May 2014, states that Mr Brennan was “not sure of the detail” of the conversation
The applicants’ primary case appears to be that Mr Brennan decided to terminate Mr Dwyer’s employment on the afternoon of 22 May 2014, straight after receiving the bullying application. The inadequacies in the way the matters were put to Mr Dwyer at interview do not support that case. The interview with Mr Turner on 16 May 2014 was not under the control of Mr Brennan and occurred well before the filing of the bullying claim. After that interview, it must have been plain to Mr Dwyer and his advisers that Mr Turner thought Mr Dwyer had stolen money, and that termination of his employment was being considered. The application to stop bullying was made only when termination was imminent, even though the incidents said to amount to bullying by Mr Brennan had occurred months earlier. Rather than inferring that the decision to terminate was made because of the bullying application, I am more inclined to infer that the exercise of that particular workplace right was calculated to make it more difficult for the anticipated dismissal to go ahead, and to set up a “general protections” claim if the dismissal did proceed[35].
[35] The inference is strengthened by the fact that the email from Mr Knox dated 22 May 2014 at 12:54pm very pointedly stated that “this is the exercise of a workplace right”
Only a portion of the CCTV footage that should have been considered by the Club was preserved. The loss of CCTV footage also cannot be attributed in any way to Mr Brennan. Mr Lehman made an initial judgment as to what CCTV footage would be sufficient. He was later asked to obtain more footage. This was set up for Mr Lehman to download but he forgot to do so. By the time he next considered it, the footage had been overwritten. While this resulted in less than all the possible evidence being available to Mr Brennan, it does not indicate bad faith or improper purpose on Mr Brennan’s part in assessing the evidence that he did have.
The applicants place emphasis on inconsistencies in statements made over time by Ms Nankervis and suggest “each and all of Mr Lehman, Mr Turner and Mr Brennan … knew Nankervis lied to them”. In my opinion the inconsistencies in Ms Nankervis’ accounts, or between her accounts and the CCTV footage, do not demonstrate that she had lied to anyone. Those discrepancies, while raising questions about Mr Dwyer’s guilt, do not demonstrate dishonesty on the part of the Club’s witnesses. Ms Nankervis was consistent in her insistence that Mr Dwyer had been involved in the theft of money and the CCTV footage, generally if not in respect of all details, tended to corroborate her description of what had happened. There is nothing to suggest that Mr Lehman, Mr Turner and Mr Brennan were particularly aware of discrepancies either internal or external to the account of Ms Nankervis at the time. Only one supposed “lie” of Ms Nankervis was put to Mr Brennan in cross-examination (and he disagreed with that characterisation)[36] and none were put to Mr Turner or Mr Lehman. Nor was it put to Mr Turner or Mr Lehman that, at the time of the investigation and decision, they “knew” that Ms Nankervis had lied[37]. I reject the assertion, if made that any of Mr Brennan, Mr Turner and Mr Lehman, acted with wilful dishonesty.
[36] Transcript, pages 168-9
[37] Further, the criticism of Mr Turner at [90] of the Applicants’ Written Submissions is unjustified. Mr Turner’s evidence related to “what he believed at the time” when he signed the police statement in September 2014. No doubt his belief at that time was informed by a contemporaneous review of the CCTV footage. There is nothing to suggest that, in September 2014, he had re-familiarised himself with what Ms Nankervis had said at the interview of 22 May 2014. It does not follow that Mr Turner “knew” that Ms Nankervis was “lying” as at 22 May 2014, and this serious allegation was not put to him
I accept that Mr Brennan did not engage in the level of fine analysis that was explored in these proceedings. He only watched the CCTV footage for the first time on the morning of 22 May 2014. He watched it for about 15 minutes. There is no suggestion that he made a careful frame-by-frame comparison of the footage with the statements of Mr Nankervis and Mr Dwyer or with what was said in his subsequent interview with Ms Nankervis. It might be suggested that he should have engaged in that kind of exercise but such a submission would be germane only to an application for an unfair dismissal remedy. The issue in these proceedings is whether Mr Brennan acted for the reasons he says he did.
Mr Brennan denied that, at the time when he made the decision, he was conscious that, if the bullying application were heard, inconsistencies would be “well and truly fleshed out”[38]. It is hardly surprising that an employer, assessing evidence available to him, may not turn his mind forensically to every detail that might occupy the mind of a careful cross-examiner. It does not mean that he did not reach a genuine decision about Mr Dwyer’s involvement in the theft of money.
[38] Transcript, page 169
Unfair dismissal
The respondents make the following points about s.387 of the Fair Work Act.
First, it is not strictly correct to describe s.387 as imposing “requirements” on employers[39]. Section 387 prescribes matters to which the Fair Work Commission is to have regard in considering whether a dismissal is harsh, unjust or unreasonable.
[39] Applicants’ Written Submissions at [7]
Mr Dwyer was entitled to seek an unfair dismissal remedy. Had he pursued that course he might well have been successful. As is well known, the monetary sums that may be awarded under that provision are capped.
Instead of pursuing an unfair dismissal remedy, Mr Dwyer applied to this Court alleging five improper purposes for the dismissal (union membership, engaging the union to act on his behalf, applying for worker’s compensation, making an application regarding bullying, and the fact that the union had requested the provision of documents). I accept that the “requirements” of s.387 are not relevant to the application before me.
The applicants at [22] of their written submissions assert that “it logically follows” that “for a defence for s.361 to apply, the termination must be carried out in a proper fashion, consistent with s.387 and for a valid reason”. This is an important step in the applicants’ argument[40]. I reject it for the following reasons:
a)first, s.361 does not create a “defence” at all. It merely alters which party has the burden of proof in relation to one particular matter (reason for acting) that is an essential element in many of the causes of action created by the Fair Work Act;
b)secondly, the terms of s.361 speak for themselves. They are not concerned with compliance with s.387, or the concepts employed in s.387;
c)thirdly, if the applicants’ submission was correct, it would follow that every unfair dismissal (whether unfair due to process failure or want of a “valid reason” for dismissal) would also found a general protections claim. This would render the unfair dismissal remedy, and the deliberate capping of compensation for unfair dismissal, otiose.
[40] See Applicants’ Written Submissions at [25] and [28]
I also reject the applicants’ submission that “[t]o suggest the employer could take refuge in a flawed and unfair dismissal would be illogical”. On an application for an unfair dismissal remedy, an employer clearly cannot “take refuge” in such a process. But if an applicant elects to pursue a general protections claim, it is irrelevant that he might have had a good argument on a claim for an unfair dismissal remedy, except insofar as an unfair process provides an insight into the real reasons for the dismissal.
Mr Dwyer was told of his dismissal after the Club was notified of the bullying application. The fact that the communication of the termination decision proceeded only after the receipt of the bullying claim does not logically demonstrate that the decision was made because of the bullying claim. The respondents reasonably ask, if an employer is considering terminating an employee’s employment, and has reached a point where they are satisfied that the employee has committed serious misconduct warranting dismissal, and then, just before communicating that decision, receives a claim from the employee in regard to alleged bullying, what options does the employer have? They might hold off, on the basis that there is a risk that the inference would wrongly be drawn that they had decided to terminate the employee because of the new claims, but that would tend to encourage a practice of employees who knew their conduct was under investigation making such claims. I accept the respondents’ submission that the only principled thing an employer who finds itself in that situation can do is to proceed with the intended termination, in the knowledge that the actual reasons for termination do not, in fact, have anything to do with the bullying claim or the worker’s compensation claim.
Alleged “urgency” of the dismissal
The applicants suggest that the dismissal of Mr Dwyer was carried out “urgently”[41].
[41] Applicants’ Written Submissions at [11]
It was not put to Mr Brennan in cross-examination that he considered that there was any “urgency”. This aspect of the applicants’ case was advanced in cross-examination only on the third day of the trial.
The incident the subject of Mr Brennan’s decision had occurred over a month before he made his decision. By mid-May, the matter was to his mind dragging on. Ms Nankervis had already been dismissed a week previously. Mr Brennan arrived in Broken Hill on the morning of 22 May 2015 and immediately began following up loose ends: he had arranged to meet with Ms Nankervis; he called Mr Baxter; he watched the CCTV footage. He met with Mr Turner and discussed the matter with him. He settled the letter that Mr Turner had drafted (making substantial changes) and sent it to his industrial adviser, Clubs NSW, for confirmation that it could be sent. All of this occurred before the stop bullying application was received.
I infer from this that a major purpose that Mr Brennan had (perhaps among others), while in Broken Hill on 22 May 2014, was that of finalising the issue of Mr Dwyer’s employment. He had, from the outset, intended to make a final decision that day, at least if it was possible to reach a view as to the sufficiency of the evidence against Mr Dwyer. I reject the contention that the timing of the decision reflected any urgency.
When Mr Turner was asked in cross-examination what was the urgency for the decision, he responded: “I don’t know that there was an urgency. Why are you saying that there was an urgency?”[42] When asked again, he replied[43]:
I don’t know that there was any urgency to be perfectly honest. I – I think it happened on that day but – if you’re wondering why it happened on that day perhaps, is because Robert was in town. He only comes into town once a month. Robert happened to be in town that day and was dealing with Broken Hill matters. So I’m assuming that it was something that needed to be finalised while he was there.
[42] Transcript page 288, lines 18-19
[43] Transcript page 290, lines 31-37
It is true that Mr Turner had initially said that he would wait for the police to make a prosecution decision, but he explained why he changed from that position:
a)at the time Mr Turner evidently believed that he would be making the termination decision, but it was Mr Brennan who later took control of the decision-making process; and
b)Mr Turner expected that any decision by police would be quick, but it was not[44].
[44] Transcript page 298, lines 38-44
Alleged discrepancy in the treatment of Ms Nankervis and Mr Dwyer
I accept that Mr Dwyer was treated differently from Ms Nankervis in certain respects[45]. Ms Nankervis had confessed to her involvement in the theft (as well as naming Mr Dwyer as being involved). Given that she had made a full confession, it is not surprising that consideration was given to whether leniency or credit might be extended to her. Any such consideration was evidently short-lived because her employment was terminated virtually immediately after she committed her confession to writing (ie, the very next day)[46].
[45] Cf Applicants’ Written Submissions at [19]-[20]
[46] Affidavit of Christopher Ronald Turner affirmed on 23 April 2015 at [10]-[12] and [22]
Ms Nankervis was offered “immunity” by the police but that was not within control of the Club (and was in any event a matter dealt with entirely by Mr Turner: there is no evidence that Mr Brennan had any dealings with the police) but, again, is hardly surprising in the circumstances[47]. I do not accept that there was a more sinister connotation. Likewise, the fact that Ms Nankervis was prepared to speak to Mr Brennan on 22 May 2015 is not sinister; it is simply consistent with her apparent guilt and remorse over her conduct[48].
[47] An “induced statement” is merely a statement made to police on the basis that it will not be able to be used against the person making it so that they are thus “induced” to give the statement by the holding out of that promise, making it “involuntary” and thus inadmissible
[48] Cf Applicants’ Written Submissions at [19]
The applicants draw attention to the fact that Ms Nankervis was spoken to in person by Mr Turner while Mr Dwyer was sent a letter[49]. The difference is explained by the fact that Ms Nankervis was at work, and thus present at the Club, while Mr Dwyer was on leave. Had Mr Dwyer been present at the Club he too might have been approached for an informal discussion in the first instance.
[49] Applicants’ Written Submissions at [27(e)]
The evidence implicating Mr Dwyer
I accept the respondents’ submission that there was evidence implicating Mr Dwyer. To Mr Brennan’s knowledge, Ms Nankervis had come forward to Mr Turner and confessed to her involvement, and had confirmed this to a signed statutory declaration. She thereby implicated herself as well as Mr Dwyer. In that sense, her statement was clearly an admission against interest. That was a reason supporting the acceptance of her version of events.
The applicants suggest that Ms Nankervis had something to gain in that, by owning up, she would avoid having charges pressed against her. Mr Turner’s evidence is that he did not offer her any incentive before she made her confession[50]. But even if Ms Nankervis did think that she might be saved from being prosecuted if she made admissions, she could achieve that result by admitting her own involvement without further inventing a story about Mr Dwyer’s involvement. There is no basis in the evidence to suggest that Ms Nankervis was told that she would have to implicate Mr Dwyer if she was to avoid charges being pressed against her. That was not put to Mr Turner. Further, whatever Mr Turner might have said to Ms Nankervis, Mr Brennan was told that she had voluntarily confessed without prompting[51].
[50] Transcript, page 292, lines 4-11; Transcript, page 258, lines 30-45
[51] Transcript, page 126, lines 3-45
It is plain that the account of Ms Nankervis has changed over time. Further, some details of her account are not supported by the surviving CCTV footage. People’s recollections vary. It is notorious that two witnesses describing the same event often will not have the same recollection, even if both are attempting to tell the truth. Likewise, a person’s honest recollection, a month after events, may differ in minor respects from what video footage shows to be the case. The CCTV footage is, in important respects, consistent with Ms Nankervis’ statutory declaration and interview.
The theft or loss of $500 was reported by the relevant Club visitor, Mr Handberg, at least by 24 April 2014. An amount of $500 was taken off a poker machine and onto a visitor card by Ms Nankervis. And an amount of $500 was later removed from the visitor card. It was clearly the same card, and thus the same $500, because the ID number or badge number of that card is 92427. The same number appears on the poker machine report for machine 52[52] and on a receipt bearing what appears to be a false signature[53].
[52] Exhibit RMB-10, page 34
[53] Exhibit RMB-10, page 36
It is accepted by Mr Dwyer that he, Mr Dwyer, was the person who cleared the card. His version of events, which he recorded in his written statement dated 15 May 2014, which he provided to Mr Turner on 16 May, was that he “made the payout”; that is, he cleared the card of the $500 and counted out the money; and apart from a $20 tip which he kept for himself, he says he gave the money to Ms Nankervis to give to the visitor.
I accept that the CCTV footage of the cashier box[54], viewed in the light of the statement of and interview with Ms Nankervis, generally corroborates the thrust of what Ms Nankervis said:
a)immediately prior to her part in the incident, Ms Nankervis is seen returning to the bar area after a prolonged absence, without her work shirt (21:18:48 to 21:19:00), then putting on her shirt (21:19:23 to 21:19:27). This is consistent with Ms Nankervis’ statement that she had just returned from a break. On the other hand, this aspect of the footage does not support Mr Dwyer’s account[55] that Mr Dwyer was called by Ms Nankervis on the club phone to attend the bar;
b)Mr Dwyer is clearly seen using a card to operate the Club’s computer, then opening the till, removing money (21:18:34 to 21:19:19);
c)Mr Dwyer is seen placing at least part of that money on the bar for Ms Nankervis, who takes the money (21:19:49 to 21:19:55);
d)after taking the money, Ms Nankervis heads directly towards the front bar area (21:19:56). This is inconsistent with Mr Dwyer’s account[56] that “I saw her walk towards the Bistro area” with $460 to give to the visitor;
e)Mr Dwyer then proceeds to leave the bar area (he is in fact the one who walks towards the bistro) (21:19:58 to 21:20:05);
f)consistently with Ms Nankervis’ account that Mr Dwyer obtained the signature on the receipt, he is seen returning to the bar area with a pen and a piece of paper, and placing it into a glass used for receipts (21:20:51 to 21:20:55);
g)although the image in the footage is dark, and acknowledging that there is a dispute between the parties as to what the footage shows, the footage shows there is movement at what are known as the long tables just before Mr Dwyer returns to the bar area (particularly 21:20:29 to 21:20:33 and 21:20:42 to 21:20:48), and Mr Dwyer is, shown returning from the top of the screen where the long tables were located;
h)although Ms Nankervis does turn to serve a customer shortly before Mr Dwyer returns, she is seen looking with attention towards the long tables immediately before this (21:20:20 to 21:21:33).
[54] Exhibit RMB-15
[55] Exhibit CRT-4, page 9
[56] Exhibit CRT-4, page 9
The following additional observations by the respondents are more speculative, but are, in my opinion, nevertheless reasonably open:
a)Mr Dwyer, when removing the money, stands directly between the CCTV camera and the till, and at may be taken to be an awkward angle to the till (21:18:34 to 21:19:19);
b)Mr Dwyer is seen to place a small piece of paper (consistent with being the receipt for the payout transaction) on the bar (21:19:29);
c)Mr Dwyer is seen to look at the receipts in the glass to the left of the cashier box and then to speak to Ms Nankervis, who immediately appears to write something on the piece of paper placed on the bar by Mr Dwyer (21:19:32 to 21:19:44). This is consistent with Ms Nankervis signing the receipt or writing the Club membership number 304700 on the receipt.
The applicants draw attention to the fact that the time shown on the CCTV footage does not match the time of the incident at the Club. I reject the suggestion, if made, that the portion of CCTV in evidence shows a different incident than the one described by Ms Nankervis and Mr Dwyer. Mr Gould explained how he calculated the time difference[57]. There is no point in speculating about how the time discrepancy might have come about (eg, whether it could have been caused by a power failure, and what the effect of such power failure might have been), for two reasons:
a)clearly Mr Dwyer and Ms Nankervis were referring to the same incident, and (despite Mr Dwyer’s professed uncertainty) it is plainly that incident which is shown on the CCTV footage; and
b)in any event, Mr Brennan was told by Mr Gould, and proceeded on the basis, that the CCTV footage to which he had regard was footage corresponding with the time shown on the receipt. Even if that was wrong, Mr Brennan made his decision on that basis and it is Mr Brennan’s reasons for decision that are in issue.
[57] Corroborated by Exhibit RMB-3, page 22 (email dated 28 April 2014 from Jarrod Lehman to Robert Brennan). The explanation was in fact requested by Mr Brennan: Exhibit RMB-14, page 67
The footage was clearly capable of the interpretation that Mr Dwyer cashed in the card, then counted the money out of the till, then divided it between, at least, himself and Ms Nankervis[58]. That corroborates Ms Nankervis’ statutory declaration. On the other hand, some features of Mr Dwyer’s account (eg, how he came to be at the bar at the time, and who took the receipt to the customer) are not supported by the surviving CCTV footage.
[58] There is a question whether a third person, a Club patron, was also involved but it is not necessary to explore that question
Mr Gould’s recollection of the additional and now lost CCTV footage is of peripheral relevance. Mr Brennan did not view that footage, and it is difficult to see how Mr Gould’s recollection of what he saw could affect the question of whether Mr Brennan genuinely dismissed Mr Dwyer for the reasons he says he did. Likewise, Ms Kennedy’s evidence is also peripheral. Her role was to start off the investigation, in response to a complaint by her to Mr Handberg; but the investigation was then progressed by Mr Lehman, and it is his views (and those of Mr Turner) that were communicated to Mr Brennan.
$500 or $504?
The applicants draw attention to the fact that the amount on the card was $500 and not $504 as shown on the poker machine record. It is not necessary for me to resolve where the missing $4 went; nor was it necessary for Mr Brennan to consider that issue.
What is clear is that what was removed from the machine and onto the visitor card by Ms Nankervis, before any involvement of Mr Dwyer, was $500, not $504.[59] Mr Dwyer had nothing to do with removing the money from the machine and the question was whether he was involved in dividing up the money, ie $500 on the card.
[59] See Exhibit A7, page 74. At the time of Audit ID 8790139, the first transaction relating to card number 3379 (the card number used by Mr Handberg) the total turnover of the machine (measured in cents) is: “Tovr=360326910”. The amount on the card as it went in was $504: “Acct=$504”. Audit ID 8790140 records the transfer of $504 from the card to the machine: “Tfr=$504.00”. So at that point the credits are on the machine, not the card. The card is then removed three seconds later (Audit ID 8790142) The “Tovr” number is still 360326910. That suggests that the machine was not played during those three seconds. Audit ID 8790455 is when the transfer card is put in by Ms Nankervis. By then the figure for “Tovr” is 360327310. So the turnover on the machine has increased by 400 cents (ie, $4). The most obvious explanation as to what happened to the $4 is that someone played the machine (for $4 worth) in the meantime. That might have been Mr Handberg immediately after he took his card out: there was $504 credit on the machine so he could have played it. Alternatively, any other person could have come up to the machine in the intervening hour and played $4 worth of games on the machine. Either way, the change in the turnover of the machine represents the difference between $500 and $504. Accordingly, in Audit ID 8790455, the Credit on the machine is 50000, not 50400. The $4 has moved from the credit on the machine to the turnover on the machine.
Failure to call Ms Nankervis
The applicants suggest that there seems to be some suggestion that the respondents ought to have called Ms Nankervis in these proceedings[60].
[60] Applicants’ Written Submissions at [101]
While I accept that Ms Nankervis could have given relevant and admissible evidence in this case, I draw no adverse inference from the respondents’ failure to call her. First, any evidence Ms Nankervis could now give about the theft and Mr Dwyer’s involvement therein is not central to the issues in the trial. In particular, any such evidence would be unlikely to bear on the reasons why Mr Brennan took the action he did on 22 May 2014.
Secondly, the respondents have never given or offered Ms Nankervis an “indemnity” of any kind. The Club terminated her employment. There is no evidence that she has any continuing relationship with the respondents.
It was open to the applicants to call Ms Nankervis (and to subpoena her if necessary).
Insofar as Ms Nankervis’ recent police statement is relied upon as suggesting some inconsistency with her statutory declaration, it is clearly evidence that was not available to Mr Brennan.
Clause 35 of the Enterprise Agreement
The applicants have put in issue the alleged failure of the Club to comply with clause 35 of the Enterprise Agreement governing employment at the Club.
Clause 35.1 of the Enterprise Agreement provides:
35.1 This term applies if:
35.1.1the Club has made a definite decision to introduce a major change to its production, program, organisation, structure or technology; and
35.1.2the change is likely to have a significant effect on Employees of the Club.
Clause 35 proceeds to impose requirements on the Club in such a situation, such as a requirement to notify employees of “the decision to introduce the change” (clause 35.2), a requirement to “recognise” any representative appointed by employees for the purposes of clause 35 (clause 35.4), a requirement “[a]s soon as practicable after making its decision” to discuss the change with the affected employees and provide information to them in writing (clause 35.5), and to give prompt and genuine consideration to any matters then raised by employees (clause 35.6).
The respondents deny any breach. They submit that it is not a question of Mr Brennan “refus[ing] to recognise the conversion of full time employment to part time as a major workplace change”[61]. They assert that Mr Brennan clearly made no “definite decision” to introduce that change in relation to Mr Dwyer.
[61] Cf Applicants’ Written Submissions at [32]
These proceedings are not an inquiry as to whether the respondents have ever contravened clause 35 of the Enterprise Agreement in any context. The only question is whether there was a breach which bore on the dismissal of Mr Dwyer.
The relevant “claim concerning the alleged contravention of clause 35 of the Enterprise Agreement appears in Part G of the applicants’ application:
a)the Enterprise Agreement is pleaded in paragraph 1(b);
b)the claim concerning contravention of clause 35 of the Enterprise Agreement appears at [19]. The reference in that paragraph is to a “major change” including “an alteration of hours”. It is clear that what was being suggested was that the Club (acting through Mr Brennan) had contravened clause 35 by deciding to alter Mr Dwyer’s hours.
Other matters were raised, for the first time, in the cross-examination of Mr Brennan. This may have been an attempt to show hostility on the part of Mr Brennan towards the Union, in support of the allegations in [31(b)] and [31(c)] of Part G of the application (and the cross-examination was, apparently on that basis, not the subject of objection). For the purposes of this case, it is sufficient to conclude, as I do, that the asserted breach of clause 35 of the Enterprise Agreement was not a factor in Mr Brennan’s decision to terminate Mr Dwyer’s employment, and in any event is not established. I discuss my conclusions in this respect below.
Conclusions
The claims concerning the reasons for dismissal
Direct evidence of Mr Brennan concerning his reason for the dismissal
Most of the applicants’ claims[62] relate to the dismissal of Mr Dwyer. That decision was made by Mr Brennan.
[62] those at [9], [15], [20], [21], [22], [30] and [31]
Mr Brennan’s evidence, regarding his reasons for the decision is that:
a)he terminated Mr Dwyer's employment on the ground that he believed that he had participated in the theft of money from, or fraud against, the Club or a member of the Club[63]; and
b)his belief as to Mr Dwyer's involvement in that theft or fraud was his only reason for deciding to terminate Mr Dwyer's employment[64].
[63] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [54]
[64] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [55]
In addition, in his affidavit Mr Brennan has addressed the alleged prohibited reasons and has denied that they played a part in his decision[65].
[65] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [54]-[62]
I have accepted Mr Brennan’s evidence on these issues. I conclude that he did not act for a prohibited reason in deciding to terminate Mr Dwyer’s employment.
Moreover, the view expressed by the Club’s General Manager, Mr Turner, to Mr Brennan on the morning of 22 May 2015 (which was taken into account by Mr Brennan[66]), to the effect that he thought there were grounds to dismiss Mr Dwyer, was itself based only upon the evidence concerning the theft of the $500[67].
[66] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [44(d)]
[67] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [28]-[29]
Other evidence supporting the asserted reason for dismissal
The other evidence tends to support Mr Brennan’s evidence concerning his reason for dismissal.
The following aspects of the evidence confirm that the theft of the $500 was a real issue and was being treated seriously by the Club, and by Mr Brennan, at all times from 24 April 2014 onwards:
a)a complaint concerning the loss of money, about $500, from a card (which had occurred on 17 April 2014) was first raised with a staff member, Ms Kennedy, on 24 April 2014[68];
[68] Affidavit of Michelle Frances Kennedy affirmed on 17 March 2015 at [5]
b)it was also first brought to Mr Brennan’s attention by a Board member of the Club on 24 April 2014[69];
[69] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [17]
c)on 26 April 2014, Mr Brennan formally asked Mr Lehman to investigate the disappearance of the $500[70];
[70] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [18] and Exhibit RMB-2; Affidavit of Jarrod Wayne Lehman sworn on 17 March 2015 at [9] and Exhibit JWL-2
d)an investigation had in fact by then already commenced[71];
[71] Affidavit of Michelle Frances Kennedy affirmed on 17 March 2015 at [7]-[17]; Affidavit of Jarrod Wayne Lehman sworn on 17 March 2015 at [6]-[8]
e)by 28 April 2014, Mr Dwyer, together with another employee, Ms Nankervis, was suspected of having participated in the theft of the $500 and Mr Lehman had communicated that conclusion to Mr Brennan[72];
[72] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [19]-[20] and Exhibit RMB-3
f)on 28 April 2014, Mr Brennan sought advice by telephone from the Club’s solicitor, who advised that the staff involved be interviewed[73];
[73] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [21]
g)on 5 May 2014, Mr Brennan sought advice as to whether it was appropriate to interview Mr Dwyer while he was on sick leave[74];
[74] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [24]
h)on 6 May 2014, Mr Brennan spoke to Mr Turner, the new General Manager who was soon to commence his employment with the Club, about the alleged theft involving Mr Dwyer and Ms Nankervis[75];
[75] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [2]; Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [31]
i)on 9 May 2014, a letter was sent to Mr Dwyer, requesting a meeting with him to discuss the matter[76];
j)on 15 May 2014, the other employee involved in the theft, Ms Nankervis, made a spontaneous (ie, unprompted) confession to the new General Manager, Mr Turner, in which she implicated both herself and Mr Dwyer in the theft of the $500[77];
k)later that day, Ms Nankervis, at the instigation of Mr Turner and with the assistance of Mr Lehman, signed a statutory declaration confirming her involvement, and the involvement of Mr Dwyer, in the theft[78];
l)on 16 May 2014, Mr Dwyer was interviewed by Mr Turner and the allegation of theft was put to him, albeit in terms which, viewed objectively, explained inadequately the precise subject matter of the allegation and the content of the statutory declaration that had been obtained from Ms Nankervis[79];
m)on the afternoon of 16 May 2014, the theft of $500 was reported to the police[80];
n)on the afternoon of 16 May 2014, Ms Nankervis’ employment with the Club was terminated[81];
o)on 20 and 21 May 2014, specific advice was sought by Mr Brennan from Mr Langton of Clubs NSW, concerning the right of the Club to terminate Mr Dwyer for his involvement in the theft of the $500[82];
p)at about 10:45 ACST/11:15am AEST on 22 May 2014, Mr Brennan emailed his draft termination letter to Mr Langton for settling[83];
q)at about 11:40am ACST/12:20pm AEST on 22 May 2014, Mr Brennan personally interviewed Ms Nankervis in relation to the theft[84];
r)at about 2:15 ACST/2:45 AEST on 22 May 2014, Mr Brennan received the settled termination letter from Mr Langton[85].
[76] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [26]-[27] and Exhibits RMB-6 and RMB-7; Affidavit of Jarrod Wayne Lehman sworn on 17 March 2015 at [12] and Exhibit JWL-4
[77] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [7]-[8]
[78] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [10]-[12] and Exhibit CRT-3; Affidavit of Jarrod Wayne Lehman sworn on 17 March 2015 at [17]
[79] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [17] and Exhibit CRT-5
[80] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [14] and [21]
[81] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [22]
[82] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [36]-[39] and Exhibits RMB-13 and RMB-14
[83] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [46] and Exhibit RMB-18
[84] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [47] and Exhibit RMB-19 (USB recording); Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [27]
[85] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [50] and Exhibit RMB-21
Moreover, there was evidence implicating Mr Dwyer in the theft of the $500:
a)reports from the Club’s computer system confirmed that $500 which had been left on a poker machine was transferred from the machine to a “transfer card” on 17 April 2015, and later that evening “cleared” from the card (ie, that a payout of the $500 had been made)[86];
b)the signature of a visitor or temporary member had apparently been forged in the record relating to that payout[87];
c)CCTV footage relating to the time of the payout (allowing for necessary adjustment of the time on the footage[88]) showed that Mr Dwyer was the only employee present at the cashier station computer at that time[89];
d)the apparently genuine confession and statutory declaration[90] of Ms Nankervis, against her own interest, directly implicated Mr Dwyer and stated that they had divided the money between them.
[86] Affidavit of Michelle Frances Kennedy affirmed on 17 March 2015 at [9] and Exhibit MFK-1
[87] Affidavit of Michelle Frances Kennedy affirmed on 17 March 2015 at [10]-[11] and Exhibits MFK-2 and MFK-3
[88] Affidavit of Michelle Frances Kennedy affirmed on 17 March 2015 at [17]
[89] Affidavit of Aaron Gould affirmed on 17 March 2015 at [5]
[90] Exhibit RMB-12 to the Affidavit of Robert Michael Brennan affirmed on 17 March 2015
The very fact that the evidence did implicate Mr Dwyer strongly supports Mr Brennan’s evidence that he reached the conclusion that Mr Dwyer was involved in the theft and that that was the reason for his decision to terminate Mr Dwyer’s employment.
Plainly, a finding that Mr Dwyer had participated with Ms Nankervis in the theft of money from a card at the Club was, by itself, a sufficient ground for dismissal. In my opinion, once it is accepted that Mr Brennan did genuinely make that finding and did act for that reason in dismissing Mr Dwyer, there is no reason to doubt his evidence that that was his only reason for Mr Brennan’s decision.
The process leading up to Mr Dwyer’s dismissal, while flawed, was a genuine one and not a sham: a lengthy investigation had occurred, advice regarding termination had been sought[91], a body of material concerning the theft was provided to Ms Ferry upon request[92], and the basic thrust of the allegation was put to Mr Dwyer at an interview held for that purpose[93]. The deficiencies in that process do not detract from the conclusion that Mr Brennan made the decision because he was satisfied that Mr Dwyer had been involved in the theft of the $500.
[91] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [21], [23], [36]-[39] and [46]
[92] Affidavit of Jarrod Wayne Lehman sworn on 17 March 2015 at [15] and [16] and Exhibit JWL-5
[93] Exhibit CRT-5 to the Affidavit of Christopher Ronald Turner affirmed on 17 March 2015
Apart from the bare fact that Mr Dwyer was a member of the Union, that he had engaged the Union to act for him, and that a request had been made by Ms Ferry for more information and material concerning the allegation of theft, there is nothing in the evidence to support a suggestion that any of those matters affected Mr Brennan’s decision.
In relation to the allegation that the decision to dismiss Mr Dwyer was made because he had submitted a WorkCover claim, the commencement and significant progress of the investigation, well before any WorkCover claim was made, confirm Mr Brennan’s evidence[94] that this was not a motivating factor in the decision.
[94] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [58]
In relation to the allegation that the decision to dismiss Mr Dwyer was made because he had filed with the Fair Work Commission an application in relation to alleged bullying, the evidence demonstrates that, while the decision to terminate his employment was communicated to Mr Dwyer shortly after the bullying application was served on the Club, the actual decision had been made earlier in the day on 22 May 2014, before Mr Brennan had become aware of the bullying claim[95]. The testimony of Mr Brennan to the effect that he had that morning made a provisional decision to terminate (subject only to interviewing Ms Nankervis, which occurred around midday ACST[96]), is supported by the fact that earlier that morning Mr Brennan sent an email to Mr Langton of Clubs NSW, requesting that he settle a termination letter addressed to Mr Dwyer[97]. That email to Mr Langton was sent prior to the receipt of Mr Knox’s email notifying Mr Brennan of the bullying application. It demonstrates, consistently with the whole course of the investigation set out above, that termination was well and truly “on the cards” and “in train”, quite apart from any bullying application.
[95] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [42]-[47]; Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [28] and [30]-[31]
[96] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [47]-[48]; Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [27]. The times are somewhat complicated by the fact that Mr Brennan’s emails tend to record AEST times while Mr Turner’s record ACST times. In any event, the draft letter was sent to Mr Langton well before any notice of the bullying claim was received by the Club or Mr Brennan
[97] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [50] and Exhibit RMB-21
Further, the bullying application was only lodged with the Fair Work Commission on 21 May 2014, shortly after Mr Turner had interviewed Mr Dwyer about the alleged theft (the interview occurred on 16 May 2014) and at a point in time when it must have been readily apparent to Mr Dwyer and his advisers that the termination of his employment was either imminent or at least a distinct possibility.
In assessing Mr Brennan’s evidence as to his reason for deciding to dismiss Mr Dwyer, it is also significant that the other employee involved in the theft, Ms Nankervis, was treated in the same manner as Mr Dwyer, even though she had not made a worker’s compensation claim or a bullying claim and had not been represented by an industrial association[98].
[98] Cf Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 109 per Morling J, quoted in Barclay (2012) 248 CLR 500 at 532 [90] per Gummow and Hayne JJ
Although the fact of whether the theft occurred is not itself relevant in these proceedings (only Mr Brennan’s reason for the decision are) the apparent suggestion by the applicants that the missing $500 can somehow be explained by a “systems failure” in my view is untenable in light of Ms Nankervis’ own admission that she was involved in the theft of $500 and received some of that money.
The claims concerning breach of the Enterprise Agreement
In the first half of 2014, as DOCA administrator, Mr Brennan was considering areas in which improvements might be made to the Club’s financial performance[99]. In March 2014, Mr Brennan approached Mr Dwyer (as well as other employees of the Club) and inquired of him whether he would be prepared to consider, reducing his hours of work.
[99] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [6] and [63]
The respondents deny that a “definite decision” had been made at that stage[100]. I accept that denial. Nor was any definite decision ever actually made by or on behalf of the Club to introduce a change affecting Mr Dwyer or his hours. His hours were not changed at any time[101].
[100] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [9]
[101] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [16]
Clause 35 of the Enterprise Agreement was not a factor in the dismissal of Mr Dwyer and he was not injured in his employment in relation to it.
Moreover, the applicants’ claim that Mr Dwyer was prevented from consulting the Union in respect of Mr Brennan’s conversations with him is unsupportable. The issue of his hours was raised on several separate occasions[102], no decision being made by the Club on any of those occasions. There was a substantial lapse of time between those occasions and there was nothing to preclude Mr Dwyer from consulting the Union. Indeed, it is plain that, at some point in time, Mr Dwyer did indeed consult the Union, as he was always free to do.
The claims concerning bullying and “coercion”
[102] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [9], [14] and [15]
“Bullying” not established
The claim of bullying by Mr Brennan is not particularised in the Claim. In his affidavit, Mr Dwyer makes generalised assertions of “bullying”[103], describes his own feelings and beliefs[104], and attributes motives to Mr Brennan[105].
[103] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [18]
[104] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [13], [15] and [20]
[105] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [12] and [21]
Based on Mr Dwyer’s affidavit, the particular matters upon which the claim of bullying appears to depend are as follows:
a)a statement to all employees that Mr Brennan “was going to send someone to spy on staff”[106]. Mr Brennan has described this as a “mystery shopper” research task, implemented with a view to improving the Club’s performance[107];
b)the “spy”/“mystery shopper”, Sharon Tassell, was sent[108];
c)Mr Dwyer “felt that she [Ms Tassell] had singled me out and was constantly picking on me with how I did my duty manager role and directing me to do duties outside my role”[109]. Mr Brennan has explained that Ms Tassell was later engaged “in a different role, to provide mentoring assistance to the staff and the management team”, including as to ways to improve “the customer service experience”[110];
d)Mr Brennan asked for Mr Dwyer to consider whether he would be willing to cut down his hours and to change his employment from full time to permanent part time, and, Mr Brennan having received no decision from Mr Dwyer for more than a week, this request was repeated[111];
e)a single telephone call (asserted to be from Mr Brennan) was made to Mr Dwyer but was not answered by him[112];
f)on one occasion (identified by Mr Brennan as occurring on 27 March 2014 and prior to Mr Dwyer’s decision not to reduce his hours[113]) when Mr Dwyer had left the Club during a shift to drive the courtesy bus, Mr Brennan told him that it was necessary for him to complete his own duties first[114]. There is a factual dispute as to whether this occurred in front of customers and staff[115]; and
g)Mr Dwyer “was directed [by whom it is not said] to perform duties outside my role” (it is unclear whether this is the same allegation as at [c] above).
[106] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [5]
[107] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [6]-[7]
[108] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [6]; Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [7]
[109] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [6]
[110] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [7]
[111] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [7]-[10] and [12]-[16]; Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [8]-[11] and [14]-[15]
[112] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [11]
[113] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [12]-[15]
[114] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [12]-[13]
[115] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [13] and [65]; Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [19]
The matters referred to at [a], [b] and [d] above were of general application to all staff, not targeted at Mr Dwyer, and were in response to the financial position of the Club. They do not stand out as being beyond the bounds of normal and acceptable conduct by an employer. Likewise, the suggestion that a General Manager should assist with the duties of other staff such as kitchen hands is consistent with an intent to improve the performance of the struggling Club and encouraging everyone in the team to “pitch in” to do what needed to be done, and does not suggest “bullying”.
The matter referred to at [120c] above, and as far as the evidence reveals, the matters referred at [120g] above, did not involve Mr Brennan personally.
The matter referred to in [120f] involved a single incident where Mr Brennan, not unreasonably, took a different view from Mr Dwyer as to appropriate priorities.
The matter referred to at [120e] is innocuous.
It is to be remembered that Mr Brennan was not personally present in Broken Hill for most of the time between his assuming the role of DOCA administrator and the dismissal of Mr Dwyer. In that period he visited on only six occasions, each for an overnight stay only[116].
[116] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [5]
While it may be accepted that Mr Dwyer, subjectively, may have felt “intimidated” or perceived that he was being bullied, and that he sought treatment for depression, I do not accept that the conduct of Mr Brennan, viewed objectively, should be characterised as bullying or unfairly targeting Mr Dwyer. In particular, I do not accept that this was a course of conduct engaged upon “to force [Mr Dwyer] to resign and abandon his employment and his workplace rights”. Each of the matters relied upon is either innocuous, did not involve Mr Brennan personally, applied generally to all staff, or is adequately explained by the particular circumstances in which it arose.
Further, while the Claim appears to assert that the alleged course of “bullying” was embarked upon by Mr Brennan because[117] Mr Dwyer had declined to reduce his hours, almost all of the alleged bullying occurred before that decision was communicated to Mr Brennan (which occurred on 15 April 2014).
[117] The word “when” in [21] of the Application is ambiguous in this respect, but it appears that that paragraph is intended to allege a contravention of s.340 of the Fair Work Act
Insofar as it might be claimed that the investigation regarding the missing $500 and ultimate termination of Mr Dwyer’s employment constituted part of a course of bullying, for the reasons set out above the investigation was genuine and the dismissal not done for any prohibited reason.
“Intent to coerce” not established
The settled meaning of “intent to coerce” is set out in the passage quoted in [22] above. The approach to Mr Dwyer did not involve either of the two elements required to establish an intent to coerce.
First, Mr Dwyer’s own evidence[118] concerning his conversations with Mr Brennan does not suggest that he was acting with any “intent to negate choice”, as opposed to “merely an intent to influence or to persuade or induce”. No threat is said to have been made; just repeated requests for Mr Dwyer to consider and indicate his position. Mr Dwyer was left with a realistic choice as to whether to reduce his hours and in fact chose not to do so.
[118] Affidavit of Kevin William Dwyer sworn on 11 February 2015 at [7]-[15]
Moreover, most employees, like Mr Dwyer, declined to accept a reduction in hours (only two employees of the Club did agree)[119]. That indicates both that Mr Brennan’s approach generally to this issue did not involve an intent to negate employees’ choice, and that there was no particular reason for Mr Brennan to single out Mr Dwyer for his decision not to accept a reduction in hours.
[119] Affidavit of Robert Michael Brennan affirmed on 17 March 2015 at [10]
Secondly, there was nothing unlawful, unconscionable or improper about Mr Brennan’s asking Mr Dwyer (along with other like employees) whether he would be prepared to reduce his hours.
The claims concerning failure to provide information and material concerning the dismissal
Request to be provided with information and material was not relevantly a “workplace right”
Ms Ferry’s request to be provided with information and material relating to the alleged theft of the $500 and proposed termination of Mr Dwyer’s employment was not a “workplace right” for the purposes of s.341. It was merely the exercise of an ordinary capacity to request information, not something that derives from a workplace law or workplace instrument.
Failure to provide information and material requested did not “injure” Mr Dwyer in his employment
Part 3-2 of the Fair Work Act creates a statutory unfair dismissal regime. The Part is intended to allow the Fair Work Commission to deal expeditiously and efficiently with claims regarding unfair dismissal. Monetary compensation for such claims is capped. Section 387 of the Fair Work Act, which appears in Part 3-2, prescribes matters which the Fair Work Commission must “take into account” in determining whether a dismissal was “harsh, unjust or unreasonable”. Two of those matters are “whether the person was notified of [the reason for dismissal]” and “whether the person was given an opportunity to respond to any reason related to the … conduct of the person”; but s.387 does not directly prescribe any norm of conduct for employers. It is not, in short, a provision that is capable of being “contravened”[120].
[120] Cf Claim at [24]
A failure of an employer to provide material or information requested during a process leading up to dismissal may, in the circumstances of a particular case, support a finding, on an application to the Fair Work Commission for an unfair dismissal remedy, that the dismissal was “harsh, unjust or unreasonable”. Mr Dwyer has elected not to commence proceedings of that kind.
Such a failure does not amount to “injuring” an employee in his or her employment within the meaning of s.342(1) of the Fair Work Act. That expression “refers to a deprivation of one of the more immediate practical incidents of an employee’s employment, such as loss of pay or reduction in rank”[121] or “where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated”[122]. A process failure in the termination of employment for misconduct (if there was one) is not relevantly an instance of “injuring” an employee in his or her employment.
[121] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at 340 [71]-[72] per Spender J; Childs v Metropolitan Transport Trust (1981) 29 AILR 24 per Smithers J; Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd [2014] FCCA 721 at [30] per Judge Manousaridis
[122] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at 341 [74] per Spender J; Squires v Flight Stewards Association of Australia (1982) 2 IR 155 per Ellicott J
Failure to provide information and material requested was not for a prohibited reason
In any event, the failure of the Club to provide the particular information and decision requested by Ms Ferry was not made for a prohibited purpose.
The requests for further information were made by Ms Ferry to Mr Turner. Mr Turner was the General Manager of the Club but had only commenced employment with the Club in that position on 13 May 2014, the week before Mr Dwyer’s employment was terminated[123]. He was thus very new to the Club and to the role of General Manager.
[123] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [1] and [3]
Mr Turner has, in his evidence, stated that his reasons for not providing the information requested by Ms Ferry did not include the fact that Mr Dwyer had sought to be represented by the Union or Ms Ferry, the fact that Mr Dwyer was a member of the Union, or the fact that the Union or Ms Ferry had exercised or proposed to exercise any workplace right for the benefit of Mr Dwyer.
I accept Mr Turner’s evidence on this issue.
In relation to the additional CCTV footage requested (showing Ms Nankervis taking the $500 from the poker machine on a “transfer card”), that had not been saved when it was deleted (by being overwritten)[124] and had not been viewed by Mr Turner personally[125]. It could not be provided.
[124] Affidavit of Aaron Gould affirmed on 17 March 2015 at [14]
[125] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [18]
As to the statutory declaration of Ms Nankervis, Mr Turner has deposed to his reasons for not providing it, relating to his concern for Ms Nankervis’ wellbeing[126]. They are reasons which, for a layperson, are entirely understandable. Mr Turner did not want to expose Ms Nankervis to the risk of retribution.
[126] Affidavit of Christopher Ronald Turner affirmed on 17 March 2015 at [33]
Of its very nature, the non-provision of information or material relating to what was a genuine investigation into alleged misconduct is inherently unlikely to have been an omission that was deliberately and consciously done for any of the prohibited reasons in s.340. The failure to provide such material is readily attributable to an assumption (or belief) either that there was no requirement to provide it or that its provision would be inappropriate.
Orders
I conclude from the foregoing that the applicants have failed to establish any of their claims. Accordingly, I will order that the application be dismissed.
I certify that the preceding one hundred and forty-four (144) are a true copy of the reasons for judgment of Judge Driver
Date: 23 February 2016
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