Elwin v Edwards Motors Pty Ltd
[2015] FCCA 334
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELWIN v EDWARDS MOTORS PTY LTD & ORS | [2015] FCCA 334 |
| Catchwords: INDUSTRIAL LAW – General protections – alleged contraventions – adverse action – intent to coerce – false and misleading misrepresentation – termination due to temporary absence because of illness. |
| INDUSTRIAL LAW – Hours – whether request or requirement to work more than 38 hours per week – whether additional hours reasonable – consideration of mandatory factors. |
| INDUSTRIAL LAW – Liability – whether accessorial liability. |
| EMPLOYMENT – Contract – whether reasonable notice given of termination of employment – whether term as to reasonable notice to be implied – whether implication necessary to give business efficacy to contract of employment. |
| Legislation: Evidence Act 1995 (Cth), ss.138, 140 |
| Auspine Ltd v Construction, Forestry, Mining and Energy Union & Ors (2000) 97 IR 444; [2000] FCA 501 Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306; [2008] FCA 1585 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378; [2001] FCA 456 |
| Applicant: | ANDRE ESI ELWIN |
| First Respondent: | EDWARDS MOTORS PTY LTD |
| Second Respondent: | ADRIAN EARL EDWARDS |
| Third Respondent: | BARBARA ANNE EDWARDS |
| File Number: | PEG 165 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 November 2013 |
| Date of Last Submission: | 11 November 2013 |
| Delivered at: | Perth |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Howlett |
| Solicitors for the Applicant: | George Papamihail Barristers and Solicitors |
| Counsel for the First to Third Respondents: | No appearance |
| Solicitors for the First to Third Respondents: | HLS Legal |
ORDERS
The parties are to confer with respect to the form of declarations and orders necessary to give effect to these Reasons for Judgment, and
(a)if agreement can be reached, file a Joint Minute of Proposed Declarations and Orders; or
(b)if agreement cannot be reached, each file and serve a Minute of Proposed Declarations and Orders,
by 17 March 2015.
The parties are to further confer with respect to:
(a)the penalties, if any, to be imposed on each respondent for the contraventions of the Fair Work Act 2009 (Cth) found by the Court; and
(b)the costs, if any, of the proceedings,
by 31 March 2015.
Otherwise, the matter be adjourned to a directions hearing at 9.30am on 10 April 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 165 of 2012
| ANDRE ESI ELWIN |
Applicant
And
| EDWARDS MOTORS PTY LTD |
First respondent
| ADRIAN EARL EDWARDS |
Second respondent
BARBARA ANNE EDWARDS
Third respondent
REASONS FOR JUDGMENT
Application and Responses
At hearing the applicant Andre Esi Elwin[1] sought:
a)compensation for alleged contraventions of s.44(1) of the Fair Work Act 2009 (Cth)[2] in relation to ss.62 of the FW Act and alleged contravention of s.323(1) of the FW Act;
b)reinstatement or alternatively compensation for alleged contravention of:
i)s.340 of the FW Act;
ii)s.343 of the FW Act;
iii)s.345 of the FW Act; and
iv)s.352 of the FW Act.
[1] “Mr Elwin”.
[2] “FW Act”.
The application also seeks damages for breach of contract for failure to give reasonable notice of termination of employment.
The respondents, Edwards Motors Pty Ltd,[3] Adrian Earl Edwards,[4] and Barbara Anne Edwards,[5] have filed a Response opposing the orders sought and denying liability for the alleged contraventions and breach of contract.
[3] “Edwards Motors”.
[4] “Mr Edwards”.
[5] “Mrs Edwards”. Where used collectively Edward Motors and Mr and Mrs Edwards will be referred to as “the Respondents”.
The application against a fourth respondent, Rodney Hudson Gifford, was dismissed by order of the Court on 22 October 2013.
As a consequence of other orders made by the Court on 22 October 2013 the hearing of this matter was as to liability only, and save for Mr Elwin, the deponents of affidavits filed and served on behalf of Mr Elwin were relieved of any requirement to attend the liability hearing, with the first to third respondents also relieved from attending at the hearing.
Evidence tendered at hearing
At hearing the following evidence was tendered on behalf of Mr Elwin:
a)Exhibit 1, being a rolling stocktake document dated 21 October 2011;
b)Exhibit 10, being the affidavit of Hashim Khap sworn 8 February 2013;[6] and
c)Exhibit 11, being the affidavit of Nathan Leslie Donnison affirmed 8 February 2013.[7]
[6] “Mr Khap’s Affidavit”.
[7] “Mr Donnison’s Affidavit”.
The above evidence, insofar as it consisted of affidavit evidence, was not the subject of cross-examination by the Respondents, who did not appear at the liability hearing. Mr Elwin gave some evidence-in-chief at hearing, and again was not the subject of cross-examination on that evidence in the absence of an appearance by the Respondents.
Facts
The facts as found by the Court are set out below.
Employment
Mr Elwin commenced employment with Edwards Motors in the town of Katanning in Western Australia’s Great Southern region on or about 19 October 2009.[8]
[8] Mr Elwin’s Affidavit, para.23.
Immediately before his employment by Edwards Motors Mr Elwin was employed by another employer in Katanning, Cut-n-Cote, where he had worked for five years and was a co-manager.[9]
[9] Mr Elwin’s Affidavit, para.14.
Mr Edwards asked Mr Elwin to leave his employment and commence employment with Edwards Motors.[10] Mr Edwards told Mr Elwin that he needed someone long-term in the Parts Division of Edward Motors, and that he knew that Mr Elwin was prepared to stay in Katanning “for the long run”, and referred to the fact that Mr Elwin had a family and children and was building a new house in Katanning not far from Edwards Motors’ business premises.[11]
[10] Mr Elwin’s Affidavit, para.15.
[11] Mr Elwin’s Affidavit, para.20.
Mr Elwin agreed to leave his previous employment and commence employment with Edwards Motors.[12] At the time of commencing employment with Edwards Motors Mr Elwin was not given any written offer of employment, contract or statement as to duties to be performed.[13] The terms as Mr Elwin understood them, and which it can be inferred he agreed to, were as follows:
a)he would be the Parts Manager;
b)he would be paid $41,000 gross per annum for working a 38 hour week, and would be paid fortnightly;
c)he would get superannuation in addition to his pay;
d)he would get a performance bonus each month in addition to his pay based upon the profit made by Edwards Motors, with the bonus to be 10% of the profit of the Parts Division of Edwards Motors;
e)he had to start work at 8.00am and finish at 5.00pm on Monday to Friday each week, and work every second Saturday from 9.00am to 12.00 noon;
f)he would be paid overtime for work in excess of 38 hours per week;
g)he would have the full use of a motor vehicle for work purposes with all fuel paid for; and
h)he would be on three months’ probation.[14]
[12] Mr Elwin’s Affidavit, para.23.
[13] Mr Elwin’s Affidavit, para.24.
[14] Mr Elwin’s Affidavit, para.25.
Mr Elwin was given a letter dated 11 January 2010 confirming his employment by Edwards Motors and that:
a)he had been employed on a full-time basis since 19 October 2009;
b)he earned $1,582.54 gross a fortnight; and
c)his gross yearly income was $41,000 plus monthly performance bonuses and overtime.[15]
[15] Mr Elwin’s Affidavit, para.46 and Annexure AE 03.
Mr Elwin worked from 8.00am to 5.00pm on Monday to Friday each week, and every second Saturday from 9.00am to 12.00 noon, and did so from 19 October 2009 to 12 July 2011, and was not required to record his time worked.[16]
[16] Mr Elwin’s Affidavit, paras.25(e), 48 and 49.
Edwards Motors and Mr Edwards expected Mr Elwin to work whatever hours and time were necessary.[17] Mr Elwin had been given the keys to the work premises and used them to open the premises each weekday.[18] There is no evidence that hours other than those for which Mr Elwin was contracted were worked.
[17] Mr Elwin’s Affidavit, Annexure AE 06 pages 8, 12 and 13.
[18] Mr Elwin’s Affidavit, paras.36(a) and 38.
Mr Elwin’s complaint or inquiry
On and from Monday 4 July 2011 Mr Elwin made a complaint or inquiry[19] to Edwards Motors and Mr Edwards in relation to his employment, and in particular relating to working hours and payment for hours worked in excess of 38 hours per week.[20]
[19] “Complaint”.
[20] Mr Elwin’s Affidavit, paras.62-79.
7 July 2011 meeting
Mr Elwin and Mr Edwards met on 7 July 2011.[21]
[21] Mr Elwin’s Affidavit, paras.74-79 (“7 July 2011 Meeting”).
The 7 July 2011 Meeting was initiated by Mr Edwards and was about Mr Elwin’s Complaint about his hours.[22] At the 7 July 2011 Meeting the following was said:
[22] Response, para.10; Mr Elwin’s Affidavit, paras.77-78.
a)Mr Elwin reminded Mr Edwards that Mr Edwards had told him to come in at 8.00am, and to work every second Saturday;
b)Mr Edwards agreed that Mr Elwin worked extra hours, and told Mr Elwin that under the law he was probably entitled to be back-paid[23] for the extra hours owing and that the amount would be considerable;
[23] “Back Payment”.
c)Mr Edwards said he had no problem with the Back Payment, that the amount was not a problem and that he would write a cheque for the amount;
d)Mr Edwards gave Mr Elwin a piece of paper with a list[24] containing things that Mr Edwards said had been brought to his attention that had not been happening in the Parts Division. After skim-reading the List, Mr Elwin handed the List back to Mr Edwards;
e)Mr Edwards “then pointed at me while waving his finger at me and said he will pay the money but if I ever fuck up anything or step out of line in any way that I’ll be gone”;
f)Mr Elwin said to Mr Edwards that it sounded like Mr Edwards was threatening him;
g)Mr Elwin said to Mr Edwards that he thought the List was made up because of the Back Payment Mr Edwards had agreed to, and because he was not happy about the Back Payment;
h)Mr Edwards then apologised to Mr Elwin, but then said that he could change Mr Elwin’s wage to the minimum wage of about $17.00 an hour, with no car and no bonus;
i)Mr Elwin told Mr Edwards that that was not the agreement that was made when he started work, and that if it had been he would not have started work for Edwards Motors, and that the agreement was that he would be treated the same as the previous Parts Manager;
j)Mr Edwards said that the previous Parts Manager did not come in at 8.00am;
k)Mr Edwards said that he got rid of the previous Parts Manager because he started slacking off and wasn’t doing things he was asked to do, and also said that he had “woman problems”; and
l)Mr Elwin said that he did not believe that Mr Edwards had sacked the previous Parts Manager, a comment which Mr Edwards agreed with, but said that he had forced him out, and that his “woman problems” were also affecting his work.[25]
[24] “List”.
[25] Mr Elwin’s Affidavit, para.79. The quotes in para.22(e), (k) and (l) are from para.79(e) and (l) respectively of Mr Elwin’s Affidavit.
Mr Edwards agreed to make the Back Payment to Mr Elwin.[26]
[26] Mr Elwin’s Affidavit, para.79(b) and Annexure AE 14, para.4 (which can only be a reference to the meeting on 7 July 2011 or to a meeting or discussion before 8 July 2011).
Matters that could arguably be characterised as performance related were mentioned to Mr Elwin, by Mr Edwards, for the first time at the 7 July 2011 Meeting.[27]
[27] Mr Elwin’s Affidavit, paras.79(d) and 80.
Mr Elwin challenged the genuineness of the performance allegations at the 7 July 2011 Meeting.[28]
[28] Mr Elwin’s Affidavit, para.79(g).
At the 7 July 2011 Meeting Mr Edwards did not dispute that Mr Elwin worked the hours that he stated that he worked.[29]
[29] Mr Elwin’s Affidavit, Annexure AE 14 para.4.
Back Payment calculations
Later on 7 July 2011 Mrs Edwards gave Mr Elwin a piece of paper with calculations and marked “Backpay for ‘Extra Hours’ worked”[30] which she said was the amount that Edwards Motors thought was owed to Mr Elwin.[31] Mrs Edwards told Mr Elwin that if he was happy with the amount specified in the Back Payment Schedule he could sign it and bring it in on 8 July 2011,[32] and Edwards Motors would pay him that amount.[33]
[30] “Back Payment Schedule”.
[31] Mr Elwin’s Affidavit, para.82.
[32] Mr Elwin’s Affidavit, para.82.
[33] Mr Elwin’s Affidavit, para.83.
The Back Payment Schedule sets out extra hours worked by Mr Elwin from 19 October 2009 to the end of the pay period for 8 July 2011, and calculates the Back Payment payable at a time and a half overtime rate on the basis of 41 Saturdays of three hours worked, being 123 hours or $3,841.83 and 198 hours worked on the basis of 30 extra minutes per day Monday to Friday, being an amount of $4,018.82. The total amount said to be payable by Edwards Motors to Mr Elwin is $7,860.65.[34]
[34] Mr Elwin’s Affidavit, Annexure AE 05.
Performance issues
At the time of making the Complaint, Mr Elwin was not aware of any concerns about his work performance by the Respondents. The first time Mr Elwin became aware of alleged concerns about his performance was on 7 July 2011.[35]
[35] Mr Elwin’s Affidavit, para.80.
8 July 2011 meetings
Mr Elwin and Mr Edwards met twice on 8 July 2011. No-one else was present at the two meetings on 8 July 2011.[36]
[36] Mr Elwin’s Affidavit, para.84.
8 July 2011 – first meeting
The first meeting on 8 July 2011 took place at about 9.30am.[37]
[37] Mr Elwin’s Affidavit, para.85 (“First 8 July 2011 Meeting”).
The First 8 July 2011 Meeting was initiated by Mr Edwards calling Mr Elwin in an angry and aggressive tone whilst pointing at Mr Elwin and shaking his finger saying that he wanted to see him in a minute. The request was repeated by Mr Edwards who asked Mr Elwin to come into his office and to bring his keys and his phone [hint of predetermination of outcome] [or threat]. Mr Edwards closed the main door into the entrance to the premises and then said that he had a problem paying the Back Payment to Mr Elwin, and that he thought that he did not owe the Back Payment to Mr Elwin.[38]
[38] Mr Elwin’s Affidavit, para.85.
As the First 8 July 2011 Meeting began Mr Edwards said to Mr Elwin words to the effect that it was Mr Edwards’ word against Mr Elwin’s, and queried how he would prove having worked the extra hours. Consequently, and because of the 7 July 2011 Meeting, and that it was just Mr Edwards and Mr Elwin in the room with the doors closed, Mr Elwin made a split second decision to record the First 8 July 2011 Meeting with his mobile phone.[39] Mr Edwards was not told that Mr Elwin was recording the First 8 July 2011 Meeting, but knew that it had been recorded by the time Mr Elwin’s employment ended.[40]
[39] Mr Elwin’s Affidavit, para.86.
[40] Mr Elwin’s Affidavit, para.87.
A recording taken by mobile phone and transcript of the First 8 July 2011 Meeting may be admissible as evidence, dependent on the facts and circumstances of this case.[41] The recording and transcript is relevant. It corroborates Mr Elwin’s evidence. It gives the tone and context of what Mr Edwards said and how he spoke to Mr Elwin. The facts pertaining to the recording and transcript in this case are almost identical to those in Metz.[42]
[41] Evidence Act 1995 (Cth), s.138(1) (“Evidence Act”); Metz Holdings Pty Ltd v Simmac Pty Ltd (No. 1) [2011] FCA 263 (“Metz”). See also Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694 (“Wintle (No. 3)”).
[42] Metz at paras.2, 14, 20, 21 and 24; Mr Elwin’s Affidavit, paras.86 to 95 and Annexure AE 06 page 1.
In the circumstances of this case the recording, and subsequent transcript, are of manifest assistance to the Court in determining what was said at the crucial First 8 July 2011 Meeting, and are therefore relevant to the allegations made, particularly of adverse action for the purpose of s.340 of the FW Act, and intention to coerce under s.343 of the FW Act, which are in dispute. For relevant purposes, and for similar reasons to those in Metz the recording and transcript are admissible. Further, and in any event, the desirability of admitting the recording and transcript outweighs the way in which the evidence was obtained.[43]
[43] Evidence Act, s.138(1); Metz at paras.4-29 per Barker J; and see also Wintle (No. 3) at paras.35-44 per Judge Lucev.
At the First 8 July 2011 Meeting:
a)Mr Edwards and Mr Elwin discussed Mr Elwin’s query about his hours of work, and the discussion had at the 7 July 2011 Meeting;
b)Mr Edwards disagreed that Mrs Edwards had agreed to pay Mr Elwin;
c)Mr Edwards said that he would not pay Mr Elwin for additional hours that Mr Elwin had worked;
d)Mr Edwards said he would write a cheque for the sum of $7,860, but that in return he wanted Mr Elwin’s resignation on his desk that day;
e)Mr Edwards referred to the “shit fight” that had taken place during the 7 July 2011 Meeting;
f)Mr Edwards said he would prepare a new contract of employment for Mr Elwin, and change his conditions and pay so that he only received minimum payments, no motor vehicle, no bonus, no additional hours, no time off and no favours;
g)Mr Edwards said that if Mr Elwin stayed at Edward Motors he would have to do exactly as he was told or a process would have to be taken;
h)Mr Edwards said the changes were to be made because of Mr Elwin’s Complaint about his working hours;
i)Mr Edwards said he did not think that he and Mr Elwin could work together because there was too much animosity, and that he did not particularly want Mr Elwin there, and that Mrs Edwards did not want Mr Elwin there, and that he did not know that they could have an amicable arrangement together;
j)Mr Edwards said that Mr Elwin’s payment was for all hours worked and that he would require him to work any hours that he demanded;
k)Mr Edwards said that an award applied but that Mr Elwin had been paid over the award;
l)Mr Edwards said that Mr Elwin would not be able to prove that he had worked the hours he claimed, and that he would not receive assistance from those in the workplace, and that it was Mr Edwards’ word against Mr Elwin’s;
m)Mr Edwards told Mr Elwin that if he decided to stay at Edwards Motors he would only be paid the minimum wage of about $17 an hour with no bonus and no car and that everything would “be in black and white”;
n)Mr Elwin told Mr Edwards that one of the office staff (Janelle) told Mr Elwin that she was going to pay the Back Payment on 7 July 2011, but did not have time to, and that Mr Edwards acknowledged that they were going to pay the Back Payment;
o)Mr Edwards asked Mr Elwin to give him the keys to the premises, and Mr Elwin did this; and
p)Mr Edwards told Mr Elwin to leave and to return at 4.00pm by which time Mr Edwards would have made a decision.[44]
[44] Mr Elwin’s Affidavit, para.96.
8 July 2011 – second meeting
There was a second meeting on 8 July 2011[45] when Mr Elwin returned to see Mr Edwards as requested.[46]
[45] “Second 8 July 2011 Meeting”.
[46] Mr Elwin’s Affidavit, para.97.
Mr Edwards told Mr Elwin that he would not be making the Back Payment and handed to Mr Elwin a first letter of warning.[47] The terms of the First Warning Letter, which is not signed by Mr Edwards or Mr Elwin, are as follows:
[47] “First Warning Letter”; Mr Elwin’s Affidavit, para.98.
1st Warning Letter to Andre Elwin
8 July 2011
Andre,
We have concerns regarding you carrying out your duties in the parts department. You were given a list in December 2010 of steps you need to take in the process of having the parts department run correctly. The list is attached. This needs to be adhered to rigidly. We will be checking on a regular basis that these steps are being carried out correctly.
If these instructions are followed correctly it will make your job and the job of the admin staff much more productive and will go a long way towards the parts department running smoothly.
We need all cash sales to be receipted immediately, this is currently not happening. When parts arrive for retail clients, they need to be contacted immediately; you can then pass their call onto the service department if they need to book in for repairs to be carried out.
Personal use of the internet is not permitted. We have had a discussion about you downloading games on our server which made us over run on our quota and so our speed was reduced due to the overload. Personal use also includes Face Book and E-bay.
As of Saturday 9th July you will be required to complete a daily time sheet as does all our staff. This time sheet is required to be signed approved and submitted to payroll on the last Thursday of the fortnight.
You are to assume more responsibility over stock control as rolling stock takes are showing a continual stock loss.[48]
[48] Mr Elwin’s Affidavit, para.98, Annexure AE 09.
Signed Signed
Adrian Edwards Andre Elwin
Manager Parts Manager8th July 2011 8th July 2011
Mr Edwards told Mr Elwin to return the work motor vehicle that day, which Mr Elwin did just before 6.00pm.[49]
[49] Mr Elwin’s Affidavit, paras.102-103.
At some point after the 8 July 2011 Meeting Mr Edwards told Mr Elwin not to come to work on Saturdays in the future.[50]
[50] Mr Elwin’s Affidavit, para.114.
11 July 2011
Mr Elwin arrived at work at 8.00am on 11 July 2011 and was told by Mr Edwards to come back at 8.30am. Consequently, Mr Elwin stayed outside until 8.30am and then went to work.[51]
[51] Mr Elwin’s Affidavit, paras.105-108.
Later on 11 July 2011 Mrs Edwards and the office manager spoke to Mr Elwin concerning the entry of supplier invoices and suggested that they had not been entered in the correct way. Mr Elwin explained that one of the panel beaters had asked him not to bill until the start of the month. Mr Elwin says that Mrs Edwards was talking over him whilst he was explaining and that the office manager then yelled at him at the top of her voice to shut up, which was heard by staff in the workshop who spoke to him later and asked what it was all about. Mr Elwin subsequently apologised to Mrs Edwards and the office manager even though he did not think it was his fault and he considered that they were extremely intimidating to him and he was quite scared by their actions.[52]
[52] Mr Elwin’s Affidavit, paras.109-111.
On 11 July 2011 Mr Elwin was also given a timesheet to complete and sign each day which had to be given to either Mr or Mrs Edwards for them to sign off on each day.[53]
[53] Mr Elwin’s Affidavit, paras.112-113.
Mr Elwin asserts that throughout the weeks starting 11 July 2011 Mr and Mrs Edwards, the office manager and Janelle picked on him and complained about small things not being done correctly and asked him to change the way numerous things were done, in a manner that he had never been asked to do so before.[54]
[54] Mr Elwin’s Affidavit, para.115.
13 July 2011
Mr Edwards and the office manager confronted Mr Elwin on 13 July 2011 regarding the First Warning Letter and Mr Edwards asked if Mr Elwin had signed it. Mr Elwin indicated that he would not be signing the First Warning Letter.[55]
[55] Mr Elwin’s Affidavit, para.116.
20 July 2011 meeting
On 20 July 2011 Mrs Edwards asked to speak to Mr Elwin in her office at a time when Mr Edwards was out. Mrs Edwards said that she thought that they might owe Mr Elwin for the work on Saturdays, but maybe not for the 8.00am to 8.30am time each Monday to Friday. Mrs Edwards said that Mr Edwards had spoken to someone from the Motor Trades Association[56] who had said not to pay Mr Elwin the money he had been told he would be paid on 7 July 2011, and that this was the reason why the Back Payment was not paid to Mr Elwin.[57] Mrs Edwards did not disagree with a suggestion from Mr Elwin that the First Warning Letter was only written because of his inquiry about the Back Payment. Mrs Edwards, in response to Mr Elwin, indicated that she would speak to Mr Edwards about the allegations now being made about Mr Elwin following the Complaint.[58]
[56] “MTA”.
[57] Mr Elwin’s Affidavit, paras.117-118.
[58] Mr Elwin’s Affidavit, para.120.
Mrs Edwards provided Mr Elwin with two documents at the 20 July 2011 Meeting, namely:
a)on MTA letterhead, a document headed “Wage Schedule Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Federal Award)”;[59] and
b)a document headed “Automotive Parts Interpreter (WA)”, containing information in relation to education and training, and courses and employment opportunities for an automotive parts interpreter.[60]
[59] “Award Wage Schedule”.
[60] [footnote].
The Award Wage Schedule contains a Level 4 classification of “Automotive parts salesperson – other” which is highlighted, but there is no reference to an Automotive Parts Interpreter.
Response to the First Warning Letter
In a letter dated 29 July 2011, addressed to Mr Edwards as Manager of Edwards Motors, Mr Elwin responded to the First Warning Letter.[61]
[61] Mr Elwin’s Affidavit, para.124 and Annexure AE 01 (“First Warning Response Letter”).
In the First Warning Response Letter Mr Elwin:
a)alleged a unilateral variation to the contract of employment was as a result of the exercise of a workplace right by making the Complaint, the variation being the removal of the work vehicle and shop keys, which Mr Elwin asserted were agreed items in his contract of employment and which had been so since his employment start date, and which constituted a variation or unlawful breach of contract which could result in a claim to loss of income;
b)sets out the events of 7 and 8 July 2011 in terms similar to that which has been set out above;
c)took issue with several points in the First Warning Letter, as follows:
i)that process steps in the Parts Division was not solely dependent on the Parts Manager, but also actions by other departments at Edwards Motors which work in conjunction with the Parts Division which affect stock control, and which mean that continual loss of stock is not a result of actions of the Parts Division alone;
ii)considerable stock losses had been shown to come from the workshop and from stock taken by employees or given to customers without Mr Elwin’s knowledge or without him being present;
iii)that if cash receipts had not been receipted immediately there was a plausible reason for that, including, for example, weekend sales by other staff being left to Mr Elwin to receipt after the weekend, the booking by customers of items to their account, multiple entries under the same last name, and incomplete customer card details to verify a customer’s account;
iv)that a meeting between parts and services staff to correct some of these problems, which had first been mooted in early 2010, had been put off continually and had still not taken place despite requests from both the Parts and Service Divisions;
v)denied that it was his internet use alone which resulted in the over-run of allowable internet data usage;
vi)complains that the statement that personal use of the internet is not permitted singles him out;
vii)notes that Facebook is used as a search tool to locate people, and can be done without logging into a user account;
viii)notes that EBay is used to check for customer claims about pricing and parts, and for use of an Edwards Motors’ account which Mr Edwards is said to have asked Mr Elwin to establish and which was currently active; and
ix)that all of his EBay use on his work computer is for parts matters only; and
d)the above factors “add to the fact that adverse action and workplace harassment have occurred”, but hopes that a mutual resolution of the above matters can be made.[62]
[62] Mr Elwin’s Affidavit, Annexure AE 01.
In the week commencing 25 July 2011 Mr Edwards called Mr Elwin into his office and accused him of copying the washout sheets and taking them home, which Mr Elwin denied. Mr Edwards also said that he knew that Mr Elwin had spoken to Mrs Edwards, and although she was a partner in the business he made the final decisions and his decision not to make the Back Payment stood.[63]
[63] Mr Elwin’s Affidavit, para.122.
The Respondents did not reply to the First Warning Response Letter.
August 2011
Mr Edwards gave the motor vehicle back to Mr Elwin just prior to Mr and Mrs Edwards going overseas in early August 2011. He did so without explaining why the motor vehicle was being returned.[64] During the period that Mr and Mrs Edwards were away the office manager signed the daily time forms for Mr Elwin.[65]
[64] Mr Elwin’s Affidavit, para.126.
[65] Mr Elwin’s Affidavit, para.127.
From about August 2011 onwards Mr Elwin was no longer paid the 10% bonus for profit for the month for the Parts Division.[66]
[66] Mr Elwin’s Affidavit, para.128.
On 25 August 2011 Mr Elwin went to see a doctor concerning the problems he was having at work and the affect that it was having on him, and was prescribed anti-depressant medication. Mr Elwin did not begin to take the medication at that stage, but did so, on medical advice, from on or about March 2012 and continued to do so as at November 2012.[67] Mr Elwin saw a doctor at least four times between late October 2011 and 2 March 2012 concerning the pressure that was being placed upon him at work by Mr and Mrs Edwards and other employees.[68] That pressure had abated somewhat during the period that Mr and Mrs Edwards were overseas.[69]
[67] Mr Elwin’s Affidavit, paras.129-131.
[68] Mr Elwin’s Affidavit, para.137.
[69] Mr Elwin’s Affidavit, para.136.
Mr and Mrs Edwards went on holiday, overseas, from early August 2011 to late October 2011.[70]
[70] Response, para.20; Mr Elwin’s Affidavit, paras.126, 134 and 135.
Mrs Edwards returned to work on 24 October 2011 and Mr Edwards returned to work on 27 October 2011.[71]
[71] Mr Elwin’s Affidavit, para.135; Response, para.20.
November 2011
Mr Elwin’s solicitor sent Edwards Motors a letter dated 4 November 2011.[72] In Elwin’s 4 November 2011 Letter it was claimed that:
a)the Respondents had taken adverse action against Mr Elwin prejudicing him in his employment as Parts Manager as a consequence of his questioning outstanding payments owed to him on 7 July 2011, those adverse actions including:
i)the removal of the work vehicle and keys to the premises on or about 8 July 2011;
ii)a threat to alter Mr Elwin’s work position adversely and to his prejudice;
iii)a threat to dismiss Mr Elwin; and
iv)injury to Mr Elwin in his employment by reducing his daily working hours by half an hour; and
b)claiming an amount presently owing of $9,870.05 for overtime worked on Saturdays and 30 minutes a day Monday to Friday, claimed at a rate of time and one half.[73]
[72] Mr Elwin’s Affidavit, Annexure AE 11 (“Elwin’s 4 November 2011 Letter”); Response, para.23.
[73] Mr Elwin’s Affidavit, para, Annexure AE 11
Edwards Motors replied to the Elwin’s 4 November 2011 Letter by letter dated 10 November 2011.[74] Edwards Motors 10 November 2011 Letter indicated that:
[74] Mr Elwin’s Affidavit, para.139 (“Edwards Motors 10 November 2011 Letter”).
a)Mr Elwin’s hours of work were from 8.30am until 5.00pm Monday to Friday, and 9.00am to 12.00noon on every second Saturday morning, to be paid at an hourly rate well in advance of any award rate applicable to a parts employee, but that in any event no federal modern award applied to Mr Elwin’s employment, and in addition he was paid a share of the profits made by the Parts Department;
b)Mr Elwin was encouraged to work additional hours bearing in mind that the benefit for him would be reflected in the profit sharing arrangement;
c)there was credible evidence that Mr Elwin did not actually work the additional half hour per day Monday to Friday, although it was conceded that he may have occasionally started work a few minutes early, but that this would have been expected of him as a manager;
d)the provision of a work vehicle was a privilege and not a contractual benefit, which was removed due to performance issues, and reinstated once there was an improvement in performance;
e)there was no workplace right in the sense of a contractual entitlement with respect to the above matters;
f)Mr Elwin’s access to keys to the premises was withdrawn following a decision by Mr and Mrs Edwards to undertake the provision of parts to customers outside of normal hours themselves, thereby negating the need for Mr Elwin to have keys during such times;
g)the removal of the keys was also caused by Mr Elwin accessing the company’s internet facility in an unauthorised manner outside of normal hours;
h)the disciplinary action taken was justified and did not threaten to alter Mr Elwin’s work position adversely, and no express reference to possible dismissal, nor any statement to that effect was made, but even if it had been made then it would have been appropriate as a part of a fair disciplinary process; and
i)Mr Elwin was not injured by having his working hours reduced, and the requirement to work less hours could not be seen as a detriment, but rather an advantage.[75]
[75] Mr Elwin’s Affidavit, Annexure AE 12.
On 18 November 2011 Mr Edwards met Mr Elwin and made more complaints, but the nature of those complaints is not specified in Mr Elwin’s Affidavit.[76]
[76] Mr Elwin’s Affidavit, para.140.
On 25 November 2011 Mr Edwards confronted Mr Elwin and made complaints about freight charges. Mr Elwin told Mr Edwards he was wrong, and a discussion followed concerning the use of freight charges and consignment notes.[77]
[77] Mr Elwin’s Affidavit, para.145.
On 29 November 2011 Mr Elwin came to work to find Mr Edwards checking his stock checks. Mr Edwards confronted Mr Elwin later in the day and showed him a check that he had not had time to complete, and accused him of not doing checks properly and said that he had found items that had been missed. Mr Elwin told Mr Edwards that he had not yet finished, and Mr Edwards asked why Narrogin could do it and Mr Elwin could not, and asked whether they were more efficient than Mr Elwin was. Mr Elwin indicated that he did not have time, and reminded him that Katanning dealt not only with Holden (as Narrogin did) but also with Stihl, Mazda, and also had to supply non-genuine parts because Coventrys did not have a supplier in Katanning but had one at Narrogin. Mr Elwin also said that he had three panel beaters to deal with in Katanning whereas Narrogin did not deal with panel beaters. Mr Edwards said that he was going to put that against his record, and told Mr Elwin that there was a file on him “with all the things you’ve done wrong”.[78]
[78] Mr Elwin’s Affidavit, para.148.
December 2011
On 2 December 2011 Mr Edwards confronted Mr Elwin concerning a quote for a panel beater, and the omission of one of the parts that the panel beater wanted a quote for. Mr Elwin sets out in some detail various difficulties that various parties, including himself, had had in the past with the panel beater concerned.[79]
[79] Mr Elwin’s Affidavit, paras.149-157.
On 6 December 2011 the office manager took Mr Edwards’ returns books and went through and checked and marked each return, and later that day Mrs Edwards went through the returns book, order book and was checking them against invoices.[80]
[80] Mr Elwin’s Affidavit, paras.158-159.
On 13 December 2011 Mr Edwards confronted Mr Elwin about having work breaks. Mr Edwards told Mr Elwin that “under fair work law” he was only entitled to a 10 minute break in the morning and a 10 minute break in the afternoon and he had to stay at work during that time to answer phone calls or serve customers whilst on his break. This was a change to previous arrangements, and different to the arrangements for other workers at Edwards Motors who were still going out on their breaks. [81] Also on 13 December 2011 Mr Edwards asked where Mr Elwin’s work vehicle was and told him that it had to be at work whenever he was at work notwithstanding that the service manager who also had a work vehicle brought his own car to work regularly.[82]
[81] Mr Elwin’s Affidavit, para.162.
[82] Mr Elwin’s Affidavit, para.163.
On 17 December 2011 Mrs Edwards confronted Mr Elwin about going on a break and asking him where he had been and who he had told about going for a break, and Mr Elwin advised that he had told a staff member that he was going to the local panel beaters.[83]
[83] Mr Elwin’s Affidavit, para.164.
November 2011 – February 2012 – Application to Fair Work Australia
On 30 November 2011 Mr Elwin made a General Protections application to Fair Work Australia.[84] Edwards Motors filed a Response to the November 2011 FWA Application.[85] In general terms the parameters of the November 2011 FWA Application were in similar terms to that outlined above for the period from 7 to 14 July 2011.
[84] “FWA”. Mr Elwin’s Affidavit, para.141 and Exhibit AE 13 (“November 2011 FWA Application”).
[85] Mr Elwin’s Affidavit, para.143 and Annexure AE 14.
On 7 February 2012 there was a telephone conciliation conference before FWA concerning the November 2011 FWA Application.[86]
[86] Mr Elwin’s Affidavit, para.165.
Second warning letter
On 22 February 2012 Mr Edwards gave Mr Elwin a second warning letter.[87] In the Second Warning Letter Mr Edwards, on behalf of the Edwards Motors, says that:
[87] Mr Elwin’s Affidavit, para.166 and Annexure AE 02 (“Second Warning Letter”).
a)there has been no improvement in the concerns raised with Mr Elwin in the First Warning Letter, and that the level of Mr Elwin’s work had dropped further than that that had concerned Edwards Motors previously; and
b)the areas of concern were listed as follows:
i)stock control, including an alleged failure to undertake running stock checks, a grossly inaccurate stock count where a stock check was undertaken, and substantial variations and losses recorded since 30 June 2010, and a failure to take responsibility for endeavouring to account for variations;
ii)failure to follow set procedures attached to the First Warning Letter, including the failure to follow a set of rules printed and signed by all service staff (except Mr Elwin) following a meeting in August 2011 at which the rules were agreed by all present, including Mr Elwin;
iii)a failure to follow up and correct negative stock on hand;
iv)a failure to write on consignment notes indicating who was to be charged for freight resulting in most freight not being charged out to customers;
v)leaving parts showing in “by-in”;
vi)failure to apply a policy to staff allowing them to pay cost price for parts, and charging some staff full retail price but charging himself cost price;
vii)Edwards Motors’ biggest client, Premier Smash Repairs, refusal to trade with Edwards Motors due to Mr Elwin not complying with their wishes, ordering wrong parts, failing to pick up parts when they needed to be returned, and generally being argumentative with this client, as well as other clients;
viii)failure to fill out warranty cards for Stihl products, and failure to properly identify products left at Edwards Motors;
ix)a continual lack of communication and organisation;
x)preferential treatment of persons buying parts, exampled by a discount for parts sold to a tradesperson working at Mr Elwin’s house;
xi)a failure to complete an aged stock list given to Mr Elwin on 4 August 2011; and
xii)a decrease in average monthly parts sales at Katanning as against an increase at Narrogin over the previous couple of years.
The Second Warning Letter concluded as follows:
In conclusion you are not doing the job, other staff namely Juanita O’Donnell, Jenelle Meyers and Ross Old have spent countless hours showing you how to follow procedures and helping you try and find missing parts but you don’t respond to their help and they have neglected their own duties to help you out. They have got to a point where they feel there is no point because the more they do, the more you leave to them and it is not their job
Unless you follow our procedures and instructions to the letter on all facets of the parts department we will have no option but to immediately terminate your employment. There will be no tolerance for mistakes of any kind that are under your control.[88]
[88] Mr Elwin’s Affidavit, Annexure AE 02.
In relation to the allegation that he had charged other staff at Edwards Motors more than cost price Mr Elwin spoke to the office manager on 24 February 2012 with respect to a battery for which she was charged more than cost price. In response to Mr Elwin’s query the office manager told him that the battery was for her daughter. Mr Elwin asserts that Mr Edwards told him when he first commenced employment that the family members of staff were not to be charged cost price and that there were no exemptions. Mr Elwin took the issue up with Mr Edwards shortly thereafter, but Mr Edwards refused to discuss the matter with him citing lawyer’s advice that he was not to talk to him as he might be recording the conversation, and that he should put any issue in writing to Mr Edwards.[89] Mr Elwin gave Mr Edwards a series of printouts in relation to the office manager’s transactions on her account and said to him that it was in writing.[90]
[89] Mr Elwin’s Affidavit, paras.167-168.
[90] A copy of the printouts is Annexure AE 14 to Mr Elwin’s Affidavit.
March 2012 – Mr Elwin’s illness and events prior to termination of employment
On 2 March 2012 Mr Elwin saw his doctor regarding pressures at work, bullying and daily harassment at work. The doctor prescribed medication to deal with the issues, referred Mr Elwin to counselling and gave him a doctor’s certificate indicating he was unfit for work for a week from 2 March 2012. The doctor also recommended that Mr Elwin see a mental health counsellor, and an appointment was booked.[91] Mr Elwin faxed a copy of the medical certificate to Edwards Motors.[92] Mrs Edwards sent Mr Elwin an SMS message saying that she would see him on Friday next week (2 March 2012 was a Friday), to which Mr Elwin replied to confirm that she would see him then.[93]
[91] Mr Elwin’s Affidavit, paras.169 and 170 and Annexure AE 16.
[92] Mr Elwin’s Affidavit, para.170 and Annexure AE 16.
[93] Mr Elwin’s Affidavit, Annexure AE 18.
8 March 2012 – Termination of employment
On 8 March 2012, Mr Elwin continued to stay away from work due to illness.[94] Mr Elwin had a medical certificate covering his absence until Sunday 25 March.[95]
[94] Mr Elwin’s Affidavit, para.172.
[95] Mr Elwin’s Affidavit, para.172 and Annexure AE 17.
Mr Elwin sent the medical certificate to Edwards Motors.[96]
[96] Mr Elwin’s Affidavit, para.172 and Annexure AE 18; Response, para.30.
At about 4.45pm on 8 March 2012 Mr Edwards called Mr Elwin and said he wanted to talk to him. Mr Edwards said he wanted to sit down and to talk to Mr Elwin man to man and sort out the problems.[97]
[97] Mr Elwin’s Affidavit, para.173; Response, para.31.
In response to Mr Edwards’s request to talk Mr Elwin declined and told Mr Edwards he was unwell.[98]
[98] Mr Elwin’s Affidavit, para.175.
At 5.20pm on 8 March 2012 Mr Edwards asked Mr Elwin (by text message) to bring the motor vehicle back.[99]
[99] Mr Elwin’s Affidavit, para.176; Response, para.34.
When Mr Elwin took the motor vehicle back to Mr Edwards’s home at 6.05pm on 8 March 2012 Mr Edwards again said to the applicant “we need to sit down and talk”.[100]
[100] Mr Elwin’s Affidavit, para.180; Response, para.36.
In response to Mr Edwards’s second request to talk Mr Elwin declined and said he was unwell.[101]
[101] Mr Elwin’s Affidavit, para.181; Mr Edwards’ Affidavit, para.216; Response, para.37.
Mr Elwin received a text from Mr Edwards at around 7.30pm on 8 March 2012. The text informed Mr Elwin that Mr Edwards had delivered a termination letter to Mr Elwin’s home. The text said “We regret you would not talk about this first but your refusal to discuss the issue when you brought the Ute back left us with no option.”[102]
[102] Mr Elwin’s Affidavit, para.185 and Annexure AE 20 (“Termination Letter”); Response, para.41.
Because Mr Elwin was not staying at his home at the time, Mr Elwin did not see the Termination Letter until 10 March 2012.[103]
[103] Mr Elwin’s Affidavit, para.186.
Termination Letter
The Termination Letter dated 8 March 2012 and signed by Mr Edwards:
a)referred to the Second Warning Letter and alleged that Mr Elwin was still refusing to follow set rules, procedures and instructions;[104] and
[104] Mr Elwin’s Affidavit, Annexure AE 21.
b)set out several examples of alleged refusal to follow rules, procedures and instructions, as follows:
i)on 21 February 2012 giving wrong advice with respect to ordering a headlight for a VT Commodore;
ii)on 25 February 2012 failure to price chains and a chain bar which were sharpened and dressed respectively, and failure to advise anyone that the customer was coming in to pick those items up;
iii)on 25 February 2012 failing to price a Stihl filter that had been ordered and was being picked up that morning;
iv)despite being requested many times to price stock items in the showrooms there were 36 line items (and 115 individual items) not priced;
v)on 24 February 2012 failing to order an oil filter which a customer needed on Saturday 25 February 2012, and then advising the customer that it was not ordered because there were none available, but when the stockist was contacted Edwards Motors were advised that there were at least 50 in stock at that time;
vi)failure to order a set of rubber mats for a motor vehicle to be delivered on 1 March 2012;
vii)failure to issue a credit to a customer issued with an incorrect part on 10 February 2012 (and a general complaint about customers returning parts and receiving overdue accounts weeks later because they had not been credited for the return parts);
viii)failure to record whether or not a clutch kit had been ordered on or about 24 February 2012;
ix)major stock control issues, including missing stock, low or no stock of some items and other stock issues;
x)on 2 March 2012 a customer came in to pick up a chain saw which he said Mr Elwin had phoned to say was ready, but when the person carrying out the repairs was contacted he indicated that he had not had the chain saw for a sufficient time to complete the necessary work;
xi)repeated mistakes with respect to the entry of invoices causing admin and other staff additional work; and
xii)refusal to add relevant details to freight consignment notes, meaning that freight could not be on-charged to customers.[105]
[105] Mr Elwin’s Affidavit, Annexure AE 21.
The Termination Letter also referred to alleged defamatory remarks made about Mr Edwards by Mr Elwin in a Facebook entry, including alleged false and misleading information concerning comments made in the proceedings relating to the November 2011 FWA Application, and in respect of which Edwards Motors had instructed their lawyers to start legal proceedings for defamation. The entry was said to have upset three female staff members who allegedly subsequently signed a letter indicating that they could no longer work harmoniously with Mr Elwin due to his uncooperative behaviour, mistakes made and lack of care for procedures.[106]
[106] Mr Elwin’s Affidavit, Annexure AE 21.
The Termination Letter also referred to Mr Elwin’s sick leave in the following terms:
On Friday 2nd March you went on sick leave. We then received a Medical Certificate from your Doctor stating that you would be unfit for work for one week. On Monday 5th March you were seen working on your house by Mr Len Toms. On Tuesday 6th March you were seen at the Panel Beaters by our car detailer Jan Morgan, in whose opinion you looked fine. Andre if you are well enough to be working on your house and out at the Panel Beaters, aren’t you well enough to be at work in your predominantly sit down job. On another occasion when you were away on Sick Leave 10-11th January you were observed shopping in K-Mart by Mrs Fiona Smith and her son Jordan.[107]
[107] Mr Elwin’s Affidavit, Annexure AE 21.
The Termination Letter went on to advise of Mr Elwin’s termination in the following terms:
Andre due to the overwhelming amount of evidence that shows your blatant disrespect for rules and procedures and for overstepping respectful boundaries, including the face book entry, whilst working at Edwards Motors, we have been left with no other option but to terminate your employment effective immediately.[108]
[108] Mr Elwin’s Affidavit, Annexure AE 21.
The Termination Letter went on to indicate that Mr Elwin would receive two weeks’ pay in lieu of notice and all annual leave owed to him at the close of business on 9 March 2012 would also be included in his final payment.[109]
[109] Mr Elwin’s Affidavit, Annexure AE 21.
Post-termination illness
Mr Elwin had a medical certificate excusing him for work for a period of six weeks following his termination.[110]
[110] Mr Elwin’s Affidavit, para, para.197.
Advice of termination payment
Mr Elwin’s final payment was said to include a payment of 76 hours as two weeks normal pay in lieu of two weeks’ notice.[111]
[111] Mr Elwin’s Affidavit, para.188 and Annexure AE 22.
May 2012 – further application to FWA
On 4 May 2012 Mr Elwin made a further application to FWA alleging a general protections contravention.[112] The May 2012 FWA Application covered the same matters as the November 2011 FWA Application, but included events subsequent to the November 2011 FWA Application, including the receipt of the Second Warning Letter and the termination of Mr Elwin’s employment.
[112] Mr Elwin’s Affidavit, para.190 and Annexure AE 23 (“May 2012 FWA Application”).
On 29 June 2012 FWA issued a certificate under s.369 of the FW Act certifying that it was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.[113]
[113] A copy of the 29 June 2012 FWA s.369 certificate is attached to the Form 2 – claim form filed with the initiating application in this Court.
Post-termination employment
On 10 September 2012 Mr Elwin obtained part-time employment with a business called “Paint Rite”. The employment was for 38 hours per week at $20.00 per hour and lasted for three weeks. Mr Elwin earned $2,280 gross whilst working for Paint Rite.[114]
[114] Mr Elwin’s Affidavit, paras.198 and 200.
As at 30 November 2012 Mr Elwin had not obtained further employment.[115] Mr Elwin subsequently enrolled in Katanning Community First and had applied for and was in receipt of a New Start Allowance. In accordance with the terms of that allowance he was required to contact four employers per fortnight, and he had contacted employers accordingly.[116]
[115] Mr Elwin’s Affidavit, para.203.
[116] Mr Elwin’s Affidavit, para.204.
General protections claims
Mr Elwin alleges contraventions by the Respondents of the following general protections provisions under the FW Act:
a)protection against adverse action under s.340 of the FW Act;
b)protection against coercion under s.343 of the FW Act;
c)protection against misrepresentations under s.345 of the FW Act; and
d)protection against dismissal due to a temporary absence due to illness or injury under s.352 of the FW Act.
Section 340(1) of the FW Act deals with protection against adverse action and provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplaceright; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341(1) of the FW Act defines “workplace right” as follows:
(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.
Under s.341(2) of the FW Act a process or proceedings under a workplace law or workplace instrument includes:
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
…
(k) any other process or proceedings under a workplace law or workplace instrument.
Under s.342(1) of the FW Act adverse action is taken by an employer 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 342(2) of the FW Act provides that adverse action includes threatening to take the action under s.342(1) of the FW Act, while s.342(3) provides that adverse action does not include action that is authorised by or under the FW Act or any other law of the Commonwealth.
Section 360 of the FW Act provides as follows:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
In terms, s.360 of the FW Act recognises that a person takes action for a particular reason if the reasons for the action include that reason. In National Tertiary Education Union v Royal Melbourne Institute of Technology[117] the Federal Court observed that:
… Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.[118]
[117] (2013) 234 IR 139; [2013] FCA 451 (“RMIT”).
[118] RMIT IR at 146 per Gray J; FCA at para.20 per Gray J.
The phrase “takes action for a particular reason if the reasons for the action include that reason” has been interpreted to mean that the reason must be an operative or immediate reason for the action. It need not be the sole or dominant reason.[119]
[119] Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at 342 per Branson J; [2002] FCA 513 at paras.54-55 per Branson J; Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 248 CLR 500 at 535 per Gummow and Hayne JJ and 544 per Heydon J; [2012] HCA 32 at para.103 per Gummow and Hayne JJ and para.140 per Heydon J (“Bendigo Regional Institute”).
Section 361(1) of the FW Act provides as follows:
(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 it was observed that:
… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer (36). Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker (37) or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[120]
[120] Bendigo Regional Institute CLR at 517 per French CJ and Crennan J; HCA at paras.44-45 per French CJ and Crennan J.
Whether any adverse action has been taken because of a proscribed reason is a question of fact.[121]
[121] Bendigo Regional Institute CLR at 516 per French CJ and Crennan J; HCA at para.41 per French CJ and Crennan J.
In United Firefighters Union of Australia v Easy[122] the Federal Court said:
The practical effect of s361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a proscribed reason, is also necessary to rebut the presumption.[27] But it is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.[123]
[122] [2013] FCA 763 (“United Firefighters”)
[123] United Firefighters at para.41 per Ross J.
In relation to Mr Elwin’s claim involving ss.340, 343, 345 and 352 of the FW Act Mr Elwin must prove the existence of facts which are said to be a basis for the Respondents’ conduct.[124] Once Mr Elwin proves those facts and the fact that adverse action was taken, s.361 of the FW Act operates to presume that the action was taken for the reasons asserted by Mr Elwin. The onus is then transferred to the Respondents to prove the contrary. The onus thus transferred (or reversed) is difficult to then discharge unless the decision-maker is called to give evidence of the decision-making process.[125] Otherwise, Mr Elwin bears the onus of proof, to the civil standard, on all other aspects of his case.[126]
[124] Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306 at 321-322 per Moore J; [2008] FCA 1585 at paras.46-50 per Moore J.
[125] Bendigo Regional Institute CLR at 517 per French CJ and Crennan J; HCA at para.45 per French CJ and Crennan J.
[126] Evidence Act, s.140.
Mr Elwin:
a)was entitled, under s.341(1)(a) of the FW Act, to the benefit of a workplace law, and specifically ss.44(1), 62, 323, 340, 343, 345 and 352 of the FW Act;
b)was entitled, under s.341(1)(b) of the FW Act, to initiate and participate in, a process or proceedings under a workplace law by making a General Protections application under s.371 of the FW Act,[127] and later s.365 of the FW Act;
c)under s.341(1)(c)(i) of the FW Act, was able to and did make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument;[128] and
d)under s.341(1)(c)(ii) of the FW Act, was also able to make a complaint or inquiry to his employer in relation to his employment;
[127] Mr Elwin’s Affidavit, para.141 and Annexure AE 13.
[128] FW Act, s.341(1)(c)(i).
The Respondents admit that Mr Elwin made a complaint or inquiry to his employer about his employment.[129]
[129] Response, paras.9 and 10.
Mr Elwin’s complaint or inquiry related to his working hours and payment for hours worked in excess of 38 hours per week.[130] Mr Elwin:
a)complained and/or inquired to his employer on 4, 6, 7 and 8 July 2011;[131] and
b)complained by letter on 29 July 2011[132] and 4 November 2011.[133]
[130] Sections 44, 62 and 323 of the FW Act and Mr Elwin’s Affidavit, Annexure AE 03.
[131] Mr Elwin’s Affidavit, paras.62, 70, 71, 74 and 84 to 89.
[132] Mr Elwin’s Affidavit, Annexure AE 01.
[133] Mr Elwin’s Affidavit, para.138 and Annexure AE 11.
Mr Edwards, acting on behalf of Edwards Motors, threatened to:
a)change Mr Elwin’s employment conditions to the Award;[134]
b)take away Mr Elwin’s vehicle;[135]
c)take away Mr Elwin’s bonus;[136]
d)implement a system of strict performance management;[137]
e)make Mr Elwin’s work environment more hostile;[138]
f)give Mr Elwin a warning letter; and
g)subject Mr Elwin to a process leading to termination.
[134] Mr Elwin’s Affidavit, Annexure AE 06 page 3.
[135] Mr Elwin’s Affidavit, Annexure AE 06 page 3.
[136] Mr Elwin’s Affidavit, Annexure AE 06 page 3.
[137] Mr Elwin’s Affidavit, Annexure AE 06 pages 6, 8, 9, 10, 14 and 16.
[138] Mr Elwin’s Affidavit, Annexure AE 06 pages 1, 5, 7, 8, 10, 14, 16 and 17.
The above threats which were made at the 7 July 2011 Meeting, and the First 8 July 2011 Meeting were, on the evidence, made because Mr Elwin had a workplace right, or proposed to exercise a workplace right, namely:
a)Mr Elwin complained or enquired in relation to his employment for the purposes of s.341(1)(c)(ii),[139] and specifically his employment conditions and his entitlement to the Back Payment; and
b)Mr Elwin was entitled to the benefit of a workplace law, namely, s.323(1)(a) of the FW Act, which entitled him to be paid the Back Payment.
The threats thus made were threats to either injure Mr Elwin in his employment or alter Mr Elwin’s position in his employment to his prejudice, and were therefore adverse action in contravention of s.340(1) of the FW Act.[140]
[139] Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273 at 291-293 per Lucev FM; [2013] FMCA 207 at paras.52-64 per Lucev FM (“Magellan Powertronics”); Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at 350-352 per Jessup J; [2013] FCA 908 at paras.140-143 per Jessup J.
[140] FW Act, s.342(1) and (2).
The removal on 8 July 2011 of Mr Elwin’s entitlement to a work motor vehicle and his work on Saturdays were adverse action because they altered Mr Elwin’s employment position to his prejudice by removing entitlements, to the use of the motor vehicle and remuneration for overtime worked on Saturdays, as had been threatened in the first meeting on 8 July 2011, and were adverse action for the same reasons as is set out above. Additionally, the removal of the keys which enabled Mr Elwin to access the premises to work the additional time on Saturdays, was adverse action as it prejudiced Mr Elwin in his employment, and was adverse action based upon the same reasons as set out immediately above.
The other events prior to 4 November 2011, including the sending of the First Warning Letter, being sent away from work on 11 July 2011 until 8.30am and then spoken to by Mrs Edwards and the office manager, being confronted regarding signing the First Warning Letter on 13 July 2011, and the accusation of copying the washout sheets and taken them home late on 25 July 2011 were also adverse action because they constituted a course of conduct consistent with that threatened in the 7 July 2011 and First 8 July 2011 Meetings, and which, on the evidence ultimately had the effect of injuring Mr Elwin in his employment by affecting his health. Those actions were therefore adverse action contrary to s.340(1) of the FW Act.
Even if the above actions up until 4 November 2011 were partially justified, or sought to be justified on performance grounds, that is only a partial justification, and a real, operative and substantive reason for those matters being raised was Mr Elwin’s complaint about his Back Payment and his entitlement to be paid the Back Payment. Those reasons were therefore reasons for the adverse action under s.360 of the FW Act.
The only exception to the above is the requirement to complete a timesheet imposed by Edwards Motors after 8 July 2011. That can be seen as part of a legal requirement for an employer to keep records of hours worked to facilitate compliance with regs.3.34 (records of overtime) and 3.46 (content of pay slips) under the Fair Work Regulations 2009 (Cth),[141] and was not therefore adverse action by reason of s.342(3) of the FW Act.
[141] “FW Regulations”.
The incidents on 18, 25 and 29 November 2011 where Mr Elwin was confronted by Mr Edwards in relation to freight charges and stock checks, and told that there was a file on him “with all the things you’ve done wrong”[142] followed a further complaint in Mr Elwin’s 4 November 2011 Letter, and the incidents on 25 and 29 November 2011 were adverse action because they contributed, again even if partially,[143] to Mr Elwin being injured in his employment by reason of its affect on his health. The events of 2, 6, 13 and 17 December 2011, and the Second Warning Letter on 22 February 2012, and the incident with respect to cost price transactions on 24 February 2012, likewise contributed, again if even only partially, to injuring Mr Elwin in his employment by reason of its affect on his health, and were adverse action because they were either in response to Mr Elwin’s Back Payment Complaint made in July 2011, or made because of Mr Elwin’s 4 November 2011 Letter which constituted a complaint in relation to the Back Payment, and his employment conditions, including adverse action already allegedly taken against him to that time, including his entitlement to the Back Payment, and Mr Elwin’s complaint to FWA made on 30 November 2011, that being the initiation and participation in a process under a workplace law for the purposes of s.341(1)(b) of the FW Act, when read with what constitutes a process or proceedings under a workplace rule or for the purposes of s.341(2) of the FW Act.
[142] Mr Elwin’s Affidavit, para, para.148.
[143] FW Act, s.360.
In relation to Mr Elwin’s termination on 8 March 2012, that was the culmination of a course of conduct which began with the threat to performance manage Mr Elwin out of the business of Edwards Motors and to terminate his employment made at the First 8 July 2011 Meeting, and the subsequent conduct as set out above, which on the evidence in this case, constitutes adverse action. It follows that the act of terminating Mr Elwin’s employment was also an act taken because of Mr Elwin’s complaints concerning his Back Payment and employment conditions, the taking of proceedings before FWA, and Mr Elwin’s entitlement to the Back Payment. The dismissal was therefore adverse action taken because Mr Elwin had a workplace right.[144] By reason of the medical certificate provided by Mr Elwin, which was referred to at the time of his termination of employment by Mr Edwards on behalf of Edwards Motors, it may be that the above matters were only part of the reason for the termination, but they were nevertheless an operative and substantive part in the Court’s view, and therefore constituted adverse action contrary to s.340(1) of the FW Act.[145]
[144] FW Act, ss.340(1)(a), 341(1) and 342(1).
[145] FW Act, s.360.
The respondents allege that the reason for Mr Elwin’s termination was his deficient work performance. The respondents lead no evidence about the allegations of Mr Elwin’s deficient work performance. In relation to each of the above findings of adverse action s.361 of the FW Act operates on the facts alleged by Mr Elwin, which assert and establish the matters alleged, and which therefore provide a basis for Edwards Motors’ conduct, and that conduct is therefore presumed to have been taken for the reasons asserted by Mr Elwin. The reverse onus in this case did not have to contend with any evidence from the decision-maker, or otherwise on behalf of Edwards Motors, and subject to the exclusion of the alleged adverse action on the basis of timesheets which is not established by reason of a legal exception,[146] the onus placed on Edwards Motors by s.361 of the FW Act was not discharged by Edwards Motors.
[146] FW Act, s.342(3).
For the foregoing reasons adverse action contrary to s.340(1) of the FW Act has been taken against Mr Elwin by Edwards Motors.
Section 343 of the FW Act
Section 343(1) of the FW Act deals with protection against coercion and provides as follows:
(1) 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:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Proof of the requisite intent is necessary.[147]
[147] National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at 134 per Weinberg J; [2002] FCA 441 at para.65 per Weinberg J (“NTEIU v Commonwealth”).
In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[148]the Federal Court posited a two-stage test, as follows:
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 … [which] must be considered in the context of the scheme of the Act … [149]
[148] (2001) 109 FCR 378; [2001] FCA 456 (“Seven Network”).
[149] Seven Network FCR at 388 per Merkel J; FCA at para.41 per Merkel J.
In determining whether there is coercion, the entire circumstances of a case may be evaluated to find coercive intent, rather than immediate proximate conduct.[150] Coercion itself requires that a person not be left with a realistic choice as to whether or not to comply.[151] The mere communication of an intention to make employees redundant in a spill and fill process, communicated generally to the workforce, was held in National Union of Workers v Qenos Pty Ltd[152] not to be a threat.[153]
[150] Auspine Ltd v Construction, Forestry, Mining and Energy Union & Ors (2000) 97 IR 444; [2000] FCA 501.
[151] NTEIU v Commonwealth FCR at 143 per Weinberg J; FCA at paras.103 Weinberg J.
[152] (2001) 108 FCR 90; [2001] FCA 178 (“Qenos”).
[153] Qenos FCR at 118 per Weinberg J; FCA at para.[119] per Weinberg J.
There will not be a threat of proscribed conduct for the purposes of s.343 of the FW Act unless Edwards Motors communicated to Mr Elwin that proscribed action would be taken, and that required that Mr Elwin be menaced or warned beforehand of an intention to inflict harm. That requires a communicated intent to inflict that harm.[154]
[154] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238 at 243-244 per Finkelstein J; [2000] FCA 844 at para.19 per Finkelstein J.
Mr Elwin had the right not to be subjected to coercion done with the intention of preventing him from exercising or not exercising his workplace rights. Mr Edwards understood that he could not terminate Mr Elwin without following a process.[155] What Mr Edwards said to Mr Elwin at the First 8 July 2011 Meeting was clear. What was said was intentional and a threat: Mr Elwin could resign and he would be paid, or if he did not resign he would be subjected to a process which would result in termination of his employment, and in the meantime his remuneration and conditions of employment would be reduced and the workplace environment would become hostile toward him. Mr Elwin understood that Mr Edwards’ statements were threats, and that Mr Edwards was planning to “Push me out”.[156]
[155] Mr Elwin’s Affidavit, Annexure AE 06 pages 9, 12 and 16.
[156] Mr Elwin’s Affidavit, Annexure AE 06 pages 6, 7, 17 and 18.
The purpose of the First 8 July 2011 Meeting was to secure Mr Elwin’s resignation, or to otherwise put in place a process which would result in Mr Elwin’s employment being terminated (either by resignation or dismissal). All of the action threatened by Mr Edwards at the First 8 July 2011 Meeting, save for the requirement to fill out timesheets, was, for reasons set out above, adverse action which, at that time, was threatened because of Mr Elwin’s Complaint. Mr Edwards knew of the Complaint, and the demand for the Back Payment, and crafted a response which included the threats to, in the absence of Mr Elwin’s resignation, would be carried out and which constituted threats to take adverse action against Mr Elwin. Further, the endeavour to make Mr Elwin resign, would, if Mr Elwin had resigned, have constituted a dismissal from employment of a constructive kind,[157] and would therefore have constituted adverse action in any event.[158]
[157] Hem v Cant [2007] FCA 81.
[158] FW Act, s.342(1)(a).
Subsequent to the First 8 July 2011 Meeting the conduct which the Court has found to be adverse action was a continuation of a course of conduct intended to coerce Mr Elwin into resigning his employment with Edwards Motors, or to result in Mr Elwin ultimately being terminated by Edwards Motors.
In the Court’s view Edwards Motors’ conduct at the First 8 July 2011 Meeting, and subsequently in relation to the adverse action which has been found by the Court, was action which was taken, or threatened to be taken, with the intent to coerce Mr Elwin into not exercising his workplace rights with respect to his entitlement under his contract to certain remuneration and benefits which were withdrawn from him (in particular, his motor vehicle and additional hours from 8.00am each Monday to Friday morning and from 9.00am to 12.00noon each second Saturday), and subsequently to prevent the exercise by Mr Elwin of his workplace right to take and initiate proceedings before the FWA.
For the foregoing reasons s.343(1) of the FW Act has been contravened by Edwards Motors in relation to Mr Elwin’s employment.
Section 345 of the FW Act
Section 345 of the FW Act provides for protection against misrepresentations in employment and provides as follows:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Mr Elwin asserts that:
a)Mr Edwards told Mr Elwin that an Award applied to his employment at the first meeting on 8 July 2011 because Mr Elwin was not a manager,[159] and that:
[159] Mr Elwin’s Affidavit, Annexure AE 06 page 4 and also pages 3, 8, 10 and 13.
i)in the first 8 July 2011 meeting that Mr Elwin was paid “…above the award…” in conjunction with assertions that Mr Elwin’s conditions would be unilaterally reduced to “…an award rate…”;[160]
[160] Mr Elwin’s Affidavit, Annexure AE 06 page 3.
ii)that the compensation for the additional hours that Mr Elwin worked was “…his over-award rate of pay”;[161] and
[161] Mr Elwin’s Affidavit, Annexure AE 14 para.10.
iii)that Mr Elwin “was not covered by a Modern Award” and was “…compensated for by his over-award rate of pay…”;[162] and
[162] Mr Elwin’s Affidavit, Annexure AE 24 at para.3(2)(iii(a)).
iv)Mr Edwards did not tell Mr Elwin the details of the Award he was talking about;[163]
[163] Mr Elwin’s Affidavit, para.32.
b)on or about 10 November 2011, Edwards Motors asserted that an award did not apply because Mr Elwin was a manager;[164]
c)the statements and representations as to the operation or not of an award were false or a misleading representation that Mr Edwards made knowing them to be false or to mislead or recklessly knowing that they would mislead, and further that the misrepresentations were designed to coerce;
d)Edwards Motors represented that the only way Mr Elwin could make a claim for payment for the additional hours worked was if an award applied.[165] That representation was false and misleading because Mr Elwin’s contract permitted payment in the nature of overtime; and
e)Mr Edwards knowingly or recklessly made a false or misleading representation about Mr Elwin’s right to not be requested or required to work more than 38 hours in a week unless the additional hours were reasonable, because:
i)on 8 July 2011, the Respondents expressed that they expected Mr Elwin to work whatever hours and time was necessary;[166]
ii)Mr Edwards did not tell Mr Elwin about s.62 of the FW Act, that he could refuse to work the additional hours, assert that the additional hours were reasonable or ask Mr Elwin whether he thought the additional hours were reasonable; and
iii)Mr Edwards knew about an award, award rates of pay and “processes”,
and the representations therefore made were either knowingly made or recklessly made, and were false and misleading.
[164] Mr Elwin’s Affidavit, Annexure AE 12.
[165] Mr Elwin’s Affidavit, Annexure AE 12 page 2 second paragraph.
[166] Mr Elwin’s Affidavit, Annexure AE 06 pages 8, 12 and 13.
The allegation that Mr Elwin knowingly or recklessly made a false or misleading representation with respect to the application, or not, of any award is not made out because there is no evidence that there is any award which applies, and no evidence that there is no award which applies. Mr Elwin has failed to prove an essential element of the alleged representation, or representations, in that he has failed to either prove the existence of an applicable award, or exclude the likelihood that any award applies. Because the alleged representation or representations were about the applicability or non-applicability of an award, proof on that issue was necessary before the reverse onus under s.361 of the FW Act took effect so as to require the Respondents to prove that no knowing or reckless false or misleading representation or representations was or were made.
In relation to the alleged knowing or reckless false or misleading representation in relation to s.62 of the FW Act, the Court notes that s.62 of the FW Act relevantly provides as follows:
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee - 38 hours.
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modernaward or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Mr Elwin asserts that the Respondents expressed that they expected Mr Elwin to work whatever hours and time was necessary. There is nothing in such an expression which is knowingly or recklessly false or misleading in the context of s.62 of the FW Act. There is nothing in the representation (if it be that) relied upon which is false or misleading because there is nothing to suggest that whatever hours and time it was necessary for Mr Elwin to work would be unreasonable. Indeed, for reasons set out in relation to the alleged contravention of s.44(1) of the FW Act in relation to s.62(1) of the FW Act below, the Court has found that Mr Elwin was not requested or required to work unreasonable hours by Edwards Motors. Similarly, any alleged failure to tell Mr Elwin about s.62 of the FW Act or whether he thought that any hours in excess of 38 per week were reasonable, does not constitute a knowing or reckless or false or misleading representation. As indicated above, the Court has found below that the hours Mr Elwin was requested or required to work were reasonable, and there is nothing in s.62 of the FW Act which obligates an employer to inform an employee that they can refuse to work additional hours or ask whether the additional hours were reasonable. The obligation created by s.62(1) of the FW Act is to not request or require an employee to work additional hours unless they are reasonable, and an employee may refuse to work those additional hours if they are unreasonable. Again, if these particulars do in fact constitute a representation, which the Court doubts, they are not false or misleading because the Court has found that Mr Elwin’s hours were reasonable.
Finally, the fact that Mr Edwards allegedly knew about an award, award rates of pay and processes, and that the representations were knowingly or recklessly false and misleading accordingly, does not assist because s.62(1) of the FW Act is not premised upon any award entitlement, or any processes per se, and in any event there is no evidence before the Court with respect to the hours that may be worked under any relevant award (assuming that there is an applicable relevant award).
For the above reasons, no contravention of s.345 of the FW Act is established.
Section 352 of the FW Act
Section 352 of the FW Act deals with protection against dismissal due to a temporary absence due to illness or injury, and provides as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Mr Elwin therefore had the right not to have his employment terminated because he was temporarily absent from work because of illness or injury of a kind prescribed by the FW Regulations.
Regulation 3.01(1) and (2) of the FW Regulations provides as follows:
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Section 352 of the FW Act was considered in Devonshire v Magellan Powertronics Pty Ltd & Ors.[167] The Court said:
For an employer to succeed in avoiding an adverse finding under the provision the employer must prove either that it did not know the reason for the absence or that it did not terminate the employment by reason of the absence: Sperandio v Lynch (2006) 160 IR 360 at 383 per Jessup J; [2006] FCA 1648 at para.91 per Jessup J.[168]
[167] (2013) 275 FLR 273; [2013] FMCA 207 (“Magellan Powertronics”).
[168] Magellan Powertronics FLR at 295 per Lucev FM; FMCA at para.69 per Lucev FM.
On 2 March 2012, Mr Elwin was absent from work due to illness.[169]
[169] Mr Elwin’s Affidavit, paras.169 and 170 and Annexure AE 16.
Mr Elwin sent a medical certificate dated 2 March 2012[170] to Edwards Motors,[171] which certified that Mr Elwin was unfit for work for a week from 2 March 2012.
[170] Mr Elwin’s Affidavit, Annexure AE 16.
[171] Mr Elwin’s Affidavit, para.170.
On 8 March 2012, Mr Elwin continued to be absent away from work due to illness.[172] Mr Elwin obtained a further medical certificate for absence due to illness until Sunday 25 March 2012.[173]
[172] Mr Elwin’s Affidavit, para.172.
[173] Mr Elwin’s Affidavit, para.172 and Annexure AE 17.
Mr Elwin sent the further medical certificate[174] to Edwards Motors on 8 March 2012.[175]
[174] Mr Elwin’s Affidavit, Annexure AE 17.
[175] Mr Elwin’s Affidavit, para.172 and Annexure AE 18.
At about 4.45pm on 8 March 2012 Mr Edwards called Mr Elwin and said he wanted to talk to him. Mr Edwards said he wanted to sit down and to talk to Mr Elwin man to man and sort out the problems.[176]
[176] Mr Elwin’s Affidavit, para.173.
In response to Mr Edwards’s request to talk Mr Elwin declined and told Mr Edwards he was unwell.[177]
[177] Mr Elwin’s Affidavit, para.175.
At 5.20pm Mr Edwards asked Mr Elwin (by text message) to bring the motor vehicle back.[178]
[178] Mr Elwin’s Affidavit, para.176.
When Mr Elwin took the motor vehicle back to Mr Edwards’s home at 6.05pm on 8 March 2012 Mr Edwards again said to Mr Elwin “we need to sit down and talk”.[179]
[179] Mr Elwin’s Affidavit, para.180.
In response to Mr Edwards’s second request to talk Mr Elwin declined and told Mr Edwards he was unwell.[180]
[180] Mr Elwin’s Affidavit, para.181.
Mr Elwin received a text from Mr Edwards at around 7.30pm on 8 March 2012. The text informed Mr Elwin that Mr Edwards had delivered a termination letter to Mr Elwin’s home, and said “We regret you would not talk about this first but your refusal to discuss the issue when you brought the Ute back left us with no option.”[181]
[181] Mr Elwin’s Affidavit, para.185 and Annexure AE 20.
It was Mr Elwin’s refusal to speak to Mr Edwards that prompted the Respondents to deliver the termination letter approximately 15 minutes after Mr Edwards had said that he wanted to speak to Mr Elwin.[182]
[182] Mr Elwin’s Affidavit, paras.173 to 185 and Annexure AE 20.
Mr Elwin’s refusal to speak to Mr Edwards on 8 March 2012 was because he was absent from work ill with a medical certificate.
The Termination Letter referred to Mr Elwin’s sick leave.[183] It did so in terms which elevated not only Mr Edwards’s unqualified and subjective opinion, but those of mere bystanders in relation to activities allegedly undertaken by Mr Elwin whilst on sick leave, above that of the opinion of a medical practitioner. Mr Elwin was temporarily absent from work because of an illness of the kind prescribed by reg.3.01(2) of the FW Regulations for which he had provided a medical certificate on 2 March 2012, and in respect of which he had an ongoing medical certificate to 25 March 2012. In any event, the medical certificate operative for one week from 2 March 2012[184] was still in force.
[183] Mr Elwin’s Affidavit, Annexure AE 21.
[184] Mr Elwin’s Affidavit, Annexure AE 16.
The terms of the Termination Letter make it apparent that Mr Elwin was dismissed, at least in part, because of a temporary absence because of illness under the medical certificate of 2 March 2012. In those circumstances, that is sufficient[185] to establish a contravention by Edwards Motors of s.352 of the FW Act.
[185] FW Act, s.360.
For the foregoing reasons, Edwards Motors contravened s.352 of the FW Act by terminating Mr Elwin because of a temporary absence due to illness.
Other contraventions (not general protection)
Mr Elwin alleges a contravention of s.44(1) of the FW Act in relation to s.62(1) of the FW Act. The relevant parts of s.62 of the FW Act are set out above.
Mr Elwin gives evidence about his working hours.[186] The Affidavits of Godfrey, Khap, Donnison and Parkinson support Mr Elwin’s assertion that he started work at 8.00am. Mr Edwards acknowledges that the staff were aware that Mr Elwin arrived at 8.00am and said to Mr Elwin “everybody knows you come in at eight”.[187]
[186] Mr Elwin’s Affidavit, para.49.
[187] Mr Elwin’s Affidavit, Annexure AE 06 page 1.
The additional hours that Edwards Motors required Mr Elwin to work in addition to 38 hours per week were alleged to be unreasonable because:
a)Edwards Motors and Mr Edwards expected Mr Elwin to work whatever hours were necessary;[188]
b)Edwards Motors did not seem to know what hours Mr Elwin worked;[189]
c)until after 8 July 2011 Edwards Motors had no system for Mr Elwin to record his working hours;[190]
d)Mr Elwin was not aware of section 62(2) or (3) of the FW Act[191] and Mr Edwards did not tell him about it;
e)Mr Elwin did not refuse to do the work but expected his contract to be honoured;[192]
f)Mr Elwin was not told he could refuse;[193]
g)Mr Elwin could have and may have chosen not to work as he did if he had known that he would not be compensated for doing so as he had expected;[194]
h)Edwards Motors did not pay Mr Elwin for working hours in addition to 38 per week. Edwards Motors and Mr Edwards led Mr Elwin to believe he would be paid; and
i)Mr Elwin was not aware of any award that applied to his employment.[195]
[188] Mr Elwin’s Affidavit, Annexure AE 06 pages 12 and 13 and Annexure AE 12 first paragraph page 2.
[189] Mr Elwin’s Affidavit, Annexure AE 12.
[190] Mr Elwin’s Affidavit, para.48.
[191] Mr Elwin’s Affidavit, paras.27 to 31.
[192] Mr Elwin’s Affidavit, para.30.
[193] Mr Elwin’s Affidavit, para.26.
[194] Mr Elwin’s Affidavit, Annexure AE 06 pages 15 and 16.
[195] Mr Elwin’s Affidavit, para.32.
In determining whether the additional hours that Mr Elwin worked were unreasonable or not regard must be had to the factors in s.62(3) of the FW Act, the use of the word “must” making it mandatory[196] to take those considerations into account.
[196] Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 62 FCR 341 at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed); Birch v Wesco Electrics (1996) Pty Ltd (2012) 257 FLR 237 at 252-253 per Lucev FM; [2012] FMCA 5 at paras.42-47 per Lucev FM (and cases there cited).
The additional hours were a half hour each day Monday to Friday, and three hours every second Saturday.
On the evidence, there was no identified risk arising from the additional hours themselves to Mr Elwin’s health and safety.[197] The working of the additional hours is to be distinguished in that respect from the consequences of the course of conduct adopted by Edwards Motors towards Mr Elwin in relation to his Complaint concerning the Back Payment. In relation to Mr Elwin’s personal circumstances, including his family responsibilities,[198] there is not sufficient evidence to suggest that there was any significant effect upon his family responsibilities, and certainly in relation to the extra half hour a day, it is evident that Mr Elwin wished to continue to work that half hour, from which the Court infers that there was no adverse effect upon Mr Elwin’s personal circumstances or his health and safety which would make the additional hours unreasonable.
[197] FW Act, s.62(3)(a).
[198] FW Act, s.62(3)(b).
In relation to the needs of the workplace or enterprise[199] it is apparent that, particularly in relation to Saturdays, there was a need for the Parts Division of Edwards Motors to be open. That is hardly surprising in a rural service centre such as Katanning. That the Parts Manager would then be required to work each second Saturday is then neither surprising nor, in this context, unreasonable.
[199] FW Act, s.62(3)(c).
On the evidence in this case, which is unchallenged, Mr Elwin was entitled to be paid overtime for work in excess of 38 hours per week, which is an indicator that the additional hours are reasonable.[200]
[200] FW Act, s.62(3)(d).
Mr Elwin was on notice[201] of the requirement to work the additional hours, and agreed to those hours, which again indicates that they were reasonable. There was never any notice given by Mr Elwin of an intention to refuse to work the additional hours.[202] There is no evidence of usual patterns of work in the industry, or part of the industry concerned (which is presumably the automotive sales industry).[203]
[201] FW Act, s.62(3)(e).
[202] FW Act, s.62(3)(f).
[203] FW Act, s.62(3)(g).
As to Mr Elwin’s role, his role was that of a low level manager with attendant low level managerial responsibility. As such, it could be expected that he would work some additional hours, and that is a factor which tends towards the reasonableness of the additional hours worked.
There is no evidence of any hours averaging arrangement.[204]
[204] FW Act, s.62(3)(i).
It is not relevant that Edwards Motors did not seem to know what hours Mr Elwin worked, or did not have a system, at least until after 8 July 2011, to record Mr Elwin’s working hours. The relevant question is whether the additional hours requested or required are reasonable or unreasonable.
For reasons set out above, in relation to the alleged contravention of s.345 of the FW Act, it has not been established in this case whether or not there is any award which applies to Mr Elwin’s employment, and no reliance can be placed on Mr Elwin’s alleged lack of knowledge as to whether an award applied.
No single factor of the factors listed in s.62(3) of the FW Act is of greater importance than any other, and a balancing exercise between the factors is required dependent upon the particular circumstances of each case.[205]
[205] Fair Work Bill 2008 (Cth), Explanatory Memorandum, para.250; MacPherson v Coal & Allied Mining Services Pty Ltd (No. 2) (2009) 189 IR 50 at 69-70 per Raphael FM; [2009] FMCA 881 at para.41 per Raphael FM.
In all of the circumstances of this case, it seems relatively clear that the additional hours that Mr Elwin was required to work were not unreasonable. If anything, a person in his position as the manager of a dedicated parts division in a rural town might be expected to work an additional four to six hours a week on average, including a weekend morning, and particularly so in circumstances where it was, on the evidence, part of the agreed contract of employment between Mr Elwin and Edwards Motors. The Court is, therefore, of the view that there has been no contravention of s.44(1) of the FW Act by reason of Mr Elwin being required to work unreasonable hours contrary to the requirements of s.62(1) of the FW Act.
Sections 362 and 550 of the FW Act
Sections 362 and 550 of the FW Act deal with not dissimilar principles, and can be dealt with together.
Section 362 of the FW Act provides as follows:
(1) If:
(a) for a particular reason (the first person's reason ), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
The evidence makes it clear that Mr Edwards has advised Edwards Motors with respect to action which the Court has held to be a contravention of Part 3-1 of the FW Act, and Mr Edwards is therefore taken to have contravened the same provisions of the FW Act as Edwards Motors has contravened. With respect to Mrs Edwards, whilst for reasons which appear below, the Court is satisfied that she was knowingly concerned in some of the contraventions, it is not satisfied that she advised, encouraged or incited Edwards Motors to take action with respect to any of the contraventions which have been found by the Court. For the purposes of s.362 of the FW Act Mrs Edwards is therefore not taken to have contravened any of the provisions in respect of which the Court has found a contravention.
Section 550 deals with accessorial liability and provides as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
In Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No. 2)[206] the Federal Court said:
The nature of the liability imposed by s 550(1) (in the context of the meaning of “involved in” set out in s 550(2)), was explained by Tamberlin, Gyles and Gilmour JJ in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.[207]
[206] [2013] FCA 446 (“McCorkell (No. 2)”).
[207] McCorkell (No. 2) at para.283 per Bromberg J.
In Magellan Powertronics the Federal Magistrates Court said:
The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas (1985) 158 CLR 661 (“Yorke”), and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principle as it applies in federal civil litigation has its origins in the criminal law: Yorke at 676 per Brennan J; Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Deane and Dawson JJ, and one of its early federal legislative manifestations is in s.75B of the Trade Practices Act 1974 (Cth). The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at 308 per Tamberlin, Gyles and Gilmour JJ; [2007] FCAFC 87 at para.26 per Tamberlin, Gyles and Gilmour JJ, where the Full Court of the Federal Court observed that:
[The passage then set out is the same as that quoted in McCorkell (No. 2) and set out above].[208]
[208] Magellan Powertronics FLR at 296-297 per Lucev FM; FMCA at para.82 per Lucev FM.
Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for their conduct insofar as it resulted in a contravention of the relevant legislation.[209]
[209] Magellan Powertronics FLR at 297 per Lucev FM; FMCA at para.84 per Lucev FM.
Section 550 of the FW Act applies only if one or more of the Respondents are held to have contravened the FW Act.
Mr Elwin bears the onus of proof in relation to this section.
The evidence shows that Mr Edwards was involved in each of the contraventions found by the Court, and in each instance of contravention Mr Edwards has procured or induced the contravention and been directly knowingly concerned in the contravention. Mrs Edwards was directly or indirectly knowingly concerned in the contraventions of:
a)section 340(1) of the FW Act by reason of her involvement in calculating the Back Payment, attendance at the meetings on 11 and 20 July 2011, taking a decision-making role in relation to removal of the keys, and confronting Mr Elwin with respect to his break on 20 December 2011; and
b)indirectly knowingly concerned in the contravention of s.352 of the FW Act by her involvement in relation to the sick leave certificates, and the incidents whereby Mr Edwards sought to engage Mr Elwin in conversation whilst he was on sick leave on 8 March 2012.
Mrs Edwards was not involved in the s.343 contravention as the evidence evinces no intention to coerce on her part.
For the above reasons, the Court finds that Mr Edwards was involved in each of the contraventions which have been found by the Court, and that Mrs Edwards was involved in the s.340 and s.352 contraventions.
Reasonable notice
Mr Elwin’s claim includes a claim in the Court’s ancillary jurisdiction for damages for breach of contract for the failure to give Mr Elwin reasonable notice of termination of employment. Mr Elwin claims six months’ pay as reasonable notice which he alleges he ought to have been given as notice of termination of employment or payment in lieu thereof.
Whether term of reasonable notice to be implied
Section 117 of the FW Act provides as follows:
Notice specifying day of termination
(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee's employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice ) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period Employee's period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks (b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
In Stewart v Nickles[210] it was held that the then equivalent of s.117 of the FW Act in the WR Act did not displace any more generous express contractual provision for termination by notice, nor an implied contractual provision for termination by reasonable notice. Although it was unnecessary to decide the matter, the Industrial Relations Court of Australia had expressed a similar view in Westen v Union des Assurances de Paris.[211]
[210] [1999] FCA 888.
[211] (1996) 88 IR 259 at 263 per Madgwick J.
A contrary view was reached in Brackenridge v Toyota Motor Corporation Australia Limited[212] where the Industrial Relations Court of Australia held that where an award governs a particular aspect of employment there was no room for the implication of a term relating to precisely the same subject matter.[213]
[212] (1996) 67 IR 162 (“Brackenridge”).
[213] Brackenridge at 189 per Beazley J. Although appealed, this part of the judgment was not disturbed on that appeal: Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99.
Brackenridge was followed by the Full Court of the Tasmanian Supreme Court in Australian National Hotels Pty Ltd v Jager[214] albeit that a slightly different statutory regime was in issue. The Federal Court did not find Brackenridge and Jager to be wrongly decided in Elliott v Kodak Australasia Pty Ltd.[215]
[214] (2000) 9 Tas R 153; [2000] TASSC 43 (“Jager”).
[215] (2001) 108 IR 23 at 38 per Marshall J; [2001] FCA 807 at para.96 per Marshall J (“Kodak”) (which was overturned on a different basis on appeal): see Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804).
The matter arose for consideration in Brennan v Kangaroo Island Council[216] where the District Court of South Australia had held that there was no need to imply a term concerning reasonable notice into a contract of employment in circumstances in which the provisions of an award applied by a force of the Fair Work Act 1994 (SA).[217] The provisions of the relevant award are for relevant purposes the same as to quantum of notice as set out in s.117(3) of the FW Act. The relevant award did however express the requirement to give notice in mandatory rather than minimum terms, as follows:
In order to terminate the employment of an employee the employer must give to the employee the period of notice specified in the table below:[218]
[216] (2013) 120 SASR 11; [2013] SASCFC 151 (“Kangaroo Island Council”).
[217] Kangaroo Island Council SASR at 12 per Parker J; SASCFC at paras.3-4 per Parker J.
[218] Kangaroo Island Council SASR at 13 per Parker J; SASCFC at para.11 per Parker J, quoting clause 3.2.1.1 of the relevant award.
As is now trite law, the Full Court of the Supreme Court of South Australia went on to observe that an award provision could not be implied into a contract of employment because it was not necessary to imply a term in the relevant form to give reasonable or effective operation to the contract of employment, and because it was not so obvious as to go without saying.[219]
[219] Byrne & Anor v Australian Airlines Ltd (1995) 185 CLR 410 at 422-423 per Brennan CJ, Dawson and Toohey JJ and 446 per McHugh and Gummow JJ (“Byrne”), cited in Kangaroo Island Council SASR at 16 per Parker J; SASCFC at paras.29-31 per Parker J.
In Kangaroo Island Council the Full Court of the Supreme Court of South Australia found as follows:
I find that the implication of an obligation to give reasonable notice was not necessary to give business efficacy to the appellant's employment contract. The existence of the award provision, albeit that it operated outside the contract, had the result that the employment arrangement was effective without any need to imply an obligation to give reasonable notice, ie there was no gap that needed to be filled. Furthermore, because of the existence of the award provision it could not be said that implication of such a term would have been accepted by the contracting parties as a matter so obvious as to “go without saying”.[220]
[220] Kangaroo Island Council SASR at 17 per Parker J; SASCFC at para.34 per Parker J.
In Bognar v Merck Sharpe & Dohme Pty Ltd[221] the Federal Magistrates Court held that the notice provisions in the then Workplace Relations Act 1996 (Cth)[222] left no room to imply a term of reasonable notice. The relevant terms of the WR Act there in question effectively mirror those of the FW Act set out above.
[221] [2008] FMCA 571.
[222] “WR Act”.
Mr Elwin relies upon the decision of the Queensland District Court in Elton v Bywater Medical Management Pty Ltd[223] where Bognar was distinguished because it essentially involved the application of an award provision which provided for an actual rather than a minimum period of notice, and that any further consideration of the statutory provisions of the WR Act were obiter.[224]
[223] [2011] QDC 114 (“Elton”).
[224] Elton at para.28 per Dorney QC DCJ.
In this case, the employment arrangement was effective without any need to imply an obligation to give reasonable notice, by reason of the operation of the provisions of s.117(3)(a) of the FW Act which, albeit that it operates outside of the contract of employment, results in an effective employment arrangement with respect to the giving of notice. Further, the implication of a term as to reasonable notice is, by reason of the statutory provision, not one which it is obvious that the parties would themselves have accepted, and is therefore not so obvious as to go without saying for the purposes of the implication of a term of reasonable notice into Mr Elwin’s contract of employment. To the extent that the decision of the Queensland District Court in Elton is inconsistent with Brackenridge, Jager, Kodak and Kangaroo Island Council, and the principles set out in those cases, this Court considers that it ought to follow the principles established by Brackenridge, Jager, Kodak and Kangaroo Island Council.
In the circumstances, no term of reasonable notice will therefore be capable of being implied into Mr Elwin’s contract of employment, and the claim for reasonable notice must fail.
If term of reasonable notice to be implied
In the absence of an express provision relating to termination in a contract of employment, a term will be implied that the parties must give reasonable notice of termination except in circumstances justifying summary termination. What is a reasonable period of notice is to be determined as at the date of notification having regard to all relevant circumstances. The length of the required notice in any case is a question of fact to be decided in the light of the objective circumstances as they exist at the time the notice is, or should have been, given. The considerations which may be relevant to the determination of the period of reasonable notice include:
a)the “high grade” and importance of the position;
b)the size of the salary;
c)the nature of the employment;
d)the employee's length of service;
e)the professional standing, age, qualifications, experience and job mobility of the employee;
f)the expected period of time it would take the employee to find alternative employment; and
g)the period that, apart from the dismissal, the employee would have continued in the employment.
Which of the above factors are relevant in any particular case depend upon the particular facts of the case.
The employee must take reasonable steps to mitigate his or her loss, the onus of establishing a failure to mitigate being on the employer.[225]
[225] Rogan-Gardiner v Woolworths Ltd (2012) 218 IR 417; [2012] WASCA 31.
There was no express period of notice in Mr Elwin’s contract of employment. When Mr Elwin’s employment was terminated he was paid 76 hours purportedly in lieu of notice. There was no agreement between Mr Elwin and Edwards Motors as to the period of notice of termination or payment in lieu thereof.
The Court has not had regard to the fact that at the time of termination Mr Elwin:
a)had a partner;
b)had two children and his partner was in the late stages of pregnancy. Shortly after termination of his employment another child was born; and
c)had significant financial commitments including the fact that he was building a home in Katanning.
In the Court’s view the above factors are not sufficiently related to the employment contract itself to warrant further consideration.
In relation to the considerations relevant to the determination of reasonable notice, the Court finds as follows:
a)Mr Elwin’s position was not of a particularly high grade, or of any significant importance. Although he was styled as a manager, if he was so, it was at a very low level, as exemplified by the nature of the salary and remuneration package for the position;
b)the salary for the position was $41,000 gross per annum, plus the provision of a motor vehicle, superannuation and a performance bonus of 10% of the profit of the Parts Division of Edwards Motors. There is no evidence as to the amount of the performance bonus, the superannuation entitlement (calculated at 9%) is $3,690, and whilst there is no evidence as to the value of a motor vehicle and fuel, the Court is prepared to infer that that would be a benefit worth approximately $10,000 per annum. On that basis, Mr Elwin’s salary package was approximately $55,000 plus whatever profit he was entitled to, about which there is no evidence. That is not a particularly significant salary package;
c)the nature of the employment was not professional, in the sense that it did not require professional qualifications, and not skilled, in the sense that it did not require technical qualifications, and is probably best described as a generalist position in the automotive sales industry;
d)Mr Elwin had been employed for approximately 30 months; which is not a particularly long period of employment;
e)Mr Elwin was 34 years old, his “professional standing” was good and he had some experience. There is evidence that the labour market in and around Katanning was limited;
f)given the locality of Mr Elwin’s home, the nature of the Katanning township, being essentially a rural service centre, it could be expected that Mr Elwin would take some time to obtain alternative employment, perhaps extending to many months; and
g)there is no evidence that Mr Elwin would not have remained an employee of Edwards Motors if the dispute about his working hours and payment could have been resolved.
Mr Elwin had a duty to mitigate his loss in relation to reasonable notice, and on the evidence made reasonable attempts to do so.
Mr Elwin obtained other employment 26 weeks and 2 days after termination by Edwards Motors. That employment was at “Paint Rite”, was part-time and lasted 3 weeks (applicant’s Affidavit paragraphs 198 to 200).
Edwards Motors paid Mr Elwin a sum of money that it said was payment for two weeks’ pay in lieu of notice even though that action contravened ss.117(1) and (2)(b) of the FW Act. However that payment must be taken into account in relation to any damages for reasonable notice.
Mr Elwin submits that reasonable notice should have been at least six months remuneration.
Kangaroo Island Council provides a good example of the type of employee who would receive six months payment in lieu of notice. In Kangaroo Island Council it was observed that the employee, who at the time of her termination was Deputy Chief Executive officer of the Kangaroo Island Council on a salary package of more than $130,000 per annum, was entitled to six months by way of reasonable notice, that being an alternative finding, to the finding that reasonable notice could not be implied into the contract of employment.
Other cases in which it has been held that six months’ notice was reasonable include:
a)Lau v Bob Jane T-Marts Pty Ltd[226] in which it was held that six months was a reasonable notice period for a Chief Executive Officer with a salary of $180,000 plus superannuation and the use of a car. In that case the period of service had not been long, but there was a legitimate expectation of a further five to seven years’ employment, and of reemployment with six months, although not necessarily at the relatively high level of remuneration that was being received in the former employment; and
b)in Reilly v Praxa Ltd[227] six months was considered reasonable for an employee with a salary of $210,000 per annum, being a base salary of $160,000 and incentive payments, where the employee had been with the company for four years and was found to be part of the company’s executive hierarchy.
[226] [2004] VSC 69.
[227] [2004] ACTSC 41.
By way of contrast in Transport Workers Union of Australia v K & S Freighters Pty Ltd[228] a truck driver who had received $45,479 gross during 24 weeks’ employment (or a little under $1895 per week), who was aged 65, and who had obtained subsequent employment albeit less lucrative and more sporadic, was held to be entitled to two months as reasonable notice.
[228] (2010) 205 IR 137; [2010] FCA 1225 (“K & S Freighters”).
In Brackenridge, had it not been for the terms of the relevant award, notice of one month would have been considered reasonable for a chef supervisor with two years employment in that skilled supervisory position, and with five and a half years’ service with the employer altogether, and a relatively mobile job and a gross salary (in 1995) of $27,800 per annum.
Having regard to all of the factors set out above, and in particular the relatively low level managerial position occupied by Mr Elwin and the low level of the remuneration package, and the difficulty in obtaining subsequent employment, the Court would, if it had not made a finding that reasonable notice could not be implied into his contract of employment, have found that reasonable notice was no more than one month.
Conclusion
Having regard to the nature of the findings made above, the Court considers it appropriate that the parties have an opportunity to settle the form of declarations and any orders that the Court ought to make with respect to liability. There will be a period of 21 days in which to do that, failing which, the parties are to each file and serve minutes of proposed declarations and orders. Further, the parties are to confer within a further 14 days, with a view to reaching agreement, with respect to penalty and costs, if any.[229] Otherwise, the matter will be adjourned to a future directions hearing. There will be orders accordingly.
[229] FW Act, s.570(2).
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 February 2015
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