Farragher v PBE Rutherford Mining Pty Ltd

Case [2024] FedCFamC2G 695

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Farragher v PBE Rutherford Mining Pty Ltd [2024] FedCFamC2G 695

File number(s): SYG 638 of 2022
Judgment of: JUDGE GIVEN
Date of judgment: 2 August 2024
Catchwords: INDUSTRIAL LAW – Whether applicant dismissed from employment for exercising workplace rights by making complaint in relation to employment, taking personal leave and/or making a workers compensation claim – whether applicant dismissed by reason of mental disability or taking leave for illness or injury – where respondents sought to rebut presumption under s 361 of the Fair Work Act by alleging dismissal was by reason of planned redundancy – whether redundancy expedited for prohibited reason/s – allegation of coercion
Legislation:

Fair Work Act 2009 (Cth) ss 97, 107, 119, 340, 342, 343, 351, 352, 360, 361, 550

Fair Work Regulations 2009 (Cth) regs 3.01, 6.05

Work Health and Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW)
Cases cited:

Alam v National Australia Bank Ltd (2021) 288 FCR 301

Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Christie v Woolworths Limited [2015] FCCA 2211

Construction, Forestry, Mining and Electrical Union v Leighton Contractors Pty Ltd (2012) 225 IR 197

Construction, Forestry, Mining and Energy Union v Spotless Facility Services Pty Ltd (t/as Spotless) (2015) 248 IR 34

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731

Durado v Foot & Thai Massage Pty Ltd [2019] FWC 1533

Fox v Stowe Australia Pty Ltd (2012) 271 FLR 372

Gogulwar v HB Fuller Co Australia Pty Ltd [2023] FedCFamC2G 459

Kassis v Republic of Lebanon (2014) 282 FLR 408

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

Kimhi v SA Drains Pty Ltd [2020] FCCA 3599

Leske v Trinity Lutheran College Mildura [2015] FCCA 572

Monash Health v Singh (2023) 327 IR 196

National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114

R v Lansdell (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Finlay and Simpson JJ, 22 May 1995 (BC9504624 at 26)

Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031

Stephens v Australian Postal Corp (2011) 207 IR 405

Strauss v Police (2013) 115 SASR 90

Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15

Venezuela Pty Ltd v Bright [2017] WADC 79
Division: Fair Work
Number of paragraphs: 262
Date of last submission/s: 21 August 2023
Date of hearing: 2 May 2023, 26 June 2023, 27 June 2023
Counsel for the Applicant: Mr M Baroni
Solicitor for the Applicant: Osborn Law Pty Ltd
Counsel for the Respondent: Ms V Bulut
Solicitor for the Respondent: Turnbull Hill Lawyers

ORDERS

SYG 638 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

NEAL FARRAGHER

Applicant
AND:

PBE RUTHERFORD MINING PTY LTD ACN 622 492 826

Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

2 AUGUST 2024

THE COURT DECLARES…

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AGLC
Farragher v PBE Rutherford Mining Pty Ltd [2024] FedCFamC2G 695
Case
[2024] FedCFamC2G 695
Decision Date

CaseChat Overview and Summary

The case of Farragher v PBE Rutherford Mining Pty Ltd involves the applicant, Mr Farragher, who was employed by PBE Rutherford Mining Pty Ltd in a managerial role. The dispute centres around Mr Farragher's dismissal, which he claims was unlawful as it was motivated by his exercise of workplace rights, including making a complaint, taking personal leave, and filing a workers compensation claim. The respondents, PBE Rutherford Mining Pty Ltd and its Vice President, argue that the dismissal was due to a planned redundancy, unrelated to the applicant's actions.

The central legal issues before the court were whether Mr Farragher's dismissal constituted adverse action under the Fair Work Act 2009 (FW Act), specifically for exercising workplace rights, and if the respondents could rebut the presumption under section 361 of the FW Act by proving the dismissal was due to redundancy. Additionally, the court needed to determine if the redundancy was expedited for prohibited reasons, including coercion.

The court found that the respondents failed to establish that Mr Farragher's dismissal was not substantially influenced by his exercise of workplace rights. It was determined that the decision to expedite the redundancy was motivated by the applicant's actions, particularly his complaint, which contravened section 340 of the FW Act. The court also found that the second respondent, who implemented the decision, was involved in the contravention under section 550 of the FW Act. Consequently, the court ruled that the applicant's dismissal was unlawful, and the respondents were in breach of multiple sections of the FW Act.

The court's decision underscored the importance of the applicant's workplace rights and the need for employers to adhere to the provisions of the FW Act when making decisions that could affect employees. The court's ruling highlights the consequences of failing to demonstrate that a dismissal was for a legitimate reason unrelated to protected activities under the Act.

Orders

Orders of the court

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Background

Background to the litigation

However, I agree with the respondents that the applicant has not done so, or at least that if it was his intention to do so, it has not been done with sufficient clarity as to be understood as forming a separate allegation. As such, paragraph [25] will not be treated as giving rise to a separate allegation to that which is pleaded in respect of the complaint, and will not fall for consideration as being an exercise of a workplace right by the applicant. FACTUAL BACKGROUND PBE Group Ltd (PBE Group) is 100% owned by PBE Investors Ltd and registered in England. The PBE Group later acquired the Rutherford Group (Rutherford Group) and established PBE Rutherford Mining Pty Ltd (PBE Rutherford) which was registered with ASIC on 26 October 2017.[14] [14] First Meyn Affidavit at [4] to [5] Mr Stuart de Crespigny is the PBE Group Chief Executive Officer. His father, Mr Robert de Crespigny, is a Non-Executive Director of PBE Rutherford. Relevantly, PBE Rutherford: (a)uses the US fiscal year, being January 1 to December 31;[15](b)has five divisions based at Tomago in NSW, being:[16](i)Manufacturing and Overhauls Workshop;(ii)Site Projects;(iii)Cable Services with Cable Shops at Tomago and also at Lithgow, Emerald, Mackay and Moranbah;(iv)Hire; and(v)CouplerCo.[15] Transcript 26 June 2023 T60.39 to T60.44[16] First Meyn Affidavit at [6] Couplers are the plugs on the end of medium voltage electrical cables. CouplerCo is a brand name for the couplers which PBE Rutherford manufactures, as well as being the shorthand name given to the division of PBE Rutherford responsible for the manufacture of its couplers.[17] [17] First Meyn Affidavit at [7] From 1990 to 2016, the applicant was employed in various, senior managerial roles by the Rutherford Group which entity was later purchased, in or about 2016, by PBE Rutherford. In or about August 2016, the applicant was made redundant from his position with the Rutherford Group. After this, he was unemployed for approximately 2 years until when, in or about September 2018, he received a telephone call from Mr Peter Ryan, who was at that time the Vice President of PBE Rutherford.[18] Mr Ryan asked the applicant if he would be interested in returning to work in a “temporary position”,[19] being General Manager of CouplerCo following the abrupt resignation from that role of another person. The applicant later accepted the temporary role of General Manager of CouplerCo, which he commenced on 15 October 2018.[20] In or about February 2019, the applicant’s position of General Manager of CouplerCo was made permanent.[21] [18] First Farragher Affidavit at [9][19] First Farragher Affidavit at [9][20] First Farragher Affidavit at [10][21] First Farragher Affidavit at [12] The evidence demonstrates that the applicant was considered competent in his role by PBE Rutherford and achieved positive appraisals in routine performance reviews. Mr Stuart de Crespigny and the second respondent each gave evidence that the applicant was an integral part of the CouplerCo business.[22][22] Transcripts 26 June 2023 T89.36 to T89.47 and 27 June 2023 T120.01 to T120.08

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the coercion allegation made pursuant to s 343 of the FW Act is not made out.CONCLUSION Having considered all the evidence before me, I am satisfied that while the first respondent had plans to make the applicant’s role redundant in June 2022 when the CouplerCo merger took place, I am also satisfied that a decision was taken on 8 November 2021 to expedite the CouplerCo merger to dismiss the applicant from his employment, which constituted adverse action within the meaning of s 342 of the FW Act. On the basis of all the evidence before the Court I cannot be satisfied that a substantial and operative reason for the adverse action was not for prohibited reasons. Specifically: (a)the first respondent has failed to establish, on the balance of probabilities, that the making of the complaint was not a substantial or operative reason for the applicant’s termination/expedition of his redundancy. I am satisfied that the making of the complaint was an initial and actuating reason for the second respondent’s decision to expedite the end of the applicant’s employment, by whatever means possible. This is a contravention by the first respondent of s 340 of the FW Act. The decision having been taken by the second respondent, I am satisfied that he was involved, within the meaning of s 550 of the FW Act with the first respondent’s contravention in this regard; (b)the first respondent has failed to establish, on the balance of probabilities, that the applicant taking personal leave on the basis of illness (being the condition), constituted by each of the first and second absences, was not a substantial or operative reason for the applicant’s termination/expedition of his redundancy. This is a contravention by the first respondent of s 340 of the FW Act. The decision having been taken by the second respondent, I am satisfied that he was involved, within the meaning of s 550 of the FW Act with that contravention by first respondent; (c)the first respondent has failed to establish, on the balance of probabilities, that the temporary first and third absences of the applicant were not a substantial or operative reason for the applicant’s dismissal/expedition of his redundancy. Accordingly, I am satisfied that the first respondent contravened s 352 of the FW Act. The decision having been taken by the second respondent, I am satisfied that he was involved, within the meaning of s 550 of the FW Act with the first respondent’s contravention in this regard; and (d)the first respondent has failed to establish, on the balance of probabilities, that the applicant making a workers compensation claim on 5 November 2021 was not a substantial or operative reason for the applicant’s dismissal by expedition of his redundancy. Accordingly, I am satisfied that the first respondent contravened s 340 of the FW Act. That decision having been taken by the second respondent, I am satisfied that he was involved, within the meaning of s 550 of the FW Act with the first respondent’s contravention referred to in respect of this allegation.

Ratio Decidendi

Legal Principle Established

The applicant also contends that it is well settled that this Court is not one of strict pleadings, citing the decision of the Full Federal Court in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 per Greenwood, McKerracher and Reeves JJ where, at [13], their Honours held:It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham (1982) 148 CLR 658 (at 664–665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded.Consideration In Monash Health v Singh (2023) 327 IR 196 at [69] per Katzmann, Snaden and Raper JJ, the Full Federal Court said the following citing Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239 (Regional Express Holdings) at [140] (emphasis removed): It may be accepted, consistent with the authorities referred to above, that in deciding whether Mr Singh identified his claim with sufficient clarity the Court is not limited to a consideration of the contents of the initiating application. We reject the submission to the contrary put by Monash Health that Regional Express stands for this proposition. Rather, what is clear from the Full Court’s reasoning in Regional Express at [140] that it is the message, not the medium, that counts:[W]hat is important is not the medium in which the allegations are made, but whether the allegations are made in the application. That is because for the purposes of s 361(1)(a), the reference to “an application in relation to a contravention of this Part” is a reference to the proceeding, and not to any particular document filed in the proceeding. In order to engage s 361(1)(a) there must usually be some document in the proceeding by which the applicant makes clear what the case is about, which includes the identification of any particular reason or particular intent that is relied on in order to engage s 361 that relevantly conforms with the guidance given by the Full Court in ABCC v Hall at [13]-[19]. It can be accepted that the allegation of expedited redundancy for an unlawful reason is not expressly repeated in the ASOC in relation to the first respondent’s alleged ss 351 and 352 FW Act contraventions. However, I am also not satisfied that this technical deficiency proscribes its consideration as part of the applicant’s case for the following reasons.