Farragher v PBE Rutherford Mining Pty Ltd
[2024] FedCFamC2G 695
•2 August 2024
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 THAT:
1.The first respondent dismissed the applicant from his employment on 5 January 2022 for reasons which included that the applicant:
(a)exercised a workplace right by:
(i)making a complaint in relation to his employment, and by so doing the first respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act);
(ii)taking personal leave because of personal illness or injury pursuant to s 97 of the FW Act from 1 to 4 November 2021 (inclusive), and by so doing the first respondent contravened s 340(1) of the FW Act; and
(iii)making a workers compensation claim on 5 November 2021, and by so doing the first respondent contravened s 340 of the FW Act; and
(b)took temporary leave for illness or injury from 18 to 25 October 2021 (inclusive) and by so doing the first respondent contravened s 352 of the FW Act.
2.The second respondent was involved, within the meaning of s 550 of the FW Act, in the first respondent’s contraventions of ss 340 and 352 of the FW which are the subject of the declarations at [1(a)] and [1(b)] above.
THE COURT ORDERS THAT:
1.The proceedings are listed for further directions before Judge Given at 9.30am on 22 August 2024 in court 13.1, level 13, 80 William Street, Woolloomooloo, with a view to being listed for hearing on the question of damages and/or penalty.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
INTRODUCTION
The applicant, Mr Neal Farragher was employed by the first respondent, PBE Rutherford Mining Pty Ltd (PBE Rutherford) as General Manager of its “CouplerCo” Division (CouplerCo) in Tomago, NSW, (workplace) from 15 October 2018 until the termination of his employment on 5 January 2022.
The applicant claims that by dismissing him from his employment, the first respondent contravened:
(a)s 340 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him for reasons which included that he exercised one or more workplace rights;
(b)ss 351 and 352 of the FW Act because he had a mental disability and/or because of his temporary absences from work for illness or injury; and
(c)s 343 of the FW Act by offering the applicant a voluntary redundancy payment in response to the complaint and/or injury in an attempt to coerce him to not exercise his workplace rights.
The first respondent says that termination of the applicant’s employment was on the basis of redundancy because it no longer required his job to be done by anyone. By reference to an Amended Statement of Claim (see [35] to [36] below), the applicant contends that even if the first respondent had longer-term plans to make his role redundant, that redundancy was brought forward for the prohibited reason referred to at [2] above.
The applicant seeks compensation for past and future economic loss and general damages for hurt, distress and humiliation.
The hearing in this matter was initially listed to commence on 2 May 2023 (first hearing) but adjourned on that date in the circumstances detailed at [35] below. In advance of the first hearing, the parties filed respective written outlines of opening submissions. The hearing ultimately took place commencing on 26 June 2023 (second hearing). Following the second hearing, the parties filed written closing submissions, including written submissions in reply by the applicant.
For the reasons which follow, on the basis of all the evidence before the Court, I have concluded that the first respondent did expedite the applicant’s redundancy as a means of terminating his employment, which constituted adverse action. I am not satisfied that a substantial and operative reason for that adverse action was not for a prohibited reason/s. I am further satisfied that where contraventions have been found on the part of the first respondent, that the second respondent was involved[1] in each contravention.
[1] Within the meaning of s 550 of the FW Act
LEGISLATION
The applicant contends that the first respondent’s dismissal of him was adverse action within the meaning of s 342 of the FW Act.
Section 340(1) of the FW Act precludes adverse action being taken against another because, inter alia, the person exercised, or purported to exercise, a workplace right and relevantly provides:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
Section 341(1) of the FW Act defines the circumstances in which a person has a workplace right as:
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
The term “workplace law” is defined in s 12 of the FW Act to include a law of a State that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters). The Workers Compensation Act 1987 (NSW) is a workplace law, being a State law which regulates the relationship between employers and employees. I am satisfied that the applicant is entitled to the benefit of that legislation and could make a claim pursuant to it. Accordingly, I am satisfied that the making of his workers compensation claim on 5 November 2021 was the exercise of a workplace right under a workplace law: see Fox v Stowe Australia Pty Ltd (2012) 271 FLR 372, Stephens v Australian Postal Corp (2011) 207 IR 405 at [15] to [16] and Construction, Forestry, Mining and Electrical Union v Leighton Contractors Pty Ltd (2012) 225 IR 197; at [62] to [63].
Further, as a full-time employee of the first respondent the applicant also possessed, a workplace right to take paid personal leave for illness in accordance with the National Employment Standards (NES) in the FW Act. Section 97 of the FW Act provides that:
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
Note 1: The notice and evidence requirements of section 107 must be complied with.
Note 2: If an employee has an entitlement to paid personal/carer’s leave, the employee may take that leave instead of taking unpaid special parental leave under section 80.
The notice and evidence requirements for, inter alia, leave pursuant to s 97 of the Act are prescribed by s 107 of the FW Act.
Sections 360 and 361 of the FW Act facilitate proof by an applicant of a claim of adverse action. Section 360 provides that a person takes actions for a particular reason if the reasons for the action include that reason, and s 361 establishes a rebuttable presumption that where it is alleged that a person took, or is taking, action for a particular reason or with a particular intent in contravention of the FW Act, that the action was taken for that reason or with that intent, unless the person proves otherwise (s 361 presumption). The s 361 presumption shifts onto the respondent/s the onus of proving that which is peculiarly within their knowledge: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Bendigo v Barclay) at [50] per French CJ and Crennan J.
Relevant to the allegations made in this case of discrimination on the basis of mental disability, s 351 of the FW Act relevantly provides:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Relevant to the allegations regarding temporary absence from work for illness or injury, s 352 of the FW Act provides:
352 Temporary absence—illness or injury
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.
Note: This section is a civil remedy provision (see Part 4‑1).
Regulation 3.01 of the Fair Work Regulations 2009 (Cth) (FW Regulations) relevantly provides as follows:
3.01 Temporary absence—illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, 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.
(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.
Note: The Act defines medical certificatein section 12.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
EVIDENCE
A joint Court Book was prepared by the parties which contained relevant documents filed with the Court as well as those produced under informal discovery arrangements. During the hearing, certain documents from the Court Book were formally tendered as well as documents produced in response to calls made in the course of the hearing.
For the applicant the following Affidavits (made by him) were read:
(a)Affidavit affirmed 17 October 2022 (first Farragher Affidavit);
(b)Affidavit affirmed 21 December 2022 (second Farragher Affidavit); and
(c)Affidavit affirmed 25 June 2023 (third Farragher Affidavit).
For the respondents, the following Affidavits were read:
(a)Affidavit of David Meyn affirmed 28 November 2022 (first Meyn Affidavit);
(b)Affidavit of Stephen Christie affirmed 28 November 2022 (first Christie Affidavit);
(c)Affidavit of David Meyn affirmed 23 May 2023 (second Meyn Affidavit);
(d)Affidavit of Stephen Christie affirmed 23 May 2023 (second Christie Affidavit); and
(e)Affidavit of Stuart de Crespigny affirmed 1 June 2023 (de Crespigny Affidavit).
Each of the aforementioned witnesses was cross-examined.
The applicant was measured and consistent in his evidence and prepared to make concessions even if they appeared to be against his interests.
Similarly, Mr Stuart de Crespigny was extremely considered in his evidence. The Court found him to be a witness of truth and his evidence appeared to be candid and honestly given.
Prior to discussing the overall impressions of the evidence of the second respondent and Mr Christie, it is necessary to recount an issue which arose on day 2 of the second hearing. As at or about 11:30am on that day the second respondent was being cross-examined, having carried over from the previous day. At or about that time, the Court took a mid-morning adjournment. Despite having done so on multiple occasions previously,[2] prior to adjourning, the Court uncharacteristically did not re-caution the second respondent against discussing his evidence with any other person. However, the Court was informed that the caution was in any event given to the second respondent by his own barrister prior to his leaving the witness box.
[2] Transcript 26 June 2023 at T58.44 to T58.46, T79.20 to T79.23.
Despite this, the second respondent was later found by my Associate, in the foyer directly outside the Court room during the mid-morning adjournment, sitting back-to-back with another gentlemen whereby, from a distance, it would seem from their respective positions that the two were not conversing, when in fact they were overheard speaking to one another. The second respondent was reminded by my Associate that he was not to be in discussions while still in cross-examination.
When the hearing resumed at about 11:55am, the Court raised this incident with both Counsel, in the presence of the second respondent. The second respondent conceded that he had been having a discussion with Mr Christie who, aside from being an employee of PBE Rutherford, was also the next witness scheduled to give evidence. Counsel for the applicant asked the second respondent what the witnesses had discussed, and the second respondent gave evidence to the effect that the conversation was about a logistical workplace matter regarding a switchboard building that was being installed on that day. Later, Mr Christie gave similar evidence as to the content of his conversation with the second respondent.
It is well-established that where witnesses discuss their evidence, either during its preparation in chief, or during a trial where evidence is being (or is yet to be) given, their credibility may suffer accordingly: see Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 at [30] per Sheller, McColl JJA and Windeyer J; see also, Durado v Foot & Thai Massage Pty Ltd [2019] FWC 1533, Strauss v Police (2013) 115 SASR 90 at [24] per Peek J and Venezuela Pty Ltd v Bright [2017] WADC 79 at [384] to [386] per Sweeney DCJ.
In R v Lansdell (Unreported, Court of Criminal Appeal (NSW), 22 May 1995 (BC9504624)), Gleeson CJ, Finlay and Simpson JJ at 26:
witnesses who have been able to hear or to learn the content of an earlier witness's evidence, are exposed to attack along the lines that they have untruthfully tailored their evidence to fit that already given.
In the present case, I am prepared to give the witnesses the benefit of the doubt and accept their respective answers, later given to the Court, that they were discussing the installation of some PBE Rutherford facility, and not their evidence. In reaching the views at [29] to [30] below, the Court has not taken into account the surreptitious discussion held between the two men during the hearing. I say surreptitious because the posture which the gentlemen adopted in order to have their allegedly anodyne discussion was intended to give the impression to a passer-by (who could not otherwise hear them) that they were not engaged in conversation at all. Despite this, the incident has not been included in my assessment of either of them as witnesses.
Nonetheless, I did not find the second respondent to be a persuasive, plausible and (in one specific instance) truthful, witness for reasons which are detailed throughout this judgment. In response to the ASOC, the second respondent filed additional Affidavit evidence within a grant of leave. While it can be accepted that a change in the pleadings can result in the need to furnish additional evidence, there were some specific areas in which the second Meyn Affidavit was sufficiently at odds with the evidence given by the first Meyn Affidavit as to render the later evidence incredulous and as though it was being given to cure problematic anomalies later perceived. It is also difficult to understand why such evidence would not have been provided earlier given how pertinent it appeared to be to the respondents’ s 361 rebuttal. Specific instances of this are discussed later in these reasons. The second respondent’s evidence shifted during cross-examination (see for example [158] below).
Mr Christie’s evidence also shifted under cross-examination during which several concessions were made which were consistent with the broader evidence. His concessions are preferred, in respect of a number of matters, to the evidence Mr Christie initially gave by his Affidavits, the latter of which also appears to have changed in a way which cannot be reconciled with the evidence initially given.
While giving evidence, it was also clear both from the reverent tone and demeanour of the second respondent when he spoke of the Messrs de Crespigny (individually and collectively), that he holds each of those gentlemen in high regard. The second respondent also gave evidence to the effect that he considered the Messrs de Crespigny, but in particular Mr Robert de Crespigny, to be a mentor.[3] It was apparent from the second respondent’s evidence that he is keen to impress the Messrs de Crespigny. It was also apparent that Mr Stuart de Crespigny, who resides in England, trusted and relied upon the second respondent to act properly and report to him accurately.
[3] Transcript 26 June 2023 at T74.12 and Transcript 27 June 2023 at T166.24 to T166.33
PLEADINGS
A dispute arose between the parties in closing written submissions as to the manner in which the applicant’s case is pleaded, and it is sensible to resolve these issues first.
Statement of Claim
As noted above, the instant proceedings were commenced by an originating Application filed on 2 May 2022 with a Statement of Claim (SOC) filed with the Court on 17 June 2022. By the SOC, the applicant alleged that the true actuating reason for PBE Rutherford’s termination of his employment was not a genuine redundancy, but rather, dismissal for prohibited reasons.
Specifically, it was alleged that the real reason for the termination was because the applicant had:[4]
[4] Applicant’s written submissions 4 April 2023 at [1]
(a)exercised his workplace rights by:
(i)making a complaint with respect to his employment (SOC at [8] to [9], [26] and [29] to [30]);
(ii)taking personal leave (SOC [14] to [16] and [27] to [29]); and
(iii)having lodged a workers compensation claim in relation to the injury (SOC at [20] and [28] to [30]); and
(b)that further, or in the alternative:
(i)the injury constituted a mental disability (SOC at [10], [17] to [19] and [31] to [33]); and/or
(ii)the applicant had been temporarily absent due to illness or injury pursuant to reg 3.01 of the FW Regulations (SOC at [10], [17] to [19], [34] to [35] and [36]).
Amended Statement of Claim
At the commencement of the first hearing an issue arose in relation to a proposed Amended Statement of Claim upon which the applicant sought leave to rely, and which had been circulated to the respondents shortly in advance of the hearing. The proposed amendment met an issue raised by the respondents’ evidence in rebutting the s 361 presumption, to the effect that the redundancy of the applicant’s role had formed part of an existing restructuring plan of PBE Rutherford. At the first hearing, the applicant sought to amend the SOC in the interests of completeness to more precisely allege in the alternative that, if the redundancy was indeed planned, it had been brought forward for prohibited reasons. Leave was granted to the applicant to amend the SOC, which also necessitated an adjournment and an opportunity to the respondents to file an Amended Defence and any further evidence.
By the Amended Statement of Claim filed on 3 May 2023 with leave (ASOC), the SOC was amended in the following ways:
(a)by the addition of paragraph [29A] in relation to the first respondent which alleged:
In the alternative, the First Respondent dismissed the Applicant, by bringing forward any alleged redundancy, because the Applicant exercised any or all of the workplace rights pleaded in paragraphs pleaded in [25] to [28].
Particulars
Strategy Paper titled “PBE Rutherford (PRM) Strategy for Growth”
(b)by the addition of paragraph [43(b)] in relation to the second respondent’s alleged accessorial liability which said:
In the alternative to (a) above, made a decision to dismiss the Applicant by bringing forward the date of the alleged redundancy.
The dispute between the parties at the conclusion of final submissions arose from the fact that the allegation made by [29A] of the ASOC pertained only to the alleged adverse action arising from the exercise of Mr Farragher’s workplace rights at [25] to [28][5] which were said to constitute contraventions of s 340(1) of the FW Act. The ASOC then goes on to allege at [31] to [36] that further, or in the alternative, the injury was a mental disability and that the applicant took temporary leave, and that as such, the first respondent’s dismissal of the applicant constituted contravention/s of ss 351 and 352 of the FW Act.
[5] Including matters arising under the Work Health and Safety Act 2011 (NSW) (WHS Act) and initiation of a claim under the Workers Compensation Act 1987 (NSW)
What is said to be significantly missing from the ASOC is any additional pleading in respect of ss 351 and 352 to allege that the applicant’s redundancy was expedited in relation to those contraventions also.
Later in the ASOC, while pleading his case of accessorial liability, by the addition of paragraph [43(b)] (see [36(b)] above) the applicant alleges that the second respondent allegedly made a decision prior to 1 December 2021 to dismiss him from his employment, or dismiss him by bringing forward the redundancy, and that said decision was made because the applicant:
(a)had made the complaint, which was a workplace complaint; and/or
(b)was suffering from the injury; and/or
(c)had lodged the workers compensation claim.
The balance of the pleading goes on to plead the second respondent’s alleged involvement in each of PBE Rutherford’s alleged contraventions of ss 340,[6] 351 and 352,[7] and 343[8] of the FW Act, with express reference being made to paragraph [43] of the ASOC in each.[9]
[6] ASOC at [45]
[7] ASOC at [46]
[8] ASOC at [47]
[9] Albeit in [46] the reference is an inclusive one to “[42] to [44]”
Respondents’ position regarding the scope of the ASOC
By their closing written submissions the respondent says that [29A] of the ASOC does not extend Mr Farragher’s claim of the expedited redundancy to apply to the alleged contraventions of ss 351 and 352 of the FW Act and that, to the extent that he now seeks to depart from the ASOC by suggesting otherwise, any such departure should be rejected.
Applicant’s reply regarding the scope of the ASOC
By written submissions in reply, the applicant says the respondents were aware of the case being brought and the claims about which the PBE Rutherford was required to discharge its onus. It is said for the applicant that the original SOC made plain to the respondents that they would need to prove by rebutting evidence that the real reason for the termination of his employment by PBE Rutherford was other than for a reason pleaded at [29] to [36] (inclusive) of the SOC. So much is said to have been acknowledged by the respondents by their opening written submissions which were filed on the basis of the SOC, in advance of the hearing at which the proposed ASOC was first circulated.
The applicant submits that, logically enough, if such rebutting evidence exists to demonstrate that the termination was other than for an unlawful reason, the evidence would not change based on whether the ASOC alleged dismissal or a redundancy being brought forward. This is said to be particularly so given the respondents’ own position that:
the (only) reason for the dismissal is simple - PBE Rutherford had made a business decision to make the position of General Manager of the CouplerCo division redundant as part of a broader restructure.[10]
[10] Respondents’ closing written submissions file 11 August 2023 at [13]
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.
First, while seemingly overlooked as an amendment in the ASOC in relation to the alleged ss 351 and 352 FW Act contraventions by the first respondent, expedited redundancy is expressly referred to as forming conduct of the second respondent which gave rise to his accessorial liability. Had the situation been reversed and, for example, a contravention by the first respondent was pleaded but there was no allegation the second respondent was involved in it for the purposes of s 550 of the FW Act, such an omission might be taken to have greater significance. However, the ASOC is sufficiently clear in the assertion that, as the relevant decision maker (a fact about which the parties are entirely agreed),[11] the second respondent made the decision that the first respondent would terminate the applicant’s employment by either dismissing him, or dismissing him by bringing forward the date of the alleged redundancy including for the prohibited reasons pleaded at [33] and [36] of the ASOC. Logically, if the second respondent is alleged to have been involved in the ss 351 and 352 FW Act contraventions of the first respondent, the first respondent is alleged to have so contravened.
[11] Respondents’ closing written submissions filed 11 August 2023 at [2] and [43]
I am satisfied that read together, paragraphs [33], [36], [43] and [46] of the ASOC make it sufficiently clear that the applicant also alleges that the alternative expedited redundancy allegation is made in relation to the ss 351 and 352 allegations made against the first respondent.
Aside from the Full Federal Court’s practical approach set out above at [44] above, this Court itself recognises that it is generally not a Court of pleadings, much less strict adherence thereto: see Leske v Trinity Lutheran College Mildura [2015] FCCA 572 at [13] per Judge Whelan, Christie v Woolworths Limited [2015] FCCA 2211 at [16] and [37] per Judge Jones and Kimhi v SA Drains Pty Ltd [2020] FCCA 3599 at [8] per Judge Heffernan. In Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552 at [3] and [8] per Judge Driver, the Court said:
The Federal Circuit Court is not generally a court of pleadings. Most of the work of the Court is conducted without pleadings on the basis of Affidavit evidence. However, in more substantial cases, particularly those where damages are claimed, pleadings are commonly employed. The Court, and I include myself in this, generally takes a reasonably liberal attitude to the drafting of pleadings. It is not unusual for pleadings to be amended several times at the interlocutory stage, leading up to a trial. It is unusual, in my experience, for a pleading to be sought to be amended following a trial, when the evidence has closed.
…
The Court has, as I have noted, taken a liberal attitude to the drafting of pleadings, and I have myself had cause to express some frustration with demands for different pleadings on the basis of perceived technical defects. To the extent that the respondents see the present application as one potentially depriving them of technical drafting objections, that expectation may well be disappointed even if the Application in a Case fails.
I accept the applicant’s submissions that the respondents did substantively understand his case as being that all of the alleged contraventions by the first respondent were premised on the basis of termination by dismissal, or by redundancy expedited for a prohibited reason: see Monash Health v Singh (supra). The defect in the ASOC, namely the omission from [32] to [36] of express mention of dismissal by expedited redundancy, is a mere technicality and has not caused the respondents prejudice in understanding, nor denied them an opportunity to meet the applicant’s case. I am not satisfied that the manner in which the applicant’s case was advanced, or later summarised by his closing written submissions deviates in substance from the manner in which it was advanced or understood by the respondents.
It is implicit from the allegations at [43] and [46] of the ASOC that the applicant alleges that [32] and [35] of the ASOC should be understood as making allegations that PBE Rutherford’s termination of Mr Farragher by either dismissal or expedition of redundancy, was because of his mental disability (ASOC at [32]) or his temporary work absences due to illness or injury (ASOC at [35]) and constituted contraventions of ss 351 and 352 of the FW Act respectively.
The Work Health and Safety Act
One last dispute in relation to the ASOC requires resolution. Paragraph [25] of the ASOC (later cross referenced by [29] and [29A]) says that the respondents had a duty under the Work Health and Safety Act 2011 (NSW) (WHS Act) to prevent and/or minimise the risk of psychological hazards in the workplace. That statement is later said to have constituted a workplace right. The respondents say that a mere statement of a duty goes no further in the pleading and it is difficult to understand how the mere pleading of a duty on the part of the respondents is said, in this case, to have amounted to an exercise of the applicants workplace rights. The respondents submit that this is not at all explained in the applicant’s closing submissions (in chief).[12]
[12] Applicant’s submissions filed 21 July 2023
By his closing submissions in reply the applicant says[13] that:
Not only is the matter pleaded in the Claim and ASOC, but it was put to Meyn during cross-examination and objected to (on the basis it was not pleaded) by Counsel for the Respondents.
…
Moreso, this ‘benefit’ is pleaded in the AS at [3(a)] which clearly states that the Applicant held the ‘benefit’ of the WHS Act. The AOS at [30(b)] also put to the Respondents that rather “than making any attempt to provide [the Applicant] with a safe working environment, Meyn, according to his own evidence, suggests to [the Applicant that] he consider voluntary redundancy’.
[13] Applicant’s submissions filed 21 August 2023 at [31] to [33] citing Transcript 27 June 2023 at T108.01 to 108.25 to T109.03 to T109.47
It is possible to plead a workplace right as an entitlement. In Kassis v Republic of Lebanon (2014) 282 FLR 408 at [38] per Judge Raphael, the Court held in similar circumstances that:
The workplace right alleged to be infringed for the purposes of the s 340 claim was the making of a complaint (s 341(1)(c)). I note that the applicant could have framed this workplace right as entitlement or benefit to a workplace law, including workplace health and safety laws, but this was not the approach taken in relation to the breach of s 340.
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
The second respondent, Mr David Meyn, commenced his employment with the Rutherford Group in April 2011 as General Manager of a particular division. He continued in a variety of roles[23] until being appointed as Managing Director of PBE Rutherford from 20 September 2021, a position he continued to hold as at the time these proceedings were heard in 2023 (and may still). It is not in dispute that the second respondent made the decision to terminate the applicant’s employment (which, on the respondents’ case is said to be by identifying his role for eventual redundancy). As such, it is not in dispute between the parties that the second respondent is the relevant “decision maker” for the purposes of these proceedings.
[23] First Meyn Affidavit at [9] to [12]
As at 2021, stakeholders in PBE Rutherford (in particular Mr Robert de Crespigny) had concerns about the origin and supply of certain materials required for PBE Rutherford’s manufacturing businesses. In summary, there was a concern that for geopolitical reasons it would be preferable to diversify the source/s of goods to avoid potential supply chain issues. For reasons which are not necessary to explain for the purposes of these reasons, the project was colloquially referred to within PBE Rutherford as “ABC”. The applicant, who was the only person working on the ABC project, had been undertaking steps to identify new suppliers.[24]
[24] Transcript 26 June 2024 at T78.10
The following chronology interweaves two main strands of events, being matters pertaining to the applicant’s employment, as well as matters pertaining to the proposed restructure of PBE Rutherford, most of the latter being matters unbeknownst to the applicant, as is expected in such a case: see Bendigo v Barclay at [50] per French CJ and Crennan J. As and when necessary, factual findings have been made throughout the following background.
Issues with the office manager
In or about March 2021, tensions arose between the applicant and the CouplerCo office manager (office manager). Those tensions culminated in the office manager making a complaint about the applicant, and eventually vice versa. The applicant’s evidence explained the genesis of the issues between the pair, but it is unnecessary to repeat this in any particular detail for the purpose of these proceedings beyond the following summary, nor to identify her.
On 13 April 2021, the applicant undertook the office manager’s performance appraisal meeting in his role as her supervisor. The office manager was ultimately unhappy with the rating she had been given in the appraisal, which she challenged. The office manager then indicated that she felt she could no longer work with the applicant at CouplerCo.
On 19 April 2021, the applicant attended a meeting with the office manager, Mr Ryan and Mr Glenn Bisson, the PBE Rutherford “Group Human Resources Manager”. At that meeting the office manager expressed a number of her grievances with the applicant, which she read aloud from typed notes (office manager’s complaint). Following the meeting, the applicant requested a copy of the office manager’s complaint notes which were purportedly emailed to him by Mr Bisson several days later.[25] The applicant’s recollection of the tone, nature and length of the complaint as read aloud at the meeting by the office manager, differed from the content of the document attached to Mr Bisson’s email and so the applicant searched the PBE Rutherford computer system (PBE server) and located the earlier version among files on the “HR Drive”.
[25] First Farragher Affidavit, Exhibit “NF-1” at 15 to 18
In or about late April 2021 while looking on the PBE server for documents pertaining to the office manager’s employment, the applicant also stumbled across a document dated 22 April 2020 which he says suggested that the office manager’s duties had been expanded at that time, on an interim basis, to include overseeing the business operations of CouplerCo.[26] The applicant says he had been unaware that the office manager’s role had been expanded in that way a year earlier. Following the above events, the office manager is said to have behaved in an array of ways which can be summarised (at least) as having conveyed aloofness towards the applicant.
[26] First Farragher Affidavit, Exhibit “NF-1” at 38
Promotion of the second respondent and proposed restructure
As noted above at, the second respondent has been employed by various of the entities referred to above since commencing with the Rutherford Group in April 2011. Until his promotion to Managing Director of the first respondent, the second respondent was employed by it in a role initially as General Manager, managing three of the divisions referred to at [58(b)] above. In February 2020, the second respondent’s title was changed to “Vice President”, but his duties had remained the same.
By the first Meyn Affidavit, the second respondent says his promotion to Managing Director was preceded by conversations in June 2021 between he and Mr Stuart Champion de Crespigny, during which the second respondent gained the understanding from Mr de Crespigny that a priority upon commencing the new role would be to review the first respondent’s business to ascertain the best structure by which it might grow, while reducing its overhead costs. The second respondent further understood that Mr de Crespigny wanted him to prepare a memorandum to outline the strategy for the restructure.
The evolution of the Strategy Paper
A strategy paper was prepared to outline the proposed restructure (Strategy Paper).[27] From July 2021 to October 2021 there were multiple iterations of the Strategy Paper, with later versions being sequentially numbered. The final version of the Strategy Paper was considered by the PBE Rutherford Board at a Board meeting on 26 October 2021. The Strategy Paper evolved as follows.
[27] First Meyn Affidavit, Exhibit “DM-1” at 4
On 25 June 2021, the second respondent emailed an initial set of handwritten notes to Ms Anna Starett (June 2021 notes)[28] who was the Finance Director of PBE Rutherford at Tomago. Within the June 2021 notes was an item pertaining to reduction of overheads, which included CouplerCo as being an area in which potential costs reduction might be achieved. Relevantly, the June 2021 notes made no reference to redundancy of any role and specifically, no reference to redundancies in the CouplerCo division including the applicant’s role.
[28] First Meyn Affidavit, Exhibit “DM-1” at 2
On 4 July 2021, Ms Starrett sent a document to the second respondent by email (being the first version of the Strategy Paper). The first version of the Strategy Paper, while potentially having its genesis in the second respondent’s handwritten notes, was prepared by Ms Starrett. All later versions of the Strategy Paper were authored by the second respondent. By her covering email Ms Starrett said (errors in original):[29]
Have left the org chart for you to have a go. We need to think this though – firstly what skills/roles do we need to achieve the things in tis document, and after that what skills/roles that we need going forward do we lose with Pete[30] going, how do we replace those with existing or new people
[29] First Meyn Affidavit, Exhibit “DM-1” at 3
[30] The reference in Ms Starrett’s email to “Pete” was a reference to Mr Ryan
Like the June 2021 notes, the first version of the Strategy Paper made no mention of redundancy of the applicant, although it did include a reference to “Costs reduction initiatives” which said, inter alia:[31]
-Merge of Coupler co [sic] into Cable shop
[31] First Meyn Affidavit, Exhibit “DM-1” at 13
On 20 July 2021, the second respondent sent Ms Starrett an updated version of the Strategy Paper, which included an organisational chart (July organisational chart).[32] The second respondent was the creator of the July organisational chart[33] which relevantly depicted:
(a)the role of “General Manager CouplerCo” as extant and reporting to the Managing Director; and
(b)omitted any reference to a merger of CouplerCo with the Cable Shop.
[32] First Meyn Affidavit, Exhibit “DM-1” at 28
[33] Transcript 26 June 2023 T56.05 to T56.08 and T55.33 to T55.35
On 15 August 2021, the second respondent emailed Ms Starrett an updated version of the Strategy Paper which included among the costs reduction initiatives “Merge of Couplerco [sic] into Cable Services. CouplerCo GM role redundant”.[34] This was the first time the possibility of redundancy of the applicant’s role as a result of the proposed merger was recorded.
[34] First Meyn Affidavit, Exhibit “DM-1” at 64
Despite the reference on 15 August 2021 to the potential redundancy of the applicant’s role, versions of the organisational chart which were sent by the second respondent on each of:
(a)5 August 2021[35] (to Ms Starrett);
(b)15 August 2021[36] (to Ms Starrett); and
(c)25 August 2021[37] (to Mr Stuart de Crespigny);
recorded the role of General Manager of CouplerCo as remaining in situ.
[35] First Meyn Affidavit, Exhibit “DM-1” at 43 and 53
[36] First Meyn Affidavit, Exhibit “DM-1” at 54 and 67
[37] First Meyn Affidavit, Exhibit “DM-1” at 70 and 83
On 31 August 2021, the second respondent sent Mr Stuart de Crespigny an email attaching a further version of the Strategy Paper (version 4) which included a fresh organisational chart (August organisational chart).[38] The August organisational chart omitted the General Manager role for CouplerCo, and relocated CouplerCo underneath the Tomago Cable Services Branch Manager.[39]
[38] First Meyn Affidavit, Exhibit “DM-1” at 88 and 98
[39] First Meyn Affidavit, Exhibit “DM-1” at 98
On 20 September 2021, the second respondent was promoted to be the Managing Director of the first respondent as foreshadowed, and he took management of all five of the divisions set out at [58(b)] above.
On 26 September 2021, the second respondent sent Mr Stuart de Crespigny version five of the Strategy Paper (version 5)[40] which included the following relevant matters:
[40] First Meyn Affidavit, Exhibit “DM-1” at 117
(a)among the “Costs reduction initiatives”:[41]
[41] First Meyn Affidavit, Exhibit “DM-1” at 124
·Merge of Couplerco [sic] into Cable Services. CouplerCo GM role redundant June 2022 – Cost saving $156k pa excluding redundancy provisions ($80k in 2022)
…
·Review supplier agreements to leverage group purchasing levels, continue to develop overseas sourcing of CouplerCo parts -$80k in 2022
(b)in a table headed “2022 Initiatives Forecast”,[42] an entry “CouplerCo merge to cable shops – July 2022” with an overall headcount of “-1” and a saving of $80,000;
(c)among “Proposed Initiatives”:[43]
·Investigate low cost alternatives for CouplerCo parts outside of China. Risk mitigation for Australia/China relationship concerns; and
(d)within the organisational chart,[44] had CouplerCo still located underneath the Tomago Cable Services Branch Manager.
[42] First Meyn Affidavit, Exhibit “DM-1” at 125
[43] First Meyn Affidavit, Exhibit “DM-1” at 127
[44] First Meyn Affidavit, Exhibit “DM-1” at 128
On 29 September 2021, the second respondent sent Mr Stuart de Crespigny an email attaching a document containing information in tabular form. An entry in that table pertaining to the applicant showed an overall salary saving per annum of $156,000 and a saving under a heading “Strategy Doc” of $80,000. In a column headed “Notes” was an entry stating “Half year”. During cross-examination, the second respondent confirmed that this entry supported the proposition that the redundancy of the applicant would be a half-yearly saving because he was due to be made redundant in the second half of 2022, which would be a half yearly saving by reference to the US fiscal year being 1 January to 31 December (see [58(a)] above).
On 8 October 2021, the second respondent sent Mr Stuart de Crespigny version eight of the Strategy Paper (version 8).[45] A table contained in version 8 contained, under the heading “Developing Current Performance for Cash Generation”, an entry again reflecting an $80,000 costs saving with a narrative attached which said:[46]
Merge of Couplerco [sic] into Cable Services. CouplerCo GM role redundant June 2022.
[45] First Meyn Affidavit, Exhibit “DM-1” at 135
[46] First Meyn Affidavit, Exhibit “DM-1” at 145
The making of the complaint
Having commenced in his new role on 20 September 2021, it can be accepted that the second respondent had only been Managing Director of PBE Rutherford, and therefore the applicant’s direct manager,[47] for approximately three to four weeks when the next events unfolded.
[47] Transcript 27 June 2023 at T126.15 to T126.16
The applicant says that from 13 April 2021 to 15 October 2021, the relationship between he and the office manager had become a hostile one, thereby creating a toxic working environment. While there was some suggestion during cross-examination that their working relationship may have improved from about March to June 2021,[48] the applicant’s evidence was that in some pockets of time during that period, the dynamic between them did not further deteriorate, but neither did it improve. The applicant says he made concerted efforts to “calm the waters”[49] between himself and the office manager.
[48] Transcript 26 June 2023 at T16.10 to T17.13
[49] Transcript 25 June 2023 at T17.09
8 October 2021
Not long after the second respondent commenced his new role, the applicant sought to bring to his attention the ongoing issues between himself and the office manager. The witnesses’ recollections were somewhat at odds as to the occasion on which this first happened. Initially, the applicant alleged it was 8 October 2021. However, for the following reasons, I am satisfied that the it was not until 15 October 2021 that the issues, culminating in the making of a complaint, were raised:
(a)concessions made by the applicant that it was unlikely that he had a discussion with the second respondent on 8 October 2021;[50]
(b)there is no mention of there being an 8 October 2021 meeting in a chronology which the applicant prepared on or about 20 October 2021 to send to the second respondent (see [105(c)] below);[51] and
(c)a handwritten diary entry made by the applicant on that date records that the applicant was working from home.[52]
[50] Applicant’s written submissions 21 July 2023 at [13]; Transcript 26 June 2023 at T18 to T19 and Transcript 27 June 2023 at T173.35
[51] See CB 388 and Transcript 26 June 2023 at T29.25 to T29.44
[52] Exhibit “2R”
Accordingly, I am not satisfied that a complaint was made by the applicant on 8 October 2021 in respect of his employment as alleged.
15 October 2021
By the first Farragher Affidavit the applicant says that he had arranged to meet the second respondent on 15 October 2021.[53] The second respondent recounts there being two meetings between them on that date, which I accept. Their first meeting on 15 October 2021 was at the conclusion of a regular operations meeting for CouplerCo, which took place in the morning.[54] When the operations meeting concluded, the applicant and second respondent had a discussion alone (first 15 October meeting). I accept that on that occasion a conversation took place between the applicant and the second respondent which is largely in keeping with that set out at [49] of the first Meyn Affidavit, which records the following (anonymisation added):
[53] First Farragher Affidavit at [34]
[54] See also Exhibit “1R”
Neal: [The office manager] was nice to me in the meeting.
David: What do you mean Neal?
Neal: Aren't you aware of the situation with [the office manager] and me?
David: I know you and her don't get on great, is there more than that?
Neal:Yes, she put a formal complaint to HR about me when I was doing her performance review back in April.
David:I didn't know that.
Neal:I will send you the complaint and my response.
David:OK do that.
Neal:We don't get on well since the complaint. I haven't been feeling well lately and the situation with [the office manager] isn't helping the situation.
David:Send me the letters to help me understand the situation.
Neal:I’ll do that.
To the extent that the applicant remarked upon the office manager having been nice to him in the operations meeting, I accept his evidence that this was a remarkable occurrence because it was out of the ordinary given the issues between them.[55]
[55] Transcript 26 June 2023 T19.28 to T19.32
Later, on 15 October 2021, the applicant went to meet the second respondent again (second 15 October meeting). The applicant says the second 15 October meeting was arranged. The second respondent says it was unprompted and that the applicant (anonymisation added): [56]
came into my office all fired up and accused me of not taking him serious [sic] about the [office manager] issues and that she is now his Manager.
[56] Exhibit “1R”
By his Affidavit, the applicant says that during the second 15 October meeting he said words to the following effect to the second respondent (complaint):[57]
The ongoing issues between me and [the office manager] are now at a point where they are affecting my physical and mental health which is deteriorating. I feel that she is undermining me to the other employees. She is also actively ignoring and avoiding me. The workplace is very uncomfortable for me.
[57] First Farragher Affidavit at [34]
The applicant agrees that during their conversation at the second 15 October meeting, he told the second respondent that he felt the second respondent was not taking the subject matter of the complaint seriously, and the second respondent agrees that the applicant made an accusation in those terms.[58] The applicant’s statement to that effect is consistent with his having a contemporaneous impression of reticence on the part of the second respondent to hear about the office manager issue from the applicant. The conversation at [87] above is also not inconsistent with the evidence of the applicant that, despite the later statements of the second respondent, he was not particularly interested in the details of the issues/between the applicant and the office manager, which gave rise to the accusation that the second respondent was not taking the applicant seriously.
[58] Exhibit “1R”
The applicant’s evidence was that during the second 15 October meeting, he again told the second respondent that he would send the officer manager’s complaint to him, together with a record of the applicant’s responses to the allegations. The applicant remained consistent about the fact that it was he who was insistent on sending the complaint to the second respondent, rather than the second respondent seeking out any such information. The applicant was not dislodged from that recollection despite various attempts to have him agree that the second respondent had in fact requested it be sent. The second respondent’s version of events as recorded in Exhibit “1R” is also consistent with the applicant’s in this regard. The second respondent (later)[59] recorded:
Neal said that he would send me the previous formal complaints from [the office manager]. He sent me this on 20 Oct.
[59] 1 November 2021
Importantly, while the applicant was challenged during cross-examination in various ways about the second respondent’s version of the second 15 October meeting, he was not challenged in relation to whether he made the complaint on that occasion, nor the content of the complaint made.
By the first Farragher Affidavit, the applicant said that on 15 October 2021 the second respondent suggested that there may be a possibility of a voluntary redundancy for the applicant, which the applicant declined.[60] However, under cross-examination the applicant tended to accept that the events of Friday, 15 October 2021 more closely resembled those (later)[61] recorded in Exhibit “1R”. Specifically, the applicant accepted under cross-examination that at the second 15 October meeting, there was no mention of voluntary redundancy,[62] and later conceded that there had been no discussion between them about redundancy as at that date.[63] As such, I am not satisfied that the second respondent offered the applicant redundancy on 15 October 2021 immediately in response to him having made the complaint. However, that does not mean that when redundancy was offered on a later occasion, that it was disconnected from the making of the complaint.
[60] First Farragher Affidavit at [34]
[61] 1 November 2021
[62] Transcript 26 June 2023 at T21.09 to T21.10
[63] Transcript 26 June 2023 at T29.45 to T30.02
Applicant’s first absence from the workplace
The applicant’s evidence was that his usual work hours were about 6:00am to 3:00pm, so that he commenced his day at the same time as those who worked in the CouplerCo workshop.[64] The applicant says that after he met with the second respondent on 15 October 2021 (taken to be a reference to the second 15 October meeting), he finished his day’s work at about 3:00pm, and went home. He says it was not until later in the day, having been home first, that he attended a medical practice to consult a general practitioner.[65]
[64] Transcript 26 June 2023 at T22.18 to T22.21
[65] First Farragher Affidavit at [35]
At or about 3:43pm on 15 October 2021, the second respondent emailed the applicant at the applicant’s PBE Rutherford email address,[66] in the following terms (15 October email) (errors in original):[67]
Neal,
Let’s catch up on Monday, Clearly the current situation is not healthy so we need to put everything on the table and sort it out. Let’s catch up in my office at 9am.
[66] Discernible from the version of the 15 October email contained at Court Book 376
[67] First Meyn Affidavit, Exhibit “DM-1” at 161
The evidence is not clear as to when the applicant read the 15 October email. The applicant also concedes that the 15 October email conveyed an apparent willingness on the part of the second respondent to discuss the officer manager issue/s and the complaint.[68] However, the applicant was adamant that the content of the 15 October email was at odds with the overall impression of reticence he had observed, from the second respondent, until that juncture.
[68] Transcript 26 June 2023 at T23.14 to T23.27
At or about 9:04am on Saturday, 16 October 2021, the applicant replied to the 15 October email from his PBE Rutherford email address (16 October email)[69] to say, in summary, that he would not attend work on the following Monday, nor for the remainder of that week, on the basis of medical advice. The applicant wrote:
I don’t think that you understand the damage that this toxic work environment over the last 8 months of so has done to both my physical and mental health.
following which the applicant listed 8 bullet points of symptoms of physical and mental health issues (the condition). The email concluded:
The doctor has given me a prescription for sleeping medication, I am hoping that some better sleep and a week away from the toxic work environment will help me decompress.
[69] First Meyn Affidavit, Exhibit “DM-1” at 162
Attached to the 16 October email was a medical certificate by a Dr Singh of a particular medical practice, which certified that the applicant was unable to work from 18 October 2021 to 22 October 2021 inclusive “due to a medical condition”.[70] The applicant accepts that neither the 16 October email, nor the medical certificate specified the nature of the condition. He also accepted that to the extent the 16 October email makes reference to a “toxic work environment” that he did not specifically identify the issues to which he was referring, but said that this was because he assumed the second respondent would have known exactly to what he was referring based on the content of their meetings the previous day.
[70] First Meyn Affidavit, Exhibit “DM-1” at 164
At or about 9:30am on 18 October 2021, the second applicant replied to the 16 October email in the following terms (error in original):[71]
Neal
PBE has an Employee Assistance Program (EAP) that you can also access at no cost. I can provide you with the contact details if you would like to access this service.
I would like to understand the specific issues at work which are worrying you if you can please put them down in an email to me this week. We can then catch-up next week to discuss.
Let me know if there’s anything else that we can do to assist you during this time.
[71] First Meyn Affidavit, Exhibit “DM-1” at 167
Later, on 18 October 2021, the applicant replied to the second respondent by email from his PBE Rutherford email address to express concern about the confidentiality of the counselling service to which the EAP had referred him, as he had been told that PBE Rutherford would be billed for the service directly.[72] The applicant was concerned that PBE Rutherford finance staff would be privy to information about assistance he received. Several hours later, the second respondent replied by email to assure the applicant that personal details are not included on such invoices, and that the applicant’s use of the service would be completely anonymous.[73]
[72] First Meyn Affidavit, Exhibit “DM-1” at 169
[73] First Meyn Affidavit at [55]
On 19 October 2021, the applicant attempted to log on to the PBE server to access his emails remotely, but was unable to do so. The applicant telephoned the second respondent to ask why his access to the PBE server had been restricted, to which the second respondent says he replied (error in original):[74]
I don’t want you doing work when you’re away sick after reading your doctor’s certificate so I have temporally [sic] disabled your access. Is there something that you need?
[74] First Meyn Affidavit at [56]
By his Affidavit evidence the applicant initially recounted the second respondent asking him if he had considered the possibility of voluntary redundancy any further. Under cross-examination the applicant again conceded that there was no discussion about redundancy in that conversation.[75]
[75] Transcript 26 June 2023 T27.04 to T27.05
On Wednesday, 20 October 2021, the applicant emailed the second respondent from his Bigpond email address, presumably as a result of his restriction from the PBE server, stating:[76]
David,
I think that should be aware of [the office manager’s] complaint and my response.
(seek to understand before action)
[76] First Meyn Affidavit, Exhibit “DM-1” at 175
Attached to the 20 October email were:
(a)an eleven-page document which appeared to contain the office manager’s complaint, together with the applicant’s responses to the various allegations contained therein. The document title in the footer included “NF response to DM 20-10-21.docx”, indicated that he created or finalised it on 20 October 2021;[77]
(b)a one-page document entitled “Interim Amendment of Duties”, which appears to have been signed and dated by the office manager on 22 April 2020, reflecting her expanded role as referred to at [68] above; and
(c)a three-page document setting out a chronology of events, the last of which set out some details of the second 15 October meeting and the fact of the applicant having gone to the doctor, and emailing the second respondent to say he was unable to come to work (applicant’s chronology document).
[77] Transcript 26 June 2023 T28.14 to T28.34
Later, on 20 October 2021, the second respondent replied to the 20 October email to say “Let’s catch up when you’re back”[78] and to reiterate the availability and confidential nature of the EAP.
[78] First Meyn Affidavit, Exhibit “DM-1” at 191
Meanwhile, the second respondent was in the process of finalising his restructuring presentation for the PBE Rutherford Board.
On 23 October 2021,[79] the second respondent sent an email to the PBE Rutherford Board members to circulate the final version of the Strategy Paper. The final version of the Strategy Paper:
(a)is initialled by the second respondent and hand dated “21.10.21”;[80]
(b)included the same table with the identical entry to that which is set out at [82] above;
(c)in a table headed “Current Initiatives - 2022 Forecast”, contained an entry relevantly identical to that at [80(b)] above “CouplerCo merge to cable shops – July 2022” with an overall headcount of “(1)”[81] and a saving of $80,000;[82]
(d)continues to include the substance of the ABC project as being among “Proposed Initiatives” (see [80(c)] above);
(e)includes for the first time the subject matter of the ABC project in a table entitled “Risk Mitigation” with a residual risk rating of medium, where most other risks are rated as low risk;[83] and
(f)includes an organisational chart relevantly unchanged to that version referred to at [80(d)] above, with CouplerCo still located underneath the Tomago Cable Services Branch Manager.[84]
[79] As had been foreshadowed by an email from Mr de Crespigny to the Board sent on 8 October 2021
[80] Transcript 26 June 2023 at T69.14 to T69.21
[81] Indicating “-1”
[82] First Meyn Affidavit, Exhibit “DM-1” at 201
[83] First Meyn Affidavit, Exhibit “DM-1” at 211
[84] First Meyn Affidavit, Exhibit “DM-1” at 207
Offer of voluntary redundancy
Following the period of his absence from 18 to 22 October 2021 (first absence), the applicant returned to the workplace on Monday, 25 October 2021. Upon his arrival, the applicant was still not able to access the PBE server. The applicant undertook various tasks in the morning of 25 October 2021. At or about 1:45pm that day, the applicant met with the second respondent in the latter’s office, during which they had a conversation (25 October meeting). In summary, the applicant told the second respondent that the week away from work had helped, but reiterated that the condition persisted and that:[85]
I don’t feel I am getting any support.
[85] First Farragher Affidavit at [41]
The applicant says that he told the second respondent that he had:[86]
also sought legal advice and it was suggested that the company engage an independent mediator
understood to be in order to resolve the issues between he and the office manager which were the subject matter of the complaint, to which the second respondent replied:[87]
I’m not interested in any mediation; I don’t think that would do any good. Mediation is as useless as marriage counselling.
[86] Ibid.
[87] Ibid.
By his Affidavit the applicant says that, immediately after having refused mediation, the second respondent raised the possibility of a redundancy.[88] The question of whether the second respondent refused to facilitate a mediation is a matter in dispute between the parties.
[88] Ibid.
Despite claims in the applicant’s evidence in chief that redundancy had been mentioned to him as early as 8 October 2021, the evidence supports a conclusion that the first time redundancy was raised with the applicant was during the 25 October meeting.[89] In re-examination, Counsel for the applicant sought to revisit the applicant’s evidence in chief to establish that the first mention of the voluntary redundancy had been the second 15 October meeting, and that this was consistent with an assertion to that effect in a letter sent to PBE Rutherford on 29 October 2021 by the applicant’s solicitors (29 October letter) which assertion should be taken as having been made on instructions, thereby reflecting the contemporaneity of the statement. Given the date of the 29 October letter, the inclusion of the assertion within it[90] does not, chronologically, foreclose the possibility that redundancy was first raised with the applicant by the second respondent on 25 October 2021.
[89] Transcript 26 June 2023 at T32.27 to T32.28
[90] Repeated in the letter from Turnbull Hill Lawyers to Osborne Law on 25 November 2021
However, it was the number of times (and the variety of occasions about which) the applicant accepted in cross-examination that the topic of voluntary redundancy had not been broached earlier than 25 October 2021, together with his handwritten notes of 15 and 25 October 2021[91] (the former of which makes no mention of redundancy, in contrast to the latter which does), that causes me to be satisfied that when the second respondent raised redundancy with the applicant, he did so at the 25 October meeting, and that this was the first time redundancy had been raised.
[91] Exhibit “2R” at page 2 Cf Page 3
As to the manner in which it was raised, the second respondent says he told the applicant that the company was being reviewed for restructure, that the second respondent had been working on that restructure for “several months”[92] and that the restructure was being considered by the Board at a meeting the next day. The second respondent also says he made mention of two other staff members who had already been made redundant. The applicant accepts that at the 25 October meeting he was told of the restructuring, and that the second respondent said he had been “working on it” (although the applicant did not recall him saying anything about for how long the project had been on foot).[93] The applicant recalls the second respondent mentioning that one staff member had already been made redundant. The applicant asked the second respondent about the terms of any proposed redundancy and was told that the terms would be pursuant to the NES. In the applicant’s circumstances that was said to be approximately seven weeks plus another five weeks in lieu of notice, if he did not work out the requisite notice period. The applicant asked the second respondent what the proposed timing for such a redundancy would be and the second respondent indicated that more would be known after the imminent Board meeting and suggested that the applicant and he speak on Wednesday, 27 October 2021. Some aspects of that conversation are reflected in handwritten notes from the applicant’s work diary of that date.[94]
[92] First Meyn Affidavit at [61]
[93] Transcript 26 June 2023 at T31.23 to T31.25
[94] Exhibit “2R”
The second respondent gave evidence that the reason he offered the applicant the possibility of voluntary redundancy at the 25 October meeting was because the applicant had said he wasn’t happy “in the organisation”.[95] I reject that explanation. Aside from the issues between the applicant and the office manager which were the subject matter of the complaint, there is no evidence of the applicant conveying that he had any level of dissatisfaction about PBE Rutherford, such that he was unhappy working there. Under cross-examination the following exchange occurred with the second respondent about his evidence that the applicant was unhappy:[96]
Q:And the reason you wanted to discuss that and the reason he told you that he wasn’t happy was because of the relationship that he had given you significant information about with him and [the office manager] that was affecting his health. That’s why he wasn’t happy?
A:Well, he said he – he – he wasn’t happy, so I don’t know what that meant in full.
Q: Did you ask him?
A: No, I didn’t.
[95] First Meyn Affidavit at [61] and Transcript 27 June 2023 at T112.30 to 112.33
[96] Transcript 27 June 2023 at T112.35 to T112.41
The discontent expressed at [109] above regarding a lack of support is properly understood as being a reference to the lack of attention the complaint had received by the respondents, which was something uniquely within their remit to address.
On 27 October 2021, the applicant and second respondent met again for a discussion (27 October meeting).[97] The applicant told the second respondent that he was experiencing anxiety about his circumstances, which he likened to standing on the edge of a cliff with the option of either jumping or being pushed. The second respondent replied to the effect that, to the contrary, the applicant was being offered an elevator for that metaphoric descent. The second respondent told the applicant that he required his response (presumably as to whether he would voluntarily agree to redundancy) by “the end of the week”.[98]
[97] First Meyn Affidavit at [64]
[98] First Farragher Affidavit at [43]
Applicant’s second absence from the workplace
The applicant attended the workplace on Friday, 29 October 2021. That was the last time he attended. The applicant says he completed the work day, but was distressed throughout. The applicant says he did not see or speak to the second respondent on that date but gave instructions to his solicitors to write to the first respondent, which they did, and a copy of which is exhibited to the first Farragher Affidavit.[99]
[99] First Farragher Affidavit, Exhibit “NF-1” at 42 to 45
By the ASOC the applicant says that his second absence from the workplace was from 1 to 5 November 2021, however, for the reasons that follow, the second absence is more accurately defined as being from 1 to 4 November 2021 (second absence).
By [15] of the ASOC the applicant alleges that the first respondent was aware that he would be absent from work for the period of the second absence due to the condition, because the applicant had disclosed to the second respondent that he was still suffering from the condition at the 27 October meeting. By his first Affidavit the applicant says that from 1 to 5 November 2021 he was not capable of going to work, was in a distressed emotional state, was not capable of making any decisions and was concerned about his deteriorating mental health.
Annexed to the first Meyn Affidavit is a screen shot of text messages between he and the applicant which records that on 1 November 2021 at 7:33am the applicant sent the second respondent a text message to say:[100]
I can’t come to work today I am not well.
[100] First Meyn Affidavit, Exhibit “DM-1” at 237
From that SMS, the respondents can be taken as being on notice that the applicant did not intend to attend the workplace on 1 November 2021, on the basis that he was unwell. The second respondent replied to the above SMS at 9:04am on the same date saying “Ok”.
By his Affidavit, the second respondent refers to receiving the SMS referred to at [121] above and says the following about the applicant:[101]
He did not attend work the following days 2, 3 and 4 November and did not notify me, or to my knowledge anyone else, of his absence.
[101] First Meyn Affidavit at [67]
I am satisfied that the first respondent was aware that the applicant would not attend work on 1 November because he was unwell. However, it is also the case that when the applicant failed to attend work on 2 November 2021 and thereafter, the respondents were sufficiently apprised of the applicant’s complaint and condition that they ought reasonably to have assumed that the absence was in relation to the condition. That does not, however, necessarily satisfy reg 3.01 of the FW Regulations for the purposes of s 352 of the FW Act.
Ultimately, the applicant’s absence from the workplace on 5 November 2021 was specifically accounted and certified for by the worker’s compensation certificate issued on that date (see [132] below).
The abandonment letter
As at Friday, 5 November 2021, the applicant had not attended the workplace since departing at the end of the day on 29 October 2021, and had not yet provided notice or evidence for his absence since 2 November 2021.
At or about 1:43pm on 5 November 2021, the second respondent sent the applicant a letter under cover of email sent to a Gmail address (abandonment letter).[102] The abandonment letter was signed by the second respondent and was in the following terms (anonymisation added):
Dear Neal,
You have failed to attend for work as required yesterday and today, and you have failed to provide us with notice that you were not so attending.
Should you not report for duty on Monday by 8 AM, we will consider that you have abandoned your employment with PBE Group.
If you do attend for work, we will require you to explain why you failed to provide us with notice of your non-attendance at work yesterday and today. We consider such failure a serious breach of your employment, and you should give your explanation serious consideration before providing it.
If you have any questions, please do not hesitate to contact me on [mobile number].
[102] First Meyn Affidavit, Exhibit “DM-1” at 239
There is also no evidence that, in accordance with the grievance procedure (or at all) that any steps were taken by the respondents to facilitate a mediation, or even make enquiries about doing so to resolve the subject matter of the complaint, despite the second respondent apparently considering it as being an option which was being offered to the applicant. Further, refusing mediation was consistent with the dearth of any other steps taken in handling the complaint.
I am satisfied that from the time of the making of the complaint, the second respondent formed the view that the applicant’s employment with the first respondent should be terminated and set about taking steps to achieve this, in lieu of engaging with the complaint.
Overall, the evidence demonstrates that the respondents did not address the applicant’s complaint and that the making of the complaint was an actuating reason for bringing forward that outcome and terminating the applicant’s employment.
The events which followed the making of the complaint are also consistent with adverse action being taken in part for that reason.
Was adverse action taken because of personal leave or temporary absence for illness/injury?
Relevant to these allegations are the applicant’s workplace right to take personal leave under s 97 of the FW Act and, separately that s 352 of the FW Act prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the FW Regulations.
In order to establish the contravention of s 340 of the FW Act as pleaded, the applicant would need to establish that a reason for his dismissal included his access of, or proposal to access, paid personal leave for the period 1 November 2021 to 4 November 2021.[180]
[180] ASOC at [14] and [27]
In order to establish a contravention of the s 352 of the FW Act in respect of the allegations pleaded, the applicant would need to establish that:[181]
(a)the applicant’s temporary absence/s from work because of an illness or injury on:
(i)18 to 22 October 2021; and
(ii)1 to 4 November 2021;
was a reason for the termination of his employment;[182] and
(b)the illness or injury in relation to each of the above absences was of a kind that is prescribed by the FW Regulations, including that a medical certificate was supplied within 24 hours of commencement of the absence (or a longer reasonable period).
[181] See for example, Gogulwar v HB Fuller Co Australia Pty Ltd [2023] FedCFamC2G 459 at [161] per Judge Mansini in relation to the analogous s 352 FW Act and reg 6.05 of the FW Regulations
[182] ASOC at [34] to [36]
As set out earlier in these reasons, there were three absences for personal leave which are of significance to the chronology of this matter. In respect of s 340, the only absence relevantly pleaded is the second absence. In respect of s 352, the only absences pleaded are the first and second absences. The third absence is relevant to the workers compensation claim and will be discussed in that context.
The first absence
The first absence was the week of 18 to 22 October 2021 during which the applicant was away from work after making the complaint to the second respondent. This occurred in the following way.
After the events of 15 October 2021 and the making of the complaint, the applicant attended his doctor who certified that the applicant was unfit for work based on a medical condition. While it was the applicant who gave the second respondent content and context to the nature of that medical condition and made clear to the second respondent that it was the subject matter of the complaint was the illness/injury which was causing his absence, I am satisfied that the certificate provided in relation to the first absence was provided in advance of its commencement. As such, it is clear that the applicant directly proposed to exercise his workplace right to take temporary leave for illness from 18 to 22 October 2021.
In the context of s 352 of the Act, the medical certificate dated 15 October 2021 met reg 3.01(2)(a) of the FW Regulations. Pursuant to the ASOC the applicant says that this absence is a reason for which the first respondent terminated his employment in breach of s 352 of the FW Act.[183]
[183] ASOC at [34] and [35]
Based on the evidence before the Court as a whole, it appears that the fact of the applicant’s first absence was a matter which became a reason for which the second respondent decided to terminate the applicant’s employment. This was reflected by what the respondents did next.
While failing to follow the steps in the first respondent’s grievance handling procedure, the one notable step the respondents did take was that shortly after being told about the first absence the second respondent directed that the applicant’s access to the PBE Rutherford computer server be restricted. The evidence demonstrates that the practical manifestation of that access being restricted was, in essence, that the applicant no longer had access to his emails or any documents both from outside of the workplace[184]and even on his return on 25 October 2021.[185]
[184] First Farragher Affidavit at [38]
[185] First Farragher Affidavit at [40]
The explanation given by the second respondent was that he restricted the applicant’s access to the PBE server:[186]
because I was – after reading the – the doctor’s certificate, and the doctor’s advised that he needed to switch off from work, so that’s the reason I did it.
[186] Transcript 27 June 2023 at T126.43 to T126.45
I reject the second respondent’s explanation that he restricted the applicant’s access to the PBE server in order to honour the medical advice given to the applicant that he should refrain from work during the period 18 to 22 October 2021. As the applicant correctly submits, the doctor’s certificate said “nothing of the sort”.[187] The second respondent’s explanation for restricting the applicant’s access to the PBE Rutherford service is implausible having regard to:
(a)information to the effect that he had been to the doctor the preceding afternoon “and he has advised me to have a week away from work” was conveyed by the applicant on 16 October 2021;
(b)the second respondent did not take steps to limit the applicant’s access to the server until 18 or 19 October, despite being aware of the applicant’s condition since at least 16 October 2021;[188]
(c)on 18 October 2021 the second respondent requested that the applicant put together an email detailing the specific issues at work which were worrying the applicant, despite the fact that this would logically cause the applicant to ruminate on the subject matter of the complaint during a time when by the applicant’s own description he was (see [96] above):
hoping that some better sleep and a week away from the toxic work environment will help me decompress.
(d)in the file notes the second respondent prepared for his lawyers on 1 November 2021, among documenting steps he claims to have taken in responding to the complaint and/or assist him, there is no reference to server restriction at all, much less it being done for the applicant’s benefit.[189]
[187] Applicant’s written outline of submissions filed 21 July 2023 at [16]
[188] Transcript 27 June 2023 at T127.41 to T127.42
[189] Exhibit “1R”
The evidence reveals no legitimate purpose for the decision to restrict the applicant’s access to the PBE server. I am satisfied that after the applicant made the complaint, and then commenced the first absence being a temporary absence for illness, the respondents were further desirous that his employment be terminated because of that absence. The decision to restrict the applicant’s access to the PBE server during the first absence time was a step taken in pursuit of that intention, perhaps to see whether the server restriction might cause the applicant to resign, thereby hastening the first respondent’s desired outcome that the applicant’s employment terminate. That state of affairs is consistent with the fact that when the applicant returned to the workplace on 25 October 2021, he still had no server access and, the respondents escalated matters by the second respondent proposing that the applicant take voluntary redundancy, rather than taking the steps required of them under the first respondent’s own grievance handling policy to investigate the complaint.
Overall, the evidence demonstrates that that one of the reasons the first respondent terminated the applicant’s employment by bringing forward the merger and his redundancy, was because he took temporary leave for illness (being the condition) being the first absence.
The second absence
The applicant was next absent from the workplace for was the week of 1 to 5 November 2021. As with the complaint and the first absence, the second absence resulted in action being taken by the first respondent which, I am satisfied, reveals that it was an actuating reason for dismissal of the applicant from his employment. Namely, in response to the second absence the first respondent sent the applicant the abandonment letter.
For the reasons already set out above, the second absence was not the subject of a medical certificate until 5 November 2021. As such, it does not meet the definition prescribed in reg 3.01 of the FW Regulations for the purposes of s 352 of the FW Act. Further, while a medical certificate was eventually provided (and the period of 3 days might be considered to be a reasonable time), the WC certificate was not a medical certificate which certified the applicant’s absence on any of 1 to 4 November 202). In those circumstances, the applicant cannot establish in a statutory sense that the second absence was a temporary absence for illness or injury of the prescribed kind within the meaning of the FW Regulations and the allegation in respect of the second absence pursuant to s 352 of the FW Act cannot succeed.
However, the applicant’s workplace right to take personal leave pursuant to s 97 of FW Act is not as prescriptive in terms of notice and evidence as that required by reg 3.01 of the FW Regulations. I am satisfied that the second absence constituted the exercise of a workplace right on the part of the applicant to take personal leave pursuant to s 97 of the FW Act for the purposes of s 340 of the FW Act.
By his SMS to the second respondent on the morning of 1 November 2021, the applicant gave the first respondent notice of his taking personal leave because he was unwell albeit the applicant did not inform the first respondent (through the second respondent or at all) of the expected period of leave. However, the second respondent also did not request such information. Rather, he responded shortly after receiving the message to simply say “OK”. From this reply, the respondents can be taken to have acknowledged that the applicant was taking personal leave. Given the knowledge the respondents had of the applicant’s condition, that the applicant had told the second respondent on 1 November 2021 that he was unwell, and given the proximity of the timing of the second absence referable to the complaint and the first absence, I am of the view that the first respondent reasonably understood that the applicant’s absence on 2 to 4 November 2021 was likely him exercising his workplace right to take personal leave. Given that s 107(2)(a) of the FW Act provides that notice must be given as soon as practicable:
which may be a time after the leave has started
there was scope for the applicant to provide further information about the absence on 2 to 4 November at some later time, which on 5 November 2021, in a sense he did.
At no time between sending his reply SMS to the applicant on 1 November 2021 (see [122] above) and sending the abandonment letter, did the second respondent telephone or SMS the applicant to ascertain his whereabouts, much less to check on his wellbeing, despite what the second respondent knew of the applicant’s complaint and condition. Only under cross-examination did the second respondent claim that Ms Peberdy (an employee in the first respondent’s HR department) had attempted to call the applicant[190] “but there was no response”.[191] There is no evidence before the Court to corroborate the second respondent’s vague assertions made for the first time during cross-examination (and notably absent from [67] of the first Meyn Affidavit (see [123] above), that attempts were made by the first respondent to contact the applicant.[192] I am not satisfied that any attempts were made to contact the applicant to ascertain his wellbeing, status, whereabouts, reason/s for his absence and/or anticipated date of return to work, between 2 November 2021 and the sending of the abandonment letter. Rather, I am satisfied that the failure to contact the applicant was because the respondents were reasonably aware that the applicant was taking personal leave for illness, and that accordingly there was not considered a need to contact the applicant given their awareness. Instead, having reasonable knowledge about the applicant taking personal leave because if illness, the first respondent chose instead to issue the abandonment letter.
[190] Transcript 27 June 2023 at T118.37 to 118.44 and T120.26 to T120.31
[191] Transcript 27 June 2023 at T118.39 to 118.40
[192] Transcript 27 June 2023 at T120.30 to T120.31
To the extent the second respondent had a discretion to have the first respondent issue the abandonment letter, the applicant says the second respondent failed to exercise that discretion reasonably, having the knowledge of the relevant facts surrounding the applicant’s physical and mental state.[193] The exercise of that discretion can be contrasted with an abandonment letter sent to another PBE Rutherford employee which was circulated as part of the process of drafting the abandonment letter to the applicant by which the employee in question (whom, it is accepted held a different role and had a different manager than did the applicant) had not attended the workplace for more than 6 weeks before PBE Rutherford elected to write to him.[194]
[193] Applicant’s written submissions filed 21 July 2022 at [23(b)(ii)]
[194] Exhibit “1A”
It was of course open to the first respondent to require evidence that would satisfy a reasonable person that the leave on 1 November 2021 was being taken for a reason specified in s 97 of the FW Act. However, in all the circumstances of this case, and given the respondents’ knowledge of the applicant’s condition (and the interrelationship of the condition with the subject matter of the complaint), the respondents could not genuinely have considered the applicant to have abandoned his employment. It is open to conclude from timing and somewhat harsh content of the abandonment letter that the first respondent was seeking to bring the applicant’s employment to an end. Had the applicant not responded to the abandonment letter (or otherwise complied with it), the first respondent had established a mechanism whereby the applicant’s employment could be terminated despite the tacit knowledge the respondent’s had about the applicant’s condition and his taking personal leave. Moreover, in all the circumstances in which the abandonment letter was sent, it is open to conclude that the decision to send it reflects the first respondent’s intention to terminate the applicant’s employment whether by being able to invoke the letter to dismiss the applicant, and with seeming disregard for any further, deleterious impacts it may have on the applicant’s health.
In all the circumstances of this case, but particular by reference to the abandonment letter, I am satisfied that the applicant’s second absence was a substantial and operative reason for the first respondent terminating his employment by bringing forward the CouplerCo merger and therefore his redundancy, as the mechanism by which to achieve that aim.
The third absence
The third absence was the period from 5 November 2021 to 22 November 2021 which was the subject of the WC certificate. As noted above, the applicant did not return to the workplace after 29 October 2021. There were also further and ongoing periods of absence which were also the subject of additional certificates, but which are not, for the purposes of this case, specifically relevant to the questions to be decided.
The third absence is not pleaded in relation to s 340 of the FW Act as being the exercise of a workplace right in the form of personal leave because of illness, however it is relevant contextually as being the first period of leave after the making of the workers compensation claim and will be discussed below in that context.
Conclusion
Based on all of the evidence before me, I am satisfied that the following were reasons for the first respondent’s termination of the applicant’s employment:
(a)being absent from work for temporary illness or injury constituted by the first absence, in contravention of s 352 of the FW Act; and
(b)taking personal leave on the basis of illness constituted by the second absence, in contravention of s 340 of the FW Act.
Was adverse action taken because of the making of the workers compensation claim?
The applicant says that the catalyst for the timing of the decision to expedite his redundancy from June 2022 was that he lodged the workers compensation claim and describes the proximity of the meeting between the making of that claim on 5 November 2021 and the meeting between the second respondent and Mr Christie on 8 November 2021 as “breathtaking”.[195] That timing is certainly a matter of moment.
[195] Applicant’s written submissions filed 21 July 2022 at [28]
By his own evidence, as at 8 November 2021, the second respondent was aware:
(a)of the potential duration of the third absence being only until 22 November 2021 by reference to the WC certificate; and
(b)of the workers compensation claim.
Given that, as at 8 November 2021, the applicant only had a medical certificate (being the WC certificate) which certified him as unfit for work until 22 November 2021, the second respondent’s view that the applicant would not be “back for a long time or won’t be back at all”[196] can only be a reference to the third absence in conjunction with the making of the workers compensation claim, and assumptions that the second respondent was making in respect of the latter.
[196] First Meyn Affidavit at [70]
I am satisfied on the basis of the evidence as a whole, but particularly the second respondent’s own Affidavit evidence that as at 8 November 2021, he took the view that having made the worker’s compensation claim the applicant was likely to be away from work for a further, if not indefinite, period and that his employment with the first respondent should be terminated in part for that reason. The second respondent essentially said so to Mr Christie. The second respondent then gave effect to this by his decision made on that day to bring forward the applicant’s redundancy by expediting the merger.
Was adverse action taken because of the injury?
By [31] to [33] of the ASOC the applicant alleges that the injury was a mental disability for which the first respondent took adverse action by terminating his employment by dismissing him by bringing forward the date of his redundancy.
The applicant’s closing submissions were silent on this issue. Relevant to this allegation, the respondents observe that it was never put to the second respondent that he was motivated, at any stage, by any disability the applicant had in reaching his decision and that in the absence of that have not been put to the decision maker, it is unclear how the claim can be pressed.
However, as the evidence unfolded, there is nothing to demonstrate that the applicant’s injury was, itself, in the respondents’ particular contemplation such that it was an actuating reason for the adverse action. While the second respondent was aware of the applicant’s condition, it was not until 5 November 2021 that the injury was diagnosed. From that time on, I am satisfied that it was the making of the workers compensation claim, and not the underlying injury which was a substantial and operative reason for the second respondent’s decision to dismiss the applicant by expediting his redundancy.
I am not satisfied that the allegations and contraventions are established in relation to s 351 of the FW Act.
Coercion
By [37] of the ASOC, the applicant alleges further, or in the alternative that:
…the First Respondent offering the Applicant a voluntary redundancy payment, as pleaded in paragraphs [9] to [12], was made in response to the Applicant’s Injury and the Complaint in an attempt by the First Respondent to coerce the Applicant not to exercise the workplace rights pleaded in [25] to [28].
The reference to the matters pleaded in [92] to [12] of the ASOC therefore become a matter of moment. By [9] of the ASOC, the applicant sets out the making and basis of the complaint. As discussed at [198] to [200] above, the applicant has established both the making of the complaint and the subject matter of it. Paragraph [10] and [11] of the ASOC refer to the first absence.
By [12] of the ASOC, the applicant makes reference to the 25 October meeting and says at [12(c)]:
The Second Respondent refused the Applicant’s request for mediation and again offered the Applicant a voluntary redundancy payment.
For reasons which have been given above, it has already been accepted that at the 25 October meeting:
(a)the second respondent did essentially refuse the applicant’s request for a mediation between the applicant and the office manager as a method by which the subject matter of the complaint might be resolved; and
(b)a voluntary redundancy payment was offered to the applicant, albeit for the first time.
The relevant workplace rights which are referred to in [37] of the ASOC are, respectively:
(a)the WHS Act duty, which for reasons set out at [52] to [55] above is not pleaded as the exercise of a workplace right and is therefore not relevant to determination of the coercion allegation;
(b)the making of the complaint;
(c)the second absence; and
(d)lodgement of the workers compensation claim.
In Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031, Judge Lucev summarised relevant principles in relation to coercion as follows:
[69] Coercion requires conduct that is compulsive, in the sense that the pressure in a practical sense, negates choice, and is unlawful, illegitimate or unconscionable: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; (2000) 106 IR 158 at [18] – [38] per Gyles J; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373 (Qenos) at [128] per Weinberg J. The entire circumstances of a case may be evaluated to find coercive intent, rather than immediate proximate conduct: Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444. Coercion itself requires that a person not be left with a realistic choice as to whether or not to comply: National Tertiary Education Industry Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20 (NTEIU v Commonwealth) at [103] per Weinberg J. In order to prove coercion, proof of the requisite intent to coerce is necessary: NTEIU v Commonwealth at [65] per Weinberg J. The mere communication of an intention to make employees redundant in a spill and fill process, communicated generally to the workforce, was held in Qenos at [119] per Weinberg J, not to be a threat.
[70] There will not be a threat of proscribed conduct for the purposes of s 343 of the FW Act unless SAWG or Mr Harris communicated to Ms Spears that proscribed action would be taken, and that required that Ms Spears be menaced or warned beforehand of an intention to inflict harm: CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238 at [19] per Finkelstein J.
In National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at [102] to [103], Weinberg J said the following about intention to coerce (emphasis added):
[102] In Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (supra) Merkel J observed at 388:
41. The above cases establish that there must be two elements to prove "intent to coerce" under s170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.
42. The requirement of unlawfulness etc might, in a sense, be said to have been superimposed upon the ordinary meaning of "coercion": cf Hanley at 534 [11]. However, without such a requirement s170NC(1) could have an anomalous operation in so far as it might prevent the legitimate exercise of rights by employees or employers. In Hanley the Full Court did not really consider this issue. In all the circumstances I consider that it is appropriate to apply the approach taken to s170NC(1) in Cadbury Schweppes, Finance Sector Union and Qenos unless I am satisfied that that approach is clearly wrong, which I am not.
[103] The approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.
In order to be satisfied that the respondent contravened s 343 of the FW Act, the Court must be satisfied that the offer of voluntary redundancy to the applicant at the 25 October meeting was made in order to coerce him to not exercise his workplace rights (being those referred to at [254(b)] to [254(d)] above. Given that the applicant had already made the complaint by the time of the 25 October meeting, that coercion allegation can only logically by understood as being that he not continue to press the complaint, that he not take further leave and/or otherwise to not make the workers compensation claim.
In all the circumstances of this case, I am not satisfied that the coercion allegation is made out because:
(a)based on the foregoing findings, the second respondent’s offer of voluntary redundancy to the applicant was, at most, an attempt to influence, persuade or induce him to leave his position early, rather than to negate his choice to exercise workplace rights, even if the corollary to his departure would be that the complaint would no longer be on foot; and
(b)the second respondent’s intent was not to compel the applicant to not exercise a workplace right (or exercise it in a particular way) by the offer of voluntary redundancy, but rather to save the respondents’ the effort of having to otherwise find a method by which to terminate the applicant’s employment earlier consequent upon him having exercised certain workplace rights up to that juncture.
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.
Accordingly, I find that the first respondent has not rebutted the presumption contained in s 361 of the FW Act, and that it took the adverse action by deciding to bring forward the applicant’s redundancy for reasons which included that the applicant had exercised his workplace right to make a complaint in relation to his employment, take personal leave for illness and injury and make a workers compensation claim. I am also satisfied that the second respondent was involved, within the meaning of s 550 of the FW Act in each and every of the first respondent’s contraventions.
Declarations will be made to the above effect. The parties will be heard separately in relation to any damages and penalty.
I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 2 August 2024
0
30
4