Ferguson v John a Martin & Kevin J Pendergast trading as Sharks Shire Pumping
[2021] FedCFamC2G 58
•29 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ferguson v John A Martin & Kevin J Pendergast trading as Sharks Shire Pumping [2021] FedCFamC2G 58
File number(s): SYG 220 of 2018
SYG 584 of 2019Judgment of: JUDGE DRIVER Date of judgment: 29 October 2021 Catchwords: INDUSTRIAL LAW – claim of dismissal in contravention of a general protection – consideration of whether the applicant was dismissed and if so the reason for the dismissal
HUMAN RIGHTS – racial discrimination – alleged use of racial slurs in the workplace and elsewhere – consideration of the applicant’s reaction to the alleged slurs and the consequence in respect of liability and compensation
Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 340, 341, 342, 352, 360, 361, 536
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211
Fair Work Regulations 2009 (Cth)
Partnership Act 1892 (NSW) s 9
Racial Discrimination Act 1975 (Cth) ss 9, 18C
Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14
Bennett v Everitt (1988) EOC 92-244
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Briginshaw v Briginshaw (1938) 60 CLR 336
CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76
CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Eatock v Bolt(2011) 197 FCR 261
Fox v Stowe Australia Pty Ltd [2012] FMCA 976
Gibbs v Wanganeen [2001] FMCA 14
Hill v Hughes [2019] FCCA 1267
Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC126
Korczac v Commonwealth of Australia (Department of Defence)(2000) EOC 93-056
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Murugesu v Australia Post & Anor (No 2) [2016] FCCA 2355
Murugesu v Australia Post (No 2) [2016] FCCA 2355
Murugesu v Australian Postal Corporation [2015] FCCA 2852
Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734
Pezzimenti v Rotary International [2019] FCCA 1854
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
QANTAS Airways Limited v Gama [2008] FCAFC 69
Richardson v Oracle Corporation Australia Pty Ltd (2014) EOC 93-734
Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37
Tattsbet Ltd v Morrow (2015) 233 FCR 46
Trapman v Sydney Water Corporation & Ors [2011] FMCA 398
Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181
Division: Division 2 General Federal Law Number of paragraphs: 247 Date of last submissions: 2 June 2021 Dates of hearing: 10, 11 September, 11 December 2020, 24 February, 4 March 2021 Place: Sydney Counsel for the Applicant: Mr D O’Sullivan Solicitors for the Applicant: Connect Legal Counsel for the Respondents: Mr M Baroni Solicitors for the Respondents: Bartier Perry ORDERS
SYG 220 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSEPH WILLIAM FERGUSON
Applicant
AND: JOHN A MARTIN & KEVIN J PENDERGAST trading as SHARKS SHIRE PUMPING
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application under the Fair Work Act 2009 (Cth) is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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).
ORDERS
SYG 584 of 2019 BETWEEN: JOSEPH WILLIAM FERGUSON
Applicant
AND: JOHN A MARTIN & KEVIN J PENDERGAST trading as SHARKS SHIRE PUMPING
First Respondent
KEVIN J PENDERGAST
Second RespondentROY WEBB
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
29 OCTOBER 2021
THE COURT DECLARES THAT:
1.Pursuant to s 46PO(4)(a) of the Australian Human Rights Commission Act 1986 (Cth), the first, second and third respondents committed unlawful discrimination against the applicant contrary to s 9(1) and s 18C of the Racial Discrimination Act 1975 (Cth).
THE COURT ORDERS THAT:
1.Pursuant to s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth), the first, second and third respondents provide the applicant with a written apology in terms to be agreed between the parties or, in the absence of agreement, subject to further order of the Court.
2.The first respondent, pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth), pay compensation for non economic loss to the applicant in the sum of $50,000.
3.The first respondent pay interest up to judgment in accordance with s 211(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Court of Australia Interest on Judgments Practice Note issued on 18 September 2017.
[Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 DRIVER:
INTRODUCTION AND BACKGROUND
By an application and statement of claim filed on 30 January 2018, the applicant (Mr Ferguson) seeks relief for his alleged dismissal from employment in contravention of a general protection.[1] In particular, Mr Ferguson seeks compensation for loss he alleges he has suffered as a result of an alleged contravention by the respondents of ss 340, 352 and 536(2) of the Fair Work Act 2009 (Cth) (Fair Work Act). The claim under s 352 was abandoned and a breach of s 536(2) was admitted.
[1] Proceeding SYG220/2018
The first respondent is a partnership, the partners being John A Martin and Kevin J Pendergast, trading as Sharks Shire Pumping. There was originally a second respondent (Mr Roy Webb) who is an employee of the partnership; so was Mr Ferguson. While Mr Webb was the relevant decision maker for the purposes of the unlawful dismissal claim, the original Fair Work claims against Mr Webb were abandoned.
On 26 April 2018 I made procedural orders in the matter and referred it for mediation before a registrar. The matter did not settle.
Separately, by an application and statement of claim filed on 12 March 2019, Mr Ferguson claims damages for alleged racial discrimination by the partnership, Mr Pendergast personally and Mr Webb personally.
The Racial Discrimination Act 1975 (Cth) (RDA) claim[2] was allocated to the docket of Judge Cameron. By Application in a Case in the racial discrimination proceedings filed on 19 August 2019, Mr Ferguson applied for orders that the two proceedings be heard concurrently in my docket. That was contested by the respondents. On 26 August 2019 his Honour transferred that matter to me.
[2] Proceeding SYG584/2019
On 4 September 2019 I ordered that there be a further mediation of both proceedings. Again, the mediation was not successful. On 26 February 2020 I ordered that the matters be heard concurrently. Ultimately, the matters were heard over five days on 10 and 11 September 2020, 11 December 2020, 24 February 2021 and 4 March 2021.
As noted above, the first respondent is a partnership owned by Mr Martin and Mr Pendergast. The partnership employed Mr Ferguson on two separate occasions. The first occasion was in about October 2011 on which occasion Mr Ferguson was engaged as a truck driver. This first period of employment ended in January 2015.
Mr Ferguson’s second period of employment commenced in approximately April 2016 and continued until the partnership took the decision to no longer engage him in November 2017.
During his second period of employment, Mr Ferguson was engaged as a truck driver, however, from time to time he also performed general yard duties.
THE EVIDENCE AND SUBMISSIONS
Although these matters were heard concurrently, separate evidence was filed and relied upon for the purposes of the Fair Work claim and the racial discrimination claim. Likewise, separate pleadings were relied upon for the two claims. Some of the evidence was relied upon in both proceedings. Mr Ferguson relied upon his two affidavits made on 15 March 2019 and 5 July 2019 in both proceedings. He also relied in both proceedings upon the report of Malcolm L Desland annexed to an affidavit made by Mr Desland on 28 April 2020. For the purposes of the racial discrimination proceedings only, Mr Ferguson relied upon the affidavits of Charlene Rapata made on 10 August 2020 and Tania Rapata made on the same day.
For the purposes of the Fair Work proceeding, the partnership relied upon the affidavit of Roy Webb made on 17 May 2019. For the purposes of the racial discrimination claim, the respondents rely upon the affidavit of Mr Webb made on 20 July 2020 as well the affidavit of Mr Pendergast made on the same day and the affidavit of Craig Smoothy (another employee) made on 21 July 2020.
All of the deponents were required for cross-examination.
I also received as an exhibit[3] among other things the health practitioner record of Mr Desland.
[3] Exhibit R1
The parties also filed extensive written submissions both before and after the trial.
THE UNLAWFUL DISMISSAL CLAIM
Mr Ferguson’s principal contention is that the termination of his employment by the partnership was “adverse action” within the meaning of s 342(1) of the Fair Work Act. He alleges that he exercised “workplace rights” by, among other things, making complaints or inquiries in relation to his employment,[4] and that the partnership dismissed him for that reason (or for reasons that included this reason[5]) contrary to s 340 of the Fair Work Act. The partnership bears the onus of proving that it did not terminate the employment of Mr Ferguson for a reason proscribed by s 340, or for reasons that included such a reason.[6]
[4] See s 341(1)(c)(ii) of the Fair Work Act
[5] See s 360 of the Fair Work Act
[6] See s 361 of the Fair Work Act
As noted above, Mr Ferguson’s claim under s 352 of the Fair Work Act was abandoned to save the time and costs of the parties litigating that claim in circumstances where the thrust of Mr Ferguson’s argument is a contravention of s 340.
In relation to the exercise of Mr Ferguson’s workplace rights he, in his statement of claim between [11]-[14], provides a pleading in relation to the law on workplace rights as understood under the Fair Work Act. There was a contest as to whether Mr Ferguson was a casual or full‑time worker which affects the Court’s determination as to whether Mr Ferguson exercised a workplace right, for example the right to personal leave, a temporary absence from work and the right to paid annual leave and paid personal leave. This was, however, rendered essentially academic by the abandonment of the s 352 claim.
In relation to [28] of Mr Ferguson’s statement of claim and the corresponding defence pleading at [21] and [22], the partnership, among other things:
(a)admits that Mr Ferguson finished work at approximately 4:45am on the morning of his alleged termination;
(b)admits that Mr Ferguson in writing advised that he was unable to work further and wrote: “Sorry, can’t work”;
(c)at [22(b)] of the partnership’s pleadings states that Mr Ferguson, “as a casual employee”, was free to accept and refuse work; and
(d)at [22(d)] pleads that the partnership no longer decided to offer Mr Ferguson shifts because “he repeatedly accepted shifts from the First Respondent but then either did not turn up or advised belatedly, after the work had been allocated, that he would be unable to perform the shift”.
The alleged contraventions – exercising a workplace right
During the second period of employment, Mr Ferguson alleges that he exercised a number of workplace rights.[7]
[7] Claim at [11]-[14]
There is no dispute that Mr Ferguson had workplace rights as set out in the claim.
At [15]-[25] of the claim, Mr Ferguson alleges he exercised those workplace rights. With respect to those assertions, the partnership responds as follows.
First, the alleged exercise of the workplace rights lack significant particularity. There are no specific times or dates put forward by Mr Ferguson nor is there any cogent evidence with respect to what conversations took place and when. This is said to raise some doubt as to whether Mr Ferguson exercised the relevant workplace rights.[8] When and how these workplace rights were exercised is said to be nebulous.
[8] Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 at [34] (this part of the decision was left undisturbed by the subsequent High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500)
Secondly, much of Mr Ferguson’s affidavit evidence is said to be self-serving and irrelevant and does not establish that the relevant “action” took place and moreover, none of Mr Ferguson’s evidence, objectively viewed, discloses a basis for the reason for the termination of his employment with the partnership.[9] This is said to be a critical failure with Mr Ferguson’s own evidence.
[9] Ibid
Thirdly, many of Mr Ferguson’s purported complaints are quite remote from the termination of his employment on 17 November 2017 and objectively viewed, the more remote the complaint, the less likely that Mr Ferguson’s employment would have terminated for a reason, or a reason which included that reason, relevant to the complaint.
In other words, the respondents submit that the claim lacks a sufficient connection, objectively viewed, between Mr Webb’s decision to no longer engage Mr Ferguson and the complaints or inquiries alleged to have been made by Mr Ferguson.[10]
CONSIDERATION
[10] CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76
Mr Ferguson’s contentions
Mr Ferguson’s case is broken down into three elements. The first element concerns his claimed exercise of workplace rights. The second element relates to the adverse action said to have been taken against Mr Ferguson and the third element is the question whether the adverse action was taken because of the exercise of a workplace right.
The evidence in Mr Ferguson’s affidavits
As noted above, Mr Ferguson filed and served two affidavits in relation to the Fair Work claims:
(a)first affidavit, made on 15 March 2019; and
(b)second affidavit, made on 5 July 2019.
Mr Ferguson has had a prior employment history with the partnership, undertaking work as a Heavy Combination Truck Driver since about late 2011. Mr Ferguson’s primary duty was that of driving a concrete agitator truck. Mr Ferguson in his first affidavit at [15]-[39] provides evidence as to the nature of the work he performed, including the driving duties, that he reported to Mr Webb and Mr Pendergast, he would usually commence work at about 6:00am and depending on the run and the roster, would finish work between 2:00pm and 6:00pm.
In around April 2016 Mr Ferguson recommenced employment with the partnership, eventually undertaking the same duties, which he summarises at [48]-[52] of his first affidavit.
Mr Ferguson’s evidence is that:
(a)that there was no discussion or representation by Mr Pendergast as to whether he was a casual, part-time or permanent worker;[11]
(b)the partnership provided Mr Ferguson pay slips which, among other things, provided no information as to Mr Ferguson’s night shift hours, pay and whether Mr Ferguson was a casual and instead documented an annual salary, hourly rate and no other information, including as to whether Mr Ferguson was paid any overtime, penalty rates or other entitlements;[12]
(c)Mr Ferguson’s hours and pattern of work were extensive and usually involved a day shift of between 6:00am and 2:00pm to 6:00pm, Saturday work and also additional night shift hours were available and worked;[13]
(d)the partnership remunerated Mr Ferguson in cash for all night shift hours of work, which was provided in an envelope;[14] and
(e)the partnership would not document Mr Ferguson’s night shift hours and pay on any of the pay slips. [15]
[11] Mr Ferguson’s first affidavit at [49]
[12] See annexure JF3 at page 48 of Mr Ferguson’s first affidavit
[13] [62]–[67] of Mr Ferguson’s first affidavit
[14] See annexure JF4 from page 62 of Mr Ferguson’s first affidavit
[15] [69]–[72] Mr Ferguson’s first affidavit
Mr Ferguson deposed that during his employment, he exercised his workplace rights by making numerous workplace complaints and inquiries regarding his employment, which are, in summary below:
(a)in January 2017, Mr Ferguson complained about the night shift hours not being recorded on his pay slip;[16]
(b)on 15 February 2017, Mr Ferguson sustained a workplace injury (a hernia) and Mr Pendergast “pleaded” with Mr Ferguson not to file a workers compensation claim. Mr Ferguson intermittently complained to the partnership about the pain and the work duties, which aggravated his work injury;
(c)in August 2017, Mr Ferguson made a complaint to Mr Pendergast regarding an oil leak in the agitator truck diffential, Mr Pendergast directed Mr Ferguson to keep working and a short period later, in front of his colleagues, confronted Mr Ferguson and said, “if you ever break my truck again, I’ll sack you.”Mr Ferguson provides evidence that he regularly complained about the safety of the heavy vehicle agitators and generally felt guilty because his complaints were never taken seriously;[17]
(d)on one occasion referred to at [116] of Mr Ferguson’s first affidavit, Mr Ferguson complained in front of Mr Pendergast about being paid a flat hourly rate without the provision of any overtime or statutory leave entitlements;
(e)between April 2017 and November 2017 and on regular occasions, Mr Ferguson complained to Mr Pendergast and Mr Webb regarding the non-provision of a ten-hour break. Mr Ferguson states that very often he had to do a day shift and a night shift, for example, finishing work at 9:00pm and having to recommence work at 6:00am the next morning;[18]
(f)between January 2017 and November 2017, on a regular basis and two or three times a week, Mr Ferguson complained to Mr Pendergast (and on a few occasions, to Mr Webb) about the non-provision of meal and rest breaks and Mr Ferguson’s fatigue;[19]
(g)Mr Ferguson regularly complained to Mr Pendergast and Mr Webb regarding the non‑payment of travel time, for example, Mr Ferguson having to start at the depot, travelling to Auburn or vice-versa and not being paid for that travel time;[20]
(h)Mr Ferguson also raised the issue that there were no “toolbox meetings” to discuss work health and safety issues and in October 2017, Mr Ferguson again complained about fatigue management and the ten-hour break between shifts;[21] and
(i)in October and November 2017, Mr Ferguson complained to Mr Pendergast and Mr Webb about being paid cash for the night work.[22]
[16] [84] and [85] of Mr Ferguson’s first affidavit
[17] [105]–[114] of Mr Ferguson’s first affidavit
[18] [119]-[121] of Mr Ferguson’s first affidavit
[19] [122]–[124] and [127] of Mr Ferguson’s first affidavit
[20] [135] – [140] of Mr Ferguson’s first affidavit
[21] [148] of Mr Ferguson’s first affidavit
[22] [152]–[154] of Mr Ferguson’s first affidavit
Mr Ferguson submits that in the week commencing Thursday, 9 November 2017 and right through Friday, 17 November 2017, he worked extensive hours of work, was fatigued and at 4:20pm, text-messaged Mr Webb: “sorry can’t work.”[23] Mr Ferguson states that this is an exercise of his workplace rights in either:
(a)declining work as a casual;
(b)declining to do overtime hours or hours outside of his ordinary hours of work and/or hours that would be in breach of fatigue management laws and/or hours that if he did work, he would be underpaid for under the industrial instrument as either a casual or a permanent full-time worker;
(c)the right to a safe workplace;
(d)the right not to work hours beyond what is either reasonable or contracted.
[23] [155]-[172] of Mr Ferguson’s first affidavit
The partnership’s affidavit evidence disputes the above assertions.
The law on workplace rights
Mr Ferguson submits that the complaints above amounted to the exercise by him of “workplace benefits”; ie the right to make a complaint or inquiry in relation to employment, which is recognized in s 341(1)(c)(ii) of the Fair Work Act. In the alternative, Mr Ferguson’s position is that he had workplace benefits under workplace laws.[24]
[24] Section 341(1)(a)
In a Full Federal Court decision in this jurisdiction on s 341(1)(c)(ii), PIA Mortgage Services Pty Ltd v King,[25] Rangiah and Charlesworth JJ provided a succinct synopsis of the current common law position as follows at [13]-[14] and [20]-[21]:
Justice Dodds–Streeton considered that the word “able” refers to an entitlement or a right. We respectfully agree. However, her Honour’s statement that a complaint “must be underpinned by an entitlement or right” is ambiguous. On one view, it may indicate that the complaint “must be underpinned by an entitlement or right to make a complaint”. On another, it may indicate that the provision captures any complaint by an employee concerning an entitlement or right related to his or her employment. In our opinion, the former view is consistent with the succeeding sentence in the passage and with s 341(1) of the FW Act as a whole. The phrase “is able to” appears in both s 341(1)(b) and (c). In s 341(1)(b), the phrase indicates an entitlement or right to initiate, or participate in, a relevant process or proceeding. In s 341(1)(c)(i), the phrase indicates an entitlement or right to make a complaint or inquiry to a person or body. Consonantly, in s 341(1)(c)(ii), the phrase describes a right or entitlement to make a complaint or inquiry in relation to the employee’s employment. It may be observed, however, that whichever view is taken makes no difference to the outcome of this case.
On the understanding that s 341(1)(c)(ii) requires an entitlement or right to make a complaint in relation to the employee’s employment, there must be an identifiable source of that entitlement or right. In Shea, Dodds–Streeton J did not suggest that the entitlement or right is limited to one arising under an instrument such as legislation, an industrial instrument, or a contract of employment. In fact, her Honour was careful not to attempt any exhaustive description of the source of the right to make a complaint or inquiry. Nor did her Honour suggest that the entitlement or right must be conferred expressly or directly by the source.
…..
Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint.
These conclusions are supported not only by the broad language of s 341(1)(c)(ii) of the FW Act, but also by the statutory context.
(emphasis in original)
[25] [2020] FCAFC 15
In the same judgment, Snade J reasoned at [137]-[139]:
A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 (Dodds-Streeton J; hereafter, “Shea”), this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:
...in the context of s 341(1)(c)(ii) of the [FW] Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)...
I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J). That is a question that does not arise for consideration in the present context. There is, in my view, no doubt that Mr King’s complaints were genuinely advanced (in the sense that he considered himself well-founded to complain about the states of affairs to which they pertained) and the appellants did not contend otherwise.
Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to...employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.
That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).
Mr Ferguson here submits that the partnership was contravening work health and safety provisions of the relevant state law (identifiable right) and he therefore had a workplace right to make a complaint or inquiry to his employer about the matter. The work health and safety matters complained of were directly related to this employment including his work duties being the operating of a heavy vehicle on public roads, fatigue management, hours of work and the unsafe truck. The complaints are said to have been grievances and accusatory.
In CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3)[26] the Federal Court found that where the employee in that case had raised concerns or complaints about safety issues within the workplace, it was an exercise of a workplace right under the Fair Work Act.
[26] [2012] FCA 697 at [60]-[72]
With respect to the other complaints, they either relate to an underpayment of wages, the provision of pay slips, being paid by EFT and not cash, the payment of travel time, the span of hours worked which are an identifiable right that Mr Ferguson has under the relevant industrial instrument (the Road Transport and Distribution Award 2010), and under the Fair Work Act.[27] In the circumstances, Mr Ferguson also submits that he then had the workplace right to be paid the correct and lawful wages, be provided a safe workplace, be provided accurate pay slips and have fatigue management and therefore, by asking for these rights, he was seeking the benefit under the applicable workplace law.
[27] See Mr Ferguson’s statement of claim at [12] and [13]
The adverse action
The partnership’s evidence is said to suggest that it denies that Mr Ferguson was dismissed, however it admits that it no longer provided Mr Ferguson any casual shifts, which was in effect, a decision to cease providing Mr Ferguson work. Mr Ferguson submits to the Court that this is adverse action, as understood under s 342(1)(a) as either a dismissal, injury to employment or altering position. The dismissal has been pleaded in [29(a)] of the statement of claim.
Was adverse action taken “because” of the exercise of a workplace right?
If Mr Ferguson establishes he has exercised a workplace right, the partnership bears the onus of proving that it did not terminate the employment of Mr Ferguson for a reason proscribed by s 340, or for reasons that included such a reason.[28]
[28] Section 361 of the Fair Work Act
In the decision of Pezzimenti v Rotary International,[29] I summarised the High Court decision in Barclay of the effect of s 361(1) at [89]-[93].
[29] [2019] FCCA 1854
In Rumble v The Partnership Trading as HWL Ebsworth Lawyers,[30] Rares and Katzmann JJ provided a further synopsis of the High Court’s position on the reverse onus as follows at [32]-[34] and [38]:
[30] [2020] FCAFC 37
In Barclay [2012] HCA 32; 248 CLR 500, the High Court considered the operation of the adverse action provisions in the context of a claim under s 346 that an employer had taken adverse action against an employee “because” he was an officer of an industrial association and had engaged in industrial activity.
The High Court observed that the Parliament intended ss 360 and 361 to provide a balance between the parties to a workplace dispute by, first, establishing a presumption in favour of an employee who alleges that an employer had taken, or is taking, adverse action against him or her because of a particular circumstance or fact of the kind specified in any of ss 340, 346, 351 or 354 and, secondly, enabling the employer to rebut that presumption (Barclay 248 CLR at 523 [61] per French CJ and Crennan J, 535–536 [103]–[105], 542 [127]–[128] per Gummow and Hayne JJ). The presumption and onus that ss 360 and 361(1) create are necessary because the employee cannot know or prove what was in the decision-maker’s mind when he or she took the adverse action. The court must enquire into, and make findings about, the mental processes of the decision-maker for taking the adverse action complained of (at 517 [44]–[45], 523 [62], 534–535 [101], and per Heydon J at 544 [140]).
Accordingly, the employer or decision-maker acting on its behalf who took the alleged adverse action must prove, as a fact, that none of his or her reasons for that action included as a substantial and operative factor any reason or intent that the Act proscribed him or her from having: Barclay 248 CLR at 522–523 [56]–[59] per French CJ and Crennan J, 535 [104] per Gummow and Hayne JJ, 544 [140] per Heydon J. As French CJ and Crennan J held (Barclay 248 CLR at 516–519 [41]–[44]), the Court must determine the question of fact, namely “why was the adverse action taken?” French CJ and Crennan J explained (248 CLR at 523 [61], [62] and see too per Heydon J at 547 [148]):
Central to the respondents' argument on this appeal was the contrary and incorrect view that Mr Barclay's status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay's union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which Parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system.
Secondly, it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, [General Motors-Holden's Pty Ltd v Bowling [(1976) 136 CLR 676] to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.
(emphasis added)
…
In Endeavour Coal [2015] FCAFC 76; 231 FCR 150 at 160–161 [32] (and see too at 164–165 [47]), Jessup J (who, with Perram J constituted the majority) explained the principle established in Barclay [2012] HCA 32; 248 CLR 500 and BHP Coal [2014] HCA 41; 253 CLR 243 as follows:
The “connection” which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer's conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a “connection” was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity. To see their Honours' reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal .
(emphasis deleted)
Further, the Court can challenge the credibility, reliability, authenticity and general truthfulness of employers’ stated reasons for dismissal. Judge Manousaridis in Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd[31] cited Barclay at [48] and [49] and stated:
An employer adducing evidence of his or her reasons for taking the impugned action does not necessarily mean the Court will accept the evidence. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay, Heydon J said:[45]
Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the [employer’s] burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations.
The same point was made by French CJ and Crennan J:[46]
Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence or because other objective facts are proven which contradict the decision-maker’s evidence.
[31] [2018] FCCA 3734
The Court therefore will have regard to the reasons of the dismissal stated by the partnership and if those reasons are lacking, have no basis in fact or objective reality and were undertaken in such way that a reasonable observer could conclude that it could not have been the actual reason, the Court cannot be convinced that some or all of the reasons for dismissal were not on a prohibited basis.
By way of further example, in Pezzimenti in determining that Mr Pezzimenti was dismissed for a prohibited reason, I found that:
(a)the central question in that case with respect to the dismissal was whether the purported reasons were the “real reasons” for the termination;[32]
(b)the employer’s stated reason for the dismissal, which was Mr Pezzimenti’s non‑appearance at a Skype meeting, was not the real reason for the dismissal; and
(c)one of the grievances that the respondent in those proceedings had with Mr Pezzimenti, being a “leave issue”, appears to have been a “storm in a teacup.”[33]
[32] At [20]
[33] At [99]
Mr Webb’s evidence
In the Fair Work matter, Mr Webb provides affidavit evidence, among other things, that:
(a)on 16 November 2017, he allegedly confirmed with Mr Ferguson that he was available to work the following evening. Mr Ferguson denies this;
(b)at 4:00pm, Mr Webb alleged that he had a telephone discussion with Mr Ferguson and informed him of a shift at 7:30pm and Mr Ferguson said that he could not make it and thereafter, in that discussion, said: “Because you’re pissed again, you idiot. That’s it. No more night work. I’ve had enough”;
(c)Mr Webb does not dispute that there was a series of text messages thereafter; and
(d)in summary, Mr Webb dismissed Mr Ferguson because in his subjective view, Mr Ferguson had indicated the night before that he would be available for work on Friday evening, Mr Webb tried to communicate with Mr Ferguson and discovered through a third party that Mr Ferguson was in fact getting intoxicated at the pub and over the telephone when Mr Ferguson indicated that he could not work on the Friday night, Mr Webb declined to give him any further work and in effect, terminated the employment.
Mr Pendergast’s evidence
Mr Pendergast says that the decision not to provide Mr Ferguson any more work was a decision taken by Mr Webb, who performed the role of allocator and supervisor. Mr Pendergast also alleges that he was then later informed by Mr Webb of the reasons that Mr Webb made the decision and that Mr Pendergast accepted those reasons to be true and agreed with Mr Webb’s decision. Mr Ferguson submits that this evidence should not be accepted and that Mr Pendergast was involved in the decision to not provide any work to him.
Submissions on the outcome
On the evidence Mr Ferguson submits that the partnership’s position that Mr Ferguson was actually dismissed because he was somehow unreliable or did not accept night shift work when offered because he was drunk, cannot be either believable or accepted by this Court as the true reason for Mr Ferguson’s dismissal in circumstances where Mr Ferguson submits that:
(a)he was fatigued, at home and not in the pub or intoxicated;
(b)Mr Ferguson in the week of his termination worked extensive overtime and night shift hours, including:[34]
[34] At [9]-[11] of Mr Ferguson’s second affidavit and annexure JF1(2) of his second affidavit at pages 6-14; see also [155]-[168] of Mr Ferguson’s first affidavit
(i)on Thursday 9 November 2017, Mr Ferguson worked between 10:00pm and 4:30am;
(ii)on Friday 10 November 2017, Mr Ferguson worked between 7:00am (2.5-hour break between shifts) and 3:20pm;
(iii)on the same day, he re-commenced a night shift at 7:30pm (3.5-hour break between shifts) and finished at 3:00am;
(iv)on Saturday, 11 November 2017, Mr Ferguson commenced work at 6:00am (3-hour break between shifts) and finished at 2:45pm;
(v)on Sunday, 12 November 2017, Mr Ferguson commenced work at 9:15pm and finished work at 2:30am;
(vi)on Monday, 13 November 2017, Mr Ferguson commenced work at 6:00am (3.5-hour break between shifts) and finished at 2:50pm;
(vii)on the same evening, he commenced work at 8:00pm (5.5-hour break between shifts) and finished his last load at 3:00am and finishing at 3:30am;
(viii)on Tuesday, 14 November 2017, Mr Ferguson commenced work at about 8:15am (approximately 5-hour break between shifts) and finished work at approximately 3:25pm;
(ix)on the same evening, he commenced work at 8:45pm (approximately 5-hour break between shifts) and finished work at about 4:30am;
(x)on Wednesday, 15 November 2017, Mr Ferguson commenced work at 8:45pm and finished at about 2:35am;
(xi)on Thursday, 16 November 2017, Mr Ferguson commenced work at about 5:00am (2.5-hour break between shifts) and returned to the yard at 7:00pm (a 13-hour shift); and
(xii)on the same evening, Mr Ferguson recommenced work at 8:45pm (a 1 hour and 45-minute break between shifts) and finished work at 4:30am the following morning.
Mr Ferguson submits that no reasonable employer could have concluded or made a decision that he was unreliable and affected the partnership’s operations in the circumstances of the mammoth hours already worked by him;
(c)there is said to be no evidence adduced by the partnership that Mr Ferguson was an unreliable worker, that he did not attend work or shifts, that in the week commencing his dismissal he had not attended work, or that he was somehow a disruptive employee that would completely alter the partnership’s operations to their detriment. There is said to be no evidence in either affidavit form or documentary form to provide any backbone to the partnership’s case, upholding their reason for the dismissal as the true reason. For example, Mr Webb does not provide any evidence at all that prior to the events of Friday, 17 November 2017, he had counselled Mr Ferguson or warned Mr Ferguson on numerous occasions regarding missing a shift or being drunk;
(d)Mr Ferguson submits that a sound-minded employer or in the alternative a reasonable employer would have undertaken an investigation and provided Mr Ferguson with an opportunity to respond and provided evidence. This never occurred and in the partnership’s own evidence a decision was made on the spot, without procedural fairness and communicated over the phone or by text message;
(e)on the following day when Mr Ferguson made inquiries about his work, Mr Webb ignored him;
(f)the text message chain reveals that Mr Ferguson text messaged at 4:20pm and within two minutes, Mr Webb text-messaged back stating: “No more night work, sorry”;
(g)if the Court accepts that Mr Ferguson made claims and inquiries, then the Court must also accept that Mr Webb and Mr Pendergast had been untruthful in their affidavit evidence, because they denied that Mr Ferguson had any complaints or inquiries about his employment;
(h)the partnership should not be believed because it is not a good or trustworthy employer, in circumstances where Mr Ferguson submits they:
(i)made their employees work unreasonable, unlawful and unsafe hours of work;
(ii)did not provide Mr Ferguson a safe workplace, with respect to the operation of heavy vehicles;
(iii)urged Mr Ferguson not to file or lodge a workers compensation claim because it would affect the partnership’s premium;
(iv)did not provide Mr Ferguson accurate pay slips;
(v)paid Mr Ferguson in cash;
(vi)racially harassed, bullied and abused Mr Ferguson;
(vii)did not pay Mr Ferguson any overtime, penalty rates or any other allowances and only paid Mr Ferguson a flat hourly rate, which was in breach of the industrial instrument; and
(viii)did not pay Mr Ferguson any travelling time, whereby he would have to commence work at Miranda, drive to a client’s site and would not be paid anything, including any travel allowance for those hours, back and forward.
Mr Ferguson submitted that the partnership took a dim view of his serious workplace complaints, there was no investigation undertaken and no attempts to actually resolve any issue in circumstances where the partnership was more concerned about meeting customer demands, having product delivered on time and generating revenue to the transport operations.
Mr Ferguson submitted that if the alleged misconduct was the real reason for dismissal, the partnership would have undertaken a proper investigation, interviewed Mr Ferguson in person, understood Mr Ferguson’s version of events, considered its position and then made a decision as to any further conduct.
Non-provision of accurate pay slips
Mr Ferguson submits that the partnership did not provide him accurate pay slips in accordance with the Fair Work Act.
The pay slips that the partnership did provide:
(a)do not record Mr Ferguson’s night shift hours of work;
(b)do not record the actual wages paid to Mr Ferguson;
(c)do not record the exact hours and days worked by Mr Ferguson;
(d)do not record any overtime, penalty rates or allowances that were paid or not paid; and
(e)do not record whether Mr Ferguson was a full-time or casual worker and further, record that Mr Ferguson received an annual salary, which is false, because in the partnership’s own submission, he was a casual employee.
The issues in dispute
Therefore, Mr Ferguson states the key issues in dispute are:
(a)whether, as a matter of law, he exercised a workplace right;
(b)whether, as a matter of fact, he made the asserted complaints and inquiries;
(c)whether, as a matter of law, his inquiry and statement that he could not work on the Friday evening, was an exercise of his workplace rights;
(d)what was the real reason for Mr Ferguson’s dismissal and whether it was prohibited;
(e)whether Mr Pendergast was, in any way, a decision maker to deny Mr Ferguson any further work;
(f)whether Mr Ferguson was a permanent full-time or casual employee; and
(g)whether the partnership provided pay slips in accordance with the Fair Work Act and Fair Work Regulations 2009 (Cth) (Regulations).
Relief
In the event that the Court is satisfied that s 340 has been breached, Mr Ferguson seeks compensation based upon his lost earnings with the partnership, less the money he earned from alternative employment. He also seeks damages for non economic loss.
The partnership’s contentions
The alleged contraventions – exercising a workplace right
As noted above, during the second period of employment, Mr Ferguson alleges that he exercised a number of workplace rights.[35]
[35] Claim at [11]-[14]
There is no dispute that Mr Ferguson had workplace rights as set out in the claim.
At [15]-[25] of the claim, Mr Ferguson alleges he exercised those workplace rights. With respect to those assertions, the partnership makes the following observations.
First, it is said to be plain that the alleged exercise of the workplace rights lack significant particularity. There are no specific times or dates put forward by Mr Ferguson nor is there any cogent evidence with respect to what conversations took place and when. This raises some doubt as to whether Mr Ferguson exercised the asserted workplace rights.[36] As noted, when and how these work place rights were exercised is nebulous.
[36] Barclay v Board of Bendigo Regional Institute of Technical and Further Education at [34] (this part of the decision was left undisturbed by the subsequent High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay
Secondly, much of Mr Ferguson’s first affidavit is said to be self-serving, irrelevant and does not establish that the relevant “action” took place and moreover, none of Mr Ferguson’s evidence, objectively viewed, disclose a basis for the reason for the termination of his employment with the partnership.[37] This is said to be a critical failure with Mr Ferguson’s own evidence.
[37] Ibid
Thirdly, many of Mr Ferguson’s purported complaints are said to be quite remote from the termination of his employment on 17 November 2017 and objectively viewed, the more remote the complaint, the less likely that Mr Ferguson’s employment would have terminated for a reason, or a reason which included that reason, relevant to the compliant.
In other words, the partnership submits that there lacks a sufficient connection, objectively viewed, between Mr Webb’s decision to no longer engage Mr Ferguson and the complaints or inquiries alleged to have been made by Mr Ferguson.[38]
[38]CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76
The decision to no longer engage Mr Ferguson
On 17 November 2017, Mr Webb took the decision to no longer engage Mr Ferguson. The effect was that the partnership no longer offered Mr Ferguson any shifts. There are said to be a number of notable facts which are relevant for the purposes of deciding whether the partnership took adverse action for a reason, or including a reason, with respect to Mr Ferguson exercising the asserted workplace rights.
First, Mr Pendergast states that he was in Bali at the relevant time.[39] Moreover, he denies having any discussion with Mr Webb regarding the decision to no longer engage Mr Ferguson. Mr Pendergast also denies having his mobile telephone with him and asserts that he had left it at the office.[40]
[39] [15] of Mr Pendergast’s affidavit
[40] [29] of Mr Webb’s first affidavit made on 15 May 2020; [16] of Mr Pendergast’s affidavit
Secondly, at no stage, on Mr Ferguson’s own evidence, did he ever inform Mr Webb that he was “fatigued”. Rather, he sent a text message to Mr Webb saying “sorry can’t work”[41]. This is said to be consistent with the evidence of Mr Webb[42]. It is said to follow that Mr Webb had no knowledge of the issue of fatigue.
[41] [172] of Mr Ferguson’s first affidavit
[42] [38] of Mr Webb’s first affidavit
Thirdly, to the extent that Mr Ferguson exercised a workplace right, on Mr Ferguson’s own evidence, the partnership submits that the Court should ignore the causative relationship between the right to be absent for whatever reason, include a reason that may be related to being fatigued, and a habit of not turning up for work notwithstanding being allocated a shift.[43]
[43] Ibid at [26]; see also Endeavour at [34]
Fourthly, Mr Webb’s evidence, having regard to Mr Ferguson’s run sheets, is said to show that Mr Ferguson had a 14.75-hour break between the end of his Thursday shift and the commencement of his Friday shift (which shift was refused).
Lastly, it is said to follow from the above that the reason to no longer engage Mr Ferguson was twofold:
(a)Mr Ferguson’s history of not turning up for allocated and accepted shifts; and
(b)Mr Webb’s belief that Mr Ferguson had been drinking.
Whether Mr Webb’s belief regarding Mr Ferguson had been drinking was soundly based is said to be irrelevant and beside the point, because that was the belief Mr Webb held at the time.[44]
[44]Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181
Given Mr Webb:
(a)did not have actual knowledge that Mr Ferguson was fatigued and therefore was not aware of the actual manifestation of the fatigue so as not allow Mr Ferguson to work his shift; or
(b)believed that Mr Ferguson had been drinking or was drunk,[45]
the partnership submits that there can be no basis for this Court to find that the partnership was motivated by an undisclosed awareness of Mr Ferguson’s claimed fatigue when Mr Webb acted to dismiss him.
[45] [36] of Mr Webb’s first affidavit
The partnership submits that none of the reasons for the termination of Mr Ferguson’s employment was a reason, or included a reason, that was a prohibited reason involved in the partnership taking adverse action against Mr Ferguson.
The pay slip issue
The partnership concedes that its pay slips did not record all of the hours worked by Mr Ferguson.
On this issue Mr Ferguson has only pleaded s 536(2) of the Fair Work Act and regulation 3.46 of the Regulations. Those provisions simply deal with the content of pay slips.
Mr Ferguson’s submissions go beyond the pleadings and introduce assertions that are said to be wrong at law and consequently beyond that which is required, as content, pursuant to regulation 3.46.
Lastly, it is noted that this issue is not an issue to which s 361 of the Fair Work Act applies.
Mr Ferguson’s status of employment
It was at the time of the trial unclear whether Mr Ferguson contested the partnership’s assertion that he was, during his second period of employment, engaged as a casual.
The partnership’s evidence is that Mr Ferguson was engaged on a casual basis during that relevant period.[46] Mr Ferguson has put no evidence to the contrary.
[46] [15] of Mr Webb’s first affidavit
Again, it is noted that this issue is not a matter to which s 361 of the Fair Work Act applies and consequently it is Mr Ferguson that carries the onus.
The expert report
Mr Ferguson has filed a report (Report) of Mr Desland in these proceedings. The purpose of the Report is set out at [4] of the Report.
It is said to be immediately apparent that there are a number of deficiencies with the Report which are articulated below.
First, nowhere in his Report does Mr Desland establish that he has any expertise in determining psychological harm caused by events such as exposure to racial abuse or exposure to termination of one’s employment.
Secondly, the Report does not provide any distinguishing features or attribution of “damage” as between:
(a)the alleged racial abuse;
(b)Mr Ferguson’s termination of employment; or
(c)Mr Ferguson’s past history.
In fact, the Report determines, without any explanation, that the purported psychological injury was sustained entirely during the second period of employment. This is despite the fact Mr Ferguson had in the past:
(a)used drugs;[47]
(b)had a drinking problem;[48] and
(c)sustained a serious assault.[49]
[47] [28] of the Report
[48] Ibid
[49] Ibid at [30]
No analysis is provided whatsoever as to the potential impacts on Mr Ferguson’s psychological state.
Thirdly, the Report does not disclose what assumptions have made in the preparation of the Report so as to come the conclusion Mr Desland has.
Fourthly, no analysis has been conducted or disclosure has been made as to:
(a)Mr Ferguson’s level of alcohol prior to the termination of his employment; or
(b)what his level of drug use was historically, or
(c)what impact Mr Ferguson’s history of depression and suicidal ideation would have on his current psychological state.
Lastly, the Report fails to explain how any of the psychometric testing conducted by Mr Desland is determinative of alleged psychological damage suffered by Mr Ferguson as a consequence of race discrimination or the termination of Mr Ferguson’s employment.
For the above reasons, the partnership submits that the Court should disregard the Report as it has no probative value whatsoever.
Resolution
In my view, Mr Ferguson’s Fair Work claim fails because, although he exercised workplace rights and was dismissed from his employment (by reason of being given no further work to do), he was not dismissed because he exercised his workplace rights. Rather, Mr Webb withheld further work from Mr Ferguson because he had formed the view, correctly or otherwise, that Mr Ferguson was unreliable because of his drinking.
In this regard, I prefer the submissions of the respondents.
As noted above, Mr Ferguson was employed with the partnership over two periods. The first period of employment commenced on or about October 2011 and concluded in early January 2015.[50]
[50] [12] of Mr Pendergast’s affidavit made on 20 July 2020
The second period of employment commenced in or about April 2016 until Mr Webb terminated Mr Ferguson’s employment in November 2017.[51] Mr Ferguson conceded in oral evidence that he was employed as a casual.[52]
[51] Ibid at [14]
[52] Transcript, 10 September 2020, page 58, line 32
There is no dispute that the termination of Mr Ferguson’s employment was effected as follows:
(a)at 4:20pm, Mr Ferguson sent a text message to Mr Webb, “sorry can’t work”;[53]
(b)at 4:22pm, Mr Webb responds by text, “no more night work”;[54]
(c)Mr Ferguson replies by text and calls Mr Webb a “wanker”.[55]
[53] [172] of Mr Ferguson’s first affidavit
[54] Ibid at [173]
[55] Ibid at [174]
Mr Ferguson sets out further texts which he says he received from Mr Webb.[56]
[56] [175] of Mr Ferguson’s first affidavit
It is further noted that on the second day of the hearing, copies of the text messages were called for by the partnership but were not produced by Mr Ferguson.[57]
[57] Transcript, 11 September 2020, page 112, line 13
From the above exchange arise three critical matters, which I accept are fatal to Mr Ferguson’s case.
First, Mr Ferguson states in his first affidavit that Mr Webb told him to call John Martin[58] (Mr Pendergast’s business partner who, together with Mr Pendergast, are the respondent partnership), presumably if he was dissatisfied with Mr Webb’s decision in terminating Mr Ferguson’s employment.
[58] [176] of Mr Ferguson’s first affidavit
Mr Ferguson said he did so[59] and, according to Mr Ferguson’s own evidence, he was told by Mr Martin to “sort it out with Roy”.[60]
[59] Ibid
[60] Ibid
It follows that Mr Martin was not, and could not have been, the decision maker and, other than what he may have been told about the incident by Mr Ferguson, knew nothing about the termination.
I find that Mr Webb made the termination decision and that he acted with the actual or ostensible authority of the partnership.
Secondly, on his own evidence, Mr Ferguson did not mention or raise with Mr Webb, that he was fatigued. This aspect will be returned to in more detail below. It is Mr Ferguson’s own belief or view that he was fatigued and no one else.
There is no evidence that Mr Ferguson advised Mr Webb that he was fatigued, on his own evidence. Moreover, in cross-examination, Mr Ferguson agreed that he did not tell him.[61]
[61] Transcript, 10 September 2020, page 99, lines 40-46 and page 100, lines 1-10
Thirdly, there is no evidence that Mr Ferguson had any discussion with Mr Pendergast or that Mr Pendergast was ever involved in the decision to terminate Mr Ferguson’s employment.
In fact, the evidence establishes to my satisfaction that Mr Pendergast was in Bali prior to and during the time Mr Ferguson’s employment was terminated.[62] Moreover, there is no dispute about this fact. Mr Ferguson’s counsel conceded as much[63] and even Mr Ferguson’s own evidence suggests that Mr Pendergast was in Bali.[64]
[62] [28], [43] and [50] of Mr Webb’s first affidavit
[63] Transcript, 11 December 2020, page 199, line 40
[64] [171] of Mr Ferguson’s first affidavit; Transcript, 10 September 2020, page 97, lines 4-10
Lastly, Mr Webb’s evidence was that, in addition to being in Bali at the relevant time, Mr Pendergast had left his mobile phone.[65] Moreover, I accept that Mr Webb did not have any discussion with Mr Pendergast regarding the termination.
[65] [29] of Mr Webb’s first affidavit
The complaints and/or inquiries
Mr Ferguson’s case is predicated on contention that the reason, or one of the reasons, for the termination was that he exercised various workplace rights as pleaded in [11]-[13], inclusive, of the claim.
Importantly, to the extent Mr Ferguson’s evidence suggests non-compliance with the relevant award or statutory entitlements, no underpayments or breaches of the award or the National Employment Standards were ever pleaded.
None of the workplace rights are pleaded with particularity. Rather, they are expressed as follows: “[b]etween December 2016 and the 17th of November 2017”, Mr Ferguson exercised the workplace rights as pleaded in the claim.
Whilst Mr Ferguson may have made such complaints and/or inquiries, and I find that he probably did, none of them can be viewed as being the reason, or one of the reasons for the termination.
Mr Ferguson was cross-examined at length about each of the alleged complaints and on each occasion, Mr Ferguson conceded that the partnership addressed his concerns and/or inquiries.
By way of example, Mr Ferguson had pleaded and gave evidence about working long hours and lack of rest breaks. In cross-examination, Mr Ferguson gave the following evidence:[66]
[66] Transcript, 10 September 2020, page 90, lines 36-45
QYes. Now, as I understand the evidence that you gave a little while ago, the first is that you decided to work the long hours because you had a sense of obligation. Correct?
A Correct.
Q You wanted the money. Correct?
A Correct.
Q You took breaks when and how you chose to take them, at a reasonable time?
A Yes.
QYou took all those. So that couldn’t have been a concern that you expressed at paragraph 147 given your evidence you’ve just given me a moment ago.
[objection was taken]
Later, following the objection, the following exchange took place:[67]
[67] Transcript, 10 September 2020, page 91, lines 13-45
QSo going back – take you back to that sentence. Breaks means your meal breaks, doesn’t it?
A Yes.
Q Yes?
A Yes. I - - -
Q Yes, and - - -?
A You get your rest breaks and you get your lunch breaks.
Q Yes, and you took all of those, didn’t you? Because you chose to?
A Not all the time.
Q Not all the time, but nobody stopped you from taking them, did they?
A No, no one stopped me from taking them.
QYes. And the rest breaks, you were talking about the 10-hour break, is that what you’re talking about?
A Between shifts.
Q Yes?
A Yes. In – yes.
Q Between shifts?
A Yes.
QYes. And, as you said, you wanted to do the hours and you wanted the money, so you did it?
A Yes, I did. Yes.
QSo the option you had, if you were complaining about the long hours, is not to do them, correct?
A Sorry?
QThe option you had, based on your evidence, is that if you were complaining about long hours you didn’t have to work them?
AI wasn’t complaining about the long hours. I was complaining about having proper breaks.
QYes. And if you didn’t accept the additional hours, you would have had a proper break?
A Yes.
QYes. So it was entirely up to you whether you worked these additional hours or not?
A Exactly.
Again:[68]
QSo as far as you’re understanding these – this issue that you raise at paragraph 147 had nothing to do with the reason for your termination, as far as you understand it?
A Not that I know of.
[68] Transcript, 10 September 2020 at page 92, lines 12-14
Another complaint and/or inquiry Mr Ferguson alleges he made was about safety with respect to the partnership’s trucks. It was alleged that Mr Ferguson had made complaints and/or inquiries with respect to faulty brakes, bald tyres and the like.[69]
[69] [102]-[114] of Mr Ferguson’s first affidavit
Again, Mr Ferguson was cross-examined at length with respect to these issues. The following exchange took place:[70]
[70] Transcript, 13 September 2020, page 82, lines 1-47
QAnd you gave some examples – or you give some examples in your affidavit about faulty brakes, wheel alignments, bald tyres, oil leaks and axle issues. That’s correct, isn’t it?
ACorrect.
QYes, and if you had problems with the truck you would tell the mechanics and they would fix it. That’s correct, isn’t it?
ACorrect.
QAnd every morning you would do an inspection of the vehicle and tick off those items in your little book, which you had to; that’s correct?
AThat’s correct.
QAnd if you found any issues with the truck you would report it to the mechanic?
AThat’s correct.
QAnd your mechanic would then fix it?
AThe next available – yes, he would but – yes, he would fix it, yes.
QYes. He would. And you would tell the mechanic, or the mechanics, about problems because that’s what you had to do?
AYes.
Q Correct?
A Correct.
QNow – excuse me for a second, your Honour. Now, this issue about safety – your Honour, I withdraw that. From the time you started on the second occasion – I withdraw that. When you started driving trucks, sort of, full time on the second occasion, that’s say from around October 2016, you would, if you had to, from that time on, raise with the mechanics whether you were concerned about any mechanical issues, correct?
ACorrect.
QAnd as you gave evidence before they would fix it. So on every occasion you raised any concerns about the safety of the truck you would tell the mechanic and they would fix it; on every occasion. That’s correct, isn’t it?
AYes, but they can’t fix it if you’re using it. Like – not all the time. That’s incorrect.
Q Not all the time what?
A They would fix it straight away.
Q But they would fix it?
A Eventually, yes.
QYes. And because of you raising these issues with the mechanics it didn’t end up being a reason why you were terminated. That’s correct, isn’t it?
AYes.
Q Sorry?
A Yes.
Q Yes, what?
A It seems no reason why I got terminated.
QNo, it wasn’t. You weren’t terminated for that reason, were you?
AI don’t know why I got terminated, mate.
The examples of the cross-examination and evidence given by Mr Ferguson are important to the operation of s 361 of the Fair Work Act. This is so because Mr Ferguson, by his own evidence he gave in relation to each alleged complaint and/or inquiry, conceded that none of those were the reason for his termination in his belief.
Moreover, Mr Ferguson conceded that he simply did not know why he was terminated.[71]
[71] Transcript, 11 September 2020, page 140, lines 30-38
The workers compensation complaint
At [94] to [101] of Mr Ferguson’s first affidavit, he gave evidence with respect to an alleged workplace injury which in February 2017, notably, some nine months prior to the termination.
Based on Mr Ferguson’s own evidence, it difficult to understand why Mr Ferguson alleges this issue was either the reason, or one of the reasons, for the termination.
In cross examination, Mr Ferguson conceded the following:
(a)he never told Mr Pendergast about the injury;[72]
(b)he told a person called Chris Martin (not Mr John Martin);
(c)Chris Martin told him to take it easy;[73]
(d)Chris Martin and perhaps together with Mr Webb put him on light duties;[74] and
(e)he continued to work up until the termination.[75]
[72] Transcript, 10 September 2020, page 78, lines 24-31
[73] Ibid at page 77, line 20 to page 79, line 14
[74] Ibid at page 78, lines 40-45
[75] Ibid at page 81, lines 20-40
The partnership submits that there is simply no causal connection between this “complaint”, to the extent it could be characterised as a complaint at all, and the termination.
I am satisfied, based on Mr Ferguson’s own evidence, as noted above, that there is no merit to this claim.
The operation of s 361
I accept that s 361 does not operate in such a way that all that is required is the making of an allegation by an applicant before the onus shifts to the employer to rebut the statutory presumption.[76]
[76] Tattsbet Ltd v Morrow (2015) 233 FCR 46
First, the motivation for adverse action said to be in contravention of the Fair Work Act must be clearly and specifically alleged and particularised. For the reasons given above, this has not occurred.
In Tattsbet, Jessup J observed that, in addition to the making of an allegation, the applicant must “establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”, citing authority for the proposition that an applicant “needs to establish the existence of the circumstance as an objective fact”.[77]
[77] Ibid at [119]
Secondly, an applicant wishing to take advantage of the presumption in s 361 must, in addition to making the allegation, provide sufficient information about the action, and the related reasons or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of the Fair Work Act.[78]
[78] Fox v Stowe Australia Pty Ltd [2012] FMCA 976 at [27]
A failure to do so will mean that the reverse onus has not shifted and consequently will not apply.[79]
[79] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [41]
In my view neither of these two important factors have been established. As noted earlier, Mr Ferguson does not know the reason for the termination. In my view the allegations against the partnership go nowhere. I have, nevertheless, considered the evidence on the basis that s 361 has been engaged.
Mr Ferguson’s credit
I prefer the evidence of Mr Webb to that of Mr Ferguson where the two conflict in relation to the termination.
The partnership raises one instance where Mr Ferguson’s credit is, without doubt, called in to question.
Mr Ferguson was cross-examined with respect to the level of alcohol he regularly consumed.[80] Specifically, Mr Ferguson denied he had a “drinking problem”.[81] Further, his cousin, Ms Tanya Rapata, who was regularly attending the pub with Mr Ferguson, also made clear that there was no way Mr Ferguson could consume large quantities of alcohol.
[80] Transcript, 10 September 2020, page 66, lines 1-46 and page 67, lines 1-46
[81] Ibid at page 67, lines 11-15
In cross-examination, Ms Rapata said:
(a)it was not possible for Mr Ferguson to consume 12 to 14 schooners;[82]
(b)she knew he did not drink much;[83] and
(c)she had never seen him drink such a quantity.[84]
[82] Transcript, 11 September 2020, page 168, lines 19-20
[83] Ibid at line 40
[84] Ibid at page 169, line 5
By contrast to the above and particularly Mr Ferguson’s own evidence in cross-examination, Mr Ferguson was prepared to tell Mr Desland that after the termination, and as a consequence of it, “[h]is drinking escalated after his sacking from Shark Shire Pumping. He drank up to ‘12 stubbies most nights’”.[85]
[85] Mr Desland’s affidavit made on 28 April 2020; [28] of the Report
It follows that either Mr Ferguson was downplaying his drinking when cross-examined or was exaggerating when interviewed by Mr Desland. I accept from Mr Desland’s report that Mr Ferguson had a drinking problem and that it started prior to the termination.
There is one further example which raises doubts with respect to Mr Ferguson’s credit.
Mr Ferguson was cross-examined with respect to his former employment with Hanson Concrete (Hanson).[86] It was put to Mr Ferguson that he did not resign from that employment but rather his employment was terminated because he had stolen a “battery” from one of the Hanson trucks.
[86] Transcript, page 73, lines 22-47; page 74, lines 1-46; page 75, lines 1-47; page 76, lines 1-45
Mr Ferguson denied this allegation and said he had resigned. He conceded that he had taken the battery from the truck but he denied his employment was terminated for that reason. He said he had resigned because he had travelled at speed through a speed camera. His evidence was that rather than waiting for his employment to be terminated because, in his view he would have lost his license because of the speeding infringement, he resigned.
Notably, Mr Ferguson did not wait to receive the infringement, nor did he wait to see if in fact he would lose his license; he simply decided to resign. In fact, according to Mr Ferguson, he resigned three or four days later.
The partnership submits that Mr Ferguson is not a witness that has been truthful with the Court and accordingly, the Court should give his evidence little or no weight. Mr Ferguson was not an impressive witness and had difficulty recalling matters of detail. His assertions concerning his drinking habits are unreliable. His evidence about his reason for leaving his previous employment is dubious. That affects the weight that can be given to his evidence.
Mr Webb’s evidence
Contrary to Mr Ferguson’s submission with respect to Mr Webb’s evidence, the partnership submits that as relevant to the termination, his evidence was entirely credible and moreover, Mr Webb validly held a belief which gave rise to the termination.
There seems to be little or no dispute between the evidence of Mr Ferguson and Mr Webb with respect to the circumstances giving rise to the termination.
The only identifiable difference is whether Mr Ferguson had been asked to work by Mr Webb on 17 November 2017.
According to Mr Webb he:
(a)confirmed on 16 November 2017 that Mr Ferguson was available to work the following evening;[87]
(b)sent a text message to Mr Ferguson on 17 November 2017 advising him of his start time[88] but Mr Ferguson did not respond;
(c)followed up with text messages and phone calls through the afternoon[89]; and
(d)called Mr Ferguson’s flatmate so as to enquire about Mr Ferguson’s whereabouts.[90]
[87] [30] of Mr Webb’s first affidavit
[88] Ibid at [33]
[89] Ibid at [34]
[90] Ibid at [35]-[37]
Mr Webb was told by Mr Ferguson’s flatmate that Mr Ferguson was at the pub. Mr Webb stated that at or about 4:00pm he received a telephone call from Mr Ferguson asking whether he was working or not, to which Mr Webb advised Mr Ferguson that he was.[91]
[91] Ibid at [38]
The text message exchange referred to above is largely not in dispute.
In cross-examination, Mr Webb was not seriously challenged on these matters, and it follows that there is simply no reason not to accept his evidence as to the reasons surrounding the termination.
Counsel for Mr Ferguson cross-examined Mr Webb at length regarding his evidence at [26] of his first affidavit. This occurred on the third day of the trial.
The basis of the cross-examination was an attempt to discredit Mr Webb’s evidence by suggesting to Mr Webb that the documents constituting Annexure “RW1” could not be relied upon, or in fact, did not demonstrate, that Mr Ferguson had been allocated shifts and subsequently refused them. The record may have been faulty but that is not the point.
Paragraph [26] of Mr Webb’s first affidavit provides as follows:
Annexed to this affidavit as RW1 is a copy of 16 load allocation sheets from between 11 August 2017 and 17 November 2017. Those records reveal the occasions, in that 14 week period, where the Applicant was allocated a shift, but he did not attend work (because there is no corresponding worksheet associated with that shift). That indicates to me that the applicant was allocated a shift but did not attend work on each of those days.
(emphasis added)
It is to be remembered that the reason given for the termination was Mr Ferguson’s unreliability to attend work after he had been allocated a shift. That was Mr Webb’s belief. I accept that nothing turns on that cross-examination to displace Mr Webb’s belief that would give rise to the Court not accepting his evidence. The documents relied on by Mr Webb may be an imperfect record but his reliance upon that record was genuine.
It follows from the evidence of Mr Webb referred to above, which I accept, that the reason to no longer engage Mr Ferguson was twofold:
(a)Mr Webb’s belief about Mr Ferguson’s history of not turning up for allocated and accepted shifts; and
(b)Mr Webb’s belief that Mr Ferguson had been drinking, because of the discussion Mr Webb had with Mr Ferguson’s flatmate.
Whether Mr Ferguson had or had not been drinking is irrelevant and beside the point because that was the belief Mr Webb held at the time.[92]
[92] Western Union Business Solutions (Australia) Pty Ltd v Robinson
Given Mr Webb:
(a)did not have actual knowledge that Mr Ferguson was fatigued and therefore was not aware of the actual manifestation of the fatigue so as not to allow Mr Ferguson to work his shift; or
(b)believed that Mr Ferguson had been drinking or was drunk,
there is no basis for this Court to find that the partnership was motivated by an undisclosed awareness of Mr Ferguson’s claimed fatigue when Mr Webb acted to dismiss him.
I accept the partnership’s submission that none of the reasons for the termination of the Mr Ferguson’s employment was a reason, or included a reason, that involved the partnership taking adverse action against Mr Ferguson for a proscribed reason.
Mr Ferguson’s Jones v Dunkel inference:
Mr Ferguson asks the Court to draw an adverse inference[93] against the partnership for its failure to call Mr Pendergast or Mr Martin on this claim.
[93] Applicant’s Closing Submissions filed in Fair Work proceeding at [15]
For the reasons set out above, with respect to Mr Martin and Mr Pendergast, I reject the submission.
On Mr Ferguson’s own evidence, it must follow that Mr Pendergast and Mr Martin do not have any allegation to answer because Mr Webb was the decision maker. In any event the partnership would have borne any liability for Mr Webb’s action because he acted with the authority of the partnership.
The pay slip issue
Mr Ferguson in his closing submissions states that the partnership has conceded a contravention of s 536 of the Fair Work Act.
As noted above, the concession made by the partnership was that its pay slips did not record all of the hours worked by Mr Ferguson.
Mr Ferguson has pleaded s 536(2) of the Fair Work Act and regulation 3.46 of the Regulations. Those provisions deal with the content of pay slips.
The content of the pay slips has no connection to Mr Ferguson’s dismissal. He was paid in cash for night work and the payments were not recorded. That provided a benefit to Mr Ferguson. The rights and, more particularly, the wrongs of that arrangement are outside the scope of this proceeding.
I note that this issue is not an issue to which s 361 of the Fair Work Act applies.
For the foregoing reasons I conclude that the application under the Fair Work Act should be dismissed.
THE RACIAL DISCRIMINATION CLAIM
At its core, the second application is a human rights complaint wherein, Mr Ferguson states that during his employment with the partnership, he was subject to discriminatory conduct, which amounted to a contravention:
(a)by the partnership of s 18C of the RDA;
(b)by the second respondent, Mr Pendergast of s 18C of the RDA;
(c)by the third respondent, Mr Webb of s 18C of the RDA;
(d)by the partnership of s 9(1) of the RDA;
(e)by Mr Pendergast of s 9(1) of the RDA; and
(f)by Mr Webb of s 9(1) of the RDA.
The affidavit evidence before the Court
Mr Ferguson relies on his first and second affidavits and therein has provided evidence that whilst employed with the partnership:
(a)Mr Ferguson is a New Zealand citizen who identifies as being a Maori and has a dark skin colour;[94]
(b)Mr Ferguson, along with one of his cousins, was the only Maori employee with the partnership;
(c)on or about 2015, Mr Pendergast, at the Miranda Hotel, referred to Mr Ferguson as, “that black cunt works for me.”[95]
(d)from about August 2016 and until the end of 2016, Mr Ferguson was systematically, on a day-to-day basis, racially abused by being referred to by Mr Pendergast as a “black cunt”, and other derogatory statements about being black;
(e)by 2017, the statements were not just daily, but would sometimes occur multiple times a day and on the occasions that Mr Pendergast was physically at the Miranda depot of the partnership;[96]
(f)further, during the employment, Mr Pendergast, would also refer to Mr Ferguson’s Maori heritage and stereotypes regarding Maoris and peoples from New Zealand;
(g)statements were also made by Mr Pendergast about Mr Ferguson being a “sheep shagger” and just generally, rather than referring to Mr Ferguson by name, would refer to him by the colour of his skin;
(h)Mr Ferguson at [201]-[204] of his first affidavit provides evidence in relation to Mr Webb’s statements, regarding his skin colour and his ethnicity and further, at [205], comments about other drivers referring to him as a “black cunt”; and
(i)Mr Ferguson provides affidavit evidence that he was hurt, humiliated and offended by the conduct; he also filed a medico-legal report by Mr Desland (referred to above in the context of Mr Ferguson’s Fair Work claim) in support of the position that he suffered hurt humiliation and injury by reason of the conduct. The report examines Mr Ferguson’s mental health. The report concludes, among other things, that Mr Ferguson suffers from a major depressive disorder and an alcohol use disorder, as well as post traumatic stress disorder (PTSD).
[94] [179]-[181] of Mr Ferguson’s first affidavit
[95] [183] of Mr Ferguson’s first affidavit
[96] [185] and [186] of Mr Ferguson’s first affidavit
In relation to the racial discrimination, Mr Webb, in his second affidavit made on 20 July 2020:
(a)states that he did not know that Mr Ferguson was or considered himself to be Maori;
(b)from his perspective, he did not observe that Mr Ferguson had dark skin; and
(c)denies ever having said the words attributed to him in Mr Ferguson’s affidavit and statement of claim in any capacity.
In relation to the race discrimination, Mr Pendergast provides affidavit evidence that:
(a)he was not aware that Mr Ferguson identified as someone of Maori heritage; [97] and
(b)denies ever having saying the words attributed to him in Mr Ferguson’s affidavit and statement of claim in any capacity.
[97] At [22] of Mr Pendergast’s affidavit
The partnership has not, in any capacity, provided or filed any evidence that:
(a)it has any policies or procedures with respect to race discrimination; or
(b)that it provided Mr Ferguson any policy or procedure or communicated to him or any of its employees information or directives regarding race discrimination or any other forms of unlawful discrimination.
Mr Ferguson’s reply evidence
In response to the respondents’ evidence, Mr Ferguson as noted above, filed with the Court on 11 August 2020 two further affidavits as follows:
(a)the affidavit of Ms Charlene Rapata who states that Mr Pendergast referred to Mr Ferguson as a “black cunt” and that Mr Ferguson would confide with her family regarding the racial harassment;
(b)the affidavit of Ms Tania Rapata, who states that she witnessed Mr Pendergast and Mr Webb on numerous occasions, refer to Mr Ferguson as a “black cunt” at the Miranda Hotel and further, that Mr Ferguson would confide in her regarding the racial harassment.
There is also an issue of vicarious liability in the racial discrimination claim.
As noted above, the first respondent is a partnership owned by Mr Pendergast and Mr Martin. The partnership is one as defined in accordance with s 1 of the Partnership Act 1892 (NSW) (Partnership Act). Consequently, each act or omission done by one of its partners is taken to done by each partner in a partnership. It is said to follow that the second respondent, Mr Pendergast, cannot be a respondent to the same proceedings twice. By virtue of s 9 of the Partnership Act, any act or omission of Mr Pendergast is in fact and at law, an act or omission of the partnership.
Reliance on s 18C of the RDA is said to be misconceived and has no work to do given the operation of s 9 of the Partnership Act. The respondents invite the Court to dismiss that part of the race claim.
The third respondent, Mr Webb, was at all material times, an employee of the partnership and, consequently, if the Court were to find for Mr Ferguson, then s 18C would make the partnership vicariously liable for the acts or omissions of Mr Webb.
CONSIDERATION
Mr Ferguson’s contentions
In the decision of Murugesu v Australian Postal Corporation[98] this Court found that the employer in that case racially discriminated (as understood under the RDA) against the applicant because of his black skin colour, by referring to the applicant as a “black bastard”.
[98] [2015] FCCA 2852
At [29] and [245]-[247] of Murugesu, Judge Burchardt provided a synopsis of previous employment related race discrimination claims and found that the discriminatory statements made with reference to the applicant’s skin colour, did constitute unlawful racial discrimination:
[245] Both parties proceeded on the implicit understanding that if the racial abuse alleged against Mr Boyle was found to have occurred it would constitute conduct contravening the provisions of the RDA. It is well established that racial abuse of an employee can contravene the terms of s.9 of the RDA. See, for example, Kordos v Plumrose (Australia) Ltd (1989) EOC 92-256. More recently Qantas Airways Ltd v Gama [2008] FCAFC 69 the Full Court of the Federal Court, per French, Branson and Jacobson JJ said at [76]-[77]:
[76] We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve “a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin …”. The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.
[77] The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom …”. The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.”
[246] The right to just and favourable conditions of work in my view obviously includes a right to work in an environment free of racist insult. There is no question of the facts of this case that Mr Murugesu was subject to racist insult on occasions by Mr Boyle. Similarly it is clear on the facts that this was not as isolated as was found by Raphael FM in Gama first instance, and the evidence of Mr Murugesu makes it clear that the insults had a major effect on him.
[247] Drawing on the terms of s.9 (which I have not found it necessary to set out in full) there is no question that the racist insults inflicted upon Mr Murugesu by Mr Boyle involved a distinction based on his race and colour and national and ethnic origin and there is equally no question that it had the effect to the nullifying and impairing Mr Murugesu’s enjoyment on an equal footing of his human right, (referred to in Schedule 2 of the Act), to just and favourable conditions at work.
In the same year the Full Federal Court in Vata-Meyer v Commonwealth of Australia[99] at [57]–[60] identified three elements to s 9(1):
(a)“[f]irst, there must be an act involving a distinction, exclusion, restriction or preference”;
(b)“[t]hen, the distinction, exclusion, restriction or preference must be based on race, colour, descent or national or ethnic origin”; and
(c)“[n]ext, the act must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work”.
[99] [2015] FCAFC 139
Mr Ferguson submits that the statements made to him were clearly made because of his race and skin colour. Mr Ferguson submits that there is a clear connection and inference that the Court can make that:
(a)the statements would not have been made to Mr Ferguson if it were not for his race and skin colour;
(b)the statements were not made to other employees who were not of Mr Ferguson’s race or skin colour; and
(c)the statements clearly had the subject matter of Mr Ferguson’s race and skin colour by reference to the fact that the statements included the word “black” followed by some pejorative term and further the literal description and racial stereotypes said to Mr Ferguson.
The statements thereby involve an act involving a distinction, exclusion, restriction or preference.
The statements must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work.
With respect to s 18C, Mr Ferguson submits that if the Court finds that:
(a)Mr Webb and Mr Pendergast did make the statements as alleged; and
(b)that the statements made were because of Mr Ferguson’s race, colour, ethnicity; and
(c)that Mr Ferguson was offended,
then the Court will find that the respondents have contravened s 9(1) and s 18C of the RDA.
More particularly in relation to s 18C, Mr Ferguson submits that the elements that are required to be met are:
(a)there is a casual connection between the act done, in this case the making of the comments, and Mr Ferguson’s race, colour, or national or ethnic origins;
(b)that on an objective basis, the act was reasonably likely to offend a person of Mr Ferguson’s race, colour or national or ethnic background. Proof of actual offence is not required;[100] and
(c)the impugned act, being the making of the comments, did not occur in private and establishing that it occurred in a public place is not sufficient to establish this.[101]
[100] see Eatock v Bolt(2011) 197 FCR 261 at [241]
[101] see Korczac v Commonwealth of Australia (Department of Defence)(2000) EOC 93-056
The partnership, as the employer of Mr Ferguson, and Mr Webb and Mr Pendergast being one half of the partnership, is vicariously liable for the acts of Mr Pendergast and Mr Webb in the premises of ss 18A and 18E of the RDA.
Loss and damage
Mr Ferguson has provided affidavit evidence by way of a medico-legal report and submits to the Court that the racial discrimination harassment has caused him injury and he seeks a payment of damages.
In Murugesu v Australia Post (No 2),[102] Judge Burchardt outlined a methodology for assessing damages at [75]-[86].
[102] [2016] FCCA 2355
Aggravated damages
In a race discrimination context there are few, if any, authorities on aggravated damages.
With respect to sexual harassment, in Hughes trading as Beesley and Hughes Lawyers v Hill,[103] the Full Federal Court at [60]-[66] considered the decision of the primary judge in this Court’s decision of Hill v Hughes[104] and concluded at [61] that:
the matter in which a party conducted its case could enliven and award aggravated damages. It is a well-established principle.
[103] [2020] FCAFC126
[104] [2019] FCCA 1267
Mr Ferguson submits that the conduct alleged has aggravated features, in that:
(a)the conduct was egregious and would strike at the heart of any employment relationship;
(b)the conduct was almost daily and sometimes numerous times a day;
(c)the conduct goes to the heart of Mr Ferguson’s human rights, by long-standing racial discrimination law, which seeks to prevent this type of abhorrent racism in all aspects of society, let alone one in the Australian workplace;
(d)the conduct had a profound effect on Mr Ferguson’s psyche as a proud Maori;
(e)the conduct was undertaken by Mr Ferguson’s supervisor and further, the part owner of the partnership, which is a sophisticated business and which has sophisticated commercial contracts with very large concrete manufacturing and supply companies;
(f)the partnership has no policies or procedures to deal with race discrimination;
(g)the partnership has not provided a workplace or work environment where race discrimination and / or a breach of any policy or procedure is frowned upon;
(h)the partnership has not even provided a written contract for Mr Ferguson;
(i)the partnership’s conduct during trial has been to unequivocally deny that the conduct ever happened and therefore, Mr Ferguson has been put to the cost and angst of proving the allegation and further, the stress of having to be put on a witness stand for longer than required; and
(j)finally, if the Court accepts that the conduct occurred, then the Court must also accept that the respondents were untruthful in their affidavit evidence, which is a serious aggravating feature in the conduct of these proceedings.
The partnership’s contentions
Mr Ferguson’s case is that, during the second period of employment, he was subjected to various remarks which are set out in his first affidavit,[105] by either Mr Pendergast or Mr Webb.
[105] [185], [187], [194] and [198] of Mr Ferguson’s first affidavit
Mr Ferguson alleges that such remarks were made because of Mr Ferguson’s dark skin and Maori heritage.
A number of things may be said about the race claim.
First, the onus of proof in making good his allegation rests with Mr Ferguson.[106]
[106]Trapman v Sydney Water Corporation & Ors [2011] FMCA 398 at [89]
Secondly, the allegations Mr Ferguson makes against Mr Pendergast and Mr Webb are serious and as such the Court should be satisfied that the evidence meets the Briginshaw[107] standard.
[107]Briginshaw v Briginshaw (1938) 60 CLR 336
Thirdly, Mr Ferguson allegations are said to be generally vague and lack any specificity whatsoever. This of itself, would not satisfy the Briginshaw standard and further, renders it difficult for a respondent to answer the case it is required to meet. Allegations of race discrimination that are cast as occurring:
(a)between July 2016 to November 2017; or
(b)on a daily basis; or
(c)at least weekly; or
(d)on a daily and weekly basis,
should not be accepted by the Court and further, it is submitted by the respondents, would leave significant doubt as to the veracity of the allegations.
In Bennett v Everitt,[108] Einfeld J made the following observation:
Positive proof of discrimination on at least some of the grounds covered by the Act will often be difficult for complaints…This means that many discrimination cases…. have to be proved have to be proved by comparatively weak circumstantial evidence, without direct or perhaps any witnesses and based only on an intuition or a deeply held if correct belief that there has been discrimination.
[108] (1988) EOC 92-244 at [77,271]
In QANTAS Airways Limited v Gama,[109] Branson J set out some useful views on the issues of the appropriate standard of proof in racial discrimination matters. Her Honour referred to the statement by Dixon J in Briginshaw:[110]
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[109][2008] FCAFC 69 at [122]-[139]
[110]Briginshaw at 361-362 as cited in QANTAS at [124]
Mr Ferguson’s own evidence is said to be equally vague on this issue. Mr Ferguson provides no evidence as to when such comments were made, who was present, precisely what was said or in what context the alleged comments were made, if they were said at all.
Further, it is said not to be immediately apparent why phrases such as “bludgers” or “thieves” or “sheep shagger” would constitute any form of race discrimination or even capable of identifying a feature that relates to Mr Ferguson’s race.
Fourthly, a striking feature of this case is that both Mr Pendergast and Mr Webb deny having made any such comments.[111]
[111] See Mr Pendergast’s affidavit and Mr Webb’s second affidavit made on 20 July 2020
Lastly, the Court is required to find Mr Ferguson’s case proved if it is satisfied that this case be proved on the balance of probabilities[112]. In doing so, however, the Court is required to take into account three specific matters mentioned in s 140(2) of the Evidence Act 1995 (Cth), namely:
(a)the nature of the cause of action and defence;
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
[112] See section 140(1) of the Evidence Act 1995 (Cth)
The respondents submit that, once the Court has had regard to these evidentiary principles set out above together with the available evidence or, perhaps more appropriately, the lack and quality of available evidence, it will have no choice but to conclude that Mr Ferguson can simply not discharge, to the Briginshaw standard, his onus of proof.
The evidence of Charlene Rapata
The respondents submit that the Court should reject the evidence of Ms Charlene Rapata for the following reasons.
Ms Charlene Rapata describes a conversation she says took place between Mr Ferguson and Mr Pendergast in December 2017 at the partnership’s yard. Mr Ferguson ceased working for the partnership in November 2017.
Ms Charlene Rapata does not disclose how she could overhear the “telephone” conversation between Mr Ferguson and Mr Pendergast. At best, this evidence reflects simply what Mr Ferguson told Ms Charlene Rapata was the substance of the conversation and nothing more.
Moreover, the evidence is said to be simply self-serving and nothing more than an afterthought given the lack of any corroborating evidence. Ms Charlene Rapata’s evidence should have been placed before the Court as evidence in chief and not reply evidence.
The evidence of Tania Rapata
For similar reasons as set above, the respondents submit that the evidence of Ms Tania Rapata should also be rejected.
As with the overwhelming evidence of Mr Ferguson, Ms Tania Rapata’s evidence is said to be equally vague and unreliable. Ms Tania Rapata cannot provide the Court with any precision or clarity, or a time or date when the alleged remarks were made to Mr Ferguson other than “2-3 times weekly” or “on many occasions”[113].
[113] See [6] of Ms Tania Rapata’s affidavit
As with the evidence of Ms Charlene Rapata, the Court should find that the evidence is nothing more than a self-serving afterthought given the glaring lack of any corroborating evidence placed before the Court by Mr Ferguson with his evidence-in-chief.
The expert report
Mr Ferguson relies upon the Report of Mr Desland in these proceedings. Its purpose is set out at [4] of the Report.
As noted earlier, there are said to be a number of deficiencies with the Report which are set out below.
First, nowhere in his Report does Mr Desland establish that he has any expertise in determining psychological harm caused by events such as exposure to racial abuse or exposure to termination of one’s employment.
Secondly, the Report does not provide and distinguishing features or attribution of “damage” as between Mr Ferguson’s
(a)alleged racial abuse;
(b)termination of employment; or
(c)past history.
In fact, the Report determines, without any explanation whatsoever, that the purported psychological injury was sustained entirely during the second period of employment. This is despite the fact Mr Ferguson had in the past:
(a)used drugs;[114]
(b)had a drinking problem;[115] and
(c)sustained a serious assault.
[114] [28] of the Report
[115] Ibid
No analysis is provided whatsoever as to the potential impacts on Mr Ferguson’s psychological state.
Thirdly, the Report does not disclose what assumptions have made in the preparation of the Report so as to come to the conclusion Mr Desland has.
Fourthly, no analysis has been conducted or disclosure has been made as to:
(a)Mr Ferguson’s level of alcohol consumption prior to the termination of his employment; or
(b)what the level of drug use was historically, or
(c)what impact Mr Ferguson’s history of depression and suicidal ideation would have on his current psychological state.
Lastly, the Report fails to explain how any of the psychometric testing conducted by Mr Desland is determinative of alleged psychological damage suffered by Mr Ferguson as a consequence of race discrimination or the termination of Mr Ferguson’s employment. Moreover, nowhere in the report does it disclose, for example, what level of race discrimination one would have to be exposed to.
For the above reasons, the respondents submit that the Court should disregard the Report as it has no probative value whatsoever.
Resolution
Save for the issue of vicarious liability, in respect of which I accept the consistent submissions of all parties that the partnership bears liability, I prefer Mr Ferguson’s submissions in relation to the RDA claim and I find that that claim has been established.
The issues for determination on this aspect of the case are as follows:
(a)whether the comments attributed to Mr Pendergast and Mr Webb were made by them;
(b)whether in addition to the obviously offensive “black cunt” references, comments such as “sheep shagger”, “sheep fucker”, “dole bludger” and “thief” are causally connected to Mr Ferguson’s race, colour or ethnic origins or were likely to cause offence to members of the Maori race and persons of New Zealand national or ethnic origin for the purposes of s 18C; and
if the answers to (a) and (b) are “yes”, then:
(c)whether the comments were causative of any injury that Mr Ferguson may have.
As noted above, in these proceedings Mr Ferguson relies on the evidence of himself, Charlene Rapata, Tania Rapata and the expert evidence of Mr Desland. The partnership in turn relies on the evidence of Mr Webb, Mr Smoothy and Mr Pendergast.
In relation to Mr Webb’s evidence in these proceedings, Mr Ferguson submits that he was not a witness of credit. Mr Webb’s evidence was problematic. In his affidavit, Mr Webb made a point of stating that Mr Ferguson referred to himself as “your little nigger friend” and others as “white bitches”. I asked him during cross-examination what he understood those terms to mean. He claimed he did not know. Neither was he able to explain why he put them in his affidavit. He was not prepared to make a single concession which was adverse to himself and Mr Pendergast. Some of the answers provided by him strain credulity to breaking point, for example:
(a)stating that he did not know what the term “nigger” meant;
(b)denying that the terms “nigger” and/or “white bitches” had any racial connotations;
(c)denying that Mr Ferguson identified as being black, following admitting that he knew that Mr Ferguson was from New Zealand and that he referred to himself as “your little nigger friend” and others as “white bitches”;
(d)denying that the use of colourful language was common in the workplace, that Mr Pendergast had ever used the word “cunt” in the workplace;[116] contrary to the evidence of Mr Smoothy;[117] and
(e)denying that Mr Pendergast was ever present in the “smoko room”[118] contrary to the evidence of Mr Pendergast[119] and Mr Smoothy[120] under cross-examination.
[116] Transcript, 4 March 2021, page 237, lines 23-25 and page 239, lines 8-9
[117] Transcript, 11 December 2020, page 45, lines 46-47 to page 46, line 1
[118] Transcript, 4 March 2021, page 238, lines 45-46; page 239, lines 1-3
[119] Transcript, 11 December 2020, page 57, lines 45-46 and page 58, lines 31-34
[120] Transcript, 11 December 2020, page 33, lines 31-39
Equally, Mr Ferguson submits that Mr Pendergast is not a witness of credit. There is force in that submission. Mr Pendergast under cross-examination was argumentative. With one exception he was not prepared to give any concessions, whether it was a contentious issue or not. The one concession he did make, was an inadvertent one regarding him never being in the smoko room.
Mr Pendergast also gave answers which were self-serving and were implausible and/or inconsistent with evidence given by Mr Smoothy, for example:
(a)he was reluctant to concede that Mr Ferguson is a New Zealander, let alone of Maori heritage, even though he knew he was from New Zealand and had quite dark skin;[121]
(b)he would not concede that colourful language was regularly used in the workplace and that he used the word “cunt” occasionally at the workplace,[122] contrary evidence having been given by Mr Smoothy.[123] These answers are even more striking when regard is had to the fact that Mr Pendergast prior to giving these answers was present in the court room when Mr Smoothy gave this evidence; and
(c)giving evidence under cross-examination that there were various policies, including human resource policies, in a drivers’ log book in each truck which drivers are required to sign.[124] Such policies were unable to be produced when a call was made for them.
[121] Transcript, 11 December 2020, page 62; cf Mr Smoothie at Transcript, 11 December 2020, at page 47
[122] Transcript, 11 December 2020, page 57
[123] Transcript, 11 December 2020, at page 45
[124] Transcript, 11 December 2020, page 53, lines 41-46 to page 54, lines 1-3
In contrast, Mr Ferguson accepts and I find that Mr Smoothy answered all questions asked of him in manner which was truthful to the best of his knowledge and belief.
Mr Ferguson, while not an impressive witness in terms of his powers of recall, was a witness of truth. He considered the questions he was asked and, although he was sometimes confused, he attempted to answer all questions truthfully. His answers to questions were plausible and supported by other evidence. I asked him during cross-examination why he did not raise concerns with the respondents if he found the words alleged hurtful and offensive and his answer was to the effect that he bottled it up.[125] This answer is consistent with the evidence given by Mr Desland, which was to the effect that in his experience people subjected to racial slurs at the workplace rarely complain about it.[126]
[125] Transcript, 11 September 2020, page 141, lines 1-11
[126] Transcript, 11 December 2020, page 31, lines 16-23
Similarly, Charlene Rapata gave her answers in a quiet tone but nevertheless, confident and considered manner. I accept her evidence. She was an impressive witness. Like me, she had asked Mr Ferguson (in effect) why he tolerated the abuse he was subject to, and got a very general answer.[127] In my view, her evidence reinforces the opinion of Mr Desland. The precise date of the incident she witnessed is less important than her recall of what she witnessed. Ms Rapata’s recall about the incident was superior to that of Mr Ferguson, who recalled a face to face incident with Mr Pendergast. I accept Ms Rapata’s evidence that the incident involved a telephone call between Mr Ferguson and Mr Pendergast and that she could hear all of it because the phone was on loudspeaker.
[127] [12] of affidavit of Charlene Rapata
Tania Rapata is quite clearly a proud women and was incensed whenever it was put to her that she was not telling the truth. It was also clearly evident that she herself was quite upset by the comments made by Mr Pendergast at the Miranda Hotel. Notwithstanding these observations and with some reservations I accept Tania Rapata’s evidence as to what happened at the Miranda Hotel.
Finally, Mr Ferguson submits that a Jones v Dunkel inference should be drawn from the failure of the respondents to adduce evidence from the person referred to as “Mick” in Mr Ferguson’s first affidavit at [206] who Mr Ferguson states witnessed the alleged conduct of the respondents.
I am not satisfied that such an inference should be drawn. There is confusion in the evidence of Mr Pendergast, under cross-examination in relation to Mick.[128] Mr Pendergast spoke of a person called Graham who may be a different person to Mick.
[128] Transcript, 11 December 2020, at page 61
Were the comments made?
The determination of this issue simply comes to an exercise of whether the evidence on behalf of Mr Ferguson is to believed or that of Mr Pendergast and Mr Webb. First, for the reasons advanced above in relation to credit, I accept Mr Ferguson’s evidence should be believed.
Secondly, under cross-examination, Mr Webb answered that in his first affidavit he had responded to all matters in Mr Ferguson’s first affidavit. Mr Webb did not in his first affidavit deny that he or Mr Pendergast had made any of the racist comments alleged by Mr Ferguson in his first affidavit. However, Mr Webb did in his first affidavit allege that Mr Ferguson had referred to himself as “your little nigger friend” and others as “white bitches”. I find, notwithstanding Mr Webb’s denial under cross-examination, that in his first affidavit he was admitting that the racist comments had been made and that the references to Mr Ferguson’s comments regarding skin colour, was an attempt to show he was not offended and gave as good as he got.
I take into consideration the evidence of the respondents’ own witness, Mr Smoothy, under cross-examination. Mr Smoothy conceded that although he did not recall anyone at work using the comments attributed to Mr Pendergast, Mr Webb and other employees of the partnership, it was possible.
When regard is had to the evidence of Mr Ferguson, which in part is corroborated by Charlene Rapata and Tania Rapata, I find that Mr Ferguson has proved to the requisite standard that the comments were made as alleged by Mr Ferguson at the places as alleged by him, and by Ms Charlene Rapata, in relation to the telephone conversation she witnessed.
Finally, in relation to the level of satisfaction, I adopt the following finding of Judge Burchardt in Murugesu at [222]:
Taking a step away from the fury of the battle, another consideration that leads me to these conclusions is the inherent probability of the matter. On the respondents’ version of the facts, Mr Murugesu has deliberately invented a lengthy history of wholly fictitious racial abuse. It is simply not conformable with ordinary human experience that a person should simply invent such a construct.
Were the terms related to race etc.?
Mr Ferguson accepts that the terms “thief” and “dole bludger”, if used in isolation, as much as they are offensive, are not ones which are attributable to any person comprising of New Zealand nationality, Maori race, colour or ethnic origins, including Mr Ferguson.
However, when these words or the other words set out by Mr Ferguson as used by Mr Pendergast[129] are used in combination with the words “all you Maoris…”, then it is beyond doubt that such comments have the necessary discriminatory relationship
[129] at [194] of Mr Ferguson’s first affidavit
As to the term “sheep shagger”, it is said to be common knowledge that this term is one which is applied to New Zealanders. In my view, however, the expression has no connection to race and could be applied to any New Zealander regardless of their race or ethnic origin.
The remaining alleged comments made by the respondents in particular “black cunt” are not the subject of any challenge as to their discriminatory nature nor their capacity to cause offence.
Otherwise than in private
The statements made at the Miranda Hotel were made in public. Likewise the statements made at the respondents’ workplace were made “otherwise than in private”.[130]
[130] Gibbs v Wanganeen [2001] FMCA 14 at [11], citing Korszac
Injury
The Report of Mr Desland was read over the objections of the respondents, for the primary reason that as a counselling psychologist, he did not have the requisite “specialist knowledge” pursuant to the rule expressed under cases such as Makita (Australia) Pty Ltd v Sprowles.[131] In support of this submission the respondents tendered a number of documents,[132] including documents from the Australian Psychological Society description of clinical and counselling psychologists. As put by Mr Ferguson at the hearing (Transcript 11/12/20), the definition of counselling psychologist clearly contemplates that they diagnose mental health disorders as well provide reports to legal professionals and government departments.
[131] (2001) 52 NSWLR 705
[132] Exhibit R1
The Report also provides Mr Desland’s experience before numerous courts and tribunals providing expert reports and giving expert evidence. I accept that Mr Desland has the necessary specialist knowledge, and the report is one which should be accepted.
Turning to the Report, Mr Desland conducts several psychometric tests and through his own expert analysis of the interviews he conducted with Mr Ferguson, provides opinion and comment, among other things:
(a)that Mr Ferguson has incurred an injury which is defined at [44]-[46] of the Report, namely Major Depressive Disorder and an Alcohol Use Disorder of moderate impairment. Mr Desland stated at [45], page 9 of his Report that “Mr Ferguson was evaluated as severely depressed and suicidal man, who was traumatized and anxious by his treatment at Shark Shire Pumping”; and
(b)concludes at [50] that the pattern of race discrimination was a substantial contributing factor to the injury.
Assessment of loss
I have had regard to the observations of Judge Burchardt in Murugesu (No 2) at [75]-[86]. Mr Ferguson is not entitled to any special damages, both because he claimed compensation for that loss in the Fair Work proceeding and because the partnership has been found not to be liable for that loss. I have considered Mr Ferguson’s claim for general damages for non economic loss. There is a wide range of general damages which have been awarded as high as $100,000 in Richardson v Oracle Corporation Australia Pty Ltd.[133] Each case must be considered on its own facts. Mr Ferguson was frequently referred to as a “black cunt” both in the workplace and socially at the Miranda Hotel. He was called other names as well but they were less obviously racially offensive. Mr Ferguson made no complaint about this conduct and, so it appears, adopted the tactic of describing himself as “your little nigger friend”. In so doing he was, in my view, attempting to fit in to a toxic work culture. That is not to say that he has not been harmed by the offensive conduct. The report of Mr Desland establishes to my satisfaction that Mr Ferguson has been harmed psychologically although Mr Ferguson’s psychological state has also been adversely affected by his drinking (which I have found pre-dated his employment) and other adverse experiences which Mr Ferguson recounted to Mr Desland.
[133] (2014) EOC 93-734
While there are other factors at play, the racial taunts to which Mr Ferguson was subjected have had a significant impact upon his state of mind. For that, he should receive a significant award of compensation.
I have decided that the appropriate amount to award is $50,000.
CONCLUSION
For the reasons set out above, I find that the evidence discloses that the necessary elements in relation to the claim under s 9 and s 18C of the RDA have been made out. I will make orders for the payment of general damages, as well as the provision of an apology to Mr Ferguson.
I will hear the parties as to costs.
I certify that the preceding two hundred and forty-seven (247) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 29 October 2021
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