Findley v MSS Security Pty Ltd

[2017] FCCA 2898

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLEY v MSS SECURITY PTY LTD [2017] FCCA 2898

Catchwords:
INDUSTRIAL LAW – Adverse action claim – discrimination claim – morbid obesity – whether the respondent took adverse action against applicant by reason of subjecting him to an investigation and sending him a letter of allegations – whether the respondent discriminated against the applicant by reason of his disability – alleged omission of previous relevant work experience from CV – misunderstanding by employer in relation to obligation to refer to entire work experience in application – no adverse action – finding that the prohibited reason alleged was not the substantial or operative reason for acting – no discrimination – application dismissed.

Legislation:

Disability Discrimination Act 1992, ss.6, 15(2)

Fair Work Act 2009, ss.342(1), 343, 344, 351

Cases cited:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 ; (2013) 216 FCR 70

Cosma v Qantas Airways (2002) 124 FCR 504
Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226
Hodkinson v The Commonwealth [2011] FMCA 171
McPhee v Simpson (1910) 10 SR (NSW) 786
Musgrove v Murrayland Fruit Juices Pty. Ltd. (1980) 47 FLR 156
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Stephens v Australia Postal Corporation [2011] FMCA 448
X v Commonwealth (1999) 200 CLR 177

Applicant: JOSHUA FINDLEY

Respondent: MSS SECURITY PTY LTD

File Number: MLG 2841 of 2016

Judgment of: Judge McNab

Hearing dates: 17-18 August 2017

Date of Last Submission: 18 August 2017

Delivered at: Melbourne

Delivered on: 24 November 2017

REPRESENTATION

Mr Findley  in person

Solicitors for the Respondent: Mr Levin, Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2841 of 2016

JOSHUA FINDLEY

Applicant

And

MSS SECURITY PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns the questions of:

   a)whether the respondent took adverse action against Mr Findley by reason of the exercise of workplace rights within the meaning of s.341(1) of the Fair Work Act 2009 (Cth) (‘the Act’);

   b)whether the respondent discriminated against Mr Findley by reason of his disability in breach of s.351(1) of the Act;

   c)whether the respondent exerted undue influence or undue pressure on Mr Findley in breach of s.344 of the Act; and

   d)whether the respondent coerced Mr Findley in breach of s.343(1) of the Act.

2. By an amended Statement of Claim filed 7 February 2017 Mr Findley  alleges that:

   a)He applied to the Fair Work Commission (‘FWC’) to terminate the MSS Security Victorian Enterprise Agreement 2011 on 30 May 2016;

   b)On 1 June 2016, the respondent provided Mr Findley  with a letter alleging that he had omitted information from his resume;

   c)On 25 July 2016, Mr Findley  submitted a statutory declaration of employee representative in relation to the FWC proceedings and subsequently filed an application for the production of documents on 22 August 2016;

   d)On 19 October 2016, the day after the FWC hearing, Mr Findley  was removed from working at Deakin University and any of its sites;

   e)On 21 October 2016 he attended a meeting at the head office of the respondent to discuss alternative roles that were available. He alleges that during this meeting he explained to the respondent that he was not able to take on a patrol position as he could not walk for more than five minutes;

   f)On 7 November 2016 and 10 November 2016, Mr Findley  was directed to attend a site in Melbourne at Freshwater Place;

   g)On 13 November 2016 Mr Findley  entered discussions with the respondent in relation to his inability to walk for more than five minutes; and

   h)On 14 November 2016, the respondent terminated Mr Findley’s employment, effective from the close of business that day by virtue of having exercised workplace rights, namely Mr Findley’s participation in the Fair Work proceedings.

3. Mr Findley also alleges that:

   a)the respondent engaged in coercion in breach of s.343(1) of the Act in seeking to coerce him not to exercise a workplace right to participate in the enterprise bargaining processes;

   b)he was subjected to undue influence or pressure in breach of s.344 of the Act to not make an agreement under the National employment standards and the making and termination of an enterprise agreement that he was subjected to undue influence in an attempt to stop him from participating in the enterprise agreement processes; and

   c)he also asserts a breach of s.350(1) of the Act which relevantly provides that an employer must not take adverse action against a person who is an employee of the employer because of a person's physical disability. The particulars under this claim provided:

   [t]he respondent was aware that Mr Findley was unable to perform patrolling duties as a consequence of being morbidly obese. A disability can be a temporary or lasting disability and the respondent was alerted to this disability (that is, morbid obesity) on numerous occasions yet proceeded to dismiss the applicant when they knew he was suffering from such a disability.

4. Mr Findley seeks final relief in the form of compensation in the sum of $132,000.00, reinstatement and a pecuniary penalty in the sum of $540,000.00.

Background

1. On 18 January 2016 the respondent placed an advertisement on Seek for a full-time ‘Security Officer Geelong’ position. Mr Findley applied for the position online on 20 January 2016 and answered “no” in response to the question “[d]o you have any medical condition that could prevent you from performing the inherent requirements of the job you are applying for?’

2. Mr Findley underwent a pre-employment medical examination on 22 January 2016 for the role of Roving Security Officer. The examination identified several health issues with Mr Findley, including a high body mass index. The recommendations for the role that were contained in the Konekt Pre-Employment Report dated 27 January 2016 were as follows:

   ·   The candidate has been diagnosed by a Doctor with sleep disorder, sleep apnoea, or narcolepsy. This may impact on fatigue levels throughout the day if uncontrolled, and may impact activities requiring high levels of concentration, operating motor vehicles for extended durations, or shift/night work. Candidate to continue with required treatment to manage condition.

   ·   BMI is the body mass or height to weight ratio. The Candidate’s BMI is greater than 35 and BMI results above 35 are associated with an increased risk of injury. Some studies estimate this risk to be twice the average. Candidate would benefit from reducing weight to improve BMI.

   ·   Candidate has elevated blood pressure which should be managed by their own GP. Candidate has been notified of this.

   ·   The candidate displayed poor abdominal strength during functional testing. Poor abdominal strength can be associated with increased risk of sustaining an injury, particularly to the lower back, when performing repetitive manual handling tasks. The candidate would benefit from improving abdominal strength.

   ·   The candidate displayed poor back / hamstring flexibility during functional testing. The candidate would benefit from improving back / hamstring flexibility to reduce the risk of future injury.

3. At the time that he underwent this medical examination in January 2016, Mr Findley weighed about 175kgs. In November 2016 he claimed that he weighed 198kgs.

4. Mr Findley returned the signed employment contract on 25 January 2016 which provided inter alia that:

   Terms of Employment

   As a security officer with the Company, you agree to perform you (sic) duties at any site at which the company has a contract to provide security services.

   11. Position, Duties and Accountabilities

   The title of your position and its major duties and accountabilities will be as contained in the Security Standing Instructions. Subject to consultation with you, the company reserves the right to vary these duties at any time.

5. On 1 February 2016 Mr Findley commenced employment with the respondent as a full time Security Officer. He was assigned to work at a client site of the respondent’s at Deakin University, Geelong. Mr Findley’s employment contract was ongoing rather than a fixed contract of employment. He was assigned duties in the control room at Deakin University.

6. On 19 May 2016 Mr Findley applied to terminate the MSS Security Enterprise Agreement 2011. Mr Findley was a self-appointed bargaining representative. The other bargaining representatives were the respondent and United Voice. The respondent applied to have the Enterprise Agreement 2016 approved which was supported by the union. Mr Findley opposed the approval of the Enterprise Agreement 2016 and appeared in the Fair Work Commission proceeding regarding the Agreement.

7. By a letter dated 20 May 2016 Mr Luddington wrote to Mr Findley raising issues in relation to his application to terminate the Enterprise Agreement. This was followed by a further letter dated 25 May 2016 from Mr Luddington to Mr Findley setting out in detail what the respondent considered to be the defects in Mr Findley's approach in his application to terminate the Enterprise Agreement.

8. On 1 June 2016, Mr Luddington sent a letter to Mr Findley alleging that Mr Findley misrepresented his previous experience or provided false or misleading information in his resume and/or application. Mr Findley  was asked to respond to the following allegations:

   1. You have listed your previous security experience as being with Chubb Security in NSW & ACT, and Wilson Security in WA only, with your most recent security role ending in 2009.

   2. Further to Allegation 1, it has since come to our attention that prior to your appointment by MSS Security you were engaged by Diamond Protection, working at La Trobe University.

   3. You failed to include your employment with Diamond Protection on either your resume or job application, and we understand that you were employed by them for a period longer than 6 months.

   4. Further to allegations 1-3, you have deliberately made misrepresentations, omissions and/or false statements in relation to your previous employment for the purpose of obtaining employment.

9. Mr Findley was invited to a meeting in Port Melbourne on 3 June 2016 and was advised that the purpose of the meeting was to discuss the response provided by Mr Findley “and furnish you with an opportunity to inform us of any mitigating circumstances or other information you consider relevant".

10. The letter also stated:

    [y]ou are advised that whilst no conclusion has been reached in relation to the allegations contained in this letter, the allegation is considered serious and may result in disciplinary action, up to and including summary dismissal.

    You are advised that this investigation is confidential and you are directed not to discuss it with anyone in the workplace, except if they are acting as your support person through this investigation process. The confidentiality of this investigational process also extends to your support person and you are required to advise them of this. Any breach of confidentiality by you or your nominated support person may also result in disciplinary action.

11. When Mr Luddington was asked in the witness box what led him to look at Mr Findley’s CV, he gave evidence that:

    [s]o Mr Findley had made an application to have the existing enterprise agreement terminated which was quite an unusual step to have taken. Subsequently, one of my colleagues…informed me that she had done a search for Mr Findley either on or the Fair Work Commission website – I don’t recall – and noted that he had been involved in several other matters in the Commission involving Diamond Protection. I spoke with the general manager for Victoria-Tasmania, Harry Veerman, about that and the question that he asked me was, “Who is this guy? What have we done to him? What’s going on? Why is he bringing this action” So at that point I pulled Mr Findley’s personal file to find out more about him and, at that point, noted that his career history did not include a reference to Diamond Protection.[1]

    [1] Extract of transcript of proceedings Thursday 17 August 2017,  p 8 25-35.

12. Mr Findley responded to Mr Luddington’s letter by letter dated 2 June 2016 and denied the relevance of his experience. Mr Findley alleged that he was being ‘targeted’ for his role in the protected action.

13. Mr Findley gave a detailed account of why he had not referred to his work experience with Diamond Protection in his resume when applying for a position with the respondent. He commented that the role with Diamond Protection was casual and involved quite different duties to those involved as a Control Room Operator. He also stated that he had referred to what he considered to be relevant experience and qualifications and stated that he had also omitted reference to holding three degrees and a pilot’s licence on the basis that they were irrelevant.

14. As to an allegation that Mr Findley had made deliberate misrepresentations, omissions and/or false statements in relation to his previous employment for the purposes of obtaining employment Mr Findley stated as follows:

    [a]s to your allegation that I breached a clause of my letter of offer, I deny doing so. The letter of offer states that “misrepresentation, alteration or fraudulent use of my previous experience may lead to my immediate dismissal”. I did not use anything. This clause is aimed at people who inflate their experience and qualifications. If I did not hold a control room endorsement or stated I have five years experience in the control room you would have valid and reasonable grounds to dismiss me. The fact is, I got the job without stating any (control room) relevant experience. I was told I got the job because of two reasons; I was computer literate and had the right licence. I did not use anything to increase my chances to gain employment.

15. Mr Findley went on to assert that the respondent was coercing and harassing him because of the application that he had made to terminate the 2011 Enterprise Agreement.

16. Mr Findley’s letter concluded:

    I assure you that no matter the outcome of this ludicrous investigation I will continue to fight for the rights of my colleagues by any and all avenues available to me. Your capricious and unfair conduct towards me undermines collective bargaining and should be brought to the attention of the FWC. As you have done research on my legal battles, you will see that I have no issue fighting in courts of significant jurisdiction against highflying barristers and solicitors. If someone is being taken advantage of, coercion and intimidation only encourages me.

    Your influence, pressure, coercion and adverse actions breaches my workplace rights and is in clear violation of the FWA. The contents of this letter will be elaborated on throughout my general protections application.

17. On 3 June 2016 a meeting was held to discuss the respondent’s letter of allegation. Present at the meeting was Mr Findley, his support person Ben Joyce, Sam Krikelis, Business Manager at the respondent and Mr Luddington.

18. Mr Luddington responded by way of letter dated 9 June 2016. Although the letter is lengthy, because it is of central relevance, the whole of same is reproduced:

    Dear Joshua

    RE: Conclusion of Investigation

    We write further to our letter of allegation, dated 1 June 2016; your response dated 2 June 2016; and our subsequent meeting held at MSS Security office, Port Melbourne on 3 June 2016. Also present was Sam Krikelis, Business Manager and your support person, Ben Joyce. The purpose of the meeting was to discuss the letter of allegation and your response to it.

    In summary, it was alleged that you had deliberately made misrepresentations, omissions and/or false statements in relation to your previous employment for the purpose of obtaining employment with MSS Security. Specifically, this was in relation to your previous role with Diamond Protection which was not mentioned on your resume or job application.

    In both your written response and verbally in our meeting, you have stated that the position that you held with Diamond Protection was that of “Night Manager” which was “far from a typical security role”. You stated that your position at Diamond Protection had “absolutely nothing to do with the position you applied for with MSS”.

    You did acknowledge that you required a security licence for the position and it is uncontroversial that the work you were performing was at La Trobe University. We also understand it to be uncontroversial that the offer of employment letter you were provided with when engaged by Diamond Protection stated that you were covered by the Diamond Protection Security Collective Agreement 2009 and that your job title was DRS Night Manager (Security).

    Throughout your written and verbal responses, your explanation for not including your role with Diamond Protection on your resume or job application form was that it was “irrelevant” and “nothing to do with the position you applied for with MSS”. You have sought to distance yourself from the notion that your role at Diamond Protection was related to security, despite evidence to the contrary.

    MSS Security finds it hard to accept that a role that you were working in:

    -     Which required a security licence;

    -     Was on another university campus in Melbourne;

    -     Was with another company that provides security services;

    -     That was titled DRS Night Manager (Security); and

    -     Which you successfully argued that you had been engaged in for at least the minimum employment period and had reasonable expectation of continuing employment on a regular and systematic basis;

    Would be considered “irrelevant” and “nothing to do with the position you applied for with MSS”. MSS Security sees this experience as entirely relevant and maintains that your failure to inform us of your most recent employment has denied us the opportunity to take relevant reference checks and perform appropriate due diligence before employing you.

    Furthermore, we take the opportunity to remind you that, the job advert for your current role at Deakin University stated “Previous experience of providing security services in a residential, commercial and/or university environments would be a distinct advantage.” On that basis, we find your response that you did not include your experience with Diamond, working at La Trobe University, because you didn’t think it was relevant, implausible.

    In relation to your job application and subsequent interviews for employment with MSS Security, you stated that you do not recall being asked about your previous experience or what your last job was, and that you were just asked about what was on your resume. You said that you stated that you had been a student for 8 years.

    This statement is in contrast to the recollections of the MSS Security employees who conducted phone and face-to-face interviews with you. During the phone interview, it was stated that when asked about your employment history, you responded that it was “as supplied” in your resume. It was put that you also stated that you said you had been “studying for years”; had been in full time study for over a year and needed to work again to earn some money whilst studying part time.

    During your face-to-face interview, it has been put that you were asked about the gaps in your CV to which, by way of explanation, you responded that you had completed 3 degrees and were currently undertaking your 4^th. It was further stated that you were asked why this particular job was of interest to you and you responded with words akin to it being “time to add practical not just educational experience” to your resume. It was added that during your face-to-face interview, you indicated that your parents had agreed to fund you as you went through university, with the implication being that you had not worked for some time.

    You made reference, both in your written and verbal responses, to various legal and other confidentiality clauses in relation to your employment with Diamond Protection that prevented you from disclosing to us the nature of your employment with Diamond Protection. We find it implausible that any such direction or order would exist that prevented you from identifying Diamond Protection as a previous and recent employer. This seems to align with an excerpt from the redacted deed that you sent to us that indicates that Diamond Protection were going to provide you with a Statement of Service / Written Reference. Such a statement or document would be worthless if you were unable to disclose them as a previous employer.

    In summary, you made every indication to MSS Security that you had not had any significant or relevant employment since 2007 and continue to maintain this position, which in our view is untrue.

    We also raised with you during out meeting, the allegation that you had made against Mr Harrie Veerman that he, “arranged a warning to be issued to [you] that prevented [you] from communicating with [your] colleagues about EA negotiations”. When asked what evidence you had to support your allegation, you conceded that the warning had been given to you by the control room supervisor, and that you did not know where the direction to issue you with a warning had come from. Without any evidence whatsoever, your attempts to smear the name of the General Manager are ill-conceived and frankly, wrong. It is of serious concern to us that you would make such allegations without any evidence.

    You also sought extensively throughout your verbal and written statements to draw us into discussions about your role as employee bargaining representative. We understand you will claim that any course of action MSS engages in against you that could be considered to injure you in your employment, will have been undertaken because of your position as an employee bargaining representative.

    For the reasons discussed above, MSS Security maintains that this is not the case. Your role as an employee bargaining representative has had no bearing on our investigation. Simply, you have been required to explain an obvious discrepancy between representations that you made to us and information about your employment history that subsequently came to light.

    MSS Security has serious concerns about your conduct in applying for a position with us and we consider your explanation disingenuous. However, in light of the extenuating circumstances, including that the relevant term in your employment contract does not specifically refer to lying by omission, on this occasion, we will not be taking formal disciplinary action against you.

    We will take this opportunity to remind you of our expectations of all employees, specifically in relation to honesty and integrity. It is of the upmost importance that you uphold the MSS Security values of Integrity, Teamwork, Attitude, Performance and Passion, and we have concerns that your conduct, as outlined above, is not in keeping with our Company values.

    You are reminded of your obligations to adhere to the MSS Security Employee Standing Instructions and are advised that any future breaches may result in disciplinary action, up to and including the termination of your employment.

    You are advised that the outcome of this process is confidential and you are directed not to discuss it with anyone in the workplace, except if they have acted as your support person throughout this process. The confidentiality of this process also extends to your support person and you are required to advise them of this. Any breach of confidentiality by you or your nominated support person may also result in disciplinary action.

    MSS is committed to ensuring that employees feel supported in the workplace at all times. Our Employee Assistance Program is available for you to use and you can contact them by calling 1300 361 008 should you wish to utilise this support service.

    Sincerely,

    Matt Luddington

    HR/IR Manager Vic/Tas

    MSS Security Pty Ltd

Background of events leading to Deakin asking Findley to be removed from the campus

1. On 14 October 2016 Deakin University contacted MSS Security to arrange a meeting with them to discuss Mr Findley’s conduct. The University’s concerns in relation to Mr Findley’s ‘work issues’ are summarised in the letter of the respondent to Mr Findley dated 19 October 2016.[2] In large they relate to three videos of Mr Findley  in the control room  on 13 October 2016, which show:

   [2] Annexure “ML-8” affidavit of Matthew Luddington sworn 28 February 2017.

   Video 1 – footage of you in Control Room on 13/10/16 at 0030hrs – 5m 55s length

   ·On your personal mobile phone for approx. 1m 8s

   ·Looking at papers on desk in front of you; making annotations in pen

   ·Throughout entire length of footage, you appear to look up from your desk once

   Video 2 – footage of you in Control Room 13/10/16 at 0239hrs – 3 m 28s length

   ·Looking at papers on desk in front of you; making annotations in pen

   ·Throughout entire length of footage, you appear to look up from your desk once

   Video 3 – footage of you in Control Room 13/10/16 at 0330hrs – 9 m 56s length

   ·“Playing” on personal mobile phone for approx. 3m 30s

   ·Looking at papers on desk in front of you; making annotations in pen

   ·Throughout entire length of footage, you look up from your desk/phone twice.[3]

   [3] Annexure “ML-8” affidavit of Matthew Luddington sworn 28 February 2017.

2. Deakin also alleged that Mr Findley had failed to create a log entry for each of the 17 alarm activations during Mr Findley’s shift from 2300hrs on 12 October 2016 to 0700hrs on 13 October 2016, explaining why each alarm was activated and the resolution.[4]

   [4] Ibid.

3. The meeting took place on 17 October 2016. Mr Anthony Bandiera of MSS Security was shown video footage of Mr Findley during his shifts in the control room. Deakin alleged that Mr Findley was doing non-work related tasks while at work and that the University had previously told Mr Findley to stop.

4. By way of email on 17 October 2016, Craig McClelland, Security Compliance and Operations Manager at Deakin University requested the removal of Mr Findley from any Deakin University site.

5. Mr Findley denied that he had been in any way derelict in his duty in the way that he approached his work in relation to alarm activations or the use of his time in the control room.

6. On 18 October 2016, Mr Matthew Luddington, HR/IR Manager Vic/Tas at MSS Security emailed Mr McClelland to ask if Deakin would be prepared to reconsider its decision and give Mr Findley  the chance to explain his conduct. On the same day, Mr McClelland emailed Mr Luddington confirming that Deakin University required that MSS Security remove Mr Findley from the Deakin site.

7. On 19 October 2016, Mr Luddington wrote again to Mr McClelland suggesting that Mr Findley be put on a final warning and that he apologise. This suggested was rejected.

8. On 19 October 2016, Mr Luddington wrote to Mr Findley directing him not to attend at Deakin University the following day and to attend a meeting with himself and Mr Bandiera. The letter invited Mr Findley to address his conduct and discussed transfer to alternative employment locations in both the Geelong and Melbourne region.

9. Mr Findley responded to Mr Luddington’s letter by way of letter dated 20 October 2016. In his letter of 20 October 2016, Mr Findley stated that he would not consider a role in Geelong or Melbourne unless it was “reasonably equivalent” to his role at Deakin. In relation to his potential transfer to a position in the Geelong region, Mr Findley  noted that:

   [o]bviously I am a big guy, and if this position requires me to walk or stand for periods of time, the job is not suitable nor is it reasonably equivalent to my position at Deakin. I am a Control Room Operator and I was employed in that capacity. If this job is reasonably equivalent, both in remuneration and duties, I will take it on.[5]

   [5] Annexure “ML-9”affidavit of Matthew Luddington sworn 28 February 2017.

10. In relation to his potential transfer to a position in Melbourne, Mr Findley indicated that he would consider a position in Melbourne ‘if it is reasonably equivalent and the travel time and costs is compensated for’. Mr Findley’s reasoning as to what he considered to be reasonably equivalent and why he was entitled to it was as follows:

    …[a]t Deakin I worked 38 hours per week and was on about $55,000 per year. It took me 10 minutes to get to work.

    If I am relocated to Melbourne, I would have to travel at least 2 hours return per shift. This time will increase depending on location and time of day. This adds at least 10 hours to my working week, puts kilometres on my car (approximately 800 kms per week) and uses excess petrol. My hourly rate of $21.26 would see that I should be paid (at least) an additional $212.60 per week, and $712 in additional transport costs to be reasonably equivalent. In addition to my regular $55,000 per year, a reasonably equivalent position would be an extra $48,079 per year.

    Unlike Hans, I am willing to commute to Melbourne if I am approximately compensated for it. The additional travel time adds at least 25% to my working week and I suffer a loss for vehicle related expenses. A position that does not compensate me for the additional time and expenses is not reasonably equivalent. I will consider anything that is reasonably equivalent.[6]

    [6] Ibid.

11. On 21 October 2016, Mr Bandiera and Mr Luddington met with Mr Findley and his support person to view the video footage. Mr Luddington gave evidence that he discussed redeployment opportunities at other client sites with Mr Findley at this meeting and that Mr Findley stated that he was nearly 200kg, could not walk for longer than five minutes and could not stand for more than a few minutes. Mr Luddington asked Mr Findley to provide an updated CV to the respondent.

12. On 24 October 2016, Mr Findley provided an updated CV to Mr Luddington which was forwarded to the respondent’s client, Viva, Geelong. On 26 October 2016 Mr Luddington received an email from Mr Marcus Bonini, MSS Security Business Manager which included a response from the National Security Manager employed by Viva declining interest in having Mr Findley engaged for the stated reason: “[w]e do not run a full time control room and he has no patrol history along with high risk industrial experience.”

13. On 3 November 2016, Mr Luddington wrote to Mr Findley informing him that Viva had not deemed him suitable for the role and outlined three opportunities that were based in Melbourne including at Freshwater Place, Freshwater 1 Residential and 333 Collins Street. Mr Luddington asked Mr Findley to indicate his preference for the three positions by 4pm on 4 November 2016.[7]

    [7] The above is a summary of the effect of the correspondence. The correspondence itself is lengthy but does not add materially to the substance of the claims.

14. Mr Findley requested further information about the roles on 3 November 2016 any queried whether he would be issued with a final warning letter. On the same day, Mr Luddington provided the information requested about the roles and indicated that the respondent would issue Mr Findley with a formal warning. Mr Findley’s deadline to submit his preferences was extended to 9am on Monday 7 November 2016. Mr Luddington directed Mr Findley to commence work at 9am on Tuesday 8 November 2016 at Mr Findley’s nominated site, or the site of the respondent’s choosing should Mr Findley not submit his preferences by the deadline.

15. On 7 November 2016 Mr Findley wrote to the respondent declining the three positions that were on offer. In short, the reasons for declining the positions were that Mr Findley would not be compensated for travel costs, the travel time without compensation was excessive and he could not physically perform the roles which involved walking more than five minutes. He also claimed that his departure from Deakin was orchestrated by the respondent with the assistance of a Deakin employee who was previously employed by the respondent.

16. On 10 November 2016 Mr Luddington wrote to Mr Findley and indicated that the respondent would terminate Mr Findley ’s employment if Mr Findley  refused to attend work at the Freshwater Place site on 14 November 2016.

17. On 14 November 2016 Mr Luddington wrote to Mr Findley to terminate his employment, effective from close of business that day. Mr Luddington indicated that Mr Findley would be provided with one weeks’ pay in lieu of notice.

Relevant Legislation

1. For the purposes of these proceedings, the relevant definition of “adverse action” in s.342(1) is as follows:

2. Meaning of adverse action

Item	Column 1 Adverse action is taken by…	Column 2 If…
1	An employer against an employee	The employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer

1. Section 351 of the Act provides:

   Discrimination

   (1)  An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

   Note: This subsection is a civil remedy provision (see Part 4-1).

   (2)  However, subsection (1) does not apply to action that is:

   (a)  not unlawful under any anti-discrimination law in force in the place where the action is taken; or

   (b)  taken because of the inherent requirements of the particular position concerned; or

   (c)  if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

   (i)  in good faith; and

(ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)  Each of the following is an anti-discrimination law :

(aa)  the Age Discrimination Act 2004 ;

(ab)  the Disability Discrimination Act 1992 ;

(ac)  the Racial Discrimination Act 1975 ;

(ad)  the Sex Discrimination Act 1984 ;

(a)  the Anti-Discrimination Act 1977 of New South Wales;

(b)  the Equal Opportunity Act 2010 of Victoria;

(c)  the Anti-Discrimination Act 1991 of Queensland;

(d)  the Equal Opportunity Act 1984 of Western Australia;

(e)  the Equal Opportunity Act 1984 of South Australia;

(f)  the Anti-Discrimination Act 1998 of Tasmania;

(g)  the Discrimination Act 1991 of the Australian Capital Territory;

(h)  the Anti-Discrimination Act of the Northern Territory.

1. Section 343 provides:

   Coercion

   (1)  A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   (b) exercise, or propose to exercise, a workplace right in a particular way.

   Note: This subsection is a civil remedy provision (see Part 4-1).

   (2)  Subsection (1) does not apply to protected industrial action.o

2. Section 344 provides:

   Undue influence or pressure

   An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

   (a)  make, or not make, an agreement or arrangement under the National Employment Standards; or

   (b)  make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

   (c) agree to, or terminate, an individual flexibility arrangement; or

   (d) accept a guarantee of annual earnings; or

   (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

   Note 1:  This section is a civil remedy provision (see Part 4-1).

   Note 2:  This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).

Mr Findley’s arguments

1. Mr Findley alleges that the respondent has subjected him to adverse action as a result of him exercising a workplace right to participate in the FWC proceedings. The adverse action that he alleges is that he was subjected to an investigation process and the threat of the loss of his job as a result of being presented with the letter of allegation which alleged serious misconduct. The serious misconduct alleged was that Mr Findley had engaged in “misrepresentations, omissions and/or false statements in relation to your previous employment for the purpose of obtaining employment”. It was said that this had occurred by reason of the failure on his part to disclose that he had previously been employed by Diamond Protection working at Latrobe University.

2. Mr Findley gave evidence he felt targeted by the respondent as a result of his participation in the FWC proceedings. He also claimed that he felt he was being coerced in order to persuade him to disengage with the FWC proceeding.

3. In relation to his dismissal, Mr Findley alleges that the events that led to his dismissal were orchestrated by the respondent in order to prevent him from appearing as his own bargaining representative in the FWC proceeding.

4. Mr Findley also alleges that the respondent breached s.351 of the Fair Work Act 2009 (Cth) and s.15(2) of the Disability Discrimination Act 1992 (Cth). Mr Findley alleges by paragraph [36] of his written submissions that the respondent deliberately assigned him to a position that it knew he physically could not do and this amounted to indirect discrimination within the meaning of s.6 of the Disability Discrimination Act 1992 (Cth).

The discrimination claim – the terms of Mr Findley’s engagement

1. This finding regarding the terms of Mr Findley’s engagement and the nature of his removal from the Deakin University site are relevant to the allegations of discrimination.

Mr Findley’s removal from the Deakin site

1. There is no evidence that there was any collusion between Deakin University and the respondent in order to have Deakin University provide a direction to MSS Security that it did not want Mr Findley on its campus. Deakin University was not a party to the proceeding and no allegation was made by Mr Findley against Deakin University to the effect that it was involved in a scheme with the respondent for the purposes of having him removed from the campus and/or to achieve the termination of his employment with the respondent. The evidence is to the contrary and establishes that the University was dissatisfied with Mr Findley’s performance as a Control Room Operator, had raised its dissatisfaction with him directly and with the respondent, and had directed the respondent to remove him from the position.

2. As set out in [28] above, the evidence shows that notwithstanding Mr Luddington’s efforts to persuade Deakin University to retain Mr Findley as the Control Room Operator, Deakin University had no interest in that.

3. Mr Findley was employed as a full-time Security Officer pursuant to a letter of appointment dated 25 January 2016. The letter of appointment incorporated standard conditions of employment and standing orders. The letter of appointment provided inter alia:

   [a]s a Security Officer with the company you agree to perform your duties at any site at which the company has a contract to provide security services.

   In the event that the company loses a contract to provide security services where you are working and has no comparable position to transfer you to, your position with the company will be terminated in accordance with provisions set out in the Security Services Industry Award 2010 or applicable industrial instrument.

4. Mr Findley contends that because he responded to a job advertisement for a position as Security Officer Geelong and he was interviewed with representatives of Deakin University and the respondent to discuss a control room position at Deakin Waurn Ponds campus, his job was as a Control Room Operator in Geelong. This contention is not supported by the plain words of the contract that he entered into and is not supported by the terms of the job advertisement that he answered.

5. The job advertisement listed on 18 January 2016 on Seek stated relevantly:

   We are currently seeking dynamic, enthusiastic and talented individuals who have control room experience and would like to work for MSS Security providing quality security services for a high profile client based in Geelong.

   We are looking for high quality, professional Security Officers that are able to work in a variety of scenarios and have exceptional customer service and communication skills.

6. The job advertisement listed amongst the attributes required in order to be considered for interview were:

   a)high level of physical fitness; and

   b)the ability and desire to respond quickly in emergency situations.

7. In his job application for the position “Security Officer Geelong”, Mr Findley stated that he did not have any medical condition that could prevent him from performing the inherent requirement of the job that he was applying for.

8. The letter of appointment made plain that Mr Findley was employed as a Security Officer and that he agreed to perform duties at any site at which the company had a contract to provide security services to. The duties which Mr Findley was employed to perform were not limited to duties as a Control Room Operator. Mr Findley did not stipulate that any agreement with the respondent was to the effect that his duties would be restricted to performing the role of Control Room Operator.[8]

   [8] X v Commonwealth (1999) 200 CLR 177 at [103].

9. Once there was no position available for Mr Findley at Deakin University, the respondent then took steps to obtain alternative employment for him both as a Control Room Operator and as a general Security Guard. As the narration of the background facts shows, Mr Findley was not prepared to take an alternative position in Melbourne or one that involved walking for more than five minutes per hour. The stipulation by Mr Findley was that he could not perform work as a Security Guard that involved more than five minutes walking per hour meant that he could not perform the inherent requirements of the job that he was employed to perform. The cases involving s.351(2) of the Fair Work Act 2009 indicate that the reference to the inherent requirements of a job are the job that the person was employed to perform, not one that has been modified to meet the needs of a disabled employee: see Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226, Cosma v Qantas Airways (2002) 124 FCR 504 and X v Commonwealth (1999) 200 CLR 177 at [102].

10. Mr Findley was employed as a Security Guard and the particular position was as a Security Guard and his job was not limited to a role as a Control Room Operator in Geelong or elsewhere.

11. Mr Findley’s contract did not require the respondent to employ him in a control room position in Geelong. The documentary evidence in the case comprising of the correspondence between Mr Findley and the respondent demonstrate that the respondent did seek to obtain suitable alternative positions but Mr Findley was not prepared to accept those alternative positions without the conditions that he sought to impose, including an additional salary of about $50,000 per year to cover travel costs between Geelong and Melbourne, and a requirement that he walks for no more than five minutes.

12. Similarly, the respondent has not discriminated against Mr Findley by seeking to impose conditions upon him which he would be unable to satisfy. Mr Findley agreed to accept a position which involved undertaking a variety of roles and duties such as are described in the standing orders and at locations where the respondent has a contract to provide security services.

13. Mr Findley was aware he entered into a contract of employment which stipulated that the company’s contract to provide services to Deakin University may end, at which point he may be transferred to another position. The comparable position referred to in the letter of appointment is a position as a full-time Security Officer.

1. I accept the submission made by Mr Findley that morbid obesity may constitute a disability for the purposes of s.351 of the Act as that condition may limit a person’s movements, activities or senses.[9] However, I do not accept the submission that Mr Findley has been subjected to adverse action by discrimination (whether direct or indirect) because of his morbid obesity. Mr Findley was hired as Security Officer. His position in the control room at Deakin was no longer available to him because Deakin directed the respondent to remove him from the site. From that time the respondent sought to place Mr Findley in alternative positions – including one where he was to be principally occupied in a control room. That control room position was not available as the client of the respondent did not wish to have Mr Findley based at its site for the reasons it expressed. The other positions that were available to Mr Findley were rejected by him as unsuitable because they involved walking for more than five minutes per hour and he would not perform those positions without a substantial increase in salary.

   [9] Hodkinson v The Commonwealth [2011] FMCA 171 at [145] – [146]; Stephens v Australia Postal Corporation [2011] FMCA 448 at [86] – [87].

2. Once Mr Findley refused the positions available there was no work for him and his employment was terminated in accordance with the terms of the contract. Mr Findley did not establish that there were other positions available that he could have performed. For those reasons I dismiss those parts of his claims relating to termination of employment and discrimination.

The adverse action claim

1. In considering the applicant’s claims based on breaches of part 3-1 of the Act, I have regard to what was said in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ stated at [32]:

   …the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay  (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:

   •   The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

   •   That question is to be answered having regard to all the facts established in the proceeding.

   •   The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

   •   It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

   •   Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

   •   If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”

2. A remaining question in this claim relates to whether Mr Findley was subjected to adverse action by reason of being sent a letter of allegations and being subjected to an investigation as outlined at paragraphs [15] – [22].

3. The respondent’s letter of allegation of 1 June 2016 makes plain that it considered that Mr Findley had made “misrepresentations, omissions and/or false statements” in relation to his previous employment for the purposes of obtaining employment. The letter also advised him that the allegations was considered serious and may result in disciplinary action up to and including summary dismissal.

4. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3)
   [2013] FCA 525 ; (2013) 216 FCR 70, Murphy J considered circumstances which involved the investigation, suspension and warning given to a member of the union who had tagged forklifts on safety grounds. An issue in the case was whether a fact finding investigation in a disciplinary process could constitute adverse action. Murphy J held at [97]:

   The respondents’ argument largely boils down to the proposition that when an employer conducts, in good faith, a fact-finding investigation into allegations of employment related misconduct, that action cannot constitute adverse action. However, contrary to this submission, the authorities indicate that a properly conducted investigation brought in good faith may nevertheless give rise to a deterioration in the employment advantages enjoyed by the employee, thereby constituting adverse action.

5. His Honour considered the authorities and concluded at [103]-[104]:

   …in my opinion an investigation brought in good faith and carried out properly may nevertheless constitute adverse action. It must be accepted that an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned. If it does so, CPSU v Telstra at [17]-[18] is authority for the proposition that it constitutes adverse action.

   However, it should not be thought that this means that an employer that brings and carries out an investigation properly and in good faith may be seen to have acted unlawfully. Plainly this is not so. Employers must be able to properly investigate concerns regarding employment related misconduct. If unable to do so they may be forced to take disciplinary action on the basis of flawed or incomplete information, allow misconduct to go unpunished, or even allow it to continue. It is important to remember that while an investigation may constitute adverse action, it is only unlawful if the investigation is carried out for a prohibited reason. An employer has not acted unlawfully where the reason for the investigation is other than a prohibited reason.

6. I accept that an investigation of the kind conducted by the respondent may constitute adverse action particularly given that the possibility of termination of employment was raised.

7. I appreciate the force of Mr Findley’s views as set out in his correspondence of 9 June 2016 in response to the letter of allegation. His position was that he had not misled anybody by omitting reference to his work experience with Diamond Protection and his failure to volunteer that he had prior work experience in the security industry was not something that could justify a warning of termination or an investigative process.

8. In an article “The Employer’s Right To Silence” G.R.McGarry, 2003 ALJ 607, the learned author stated in relation to prospective employees:

   [t]he legal obligations of prospective employees seem fairly well settled and easily stated, although not always so easily applied. The contract of employment is not a contract uberrimae fidei (Bell v Lever Brothers Ltd &Ors [1932]A.C.161 at 227 per Lord Atkin.) And those negotiating for a service agreement are as unfettered as in any other negotiation (at least in law, although not always in practice). An employee does not warrant that his past life has been beyond reproach and is not obliged to disclose his past faults unasked. (Gill v Colonial mutual life assurance Society Ltd ( 1912) 18 Arg. LR. 140)

   and further:

   [a] prospective employee is  frequently asked questions either on an application form or in an interview. False answers given in response to such questions can render the person liable to dismissal if he is employed and the truth emerges. Such dismissal would be justified if the falsity was material in the making of the contract or, a gain, if it manifests an absence of the warrant a degree of skill.

9. The misconduct that Mr Findley was accused of was that in submitting an online form under the heading employment history – he referred to Chubb from 19 January 2016 to 19 January 2017 and the reason for leaving was “moved interstate”. The form made provision to set out employment history with two previous employers.

10. In my view Mr Findley was not obliged refer to entire work experience including work experience with another security company when submitting his application. Had he been asked the question: “have you been previously employed by any security business and if yes provide details”, then a dismissal may be justified if a false answer had been given and the falsity was material to the making of the contract.[10] In my view the employer in this case either misunderstood Mr Findley’s obligations or they were ill-advised.

    [10] McPhee v Simpson (1910) 10 SR (NSW) 786.

11. The letter of 9 June 2016 incorrectly alleged that Mr Findley lied by omission. An employee may have all sorts of good reasons for not including a complete work history when applying for a job. It may be that their period of employment with a previous employer was unsatisfactory to the employee or to the employer or mutually unsatisfactory for a wide range of reasons which may not involve fault on any part. That an employee fails to refer to that experience is not lying. Likewise if an employee is terminated from previous employment for performance reasons and the employee exercises their rights to bring legal proceedings, that is something they may not wish to volunteer to a prospective employer. A failure to disclose that information unasked is not a ground to terminate employment or evidence of lying.

12. The respondent’s disproportionate response in this instance has plainly made Mr Findley feel unfairly targeted and he has suggested that the only rational reason for such a response was because of his role as self-appointed bargaining representative and a desire on the part of the employer to terminate his employment so as to prevent him from acting as a bargaining representative. Whilst I understand and appreciate the view put by Mr Findley, I do not accept, after considering the evidence and seeing Mr Luddington give evidence, that he subjected Mr Findley to the process of investigation for a prohibited reason. Notwithstanding that I have formed the view that the employer proceeded on a misunderstanding of the obligations on Mr Findley’s part to disclose prior employment, I do not think it adopted this approach because of Mr Findley’s industrial activism and I accept Mr Luddington’s evidence in that regard.[11] Mr Luddington gave evidence denying that the only reason he had looked at Mr Findley’s CV, sent the letter of allegations and conducted a meeting was because of his industrial activities. That the issuing of the letter of allegation and the investigation proceeded on a misunderstanding does not lead to a conclusion that the process was actuated for a prohibited reason. In Musgrove v Murrayland Fruit Juices Pty. Ltd. (1980) 47 FLR 156, Smithers J considered circumstances where an employee’s employment was terminated because he was taking unauthorised lunch breaks when he was in fact he was entitled to take the breaks under the relevant award. Smithers J held at [16] – [17] that it had not been proved that the entitlement to take a break under the award was not a substantial or operative reason for the decision to terminate as the decision maker was unaware of the entitlement. In the present case the respondent may have acted on a mistaken assumption regarding Mr Findley’s conduct but that does not establish that it acted for a prohibited reason.

    [11] Evidence extracted at [15] and tr 9 40-45.

13. In my view, although the respondent was motivated to look into Mr Findley’s prior work experience as a result of investigations that it conducted because of Mr Findley’s participation in the enterprise bargaining process, the decision to investigate and raise allegations of what it considered to be misconduct in relation to the CV were not because of Mr Findley’s exercise of workplace rights to participate in the enterprise bargaining process. The respondent’s letter of 9 June 2016 sets out at length why it considered the investigation and Mr Findley’s responses relevant to his employment. There are cogent and obvious reasons why an employer may wish to look closely at the employment background of a security guard. I accept that subjecting Mr Findley to the investigation may constitute adverse action, however the respondent has discharged the onus imposed by s.361 of the Act to establish that the prohibited reason alleged by Mr Findley was not the substantial or operative reason for acting.

14. The evidence discloses that at about the time the letter of 1 June 2016 was sent to Mr Findley, there were open discussions between Mr Findley and the respondent regarding his role as a self-appointed bargaining representative and that took the form of a robust exchange of correspondence between Mr Findley and Mr Luddington. Whilst the letter of allegation was sent at about the same time that the respondent was challenging Mr Findley in relation to his industrial activities, it is not axiomatic that the adverse action was actuated for a proscribed reason. I respectfully adopt what was said by Tracey and Buchanan JJ in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [57]:

    It is, therefore, possible, depending on the evidence, for what the primary judge called “disaggregation” to occur when ss 360 and 361 of the Act are being applied. As these authorities demonstrate it is possible for there to be a close association between the proscribed reason and the conduct which gives rise to adverse action and for the decision maker to satisfy the Court that no proscribed reason actuated the adverse action. (See also CFMEU v BHP Coal [2014] HCA 41; (2014) 88 ALJR 980 at [19]-[20] (French CJ and Kiefel J) and [90] Gageler J.

Undue influence and coercion

1. Given that I have found that the respondent did not take action in sending the letter of allegations and subjecting him to the investigation process for a prohibited reason, I find that the respondent did not take any action against Mr Findley for the purposes of coercing or subjecting him to undue influence or pressure to stop him from engaging in the enterprise bargaining process or to make or not make an agreement or arrangement under an enterprise agreement. The respondent and Mr Findley exchanged correspondence regarding the merits of Mr Findley’s application but that correspondent did not constitute duress or undue influence.

2. I order that the application be dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 24 November 2017