Fluri v Agnew Gold Mining Company Pty Ltd
[2019] FCCA 2848
•8 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLURI v AGNEW GOLD MINING COMPANY PTY LTD | [2019] FCCA 2848 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of a general protection under the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work Act 2009 (Cth), Pt.3-1, ss.45, 340, 341, 342, 361, 570 Mines Safety & Inspection Act 1994 (WA), s.44 |
| Cases cited: Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165; (2003) 53 AILR 100-095 Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 314 ALR 1; (2014) 245 IR 354 |
| Applicant: | NORBERT FLURI |
| Respondent: | AGNEW GOLD MINING COMPANY PTY LTD |
| File Number: | PEG 284 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 8 and 9 February 2016 |
| Date of Last Submission: | 9 February 2016 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 8 October 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr S Banovich |
| Solicitors for the Applicant: | MKI Legal |
| Counsel for the Respondent: | Ms R J Lee |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 284 of 2014
| NORBERT FLURI |
Applicant
And
| AGNEW GOLD MINING COMPANY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Fair Work Act 2009 (Cth) (“FW Act”) alleging that adverse action was taken against the applicant, Norbert Fluri (“Mr Fluri”) by the respondent, Agnew Gold Mining Company Pty Ltd (“Agnew Gold”), in contravention of a general protection provision under the FW Act. In particular, Mr Fluri alleges that adverse action was taken because he had exercised a number of workplace rights as defined in s.341 of the FW Act.
These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
Factual background
The basic factual background to this matter is as follows:
a)Mr Fluri commenced employment with Agnew Gold on or around 20 June 2011 and was employed as a dewatering technician;
b)on or around 21 November 2013, Mr Fluri complained to his supervisor, Dale Rogers (“Mr Rogers”), the maintenance superintendent David Callaghan (“Mr Callaghan”), and the mining manager Dave Thornton (“Mr Thornton”), about Agnew Gold’s decision to change his work roster. As a result of Agnew Gold reducing the number of flights to site (hence reason for the roster change), and Mr Fluri complained that this negatively impacted on his child care commitments;
c)on or around 22 November 2013, Mr Fluri suffered a back injury and was placed on light duties;
d)on 26 November 2013, Mr Fluri met with Mr Callaghan and requested information about how to lodge a workplace grievance pursuant to the dispute resolution process under the relevant enterprise agreement. At that time, the relevant agreement was the Agnew Gold Mining Employee Collective Agreement 2009 (“2009 Agreement”);
e)on or around 28 November 2013, Mr Fluri sent to Agnew Gold’s human resources department a grievance with respect to the change in his work roster (“Roster Complaint”);
f)on 29 November 2013, Mr Fluri was deemed unfit for work by his doctor, and on the same day, met with Michael Spencer (“Mr Spencer”) to discuss the Roster Complaint. What occurred at this meeting is the subject of some dispute. It is agreed that at this meeting Mr Fluri was provided with a breakdown of a voluntary redundancy package. Whether the redundancy was, in fact, an active offer or a response to an inquiry from Mr Fluri was the subject of contention. The meeting concluded with Mr Fluri indicating that he wanted to consider his options;
g)it is unclear on what date, however, Mr Spencer contacted Mr Fluri, but it was sometime between 5 and 19 December 2013, and during that conversation Mr Fluri indicated he would not be seeking the redundancy. On 14 December 2013, Mr Fluri resumed his normal duties after being medically cleared to return to work following the back injury;
h)in January 2014, Mr Fluri was elected as a site safety representative for the Maintenance Department and was a person appointed pursuant to s.44 of the Mines Safety & Inspection Act 1994 (WA) (“MSI Act”). As a result of that, Mr Fluri had a number of duties directed to monitoring and managing safety on the worksite. From around May 2014, Mr Fluri identified and raised three work safety complaints with Agnew Gold. Agnew Gold acknowledges those complaints were made;
i)on 8 January 2014, Mr Fluri lodged a workers’ compensation claim with WorkCover WA (“Workers’ Compensation Claim”) in respect of the back injury;
j)on 30 January 2014, Ms Mary-Anne Deacon (“Ms Deacon”), Agnew Gold’s injury management consultant, contacted Mr Fluri advising that he was not permitted to return to the worksite because Agnew Gold held the view that he was unfit to work. Correspondence was exchanged following this which indicated that Mr Fluri was asked to attend a medical assessment. Eventually, Mr Fluri did attend the medical assessment;
k)on 29 March 2014, Mr Fluri attended a meeting with Agnew Gold’s human resources department. At that meeting there was a discussion about the Roster Complaint, which Mr Fluri had not pursued since December 2013. It was indicated at that meeting that there would be no change to the roster;
l)on 30 June 2014, Mr Fluri and Mr Spencer, amongst others, attended a WorkCover conciliation conference in respect of the Workers’ Compensation Claim. Agnew Gold and its insurer asserted that Mr Fluri had been reimbursed for previous periods of annual leave, medical expenses and compassionate leave;
m)on 2 July 2014, Dayna Dankbaar (“Ms Dankbaar”), the human resources superintendent, and Paul Robertson (“Mr Robertson”), a mining superintendent at the work site, met with Mr Fluri and advised him that his position was going to be made redundant (“Redundancy Meeting”). Mr Fluri sought, and was denied, information about the criteria used to justify the decision he be made redundant. Mr Fluri also advised that another technician, Mark Freear (“Mr Freear”), was interested and willing to accept a voluntary redundancy if it was offered to him;
n)on 7 July 2014, Mr Fluri made a complaint to Agnew Gold’s insurers with respect to his Workers’ Compensation Claim. The complaint concerned Mr Fluri not yet having received reimbursement for the periods of leave that were said to have been paid at the conciliation conference on 30 June 2014;
o)on 10 July 2014, Mr Thornton, on behalf of Agnew Gold, terminated Mr Fluri’s employment (“Termination Meeting”);
p)at the time of Mr Fluri’s termination, the relevant enterprise agreement was the Gold Fields Companies Enterprise Agreement 2014 (“2014 Agreement”); and
q)following Mr Fluri’s termination, on 27 August 2014, he applied for a position as a dewatering technician advertised by Hays Recruitment at Agnew Gold’s Darlot mine site (“Darlot Mine Position”). Mr Fluri received consistent progress updates from the recruitment agent that he had good prospects of obtaining the Darlot Mine Position. However, on 2 October 2014 Mr Fluri was advised he was not successful in obtaining the position.
Mr Fluri’s Claim
It was not disputed by Agnew Gold that adverse action, in the form of Mr Fluri’s termination, was taken. While not entirely apparent on the face of the pleadings, Mr Fluri appears to have also alleged adverse action was taken in his being stood down from returning to the site in January 2014.
It was also not disputed that Mr Fluri had exercised the following workplace rights within the meaning of s.341 of the FW Act:
a)he had made the Roster Complaint: FW Act, s.341(c)(ii);
b)he had complained about safety hazards (“Safety Complaints”): FW Act, s.341(a) and (c)(ii); and
c)he had made the Workers’ Compensation Claim due to his back injury, and was entitled to participate in the process and procedure of administering the Workers’ Compensation Claim: FW Act, s.341(b).
What was in dispute was whether the reason for Mr Fluri’s termination was “because of” his exercising the workplace rights. It was Agnew Gold’s position that Mr Fluri’s termination was a genuine redundancy, and that his making and exercising any of the Complaints referred to above were not a substantial or operative factor in his termination, or a factor at all.
It was unclear if Mr Fluri also pressed a claim that following his termination, Agnew Gold took adverse action in rejecting his application for the Darlot Mine Position because Mr Fluri had initiated a general protections claim (an exercise of a workplace right) before the Fair Work Commission (“Darlot Mine Position Complaint”). Agnew Gold denied having any involvement in this decision.
The hearing, evidence and Reasons for Judgment
The Court is mindful of, and regrets, the delay in the provision of these Reasons for Judgment. The essential reason for that is the case load in the Western Australian Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme” and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the evidence and materials, including those referred to hereunder.
The hearing occurred over two days on 8 and 9 February 2016. Each witness gave evidence on the first day of the hearing and the Court heard closing submissions on the second day. In preparing these Reasons for Judgment the Court has reviewed and read the evidence and submissions of the parties, and the 94 page transcript of the hearing (“Transcript”).
The affidavit evidence before the Court included:
a)the affidavit of Norbert Fluri sworn 15 December 2015 (“First Fluri Affidavit”);
b)the affidavit of Norbert Fluri sworn 25 January 2016 (“Second Fluri Affidavit”);
c)the affidavit of Dale Rogers sworn 14 December 2015 (“First Rogers Affidavit”);
d)the affidavit of Dale Rogers sworn 28 January 2016 (“Second Rogers Affidavit”);
e)the affidavit of Michael Charles Gerard Spencer sworn 5 January 2016 (“Spencer Affidavit”);
f)the affidavit of David John Thornton sworn 5 January 2016 (“Thornton Affidavit”);
g)the affidavit of Paul Andrew Robertson sworn 5 January 2016 (“Robertson Affidavit”);
h)the affidavit of Timothy James Gordon sworn 7 January 2016 (“Gordon Affidavit”); and
i)the affidavit of Dayna Dankbaar, sworn 5 January 2016 (“Dankbaar Affidavit”).
Each witness was cross-examined, save for Mr Rogers. The Court discusses the evidence of each witness in more detail below.
At hearing, Mr Fluri tendered two documents as follows:
a)an email dated 2 October 2014 sent to the recruitment agent concerning Mr Fluri not being engaged in the Darlot Mine Position (“Exhibit 1”); and
b)a “Recognition And Development Review” concerning Mr Fluri dated 26 November 2013 (“Exhibit 2”).
The evidence of a witness is to be assessed in light of the objectively known facts, the consistency or inconsistency between an individual’s own accounts and those of others, and the plausibility of the accounts given. As has been stated, a Court should not rely extensively upon the appearance and demeanour of a witness alone to assess their credibility or the veracity of their evidence: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 ALR 201; (2003) 38 MVR 1 at [30]-[31] per Gleeson, Gummow and Kirby JJ. Notwithstanding the delay in the production of these Reasons for Judgment, the assessment of the evidence has been undertaken analytically.
Mr Fluri’s Evidence
Mr Fluri relied upon two affidavits in these proceedings. During the course of the hearing the parties conferred and it was agreed, or the Court ruled, that the following parts of those affidavits were inadmissible:
a)the phrase “which had been drawn up prior to our meeting” at [13(b)] of the First Fluri Affidavit;
b)paragraphs [13(d)], [16(b)] and [19(b)] of the First Fluri Affidavit entirely;
c)the second sentence of [17] of the First Fluri Affidavit;
d)the phrase “until at least 5 February 2014” at [18] of the First Fluri Affidavit;
e)what was stated after “Hazards” at [24] of the First Fluri Affidavit;
f)paragraphs [34],[38] and [39] of the First Fluri Affidavit were inadmissible to prove the asserted fact;
g)paragraph [8] and Annexure A1 of the Second Fluri Affidavit;
h)the last part of [11] (from “but”) and [16] (from “and informed us”) of the Second Fluri Affidavit were inadmissible to prove the asserted fact;
i)the second sentence of [24] and [30] of the Second Fluri Affidavit were inadmissible to prove the asserted fact; and
j)paragraph [41] of the Second Fluri Affidavit in its entirety.
It was Mr Fluri’s evidence that he made the Roster Complaint as the roster changes, which changed the day he flew in and out of the worksite, negatively impacted his child care commitments: First Fluri Affidavit at [8]. He stated he requested to be moved to Tuesday or Thursday flights. He states the Roster Complaint was never resolved: First Fluri Affidavit at [14](d).
In respect of the meeting with Mr Spencer which was about the Roster Complaint, and resulted in discussion of redundancy, Mr Fluri stated that the redundancy was put to him in a way that implied it could be accepted immediately: First Fluri Affidavit at [13]. At no time did Mr Fluri make an enquiry about a redundancy, and on 5 December 2013 (though this date is disputed) Mr Fluri communicated to Mr Spencer that he did not accept the “offer” of redundancy as he did not consider it genuine: First Fluri Affidavit at [14] and Second Fluri Affidavit at [37].
In cross-examination, Mr Fluri indicated that it was he who first mentioned redundancy in his meeting with Mr Spencer. He said he did so in the context of Mr Spencer asking if he was willing to transfer to another site if they had another roster day. Mr Fluri was aware that other sites were more likely to have redundancies than the current site he was working on, and so he asked what would happen if he were to move and this occurred. It was then that Mr Spencer asked if Mr Fluri would like to look at a redundancy package, which he said yes to look at, and Mr Spencer left the room and obtained the information. Mr Spencer indicated to Mr Fluri that if he wished to take the redundancy Mr Spencer could contact management, who would have to agree to this course: Transcript, page 9.
On 30 January 2014, Mr Fluri was advised that he was not permitted to return to site because Agnew Gold held the view that he was unfit to work. Mr Fluri received an email dated 5 February 2014 from Ms Dayna Bolton (Ms Dankbaar), explaining:
The Company has concerns about your fitness for work as there have been numerous visit to the site health centre for various injuries and vague symptoms.
(First Fluri Affidavit, Annexure NF9)
Mr Fluri said no concerns had previously been raised and his medical certificate dated 13 December 2013 had deemed him fit for work from that date: First Fluri Affidavit at [13]-[19] and Annexure NF8.
During cross-examination, Mr Fluri gave evidence that in January 2014 he had an insufficient supply of anti-depressant and cholesterol medication to get through his swing on the worksite. He went three days without these medications, and at the time he mentioned it to the Emergency Services Officer (“ESO”) onsite: Transcript, page 11. At the time, the ESO made a note in his file and it did not seem to be of concern: Transcript, page 13. After being “stood down” and upon attending the medical appointment at the request of Agnew Gold, the report stated that there was “no restriction physically or psychologically”: Transcript, page 14.
In respect of the Redundancy Meeting, Mr Fluri’s evidence was that:
a)he asked for information on the “criteria” that was used to come to the decision and that this was denied as the information was “confidential”;
b)he referred to another technician, Mr Freear, who would be willing to accept a redundancy voluntarily and asked he be contacted; and
c)Mr Rogers sent an email later that day expressing his disapproval of the discussions at the Redundancy Meeting and why Mr Fluri was being selected for the redundancy.
(First Fluri Affidavit at [28]-[29])
At the Termination Meeting, Mr Fluri said that:
a)Mr Thornton advised he was being terminated due to redundancy;
b)he again asked for the criteria used to determine this and was again denied; and
c)he was told Mr Freear had been contacted.
(First Fluri Affidavit at [33] and Second Fluri Affidavit at [34])
In the latter part of cross-examination, when asked about an on-site meeting held with Mr Robertson, Mr Fluri indicated that, unlike what was stated in [9] of the Second Fluri Affidavit, he exactly remembered the conversation that occurred. In that conversation he was not told that there were some changes that may be coming into place in the coming months, Mr Robertson did not ask whether Mr Fluri had experience with ancillary equipment or light trucks or light vehicles, and Mr Fluri never stated that his preference was not to work with oil, gas and dirt: Transcript, pages 12-13.
While there were some inconsistencies, and perhaps (as indicated in the previous paragraph) a tendency to embellish his evidence, the Court was overall satisfied that Mr Fluri was a credible witness. His answers were forthright and he expressed his views confidently.
Mr Rogers’ Evidence
Mr Rogers’ evidence was received without the need for cross-examination. Paragraph [11] of the First Rogers Affidavit was struck out.
Mr Rogers was Mr Fluri’s supervisor from 1 October 2013 until Mr Fluri’s termination: First Rogers Affidavit at [5]. He deposed that Mr Fluri was a highly-skilled, dutiful and hard-working employee and that the performance documents in the Robertson Affidavit were not the formal performance review he signed off on: Second Rogers Affidavit at [7]-[10]. Tendered into evidence as Exhibit 1 was a formal performance review of Mr Fluri written by Mr Rogers dated 26 November 2013. Mr Rogers was strong in his view that Mr Fluri should not have been made redundant. The Court notes, however, that that view was a personal one, and not one which reflected the view of Agnew Gold.
As Mr Rogers was not cross-examined, the Court accepts his evidence.
Mr Spencer’s Evidence
Paragraph [42] of the Spencer Affidavit was struck out.
Mr Spencer was the Manager of Employee Relations for Agnew Gold. Mr Spencer’s affidavit evidence of his meeting with Mr Fluri on 29 November 2013, in respect to the issue of redundancy being raised, accords with the evidence Mr Fluri gave in cross-examination: Spencer Affidavit at [27]. The Court notes that Annexure MS8 of the Spencer Affidavit suggests to the Court that it may well be that it was Mr Spencer who broached the topic of a redundancy (see point 8 and 9 extracted below).
Mr Spencer states that he asked his team to prepare a Deed bearing Mr Fluri’s name and details after this meeting so that, in the event Mr Fluri requested a redundancy and it was approved by management, matters could move expeditiously: Spencer Affidavit at [30]. In cross-examination, when Mr Spencer was questioned about the discussions that took place on 29 November 2013 with Mr Fluri, Mr Spencer presented his evidence in a confident and forthright manner. After cross-examination, both Mr Fluri and Mr Spencer’s evidence on the discussions that occurred on 29 November 2013 (at least in respect of the redundancy) were relatively consistent.
Annexure MS8 of the Spencer Affidavit was an email chain commencing 29 November 2013 in which, when providing a summary of the meeting with Mr Fluri, Mr Spencer stated:
1. Roster change - he is looking for a ‘honest explanation’ as to why he can not do a Tues - Tues, as this would fit in better with the child minding arrangements for his 10 + 12 years old daughters (he shares responsibility with his ex wife). I explained site have made a decision, he has asked for it to be reviewed and been given an answer and the chances of there being a different answer to the same question are slim and therefore he and his family need to look at other arrangements over the summer holidays (after school care, neighbours, other children’s parents etc .. ). He accepts the Wed flight has gone for good. I further explained the employer has the ability & the need to change rosters and this is supported by the ECA’s (both Barrick’s and ours).
2. Transfer to another site that may have a Tues - Tues or Wed - Wed roster. He would be willing to consider a change. I said I will ask Recruitment but that rosters can be changed as required to suit operational requirements.
3. His financial situation - he believes he has less cash than when he was with Barrick - I have offered super cash out to 9.25% if he wants it - but he needs to let me know by Wed 4 Dec.
4. EAP - he is aware.
5. Workers comp claim - he claims this was suggested to him by others (he is not taking responsibility for his own actions) and he has not made a claim. He saw the Barrick company Dr (as a private patient?) today and has a sick note (with Payroll) from 29 Nov to 14 Dec. He has another appt. on Thurs. He is backing away from workers comp a little. I have said he needs to be straight with me on this & he has effectively said he will be guided by his Dr.
6. Is FIFO right for him and his family? He believes it is.
7. Is Golf Fields right for him & his family? He is thinking about it.
8. Does he want redundancy (if so I said I would ask site, but that site would just ask me if this is what he wants?)? He said he would think about it He will come back to me by Wed 4 Dec with an answer one way or the other.
9. Does he want to know what a redundancy payout would look like? He was quiet interested so I gave him the numbers. He will come back to me by Wed 4 Dec with an answer one way or the other.
10. The whole change process from Barrick to Gold Fields - I believe he is searching for something to latch onto to say this has resulted in him being stressed and therefore made a wc claim. I believe his claim (if he made it now) would be technically a bit thin. I think he knows this and I will discuss this with Dr Liddle next week.
11. He strongly believes he should not have to take 2 days annual leave to accommodate the change in roster from Wed to Wed to Fri to Fri When his opposite number is working an extra 2 days and getting 2 days TOIL. Dayna can we discuss?
12. He believes he was pressured into signing his offer from Gold Fields and was not given enough time to get advise.
13. He wonders if the next phone call he will get will be about redundancy?
14. He believes we have breached/violated our values of ‘Trust & Honesty’. This is a bit thin and I think he knows this.
15. He believes his body is reacting to ‘stress’ and this is being exhibited in muscle strain injuries. I spoke to him about the reality & practise in gold mining was that there is constant change and an ongoing need to be flexible and sometimes when a change was introduced people would be a little bit in front and other times a little bit behind but that the industry will not survive without everyone being flexible and that we are well paid.
Bottom line - I believe he is stressed about his family & financial situation and to a lesser extent about changes at work but he is searching for a way to get out and/or turn it into a workers comp claim but this has suddenly attracted a bit more attention than he is comfortable with. Hopefully he requests redundancy and if so we can use the Deed prepared with the termination date of 7 Dec 2013 as intended.
Either way following 7 Dec this I recommend we engage an investigator to interview Dayna, Rachelle, Dave, Peter & Devina (and then Norbert). This will not guarantee we will not get a wc claim but will maximise our chances of having it defended/denied by the insurer.
In the email chain at Annexure MS8 was correspondence from Garry Mills stating:
[O]K, but catch up on the reason for flight changes with David - it was a business decision saving approx. $16K a week and he is not worth running a flight for his personal use ...
[I]f we didn’t get the deed to him in time and your advice was to hold him, I was going to meet with him and let him know he needs to toe the line - this is not Barrick
Annexure MS9 also contains an email chain from Mr Spencer in the following terms:
Update
He is not interested in redundancy
He said he has a medical clearance to return to work tomorrow and his supervisor has arranged his flight
The medical certificate he said relates to his physical workplace injury (not stress)
I said he just needs to accept the roster change and move on.
…
Please be aware of this employee/potential stress claim, but in my view if it goes this way it would be on the weak side.
I have left a message today for him to call me to follow up if he wants redundancy. If so we can ask site (they will agree) Dayna can arrange the paperwork. I would suggest end of Dec for calculation purposes…
When cross-examined it was put to Mr Spencer that he offered Mr Fluri a redundancy. Mr Spencer responded that he did not have the authority to offer a redundancy without the approval of the General Manager: Transcript, p.22. The Court accepts this was the case, although places weight on the fact that Mr Spencer was already of the view that the redundancy would be approved, and therefore that Agnew Gold were hoping that Mr Fluri would accept the redundancy.
When questioned about his use of a deed of settlement and release in redundancies, it was Mr Spencer’s evidence that this was the case in all redundancies and was his “belt and braces” approach: Transcript, page 26. He suggested that there was nothing untoward about this, it was “normal” in the business and that there are a number of reasons why he uses this approach: Transcript, page 26. The Court accepts this evidence. It was consistent with both Mr Thornton and Ms Dankbaar’s evidence and is plausible in terms of a corporate approach to taking adequate risk management steps and wanting a “clean break” for all involved.
As for the Workers’ Compensation Claim, Mr Spencer’s evidence was that he was aware that after the 29 November 2013 meeting it was a possibility that Mr Fluri would make a claim. It was not his responsibility to encourage or discourage claims. Claims were a common occurrence in his business so the fact that Mr Fluri may have raised or lodged a claim did not concern him: Transcript, page 23.
Mr Spencer’s evidence was that he learned in early July 2014 that redundancy discussions were being commenced with Mr Fluri. He said that whether Mr Fluri commenced action against Agnew Gold was a matter for him, and it was of no concern to Agnew Gold in determining if he was to be made redundant: Transcript, page 26.
Mr Spencer’s attention was drawn to cl.19.2 of the 2014 Agreement which reads:
19.2 Consultation
Prior to any retrenchments occurring, the Employer will consult with the section or sections of the workforce that are likely to be affected by the proposed redundancies, regarding measures that may either avoid retrenchments or minimise the number of employees to be retrenched. Such measures may include:
(a) Reducing working hours,
(b) Rostering Employees to take leave,
(c) Re-training Employees,
(d) Transferring Employees to another role,
(e) Transferring Employees to another site,
(f) Reviewing discretionary benefits, and
(g) Delaying salary reviews.
Mr Spencer conceded that at the time he was advised that Mr Fluri was going to be made redundant, he did not ask whether cl.19.2 of the 2014 Agreement had been satisfied or adhered to. He stated that the human resource staff on site were “well-versed in the agreement and the redundancy process” and he “absolutely” assumed that they would have acted in accordance with the 2014 Agreement: Transcript, page 27.
Mr Spencer was an impressive witness. His accounts were plausible and were supported by contemporaneous correspondence, or by the evidence of other witnesses, including Mr Fluri. Further, Mr Spencer did not hesitate when questions were put and was sure in his responses. Of note was Mr Spencer’s matter of fact response to the use of a deed for redundancies and that it was his approach and one he had a number of reasons for using.
Critically, Mr Spencer was not involved in the course of conduct at the time when it was decided to make Mr Fluri redundant. Mr Spencer’s involvement was prior to and after the decision was made. In that respect, his evidence, at its highest, can only give context to the circumstances in which Mr Fluri’s redundancy arose as he was not a “decision-maker”. Notwithstanding this, both Mr Spencer’s affidavit evidence and his evidence in cross-examination were enlightening, and in many aspects cast a negative light on Agnew Gold’s position. For example, it is clear from many of the annexures of the Spencer Affidavit that Mr Fluri was not held in high regard and that there was an inclination or hope that he would accept the redundancy and in doing so this would relieve a problem for Agnew Gold.
The Court gives weight to Mr Spencer’s evidence in the sense that it provides a picture of the views that had been formed about Mr Fluri, and in particular that there was a hope that Mr Fluri would move on “voluntarily”.
Mr Thornton’s Evidence
The Thornton Affidavit was admitted subject to [31] not being relied upon as proof of the asserted fact.
Mr Thornton was the Mining Manager on the worksite at the relevant time: Thornton Affidavit at [6]. Mr Thornton was the person who “did most of the talking” at the Termination Meeting and stated that he was one of the three persons, with Mr Robertson and Ms Dankbaar, who determined that Mr Fluri would be terminated: Thornton Affidavit at [40]. Mr Thornton expressly denied that the termination of Mr Fluri was for any of the claimed prohibited reasons: Thornton Affidavit at [42].
It was Mr Thornton’s evidence that the roster change was made for the sole reason of reducing labour costs and as a result of a reduced labour requirement on the worksite: Thornton Affidavit at [12]. A number of employees were affected by this change. Mr Thornton was aware of Mr Fluri’s Roster Complaint, and his evidence was that he had spoken to Mr Fluri and told Ms Dankbaar that Mr Fluri’s roster could not be changed: Thornton Affidavit at [14]-[16].
In cross-examination, Mr Thornton stated that Agnew Gold did the best it could to accommodate Mr Fluri’s transition to the new roster. However, in response to a question of whether he “actually… put your position [to Mr Fluri] on the roster change” he indicated he did not remember: Transcript, pages 30-31.
Absent from the Thornton Affidavit was any mention of the Workers’ Compensation Claim. In cross-examination, Mr Thornton indicated he was aware of the Workers’ Compensation Claim, though he did not know the specifics of the claim: Transcript, page 32.
In respect of the events occurring in the lead up to Mr Fluri’s termination, it was Mr Thornton’s evidence that:
a)he asked Ms Dankbaar to undertake a workshop review with the purpose of determining operational and labour requirements in April 2014. Agnew Gold had recently amalgamated with another mine and there was a significant overlap of the roles being undertaken: Thornton Affidavit at [17];
b)the timeline for the redundancies, originally scheduled to take place in October 2014, had to be brought forward due to a “blunder”, and while the redundancies could have taken place at a time after July 2014, there was an operational need to make the positions redundant: Transcript, page 31;
c)various redeployments, redundancies or retrenchments were undertaken in other roles following the workshop review: Thornton Affidavit at [20];
d)Mr Robertson and Ms Dankbaar had indicated in late June 2014 there was a need to reduce at least one of the dewatering technician roles. At a meeting between the three on 26 June 2014, an Employee Rating Document was used to determine which of the four dewatering technicians would be made redundant: Thornton Affidavit at [22]-[28];
e)it was a conscious decision of Mr Thornton not to include the direct supervisors of any of the candidates for redundancy as he was concerned with confidentiality, and while it may be true to say the supervisors had the best knowledge about work performance, previous performance scores were taken into account: Transcript, page 32;
f)a comparison between Mr Fluri and Mr Freear saw Mr Fluri being selected for redundancy as his teamwork and interpersonal skills and his individual initiative scored less favourably than Mr Freear: Thornton Affidavit at [30]-[41];
g)Mr Thornton acknowledged that he was aware that Mr Freear had indicated he would be willing to accept a redundancy, however at Annexure DT3 of the Thornton Affidavit, Mr Thornton wrote to Mr Freear stating:
…
This letter is to confirm the phone discussion between yourself and Paul Robertson on Sunday, 6 July 2014.
During the phone call you commented to Paul that you had spoken with Norbert Fluri. Based on this discussion you advised that you would be interested in a redundancy.
At this time we will note your request however a different decision has been made by management based on an assessment of objective criteria.
…
h)the reason that Mr Fluri was made redundant was because of the “ranking system” and therefore it was not a “voluntary redundancy” as he was specifically chosen or selected for redundancy. While Mr Freear had offered to take a redundancy and could “quite easily” have been made redundant instead, the choice to remain firm that Mr Fluri’s position would be redundant was because Agnew Gold wanted to keep the “best operational person” in place, which by the objective criteria was Mr Freear: Transcript, page 33.
The Court notes that at [30]-[41] of the Thornton Affidavit Mr Thornton provides an extensive and detailed outline of what can only be the “objective criteria” that is referred to in Annexure DT3. The Court will discuss this in detail below.
Mr Thornton was cross-examined for only a short period. His evidence was direct and he appeared to the Court as genuine and truthful. For example, he admitted matters he had limited recollection or knowledge of such as whether Mr Fluri had received any performance warnings and whether Mr Freear had made a workers compensation claim. Mr Thornton was frank in his responses and did not seek to embellish or present his responses in a way that suited Agnew Gold, in particular Mr Thornton accepted that the direct supervisors of the candidates may well have been in a better position to determine the employee to be made redundant as he had only limited exposure to the individuals, however, his explanation for proceeding as he did (confidentiality and other issues arising) was reasonable and plausible: Transcript, pages 31-32.
The critical aspects of Mr Thornton’s evidence surround what occurred at the meeting on 26 June 2014 and the use of the Employee Rating Document. The Court considers Mr Thornton’s responses and explanations in cross-examination of the Employee Rating Document and the decision not to accept Mr Freear’s offer of voluntary redundancy were genuine and believable.
Mr Robertson’s Evidence
No objections were taken to the Robertson Affidavit.
Mr Robertson was the Superintendent of Underground Maintenance for Agnew Gold: Robertson Affidavit at [4]. In his role he had responsibility for the work carried out at the maintenance workshop, and he became involved in a review of the staffing needs of Agnew Gold in June 2014: Robertson Affidavit at [5]-[6]. Mr Robertson stated that in late June 2014 he met with Ms Dankbaar and Mr Thornton about the need to make one dewatering technician redundant.
It was Mr Robertson’s evidence that on or around 23 June 2014, Mr Fluri had told him that “oil, grease and dirt” were not his “thing” when Mr Robertson asked if he would be interested in doing some other types of work: Robertson Affidavit at [8]. Mr Freear indicated he would be willing to undertake other types of work as he did not feel challenged in the current role: Robertson Affidavit at [9].
During cross-examination, Mr Robertson was asked to recall the conversation of 23 June 2014. He stated that this was the first time he met Mr Fluri and that at the time it was decided he would be made redundant he did not really know anything about him: Transcript, pages 35 and 38. When asked whether it was the case that Mr Fluri, in the course of that conversation, never actually refused to do any work on light trucks or light vehicles, nor ancillary maintenance, Mr Robertson answered “No”: Transcript, page 36
In respect of the Employee Rating Document (Robertson Affidavit, Annexure MPR1), Mr Robertson stated he had seen this document used in other cases before. At the meeting on 26 June 2014, he did not question why Mr Fluri’s supervisors were not involved as in the past those persons were not involved in redundancy discussions: Transcript, page 37-38.
Later in the afternoon of 26 June 2014, after the decision had been made that Mr Fluri’s position would be made redundant, Mr Robertson sent an email to Ms Dankbaar and Mr Thornton which stated that the “pump fitters” (the dewatering technicians) had “3133hrs of extra capacity…over 1.5 people”: Robertson Affidavit, Annexure PR2. Relevantly, the email signed off:
With this information I don’t think we have the capacity to hold 4 pump fitter full time.
That degree of overcapacity would tend to confirm that there was an operational need for a dewatering technician to be made redundant.
Annexure PR3 of the Robertson Affidavit was an email Mr Robertson sent to Mr Rogers in response to his concerns about Mr Fluri being made redundant when there were others who were having performance issues. That email was in the following terms:
Thanks for sending through your concerns.
I can’t go into the criteria of this selection but I assure you that it was not a easy selection.
Now with you thinking that we would offer this to people who aren’t performing I am not in the habit of rewording poor work performance with a generous pay out.
[If] we have a poor performer then we manage them correctly to perform or out of the business.
The redundancy is give for a persons hard work and service time put in. But it’s needed in times of critical business changes that will help the rest of the team survive during hard times.
Mr Robertson was cross-examined on that email. It was put to him that if a redundancy was offered for a person’s hard work and service time, then the Employee Rating Document that was used did not really make sense. Mr Robertson responded that the email was a reply to Mr Rogers who had assumed that if anyone was a poor performer, Agnew Gold would offer them a redundancy which was not the case. He iterated that at the time of his decision, to the best of his knowledge, Mr Fluri was performing and during the course of the meeting on 26 June 2014 he did not form the view that Mr Fluri was not performing: Transcript, pages 38-39.
Mr Robertson also spoke of the Redundancy Meeting where Mr Fluri was advised that his position was being made redundant and that he may “want to give this matter some further thought”: Robertson Affidavit at [33]. Upon receiving a call from Mr Freear where he stated that he would be interested in a redundancy, Mr Robertson relayed the content of that call to Mr Thornton: Robertson Affidavit at [35].
At the commencement of the cross-examination, Mr Robertson was somewhat evasive, for example he responded with “Can’t remember”, “wouldn’t be able to remember” and “I can’t remember saying something like that”: Transcript, pages 34-36. It appears that Mr Robertson was not doing so intentionally, rather he was acting on the basis that his cross-examination was a “memory test” of what was in his affidavit. Upon the Court asking him to recall independently the events, Mr Robertson appeared more candid. Nonetheless, when asked questions Mr Robertson’s responses at times tended to not address the question.
While at times Mr Robertson became confused with the questions, and he was careful in his responses, the Court does not draw any adverse view of his credibility. Mr Robertson’s evidence was, with respect, of limited assistance. At no time was it put to Mr Robertson that he knew of the exercise of any workplace rights, Mr Robertson was, on his own admission, unaware of Mr Fluri’s previous work performance and the extent to which his input was apparent in the 26 June 2014 meeting, it was with respect to “Technical Competencies” and that Mr Fluri had indicated he did not want to move into other roles.
Mr Gordon’s Evidence
No objections were taken to the Gordon Affidavit.
Mr Gordon manages the Darlot Mine workshop and is responsible for the hiring and termination of employees on the Darlot Mine site: Gordon Affidavit at [7]. In September 2014, Mr Gordon caused the role of a dewatering technician to be advertised. Another employee advised Mr Gordon that he wished to undertake the role. Mr Gordon shifted the employee into this position on a trial basis, and then caused the advertisement to be cancelled: Gordon Affidavit at [10]-[11].
It was Mr Gordon’s evidence that the employee who shifted into that role was offered the role on a permanent basis, and was still engaged in that role at the time of the hearing: Gordon Affidavit at [12]. Mr Gordon stated he had never heard of Mr Fluri and was not aware someone by that name had applied for the Darlot Mine Position: Gordon Affidavit at [13].
Mr Gordon’s evidence in cross-examination was short. Exhibit 1 was tendered during the course of Mr Gordon’s cross-examination. Relevantly, Mr Gordon stated he could not recall having been the author of Exhibit 1 and it is possible that one of his administrative staff authored the email and communicated with the recruitment agency: Transcript, page 46.
Mr Gordon was not challenged in his evidence that he had never heard of Mr Fluri. In re-examination, when asked when Mr Gordon first heard the name Norbert Fluri he responded “approximately three weeks ago”: Transcript, page 47.
The Court has no difficulty accepting Mr Gordon’s evidence. He indicated when he could not recall certain matters and did not deny matters that he was not entirely sure about. For example, when asked if he had authored Exhibit 1, Mr Gordon indicated he did not recall writing it and while it was possible it could have been him he did not recall asking someone to write that email on his behalf or writing it himself, therefore it was “unlikely” it was him: Transcript, pages 46-47. Mr Gordon did not positively state it was not him, but said he did not have a substantial level of involvement in “recruitment”, and he would “handball” these matters to administrative staff, and he would generally be only be involved in the “approval”: Transcript, page 46.
Mr Gordon’s evidence was almost unchallenged and it is entirely plausible that communication and correspondence with recruitment companies and at initial stages was undertaken by administrative staff in his name.
Ms Dankbaar’s Evidence
Paragraphs [21] and [34] of the Dankbaar Affidavit were admitted on the basis of only being evidence of the date of receipt of certain emails, and not for the truth of the content contained in those emails.
Ms Dankbaar was the Human Resources Superintendent at Agnew Gold. Ms Dankbaar explained that from September/October 2013 an assessment and review took place to determine where savings could be made and what the workforce requirements would be at the mine site: Dankbaar Affidavit at [10]. This occurred over a period of 6-12 months, and redundancies and retrenchments began occurring from January 2014: Dankbaar Affidavit at [10] and [42].
Ms Dankbaar confirmed the evidence of Mr Thornton that the flight changes were made due to operational requirements: Dankbaar Affidavit at [15]-[18]. The Court accepts that the flight changes and resulting roster change to Mr Fluri were due to “operational reasons”. This was confirmed by other correspondence, including Annexure MS8 of the Spencer Affidavit where it was indicated that $16,000 had been saved as a result of the changes.
Ms Dankbaar’s evidence was that Mr Fluri was advised that changing his roster would be looked into, however, the Tuesday roster and flight he requested to be moved to was full and that those in his position, among others, were all moved to the Friday roster: Dankbaar Affidavit at [19]. Upon making enquiries with Mr Thornton, it was decided Mr Fluri’s roster could not be changed as, if this was done, it would set a precedent which may create a wider issue: Dankbaar Affidavit at [20]. This evidence was, in both cases, not challenged and the Court considers it entirely plausible.
It was Ms Dankbaar’s evidence in cross-examination that she believed Rachelle Mills (“Ms Mills”), a Human Resources Administrator, spoke to Mr Fluri in person and advised the roster change he requested would not be occurring. At no time did Mr Fluri request the Roster Complaint be referred to a mediator, as was required by the grievance policy in the 2009 Agreement: Transcript, page 54. She, therefore, believed that the Roster Complaint had been resolved, or was no longer being pursued.
Ms Dankbaar was aware that Mr Fluri had lodged a Workers’ Compensation Claim. Her affidavit contained minimal detail on this matter, but annexed a number of medical certificates: Dankbaar Affidavit at [27]-[29] and Annexures DD6 and DD7.
Notably, at Annexure DD5, Ms Dankbaar sent an email dated 30 December 2013 to Mr Spencer in the following terms:
As an update, I have discussed this with Dave Thornton. We are no longer willing to look at a ‘handshake’ redundancy for Norbert. Even if we go contractor mining, we are likely to need to keep these positions on.
Although that doesn’t necessarily make us happy, we are concerned that if we try and give Norbert a redundancy to help out his personal situation he will twist/misconstrue at a later date and it will come back to bite us.
It is apparent that as at January 2014, and relevantly after Mr Spencer had purported to offer Mr Fluri the redundancy, Ms Dankbaars’s email suggested his position was still required and there was no “likely redundancy”. Ms Dankbaar was asked what a “handshake” redundancy was. She said she could not recall and could not answer whether it would have been convenient for Mr Fluri to have taken a redundancy in January 2014: Transcript, page 50. Ms Dankbaar admitted that the timing of the reference to the “handshake redundancy” did accord to when Mr Fluri made the Roster Complaint, but expressly denied it was in any way connected to the Roster Complaint: Transcript, page 50.
In respect to Mr Fluri being stood down, it was Ms Dankbaar’s evidence that she learned that Mr Fluri had not been taking his anti-depressant medication while on site between 17 January 2014 and 24 January 2014. Ms Dankbaar considered that as Agnew Gold had a duty of care, Mr Fluri would not be able to return to site unless he was deemed fit for work by Agnew Gold’s practitioner: Dankbaar Affidavit at [30]-[31] and Annexure DD8. During cross-examination, Ms Dankbaar confirmed that she acted solely on the information of Ms Deacon, the Site Safety Representative, and did not seek to verify this or consult with Mr Fluri: Transcript, page 52. In oral submissions, it was accepted by Mr Fluri that it was appropriate in these circumstances for Ms Dankbaar to have proceeded this way as from an occupational safety perspective it was “better safe than sorry”: Transcript, page 84. That submission was caveated with the point that it was “convenient” timing in respect of the Workers’ Compensation Claim for Mr Fluri to have been stood down on 30 January 2014.
On 29 March 2014, Ms Dankbaar met with Mr Fluri who again raised the Roster Complaint and indicated that he had not received a formal outcome and presented a copy of the 2009 Agreement: Dankbaar Affidavit [47]-[50]. Ms Dankbaar was surprised that the issue was again being raised: Dankbaar Affidavit at [49]. The Court notes that by this time Ms Dankbaar would have received the medical report from Dr Campbell that indicated Mr Fluri held the view these issues were not resolved: Dankbaar Affidavit, Annexure DD14. It is apparent Ms Dankbaar had read that report from the content of her email sent 13 March 2014: Dankbaar Affidavit, Annexure DD16. Nonetheless, Ms Dankbaar was not challenged on this aspect and the Court accepts that, given Mr Fluri had not taken the issue any further since approximately December 2013, the Roster Complaint was, at the very least, in a state of suspension.
For the duration that Mr Fluri was asked not to return to work and to attend the medical assessment, he was paid by Agnew Gold. At Mr Fluri’s insistence, Ms Dankbaar confirmed by email the reason that Mr Fluri was not allowed to return to work.
Annexure DD14 of the Dankbaar Affidavit was the medical assessment from Dr Campbell. That assessment deemed Mr Fluri as fit to return to work. Relevantly, the latter part of the report read:
From a medical perspective I can see no reason why Mr Fluri could not or should not continue to undertake his normal work duties.
There are. a number of issues that remain unresolved from his perspective as follows:
1. He does not believe that his request for conflict resolution has been addressed.
2. His claim for workers’ compensation has been pended.
3.He perceives a cultural shift with the change in company ownership.
Ms Dankbaar emailed Mr Fluri confirming that he was cleared to return to the worksite from 14 March 2014. In an email dated 13 March 2014 sent to Mr Callaghan, the then Site Superintendent, Ms Dankbaar made the following remark:
Please note that although Dr Campbell has said Norbert is FFW she does not think this is the last she’ll see of him – he believes that there are cultural issues on site since the change to Gold Fields and that he is not happy. We need to manage this carefully.
Dr Campbell’s medical report contained no such comment. In cross-examination Ms Dankbaar confirmed that she had interpreted, and read that into, what Dr Campbell had stated in the latter part of her report: Transcript, page 53.
As for the Safety Complaints, Ms Dankbaar’s evidence was that she recalled Mr Fluri raising issues at a pre-start meeting in May 2014. During the course of that pre-start meeting the Site Foreman requested that Mr Fluri discuss those matters with the appropriate people as the pre-start meeting was not the appropriate forum: Dankbaar Affidavit at [55]-[57]. Mr Fluri’s evidence was that he was congratulated by other employees for raising these concerns at the meeting: Second Fluri Affidavit at [32]. Nonetheless, Ms Dankbaar’s evidence was not otherwise challenged on this point, hence the extent of her evidence was, and the Court accepts, that this matter was not one that she recalled in detail or attached significant weight to.
In regard to the timing of the redundancy, Ms Dankbaar’s evidence was that she began the workshop review in April 2014. On 1 June 2014, Ms Dankbaar mistakenly sent an email to the wrong recipient about the redundancies that were being considered: Dankbaar Affidavit [58]-[63] and Annexure DD18. As a result of this, the redundancies were moved forward in time to June and July 2014. Approximately seven positions were terminated or redeployed: Dankbaar Affidavit at [64]. During cross-examination, Ms Dankbaar was asked whether Agnew Gold needed to make the positions redundant at that time. Ms Dankbaar stated she could not answer that question, however if they did not occur in June and July, they would have occurred shortly thereafter: Transcript, page 54.
The Court will examine the meeting on 26 June 2014 in more detail below. Notably, however, when asked if Agnew Gold considered that the redundancy was genuine, she answered forthrightly and without hesitation “yes”: Transcript, page 58.
Ms Dankbaar’s evidence was that her recollection of the Redundancy Meeting was not strong. When she was asked questions on what occurred in the meeting she could not provide answers. The Court does not draw any adverse view on this, the events occurred over 18 months prior to the hearing of the matter and what occurred during the Redundancy Meeting was not actually disputed. The Court accepts that Mr Fluri asked for the criteria used to determine it was he who would be made redundant and he was not provided any information in relation to this request. Whether a large part of the meeting concerned Mr Fluri pressing this request is irrelevant in the Court’s view. The fact of the denial of the information is sufficient for the Court to make any inferences it needs to.
Ms Dankbaar’s evidence on whether redeployment or transfer opportunities were discussed with Mr Fluri, was that she could not recall: Transcript, page 58. Ms Dankbaar said that discussions concerning possible transfers did not occur with Mr Fluri because transfer or redeployment was looked into and there was nothing to offer: Transcript, page 59. It was put to Ms Dankbaar that this evidence was inconsistent, as she said she could not recall, and then said that it had occurred. She stated that she was confused and it was not intentional. In re-examination, when referred to the Termination Letter provided to Mr Fluri, Ms Dankbaar explained that after consulting with recruitment, it was found no alternate positions existed, and that is why the Termination Letter contained the third paragraph: Transcript, page 59.
The Termination Letter was dated on 10 July 2014 and is relevantly in the following terms:
…
This letters serves to confirm meetings held with you on 2 July 2014 and 10 July 2014 regarding your employment with Agnew Gold Mine.
As a result of a review of operational requirements, I regretfully advise that your position is no longer required.
As a consequence of this decision and the unavailability of an alternative position, your employment with Agnew Gold Mining Company Pty Ltd will be terminated by way of redundancy effective 10 July 2014.
…
Aspects of Ms Dankbaar’s evidence were more credible then other. For example her evidence on why Mr Fluri was stood down was confident, consistent and plausible. Her evidence on the “consultation” that had occurred was less convincing. The Court does not accept that redeployment was discussed with Mr Fluri at the Redundancy Meeting or the termination meeting on 10 July 2014, however, it is satisfied that enquiries were made as to whether other positions were available. This was expressly referred to in the Termination Letter, and in circumstances where Ms Dankbaar said she was familiar with the 2014 Agreement and other positions had been redeployed, the Court is satisfied inquiries were undertaken: Dankbaar Affidavit at [65.3].
Ms Dankbaar otherwise presented as a credible witness and the Court accepts most aspects of her evidence in relation to the processes that occurred in the course of the redundancy. Insofar as her thought processes at the time of deciding it would be Mr Fluri who would be made redundant, the Court will consider this below.
29 November 2013
Both Mr Fluri and Mr Spencer gave conflicting accounts in their affidavit evidence of what occurred at the meeting on 29 November 2013. The purpose of the meeting was to discuss the Roster Complaint, however, discussion evolved to include the possibility of a workers compensation claim and the possibility of a redundancy. It was conceded by Mr Fluri that it was he who raised the possibility of redundancy and that Mr Spencer advised him that if it was something he wished to accept, Mr Spencer could make the necessary inquiries.
The meeting itself is not of particular significance to the Court, however the surrounding context is of note. In particular, the fact that correspondence between Agnew Gold employees, including Mr Spencer and Ms Dankbaar, indicated that it was hoped that Mr Fluri would accept the voluntary redundancy offer. For example, in the Spencer Affidavit at Annexure MS8 where Mr Spencer states “Hopefully he requests a redundancy” and Annexure MS9 where Mr Spencer stated “I have left a message today for him to call me to follow up if he wants redundancy. If so we can ask site (they will agree) Dayna can arrange the paperwork”. Mr Spencer’s evidence in cross-examination was that the redundancy would be a “win/win situation”.
Ms Dankbaar’s evidence also indicated that around November 2013 to January 2014 there was some discussion about Mr Fluri taking a redundancy. The Dankbaar Affidavit at Annexure DD5 referred to a “handshake redundancy” that was no longer going to be offered to Mr Fluri as it was now the case that Mr Fluri’s position would need to be maintained. Ms Dankbaar indicated that this did not “necessarily make us happy”, however from 1 January 2014 there was no “likely redundancy”. In cross-examination, it was Ms Dankbaar’s evidence that she did not believe it was fair to say that it would have been convenient for Mr Fluri to have taken the redundancy between November 2013 and January 2014: Transcript, page 50.
Ms Dankbaar’s evidence in cross-examination was that she did not know if Agnew Gold wanted Mr Fluri to take a redundancy in late 2013, however there was no need for a redundancy at the time: Transcript, page 50. Ms Dankbaar accepted that the timing of the discussions on a possible redundancy and the “handshake redundancy” was contemporaneous with the Roster Complaint, however denied that the reference to the “handshake redundancy” was a reference to, or connected with, the Roster Complaint: Transcript, page 50.
While the evidence indicates that Agnew Gold was inclined to have Mr Fluri accept a redundancy from November 2013 ( and possibly earlier), the Court does not accept that Agnew Gold were actively trying to make Mr Fluri redundant. It was Mr Fluri’s evidence that he broached the topic of the redundancy at the meeting on 29 November 2013, Ms Dankbaar’s oral evidence was consistent with the evidence at Annexure DD5 of the Dankbaar Affidavit that there was no need for a redundancy at that time and while Mr Spencer (and others) were clearly of the view that a redundancy may have been the easy option, it was confirmed consistently that approval from the site manager was required, as was agreement from Mr Fluri.
It is clear that Mr Fluri was suffering personal issues and was under a great deal of stress around November 2013. He was clearly unhappy, and was questioning whether his employment with Agnew Gold was the right fit: Spencer Affidavit, Annexure MS8. In the Court’s view, Agnew Gold had sought to provide assistance to Mr Fluri in the form of making transition arrangements to assist with the new roster and made inquiries with the relevant persons about any chance of changes. The fact that Mr Fluri was open to considering the redundancy package and that during the meeting on 29 November 2013 he clearly conveyed that he had a number of concerns about his future, mean that the Court is not satisfied that the redundancy discussed or averted to in November 2013 arose from Roster Complaint.
The “resolution” of the Roster Complaint
The Court accepts that, while the roster change did cause hardship for Mr Fluri, the change was for operational reasons. From around 21 November 2013 Mr Fluri, as he was entitled to do, lodged a grievance in an attempt to resolve the issues he faced because of the roster change. None of the witnesses of Agnew Gold disputed or argued that Mr Fluri was not entitled to make the Roster Complaint. Clause 25.3 of the 2009 Agreement provided under the heading “Fair Treatment/Dispute Resolution and Disciplinary Process”:
Procedure
(a)If an issue arises, the matter will initially be discussed between the Employee and their direct supervisor. If the issue is not resolved, or if the Issue involves the Employee’s direct supervisor, the Issue will be referred as soon as reasonably practicable to the immediate manager of the direct supervisor.
(b)The manager and the Employee will then endeavour to resolve the Issue. If the Issue cannot be resolved between the Employee and the manager, it must then be referred to the next level of management, who will in turn endeavour to resolve the Issue.
(c)Where the issue remains unresolved, either party may refer the issue to an agreed independent third party for mediation of the issue.
(d)Where any issue is not resolved through mediation, the Employer and the Employee will confer and agree upon a method of resolving the issue or accepting an arbitrated decision.
Annexure NF4 of the First Fluri Affidavit was a document titled “Fair Treatment, Dispute Resolution and Discipline Procedure”. That document was of little assistance, and merely recited the procedure stated in cl.25.3 of the 2009 Agreement, save for making reference to cl.25(3)(c)-(d) of the 2014 Agreement.
It was not disputed that from around 21 November 2013, Mr Fluri had raised issues with the roster changes with his immediate supervisor Mr Rogers, the maintenance superintendent Mr Callaghan, the mining manager Mr Thornton and finally the human resources manager Mr Spencer: Transcript, page 66; First Fluri Affidavit at [9] and [13]. Annexure NF5 of the First Fluri Affidavit and Annexure MS6 of the Spencer Affidavit indicate that Agnew Gold took the appropriate steps to action and respond to the Roster Complaint in accordance with cl.25.3 of the 2009 Agreement.
Annexure DD2 of the Dankbaar Affidavit was an email from Rachelle Mills, an onsite human resources officer, which stated as follows:
After speaking with Dave Thornton it was confirmed the option to change the chosen rostered day was not a possibility. This has been a site wide change and the decisions were made for each department as to what day each employee would fly based on operational requirements. Dave also advised that he sat down with Norbert individually went through with him when the roster would start and worked around his individual circumstances as best he could, but at the end of the day meeting business needs.
…
After investigating that morning, I went back to Norbert, and l advised him the outcome. "After investigation, we are satisfied that from a business perspective that the right decision was made" and that his fly day will not be changing. I had an hour meeting with him, where he would repeat his issues and I would repeat the decision and outcome.
…
From my point of view it has been resolved, but because he is not happy with the outcome he will continue to believe it is an unresolved issue.
As Ms Mills said in the above email, Mr Fluri was not satisfied that the Roster Complaint had been resolved. Having exhausted all the on-site options without a resolution, the next stage was for the matter to be referred to the “next level of management”. This was Mr Spencer, and the meeting that occurred on 29 November 2013 between Mr Spencer and Mr Fluri was for the purpose of seeking to resolve the Roster Complaint. Mr Spencer was the highest level of management the Roster Complaint could reach, and accordingly if unresolved the next step would have been to proceed to a mediation pursuant to cl.25.3(c) of the 2009 Agreement.
Mr Fluri’s evidence of that meeting included that Mr Spencer was “reluctant” to solve the Roster Complaint, and that he told Mr Fluri that the roster changes were done for “operational reasons”: First Fluri Affidavit at [13(a)]. Mr Spencer’s evidence was that when Mr Fluri asked why he could not move to a Tuesday roster he told him it was for operational reasons that the flights were changed and that “You have asked for it to be reviewed [moving rosters] and have been given an answer.”: Spencer Affidavit at [25]. Mr Fluri denied recalling Mr Spencer ever saying that he had been “given an answer”: Second Fluri Affidavit at [35].
Both parties made submissions on when the Roster Complaint was “resolved”. Mr Fluri submitted that it was never resolved as he never received anything in writing. Agnew Gold submitted that it was resolved on 29 November 2013 as Mr Fluri never took any steps to progress the matter to mediation pursuant to cl.25.3(c) of the 2009 Agreement. The evidence of Mr Spencer suggests that it cannot be said that the complaint was “resolved”, or that the process under cl.25.3(b) of the 2009 Agreement had been exhausted. Annexure MS8 of the Spencer Affidavit as set out at [31] above sets out an account of the discussion, and indicates that Mr Fluri had been “given an answer”, but also suggests that Mr Spencer had indicated that he would make further enquiries about transferring to another site to enable Mr Fluri to have a roster he seeks. There is nothing on the evidence to suggest that that enquiry was ever made, or that Mr Fluri was ever advised of an outcome. On 19 December 2013, Mr Fluri again raised the Roster Complaint in a telephone call with Mr Fluri and Mr Fluri was advised to “accept the roster change and move on”: Spencer Affidavit at Annexure MS9. This was a re-iteration to Mr Fluri that there would be no roster change so long as he remained on the present site.
Mr Fluri was mistaken in his view that he required a written confirmation of the outcome of his Roster Complaint. The 2009 Agreement contains no such requirement. Notwithstanding the observations made above that Mr Spencer indicated he would make inquiries in respect of other sites, the Court is satisfied that Mr Fluri was given clear confirmation that there would be no change to his roster were he to remain on the site he was on. In those circumstances, it fell to Mr Fluri, if he wished to persevere with the Roster Complaints and seek a different resolution, to refer the matter to a mediator. In re-examination, Mr Fluri was asked why he did not refer the matter to a mediator and he responded:
Because the conflict resolution procedure actually didn’t ask for, you know, didn’t say you take this. It’s step by step explained how the conflict resolution process works. So I did not feel the need or saw a reason to take this
(Transcript, page 14)
It is true that the “Fair Treatment, Dispute Resolution and Discipline Procedure” did not refer to mediation, nonetheless Mr Fluri showed to Ms Dankbaar the 2009 Agreement on 29 March 2014 to argue that Agnew Gold had not followed procedure. It is clear in cl.25.3(c) of the 2009 Agreement that the next step was for Mr Fluri to have the issue referred for mediation. After 19 December 2013, Mr Fluri did not raise the Roster Complaint, and he did not seek to have the issue referred to a third party mediator. In those circumstances the Court is prepared to infer that those at Agnew Gold were of the view that Mr Fluri had “moved on”. That was until 29 March 2014 when Mr Fluri again raised the issue with Ms Dankbaar and suggested that the dispute resolution process had not been followed: Dankbaar Affidavit at [47]-[54]. Mr Fluri was again advised that the roster change was for operational reasons and that there would be no changes to his roster. The Court is prepared to infer that the reason Mr Fluri again raised the Roster Complaint on 29 March 2014 was because he had become aware that another employee had been permitted to change rosters. Mr Fluri had not persisted with the Roster Complaint since December 2013, and furthermore, following this discussion with Ms Dankbaar Mr Fluri again did not seek to further progress the matter to mediation. The Court is therefore prepared to infer that while Mr Fluri was clearly aggrieved and felt that he was treated poorly and had not been given the outcome he wanted, he had accepted the fact that he would not be able to change his roster.
The Court finds that at the time of Mr Fluri’s termination on 10 July 2014, and when the termination was actually decided on 26 June 2014, the Roster Complaint was not a “live issue” and had, in the view of Agnew Gold, been resolved. That is not to say that it was not a reason for Mr Fluri’s termination, it is merely a finding that, in respect of timing, the Roster Complaint was not a matter that Agnew Gold were seeking to alleviate, or resolve, by way of termination of Mr Fluri’s employment.
Mr Fluri’s Submissions
In written submissions, Mr Fluri submitted that:
a)Agnew Gold appears to place significant reliance on the meeting of 26 June 2014 between Mr Robertson, Mr Thornton and Ms Dankbaar, and that this discussion allegedly centred on a comparison between the Mr Fluri and Mr Freear;
b)Agnew Gold’s motivation to eventually terminate Mr Fluri’s employment can be seen and inferred from the reactions to Mr Fluri’s exercise of his workplace rights, namely:
i)his making the Roster Complaint and being offered a proposed redundancy by Mr Spencer some 3 days later;
ii)his vocalising the Safety Complaints and being terminated by reason of redundancy shortly afterwards; and
iii)his lodging the Workers’ Compensation Claim, and being informed that he was not permitted to return to site due to being deemed unfit for work some 3 weeks afterwards;
c)Mr Fluri’s exercise of workplace rights caused Agnew Gold to perceive him as an ‘agitator’ who would question or challenge the basis for its reasoning on a variety of issues, and over time, the officers of Agnew Gold knew of and were involved in the circumstances surrounding the exercise of the workplace rights and became prejudicially predisposed against Mr Fluri remaining employed;
d)if Agnew Gold’s decision to terminate Mr Fluri by way of redundancy was genuine (as is suggested), then it would have taken at least the following steps beforehand, namely:
i)consideration of the formal performance reviews completed between 2013 and 2014, and not the ‘employee rating document’;
ii)some form of thorough or adequate consultation with Mr Fluri about either his performance or any proposed redundancies as was Agnew Gold’s usual practice and procedure; and
iii)some prior consideration of alternate positions available to avoid retrenchment, and consultation to that effect prior to informing Mr Fluri of his impending redundancy; and
e)on balance, Agnew Gold’s position that Mr Fluri was terminated for reasons other than a prohibited reason should be viewed as being unreliable and contrary to prejudicial inferences that can be drawn from the evidence of Agnew Gold.
At hearing, the following submissions of note were advanced:
a)Agnew Gold’s witnesses were unreliable and their evidence should not be accepted: Transcript, page 80;
b)the Court should draw the inference that the Roster Complaint was still a live issue as Mr Fluri had never received written confirmation about his complaint and a reasonable observer would expect that this would be the case so that Mr Fluri could then opt to take the matter to mediation if he so wished: Transcript, page 81;
c)an inference can be drawn that as Agnew Gold could not “get rid of” Mr Fluri with a voluntary redundancy in January 2014, where it would have been easier for both parties, they eventually got rid of him in July 2014 and the two redundancies are causally connected: Transcript, page 82;
d)it can be seen there was influential, prejudicial and affirmative thought going into Mr Fluri being made redundant or being moved on as indicated by Ms Dankbaar’s email that they were “not happy” he had not accepted the redundancy in January 2014: Transcript, page 83;
e)Ms Dankbaar drew a prejudicial inference from Dr Campbell’s report which indicates Agnew Gold had the view Mr Fluri was an “irritant”, and that Ms Dankbaar let a potentially subjective influence sway her opinion of Mr Fluri is totally inappropriate in the circumstances: Transcript, page 85;
f)the Court cannot be satisfied that there was a genuine need for the redundancy at the time and the timing in this case is critical as, if one were to speculate, another performance review had occurred Mr Fluri would likely have scored higher than Mr Freear and Agnew Gold would not have been able to terminate Mr Fluri: Transcript, page 86;
g)as none of the three decision-makers had interacted in a meaningful way with Mr Fluri, the inference can be drawn that, at least for Mr Thornton and Ms Dankbaar who were both aware of the Workers’ Compensation Claim and the Roster Complaint, this was a major influence on their decision: Transcript, page 87;
h)the Employee Rating Document is not worth the paper it is written on, and as those compiling it had limited knowledge about Mr Fluri the inference can be drawn that, what they did know about Mr Fluri was that he had made the Workers’ Compensation Claim and the Roster Complaint and therefore this would have been in their minds: Transcript, page 87;
i)the process under cl.19.2 of the 2014 Agreement was not followed, and the inference should be drawn that this was so because Mr Fluri’s redundancy was not genuine: Transcript, page 90;
j)Mr Spencer’s evidence suggested that Mr Fluri may have exercised another right in respect of a stress claim and to the extent that is relevant it should be inferred that this may have indirectly influenced Ms Dankbaar to whom Mr Spencer was superior: Transcript, page 91; and
k)there was no knowledge that Mr Freear had exercised any workplace rights, and had the process been carried out genuinely and the supervisors involved the situation may have ended up differently from a “performance and technical view point”: Transcript, page 93.
Agnew Gold’s Submissions:
In written submissions, Agnew Gold submitted that:
a)in November 2013, Agnew Gold reduced the number of flights from Perth Airport to the Lawler/Agnew Mine by one to reduce operating costs and because of a reduced labour requirement at the Lawler/Agnew Mine, and consequently changed the work roster of a number of employees, including Mr Fluri;
b)in January 2014, the first round of redundancies in the Mining Department at the Lawler/Agnew Mine occurred;
c)in April 2014, Mr Thornton asked Ms Dankbaar to review the labour requirements. That review revealed there was an overlap between roles at the two workshops and there was a need to rationalise the structure with resultant redundancies;
d)on 26 June 2014, Mr Thornton, Ms Dankbaar and Mr Robertson met on site to discuss a proposed redundancy for the position of Dewatering Technician. Whilst two positions could have been retrenched at that time, they decided to only make one redundant so the amalgamated workshop would have sufficient capacity to cover leave;
e)out of the four people whose positions were considered, two were considered strong performers and the three decision-makers concentrated on comparing Mr Fluri with another employee Mr Freear;
f)the evidence of Mr Thornton, Ms Dankbaar and Mr Robertson addresses what they in fact collectively considered in deciding to make Mr Fluri’s position redundant;
g)the fact that Mr Fluri had exercised any right to complain, raise safety issues or make a workers compensation claim was not a factor, let alone a substantive or operational factor, in their decision to make his position redundant;
h)the Darlot Mine and the Agnew/Lawler Mine are separate mining operations operated by different companies;
i)Mr Gordon was the party responsible for making decisions as to persons who is employed at the Darlot Mine and in or about September 2014, Mr Gordon made the decision to offer the role of Dewatering Technician to a current employee at the Darlot Mine. As at 10 July 2014, the position of Dewatering Technician at Darlot Mine was filled, and there was no vacancy; and;
j)although the Roster Complaint was pleaded in the statement of claim as a complaint “about the Respondent’s decision to change his work roster, which negatively affected his child care commitments” Mr Fluri’s own evidence was that he was not concerned about the cancellation of the Wednesday flight, but rather that he could not then change to the Tuesday as opposed to the Friday flight;
k)the alleged offer of a proposed redundancy was submitted to have been made to Mr Fluri by Mr Michael Spencer, yet Mr Spencer was not a relevant decision-maker in relation to the decision to terminate for redundancy and an inquiry into Mr Spencer’s state of mind cannot address what was in fact the state of mind of the decision makers;
l)Agnew Gold accepts that as at 24 June to 10 July 2014, being the time of the decision to terminate Mr Fluri’s position, Mr Thornton and Ms Dankbaar knew of the Roster Complaint back on 28 November 2013. Ms Dankbaar also knew of the conversation between Mr Spencer and Mr Fluri on 29 November 2013. The fact that Mr Fluri had exercised his workplace right to make to Roster Complaint was not a factor, and not a substantial and operative factor, in their decision;
m)the fact is that Mr Fluri exercised his rights under cl.25.3 of the 2009 Agreement to discuss the Roster Complaint with his line manager (Mr Rogers), his direct supervisor (Mr Callaghan), then Mr Thornton and Ms Dankbaar, and finally Mr Spencer. What he did not do was refer the issue to an independent third party for mediation, as was his right under cl.25.3(c) of the 2009 Agreement. Whilst he did not receive a response in writing from Agnew Gold, there was no obligation for Agnew Gold to put anything in writing;
n)in respect of Mr Fluri being “stood down”, to refer Mr Fluri to a general practitioner was entirely appropriate, and it was not necessary for Ms Dankbaar to consult with Mr Fluri. This is especially the case given in 2012, there was an incident in which there was concern for Mr Fluri’s physical welfare, which Mr Fluri himself acknowledged;
o)on receipt of the report certifying Mr Fluri was fit for work, Mr Fluri returned to site on Friday, 14 March 2014, being the start of his next rotation;
p)Ms Dankbaar expressly stated that the Workers’ Compensation Claim was not an operative factor in her decision to direct Mr Fluri not to attend on site at the end of January 2014 and it was not a factor, or a substantial or operative factor, in the decision to terminate Mr Fluri’s position;
q)it is not clear that any of Mr Thornton, Mr Robertson or Ms Dankbaar knew of the 7 July 2014 complaint against the insurer with respect to the Workers’ Compensation Claim though the Safety Complaints were within the knowledge of at least Ms Dankbaar, but the fact that Mr Fluri had raised them was not a factor, or substantive or operative factor, in the decision to terminate Mr Fluri;
r)on 2 July 2014, Mr Thornton and Ms Dankbaar met with Mr Fluri which was “consultation” as required under cl.19.2 of the 2014 Agreement;
s)Mr Spencer gave evidence that a deed following a redundancy was not unusual in the Goldfields Group, and in fact was his ‘belt and braces’ approach to ensure a win/win basis. One of the reasons was because the deed communicated to the employee the nature of what was occurring, and this was supported by Mr Thornton and Ms Dankbaar who also indicated that the deed was not unusual;
t)any suggestion that the preparation of the deed somehow indicated that the decision makers were concerned that Mr Fluri was likely to take further action is incorrect, and the fact of the deed adds nothing to the application; and
u)in any event, the decision in respect of the Darlot Mine Position has no bearing on the outcome of this application.
Workers’ Compensation Claim
Both Ms Dankbaar and Mr Thornton were aware of the Workers’ Compensation Claim. For clarity, the Court does not consider anything occurring after 26 June 2014 in respect of the Workers’ Compensation Claim, such as the conciliation conference on 30 June 2014 and the complaint lodged on 7 July 2014, of significance. The decision that Mr Fluri would be the chosen candidate was made on 26 June 2014.
While Mr Freear was contacted about his being open to a voluntary redundancy, Mr Thornton determined that he would not accept Mr Freear’s offer to take a voluntary redundancy on 8 July 2014: Thornton Affidavit, Annexure DT3. Mr Thornton was not involved in, and there is no suggestion that Mr Thornton was even aware of, the matters that occurred with respect to the Workers Compensation Claim after 26 June 2014. It is for those reasons that the events after 26 June 2014 are irrelevant to the Court’s consideration of the Workers’ Compensation Claim.
The Workers’ Compensation Claim the subject of this matter was a claim in respect of a back injury. Much of the correspondence in respect of the issue of workers compensation is directed at what was considered a “potential workers’ compensation claim” for stress. In closing submissions, Mr Fluri urged the Court to consider this as a potential reason for his being selected for the redundancy. This was, at no time in the course of the proceedings, pleaded as a reason for the termination of Mr Fluri. It was not put to any of the witnesses. The Court notes that Mr Spencer first expressed a view that Mr Fluri were considering this in November 2013. What followed was the Workers’ Compensation Claim for the back injury, as opposed to a stress claim. More than six months had elapsed since that time prior to Mr Fluri’s termination, and no claim, on the evidence before the Court, had been made and nor had Mr Fluri expressed an intention to make such in the time immediately prior to his termination. On the evidence before the Court, the last indication of a potential stress claim appears to have been discussed around December 2013: Spencer Affidavit at Annexure MS9.
The Court is of the view that, Mr Fluri has failed to establish the existence of the circumstances that he had exercised a workplace right, or in fact intended to exercise the workplace right to make a further workers compensation claim for stress: Tattsbet Ltd v Morrow [2015] FCAFC 62 (2015) 233 FCR 46; (2015) 321 ALR 305. Further, as already discussed above, the Court is not satisfied that the reason Mr Fluri was stood down was because he had made the Workers’ Compensation Claim. Therefore, the inference Mr Fluri wishes the Court to draw that Agnew Gold’s motivation to eventually terminate him can be linked to the decision to stand him down because of the Workers’ Compensation Claim must be rejected.
Mr Thornton’s knowledge of the Workers’ Compensation Claim was the subject of minimal cross-examination which confirmed only that he knew of the Workers’ Compensation Claim, he did not know the specifics of it but was aware of his employees that were on workers compensation or had made a claim, and that he could not recall, but did not believe, that Mr Freear had lodged a workers compensation claim: Transcript, pages 32-33.
Most of the correspondence exchanged concerning Mr Fluri’s Workers’ Compensation Claim was from those within the Human Resources Department. Given Mr Thornton’s limited involvement, and in particular his difficulty in recalling whether Mr Freear had previously made a workers compensation claim, the Court is satisfied that at the time of making the decision to terminate Mr Fluri, the Workers’ Compensation Claim was not a matter or factor considered. The Court so finds on the basis that at the time of Mr Fluri’s termination he had returned to work and had done so with what appears to be little further trouble or issue. Approximately three months lapsed in which Mr Fluri appears to have resumed full working duties without absence (aside from rest and recreation leave). This time period is not insignificant, particularly in circumstances where Mr Thornton had and recalled limited specific detail about the Workers’ Compensation Claim and did not have any involvement in the management of the Workers’ Compensation Claim. Therefore, the Court is satisfied, on the balance of probabilities, that Mr Thornton’s state of mind at the time of the decision did not involve any consideration of the Workers’ Compensation Claim.
Ms Dankbaar was “aware” of the Workers’ Compensation Claim: Transcript, page 57. On the materials before the Court, it was Mr Spencer who was involved in the management of the Workers’ Compensation Claim. A submission was made by Mr Fluri that given Mr Spencer was higher in the chain then Ms Dankbaar, he could be inferred to hold some influence over her. He added that during the course of cross-examination Mr Spencer indicated Agnew Gold were cautious that Mr Fluri may lodge a further Workers’ Compensation Claim related to stress and that, once again as Mr Spencer could be inferred to have some influence over Ms Dankbaar, this was another reason he was chosen for the redundancy.
The Court does not accept that Mr Spencer had any role in determining if Mr Fluri was to be made redundant, nor any influence over Ms Dankbaar. His evidence in cross-examination was that he first became aware of the decision in early July 2014: Spencer Affidavit at [47]. Mr Spencer also gave evidence that he trusted his staff to follow the terms of the 2014 Agreement and assumed it had been done in the case of Mr Fluri: Transcript, page 27. None of this evidence was challenged and the Court considers it plausible, particularly in circumstances where Mr Spencer could not determine, or have the final say, on an employee’s redundancy. That decision remained with those on site, and this was evident in Mr Spencer’s evidence in respect of the redundancy discussed in November 2013 and also in cross-examination: Transcript, page 22.
It still remains to determine if a substantial and operative factor of Ms Dankbaar’s consideration in the decision to terminate Mr Fluri was that he had made the Workers’ Compensation Claim. The Court does not accept this to be the case. Ms Dankbaar advised of the appropriate forms and had, on the evidence, limited involvement thereafter: Dankbaar Affidavit, Annexure DD5. It is not the case that Ms Dankbaar tried to inhibit Mr Fluri from lodging the Workers’ Compensation Claim.
Whether the Workers’ Compensation Claim was genuine or not is of little relevance to the Court’s enquiry. The extent of Ms Dankbaar’s evidence on this issue was limited, and nothing notable was provided during cross-examination. Ms Dankbaar’s evidence was that she was “aware of it”, in reference to the Workers’ Compensation Claim. Nothing in the evidence before the Court suggests that Ms Dankbaar was involved in the management of the Workers’ Compensation Claim. Ms Dankbaar appeared to leave the management of the Workers’ Compensation Claim to Ms Deacon: Dankbaar Affidavit at Annexure DD5.
Having considered Ms Dankbaar’s evidence, the Court is satisfied the Worker’s Compensation Claim was not a substantial and operative factor in her decision. It was Mr Spencer’s evidence that such claims were “made all the time”: Transcript, page 23. At no time does Ms Dankbaar reference the Workers’ Compensation Claim, which the Court notes was identified as an “issue” in Dr Campbell’s report, nor does Ms Dankbaar appear to express any view on the Workers’ Compensation Claim in any of the evidence before the Court. Ms Dankbaar also directly denied having taken the adverse action because Mr Fluri had lodged a Workers’ Compensation Claim: Dankbaar Affidavit at [88.2].
The Court notes the reference to the “Long period off at start of year – personal issues” appears to be a reference to the period Mr Fluri was not at work between 31 January 2014 and 13 March 2014. The reason for this absence was partially because Mr Fluri had been stood down. For reasons already given above Mr Fluri being stood down was not because of the Workers’ Compensation Claim, nor the Roster Complaint, but rather due to Mr Fluri being on compassionate leave. While it may seem harsh that Mr Fluri’s “score” was perhaps based on his being absent because Agnew Gold had requested he not come to site pending a medical assessment and because he had taken leave, it was not pleaded that Mr Fluri had exercised a workplace right to take leave and, once again, fairness is not a consideration in an application of this sort.
Ms Dankbaar’s evidence that she was only “aware” of the Workers’ Compensation Claim is consistent with the evidence that Ms Deacon, Mr Spencer and the onsite-injury management specialist were actively involved. In most correspondence it was these individuals who referenced the Workers’ Compensation Claim. While Ms Dankbaar was undoubtedly aware of the Workers’ Compensation Claim, she left it in the “capable hands” of another employee and the inference the Court draws from this is that Ms Dankbaar was not in any way bothered or troubled by the Workers’ Compensation Claim, it being a type of claim that was “made all the time”.
The Court’s view is also solidified based on the date reference in the “Attendance” comment. Were the “Attendance” comment to suggest that Mr Fluri had been absent or had long periods off since November 2013, noting that Mr Fluri’s absences from November 2013 to January 2014 arose because of the Workers’ Compensation Claim, the Court may have formed a different view. Had Ms Dankbaar, or Mr Thornton, considered a substantial and operative reason to terminate Mr Fluri was because of the Workers’ Compensation Claim, the Court considers the dates would have reflected at least November 2013, and perhaps provided the ammunition to give Mr Fluri an even lower score in the criteria. However, this is not the case, and on the evidence before the Court, and in light of the findings that the Employee Rating Document was the substantial and operative reason for Mr Fluri’s termination, the Court is satisfied that the Workers’ Compensation Claim was not a real reason for the adverse action being taken.
The Court is not satisfied that the mere fact of Ms Dankbaar being aware of the Workers’ Compensation Claim establishes a sufficient factual connection between the workplace right and the adverse action to establish or maintain that the adverse action was taken for the prohibited reason: BHP Coal at [18]-[20] per French CJ and Kiefel J. On the basis of the evidence before the Court, and in light of the limited challenge to Ms Dankbaar or Mr Thornton’s evidence on the Workers’ Compensation Claim, the Court is satisfied on the balance of probabilities that the adverse action was not taken because of the Workers’ Compensation Claim.
Mr Fluri, the “irritant”
It was suggested in closing submissions that because Mr Fluri had exercised the workplace rights and he did not “give up and keep doing his job like most other employees would. He actively pushed them”: Transcript, page 83, that a view was formed that he was an “irritant” and that this was to his detriment. Agnew Gold submitted that being seen as an irritant is not in and of itself a prohibited reason, and the evidence suggested otherwise in any event: Transcript, page 77.
The evidence indicated that Mr Fluri was causing some concerns and was regarded as being likely to cause some trouble for Agnew Gold. There are references throughout the affidavit material to support this view: Dankbaar Affidavit at Annexure DD5, Annexure DD10 and Annexure DD16; Spencer Affidavit at Annexure MS8 and Annexure MS14. The Court notes that one such reference, in Annexure MS14 of the Spencer Affidavit was from the independent insurance adviser who had been liaising with Mr Fluri, who noted:
I expect you will have some problems with this gentleman going forward…
Were the Court satisfied that Mr Fluri was perceived as an “irritant” because he had exercised his workplace rights then the adverse action will have been taken for a prohibited reason. The Court however, is not so satisfied. It has already noted above that Mr Fluri raising the Safety Complaints would not have been regarded as “irritant” behaviour, it was a valued attribute. As for the Workers Compensation Claim, it was Mr Spencer’s evidence that these matters are raised all the time and it does not bother him when they are raised. In that respect, the Court does not accept that Mr Spencer making the Workers Compensation Claim saw him branded an “irritant”. At its highest, it was perhaps the belief that Mr Fluri had raised the claim for an illegitimate reason that would have seen him considered an ‘irritant”. Finally, insofar as the Roster Complaint is concerned that Mr Thornton acknowledged that Mr Fluri was “persistent” in November 2013 in respect of this. Nonetheless, on the finding that Agnew Gold considered the Roster Complaint “resolved” in December 2013, and Mr Fluri not having taken the matter to mediation, the Court is not satisfied Mr Fluri had come to be regarded as an “irritant”.
At no time was a question ever put to Mr Robertson or Mr Thornton about this proposition. Ms Dankbaar was asked a few limited questions as follows:
Counsel: And by the end of June 2014 you had been dealing with Mr Fluri and matters relating to him quite regularly over the past seven months, isn’t that right?
Ms Dankbaar: I wouldn’t say regularly but I had been dealing with him.
Counsel: You – would it be fair to say you had been dealing with him more than a usual employee?
Ms Dankbaar: Not necessarily. I think that’s not fair to say.
Counsel: And Mr Fluri was quite persistent and relentless with his workplace issues, wasn’t he?
Ms Dankbaar: I wouldn’t use those words.
Counsel: But it’s fair to say he was quite pressing with them, wasn’t he? He kept – he checked everything – questioned everything, didn’t he?
Ms Dankbaar: Mr Fluri wanted a resolution.
Counsel: But not just on one issue. He wanted resolution to several issues, didn’t he?
Ms Dankbaar: Okay. That’s your words.
(Transcript, pages 57-58)
Ms Dankbaar’s evidence was clear that she disagreed with the statements that were being put to her. The Court places weight on Annexure DD18 of the Dankbaar Affidavit whereby Ms Dankbaar emails (mistakenly) Mr Callaghan the following:
I'll speak with you more on this tomorrow but wanted to let you know I've just had a discussion with Bernie with a heads up about some major issues in the Maintenance group. She was not able to give me many specifics however said that she has had one person and Lisa has had at least 3 people sit with them to discuss problems within the maintenance group. Sounds like the whole group is pretty unhappy. Combo problems of Dave Callaghan, Dale Rogers, Andrew Crogan from what I could gather.
Were Mr Fluri perceived as an irritant, or someone causing “issues”, and bearing in mind that Mr Rogers was included in this group who was a close friend of Mr Fluri, the Court infers that Mr Fluri would have been included in this list.
While other evidence suggests that Ms Dankbaar, and others at Agnew Gold such as Mr Spencer, may have perceived Mr Fluri as potentially troublesome or an “irritant” the Court is satisfied, on the balance of probabilities, that Ms Dankbaar’s view of Mr Fluri was not adverse or prejudicial to his position and was not formed on the basis of his exercising his workplace rights. While the view may have developed for other reasons, the Court is satisfied, on the balance of probabilities that the unhappiness with Mr Fluri had developed prior to any of the pleaded workplace rights. This is apparent from Mr Spencer’s email at Annexures MS8 and MS9 of his affidavit that Mr Fluri would be required to “toe the line” and that “site would agree” to the redundancy if Mr Fluri accepted this. The Court infers from this evidence, that there was an issue with Mr Fluri and others prior to the raising of any of the workplace rights.
Conclusion
Agnew Gold has satisfied the onus under s.361 of the FW Act and proven to the Court that the adverse action was not taken for any prohibited reason. There was clearly a need for the redundancy, the evidence establishes that the redundancy was for operational reasons and that one dewatering technician position was required to be removed. In order to make the determination of which individual would be selected for the redundancy, an evaluative assessment was carried out.
The Court is satisfied that the substantial and operative reason for Mr Fluri’s termination was that he was the least best “operational person” for the role of dewatering technician. This was established by use of the Employee Rating Document, and the Court is satisfied that the exercise of the workplace rights were not matters that were the substantial and operative reason for the termination. Mr Fluri was, by all accounts, accommodated when he exercised his workplace rights.
The Darlot Mine Position Complaint
It was unclear if this matter was still pressed, however Mr Gordon was cross-examined and while no substantive submissions were advanced, the Court has determined the matter to ensure finality.
Mr Fluri alleges that adverse action, in the form of his application being rejected for the Darlot Mine Position, was taken against him by Agnew Gold. He pleads that the exercise of his right to lodge a claim with the Fair Work Commission, in conjunction with the exercise of the other workplace rights during the course of his employment was the reason for the “adverse action”. There a number of difficulties with this pleading.
The first question is whether the rejection Mr Fluri’s application for the Darlot Mine Position was “adverse action”. Relevantly s.342(1), item (2)(a) of the FW Act defines adverse action as where a prospective employer refuses to employ the prospective employee. On one argument, this is what Mr Fluri is pleading.
In the Gordon Affidavit at [6], Mr Gordon states that the Darlot Mine and Agnew Mine (where Mr Fluri was employed) are operated by different companies. Both companies are, however, within the Gold Fields Group of Companies. Mr Fluri’s employment contract was with Agnew Gold Mining Company: First Fluri Affidavit at Annexure NF2.
The Court accepts that the disappointment of an expectation of re-employment might amount to an alteration of an employee’s position to his prejudice, and therefore “adverse action”: Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165; (2003) 53 AILR 100-095. The position Mr Fluri applied for was with Darlot Mining Company Pty Ltd (“Darlot Co”). This was not an offer of “re-employment”. On the evidence before the Court: Gordon Affidavit at [5]-[6], Darlot Co is a distinct legal entity to Agnew Gold and therefore the Darlot Mine Position is not considered “re-employment”.
A refusal to employ can also amount to adverse action under s.342(1), item 2 of the FW Act: Stephensv Australian Postal Corporation [2014] FCA 732 at [17]-[31] per Flick J. However, the refusal to employ was not an “action” of Agnew Gold, it was an action of Darlot Co. Darlot Co is not a party to this proceeding. The Court cannot make a declaration or finding against an entity that is not a party to these proceedings. The same can be said for the Gold Fields Group of Companies. These proceedings were initiated against Agnew Gold, therefore the only finding the Court can make is against Agnew Gold, who were not the “employer”, nor the “prospective employer” in relation to the Darlot Co position. Therefore, adverse action as defined in s.342 of the FW Act is not established in respect of the Darlot Mine Position.
Even if it were accepted that Agnew Gold was capable of taking, and had taken, adverse action against Mr Fluri in respect of the Darlot Mine Position, the Court is not satisfied that it because Mr Fluri had exercised a workplace right. The Court accepts Mr Gordon’s (almost undisputed) evidence. The position was filled by an individual who remained in that role at the time of the hearing. While Mr Fluri sought to draw attention to email correspondence, and in particular Exhibit 1, which suggested someone had said that Mr Fluri was not “suited” for the position, Mr Gordon’s evidence was that it was more likely that a member of his administrative staff had sent the emails. His role was often limited to “approval” of the position and he did not recall having sent any emails, nor personally having any involvement with the recruitment company that was in contact with Mr Fluri. In any event, the content of the emails and Exhibit 1 does not indicate to the Court that there was anything untoward occurring and, in particular, that there was any knowledge of Mr Fluri having exercised a workplace right.
Mr Gordon was the “decision-maker” in respect of the Darlot Mine Position. Mr Gordon was unchallenged on his affidavit evidence that he had not heard of Mr Fluri: Gordon Affidavit at [13]. In re-examination he indicated that the first he had heard of Mr Fluri was three weeks prior to the hearing in conversation with Mr Spencer: Transcript, page 47. Mr Gordon’s affidavit was affirmed approximately one month prior to the hearing and the Court accepts that the first time, and the reason for, Mr Gordon learning of Mr Fluri or becoming aware of who he was and that he had applied for the Darlot Mine Position was because of these proceedings.
In light of this, it cannot be said that a substantial and operative reason for Mr Fluri not being employed at Darlot Co was because he had commenced a general protections claim against Agnew Gold or as he had exercised workplace rights during his time at Agnew Gold. Mr Gordon, having no actual or constructive knowledge of these matters, could not have at the time of making the decision to fill the vacancy internally (from within Darlot Co’s personnel) have done so for the prohibited reason alleged.
It follows that, in respect of the Darlot Mine Position Complaint, no adverse action has been taken by Agnew Gold and in any event that the reason for Mr Fluri not attaining the position was not because of a prohibited reason.
Conclusion and orders
The Court has concluded that the substantial and operative reason for Mr Fluri’s redundancy was that, on the basis of a set of objective criteria, Mr Fluri was deemed the most appropriate candidate for redundancy. Agnew Gold has satisfied the Court that it was not because Mr Fluri had exercised his workplace rights that his position was chosen to be made redundant.
The application must therefore be dismissed. There will be an order accordingly
Prima facie, this is no costs matter: FW Act, s.570. Should either party wish to embark upon the difficult road of seeking costs, that party must file an application in a case and supporting affidavit: see Federal Circuit Court Rules 2001 (Cth), r.21.02(1).
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 October 2019
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