Foody v Carroll Resources Pty Ltd
[2020] FCCA 1623
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOODY v CARROLL RESOURCES PTY LTD | [2020] FCCA 1623 |
| Catchwords: INDUSTRIAL LAW – Adverse action – redundancy – whether the applicant’s redundancy was a consequence of him exercising a workplace right – failure to adequately consider redeployment options – unfair dismissal claim – age discrimination claim – unpaid work claim – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.336, 340, 341, 342, 351, 361, 385, 389, 390. |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500; 86 ALJR 1044; 290 ALR 647; HCA 32 |
| Applicant: | ANDREW EMMETT FOODY |
| Respondent: | CARROLL RESOURCES PTY LTD |
| File Number: | MLG 248 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 13 & 14 November 2018, 7 & 8 May 2019 |
| Date of Last Submission: | 17 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondent: | Mr Aleksov |
| Solicitors for the respondent: | Moray & Agnew |
ORDERS
The applicant’s application filed on 31 January 2018 as amended on 22 August 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 248 of 2018
| ANDREW EMMETT FOODY |
Applicant
and
| CARROLL RESOURCES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an application by Mr Foody (“the applicant”) in which he has alleged various breaches of the Fair Work Act 2009 (Cth) (“FW Act”) and underpayment for work performed.
For the reasons which follow, I am not satisfied that the applicant has successfully made out his claims and therefore order that his application be dismissed.
The applicant was employed by the respondent from 16 June 2014 to 20 November 2017 as a Maintenance Coordinator. His duties included overseeing day-to-day maintenance of facilities and equipment. The applicant’s position was made redundant and his employment came to an end on 20 November 2017.
The applicant claimed that:
a)during his employment, he repeatedly made complaints to various managers of the respondent, including Ms Kasman, that the respondent was deliberately and systematically underpaying workers; and
b)between September and November 2017, he made complaints to various mangers about senior members of staff coercing a fellow staff member to purchase an unprofitable franchise from the respondent.
The applicant’s primary claim is that as a result of these complaints, he was subjected to various forms of adverse action, culminating in the termination of his employment in November 2017.
The respondent denied that the applicant was subjected to any adverse action during his employment. Moreover, it argued that the decision to make the applicant redundant was based solely on operational requirements and was in no way based on any issues raised by the applicant about either his own employment or the employment and treatment of other employees within the company.
The applicant also claimed that:
a)in contravention of section 351(1) of the FW Act, the respondent failed to redeploy him within Sushi Sushi, in part because of his age;[1]
b)in breach of section 389(2) of the FW Act, the applicant’s redundancy was not genuine as there were two positions available at the time of his termination to which he could have been redeployed;[2] and
c)between August and November 2017, he was asked to perform out of hours work for which he was not paid in full.
[1] Applicant’s amended application filed 22 August 2018 at paragraph 26.
[2] Applicant’s amended application filed 22 August 2018 at paragraph 21.
The applicant seeks:[3]
a)damages for the loss incurred both by way of lost income and damage to his reputation;
b)declarations;
c)the imposition of a pecuniary penalty for breach of the FW Act;
d)payment for out of hours work performed in the sum of $9,146.12;
e)interest; and
f)costs.
[3] Applicant’s amended application filed 22 August 2018 at paragraphs 28 to 37.
Claims
The applicant claimed that his dismissal was not a genuine redundancy for operational reasons as suggested by the respondent, but rather was based on the fact that he had exercised various workplace rights, including that:[4]
a)on 26 November 2015, he complained that the respondent systematically underpaid staff;[5] and
b)in or about November 2017, shortly before his position was made redundant, the respondent had coerced a long time staff member (Ms Pham) into purchasing a franchise from the respondent[6]
(collectively, “the adverse action on termination claim”).
[4] Applicant’s amended application filed 22 August 2018, page 7 at paragraph 21.
[5] Applicant’s amended application filed 22 August 2018 at paragraph 11.
[6] Applicant’s amended application filed 22 August 2018 at paragraph 15.
The applicant also claimed that after his complaint on 26 November 2015, Ms Kasman subjected him to ‘harassment, bullying, threatening and ostracizing behaviour directed toward marginalizing the applicant for having exercised a workplace right…”[7] (“the adverse action during employment claim”).
[7] Applicant’s amended application filed 22 August 2018 at paragraph 13.
The applicant further claimed that the respondent failed to redeploy the applicant within its business because of his age[8] (“the discrimination claim”).
[8] Applicant’s amended application filed 22 August 2018 at paragraph 26.
The applicant also claimed that the respondent failed to comply with section 389(2) of the FW Act in failing to redeploy him[9] (“the redeployment claim”).
[9] Applicant’s amended application filed 22 August 2018, page 7 at paragraph 21.
Finally, the applicant claimed that the respondent failed to pay him for works performed out of hours[10] (“the unpaid work claim”).
[10] Applicant’s amended application filed 22 August 2018 at paragraph 27.
I will deal with each of these in turn after setting out the applicable law, an analysis of the evidence and my findings.
The law
Adverse action
Part 3-1 of the FW Act deals with general workplace protections for employees. Section 336 sets out the objects of that Part which include:
a)‘to protect workplace rights’;[11] and
b)‘to provide protection from workplace discrimination’[12].
[11] Fair Work Act 2009 (Cth), s. 336(1)(a).
[12] Fair Work Act 2009 (Cth), s. 336(1)(c).
Section 340 of the FW Act relevantly provides:
(1)A person must not take adverse action against another person:
(a)because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Section 341 of the FW Act then sets out the meaning of a ‘workplace right’. It provides:
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceeding under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Section 342 of the FW Act in turn sets out the meaning of ‘adverse action’, item 1 of which relevantly provides that:
adverse action is taken by an employer against an employee if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
Section 360 of the FW Act provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 then goes on to relevantly provide:
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being taken for that reason or with that intent unless the person proves otherwise.
Case law
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500; 86 ALJR 1044; 290 ALR 647; HCA 32 (“Barclay”), French CJ and Crennan J said:
[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. …
[42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s 361(1)), and consideration of the employee’s position as an officer or member of an industrial association and engagement in industrial activity …
…
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. … Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…
Gummow and Hayne JJ said:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[13]
[13] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500; 86 ALJR 1044; 290 ALR 647; HCA 32 at [127].
In noting that the trial judge, the Honourable Justice Tracey accepted the evidence given by the decision maker as to the reason for her decision, Heydon J stated:
Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant’s burden of proof under s 361(1). External circumstances could put into question the reliability or credibility of those declarations. But Dr Harvey’s evidence did not consist only of “mere declarations”. There was nothing to suggest that her evidence was incorrect.[14]
[14] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500; 86 ALJR 1044; 290 ALR 647; HCA 32 at [141].
Heydon J went on to say:
To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted.[15]
[15] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500; 86 ALJR 1044; 290 ALR 647; HCA 32 at [146].
These comments make clear that this court must look at the entirety of the evidence before it to determine why the decision maker took the action he/she/they did. It is not enough to simply have regard to statements made by the decision maker as to what motivated them. Rather, it is necessary to assess any such statement against the totality of the evidence to determine whether the employer has discharged the burden of proof in section 361.
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] 88 ALJR 980; HCA 41 (“CFMEU”), French CJ and Kiefel J said:
The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word “because” in s 346, and from the terms of s 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.[16]
[16] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] 88 ALJR 980; HCA 41 at [7].
…
Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.[17]
[17] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] 88 ALJR 980; HCA 41 at [19].
Also in CFMEU, Hayne J put it succinctly:
The underlying statutory question remains. Why was adverse action taken? Did the employer show that the reasons for acting did not include a prohibited reason?[18]
[18] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] 88 ALJR 980; HCA 41 at [39].
Discrimination
Section 351 of the FW Act further provides:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s…age...
Redeployment
Part of the applicant’s claim relates to section 389 which is found in Part 3-2 of the FW Act. This section relevantly provides:
(1)A person’s dismissal was a case of genuine redundancy if:
(a)a person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b)the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2)A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a)the employer’s enterprise; or
(b)the enterprise of an associated entity of the employer.
Section 389(2) however, must be read in the broader context of the provisions in Part 3-2 of the FW Act which relate generally to remedies for unfair dismissal claims.
Section 385 provides that:
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)…
(c)…
(d)the dismissal was not a case of genuine redundancy.
Section 389 of the FW Act operates in this context. It does not create a separate cause of action in respect of which the applicant can seek relief.
Section 390 then provides that the Fair Work Commission may provide remedies if satisfied:
a)the person was protected from unfair dismissal; and
b)the person has been unfairly dismissed.
This court does not have any jurisdiction in respect of unfair dismissal claims.[19]
[19] See Part 3-2, Div 5 of the Fair Work Act 2009 (Cth) generally. The only power which this court has arises from section 405, which relates to an application for a civil penalty to be imposed in respect of a breach of an order made under Part 3-2.
For these reasons, the applicant’s claim to the extent that he relied upon an alleged breach of section 389(2) was misconceived.
On this basis, to the extent that the applicant sought to argue that the reason for his redundancy was a prohibited reason under Part 3-1, I have dealt with this as part of the adverse action on termination claim.
Evidence
The applicant represented himself in these proceedings, filed various affidavits, gave evidence and was subject to cross-examination.
For the respondent, each of the following persons filed affidavits setting out their evidence in chief:
a)Ms Kasman;
b)Mr Meneilly;
c)Mr Morley;
d)Mr Tranh; and
e)Mr Stewart.
Each of the respondent’s witnesses was subject to cross-examination by the applicant, including Mr Stewart who gave evidence by telephone.
It is common ground that the respondent operated two businesses, Sushi Sushi and Sushi Izakaya Bar, and was the employing entity for each of those businesses.
It is also not in dispute that prior to his employment, the respondent used external contractors to undertake required maintenance.
The applicant’s evidence, which I accept, was that:
a)he was appointed on a fixed salary and was contracted to work from 8:30am to 5:30pm Monday to Friday, although he often started before 5:00am, finished late and was on call 24 hours a day, 7 days a week;
b)he primarily worked in Melbourne and undertook repairs and remedied defects identified by local council; food safety inspections or defects reported by staff within the respondent’s stores, as well as some maintenance work at head office;
c)in addition, the applicant undertook various trips to Perth, Brisbane, Gold Coast, Townsville, Sydney and Canberra where he completed maintenance work, often working well into the night to complete the necessary maintenance; and
d)in 2015, he undertook some maintenance work on the Sushi Sushi processing plant in South Oakleigh.[20]
[20] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraphs 4 to 9.
The applicant also gave evidence, which I accept, that as a consequence of his maintenance work throughout the respondent’s stores, he met and developed a positive relationship with hundreds of the respondent’s employees. He said that he raised issues of low morale within the stores with his then boss, Ms Phung-Lan, and she asked him to ‘take on a greater leadership and management role while attending the shops, particularly interstate’.[21]
[21] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 11.
The applicant gave evidence that he became aware through discussions with many staff members that they were concerned about not being paid correctly or for all hours worked.[22]
[22] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 14.
26 November 2015 meeting
The applicant claimed that on 26 November 2015, he attended a meeting with Ms Kasman in which he questioned whether the respondent was underpaying its staff and which he says precipitated adverse treatment towards him by Ms Kasman and ultimately contributed to Ms Kasman terminating his employment in 2017 (“26 November 2015 meeting”).
The applicant gave the following evidence in relation to the 26 November 2015 meeting:
On 26 November 2015 Foody was requested to attend a one-on-one meeting with CEO Kasman. By what Kasman said, Foody assumed he was now reporting to her. Kasman was upset at the large amount of money the Group was paying to outside contractors to service the freezers and refrigerators. Kasman wanted Foody to implement a plan to regularly clean the compressors and fan units in all the shops she owned.
During the meeting Kasman asserted that the Sushi employees should be cleaning the condensers and not Foody. Kasman stated that the staff were ‘lazy’. Foody disagreed.
Foody explained to Kasman that the cleaning process was not simple or safe and realistically should not be performed by Sushi staff without special training.
Kasman’s understanding of the cleaning process was inaccurate and Foody took her through an example using the Sushi Izakaya Bar in Doncaster. …
Kasman persisted with blaming the staff for the increase in repair costs, which lead to a conversation about Sushi worker’s low-morale and the reasons Foody saw as contributing to it. Foody asked Kasman ‘…are the employees getting paid correctly?...’
Kasman demanded ‘…where did you hear that?’ ‘…from our staff all over the country,’ Foody replied. Kasman wanted to know which Sushi employees were complaining. Foody refused to tell her because of the potential consequences to the staff and Kasman ended the meeting by stating, ‘it wasn’t true’.
…
Foody could sense when leaving Kasman’s office that day that there would be repercussions from confronting her about allegedly underpaying her employees. At the time Foody thought it was an appropriate employee issue worth taking to management. Foody genuinely liked and cared about the rights of the people he worked with and he was their conduit back to head office.[23]
[23] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraphs 16 to 21, 23.
Ms Kasman denied having any such meeting with the applicant. She stated that she did not recall such a meeting occurring and moreover, upon reviewing her calendar entries for that day, there was no record of any such meeting.[24] In any event, Ms Kasman gave further that she did not recall the applicant making any negative comments to her about the business.[25]
[24] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 23.
[25] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 24.
The applicant produced notes which he claimed were taken by Ms Kasman at the 26 November 2015 meeting as evidence that the meeting in fact did occur.[26] Ms Kasman conceded that Annexure J are notes in her handwriting; however, she could not specifically recall when those notes were made. She said that they appeared to be notes which she made in a store. [27] The words ‘Izakaya Doncaster’ appear in the top right hand corner of those notes.
[26] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure J.
[27] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 25.
The notes themselves are undated and, more importantly for present purposes, do not make any reference to discussions about wages for the respondent’s employees, but appear on their face to refer to refrigeration and other machinery.
In the course of cross-examination, the applicant conceded that the meeting on 26 November 2015 with Ms Kasman was not a ‘set-up meeting’.[28] I take that to mean that it was not a formal or pre-arranged meeting, which may well explain why Ms Kasman said that she had no record or recollection of such a meeting.
[28] Transcript day 1 (13 November 2018), page 41 at line 35.
It is clear from the applicant’s evidence about the 26 November 2015 meeting that the main topic of discussion was the costs associated with the servicing and cleaning of condensers and fridges in stores and how to contain these costs.[29]
[29] Transcript day 1 (13 November 2018), page 42 at lines 8 to 10; page 44 at line 47 and page 45 at lines 1 to 2; page 45 at lines 9 to 11.
The applicant’s evidence is that when he left the 26 November 2015 meeting, he knew ‘there would be repercussions from confronting her about allegedly underpaying her employees’.[30]
[30] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 23.
Treatment following 26 November 2015 meeting
In his amended application, he claimed that Ms Kasman’s conduct after the 26 November 2015 meeting included:[31]
a)shunning and ostracizing him at the company’s 2015 Christmas party;
b)ignoring him and not acknowledging his greetings or presence; and
c)making it known to senior company employees that she ‘intended to sack him’.
[31] Applicant’s amended application filed 22 August 2018 at paragraph 13.
The applicant’s evidence about the adverse treatment he claims to have received after the November 2015 meeting was however, limited. He claims that after this meeting:
a)Ms Kasman ignored him entirely;
b)it was unclear who he was reporting to; and
c)‘throughout 2016 several senior Sushi staff told [him] that they had heard that [Ms] Kasman intended to sack him.’[32]
[32] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 25.
The applicant also stated that Ms Kasman continued to ignore him including in group discussions, although no specifics were provided.[33]
[33] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 32.
Notwithstanding this apparent poor treatment he claims to have suffered at the hands of Ms Kasman following the November 2015 meeting, the applicant gave evidence that on various occasions in 2016 and 2017:
a)he was asked by Sushi management to quote for various jobs outside of his day to day duties;
b)his quotes were accepted;
c)he performed work on weekends; and
d)he was paid in full.[34]
[34] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraphs 27 to 29.
Such treatment appears somewhat inconsistent with the narrative which the applicant advanced that following the November 2015 meeting, he was effectively targeted by Ms Kasman.
Importantly, the applicant did not lead evidence from any of the senior employees who he said reported to him that Ms Kasman wanted to terminate his employment. He produced an email which he said he sent to himself on 5 May 2017 in which he wrote that senior managers had told him that he was going to be dismissed and Ms Kasman ‘is gunning for me and my time is up’.[35]
[35] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure L.
In any event, the applicant quite properly conceded that notwithstanding the tension he said occurred following the November 2015 meeting, and notwithstanding rumours about Ms Kasman wanting to terminate his employment in 2016 and 2017, his employment was not terminated until November 2017.
In this regard, the following exchange occurred:[36]
Mr Aleksov: Your meeting, as you have it, with Anna Kasman, where you say tensions arose, happened, on your version of it, in November 2015?
Mr Foody:Correct.
Mr Aleksov: … so your case that you were dismissed because of reprisals arising from that meeting would have Ms Kasman holding a grudge for the better part of two years?
Mr Foody:Yes.
[36] Transcript day 1 (13 November 2018), page 49 at lines 11 to 17.
Ms Kasman denied that she had said to anyone that she intended to sack the applicant in 2016 or at any other time.[37] She conceded that she may have become frustrated from time to time about the maintenance of the stores.[38]
[37] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 26.
[38] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 26.
The applicant also claimed that:
a)throughout 2016 and 2017, he continued to complain to senior employees about the deliberate underpayment of the respondent’s staff; and
b)in September 2017, he became aware that an employee, Ms Xian Pham was being coerced by Ms Kasman and Mr Cam Tranh to purchase a Sushi Sushi franchise under a management agreement; and
c)between September and November 2017, he raised his concerns about Ms Pham’s treatment to a number of senior employees of the respondent.[39]
[39] Applicant’s amended application filed 22 August 2018 at paragraphs 14 to 16.
I accept that that the applicant had a positive relationship with store managers and staff; that he was supportive of staff and saw himself as a conduit between stores and management in head office. Mr Stewart, whose evidence I accept, gave evidence consistent with that characterisation.
I also find that Ms Kasman has a fairly direct manner, sees herself as very much a ‘big picture person’ and may have come across curt and dismissive at times, including to the applicant. The manner in which she gave her evidence in these proceedings was consistent with that assessment. At times, her exasperation was palpable. That exasperation however, was not evidence that she engaged in adverse action as alleged.
Both Mr McNeilly and Mr Stewart who gave evidence on behalf of the respondent said that the applicant would generally raise any concerns he had in a frank manner. The applicant reported directly to Mr Stewart. Mr Stewart’s evidence was that he and the applicant had a positive working relationship and that he believed the applicant would have raised any issues he had regarding his employment.[40]
[40] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraphs 6 and 10.
Mr Stewart was at all relevant times the respondent’s National Operations Manager.[41] He initially reported directly to Ms Kasman, but from December 2017, reported to the Chief Operating Officer, Ms Olivia Elsley.[42]
[41] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 1.
[42] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 5.
Ms Pham’s contract
In relation to Ms Pham, Mr Stewart gave evidence that the applicant told him he had ‘heard that (Mr Stewart) was trying to ‘fire’ or ‘sack’ Xian Pham.’[43] Mr Stewart said that he then raised this issue with CFO Ms Phung-Lan, told her that any such rumour was not true and took no further action.[44] He did not raise this with anyone else.
[43] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 13.
[44] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 15.
In this regard, the following exchange occurred:[45]
Mr Foody:When I explained my concerns about Ms Pham with you, you discussed what I told you to Ann Phung-Lan did you not?
Mr Stewart:Yes I did.
…
Mr Foody:And my complaint went to [Ms Phung-Lan] who was an officer of the company?
Mr Stewart:Yes. I discussed it briefly with [Ms Phung-Lan] and I just said that the situation, I believed, was handled by myself, and that was no action needed.
[45] Transcript day 4 (8 May 2019), page 139 at lines 18 to 45.
…
Mr Foody:Do you know if [Ms Phung-Lan] related my complaint to Ms Kasman?
Mr Stewart:I don’t believe so. I can’t recall. We never discussed if she did discuss it with [Ms Kasman]. Again, it was just very difficult to get time with [Ms Kasman] with the workload, but I can’t comment on that sorry.
Mr Foody:Do you know if Ms Kasman was aware of my complaining to you and others about what I saw as bullying behaviour?
Mr Stewart:I don’t. I didn’t personally talk to [Ms Kasman] about it. I’m not sure if [Ms Phung-Lan] did.
Mr Stewart did not recall the applicant raising any other complaints with him.[46]
[46] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 17.
Mr Meneilly joined the senior management team at Sushi and commenced as CEO on 1 August 2017.[47]
[47] Affidavit of Scott Meneilly affirmed and filed 1 November 2018 at paragraph 7.
In November 2017, the applicant stated he raised his concerns about Ms Pham being pressured to sign a management agreement with Mr Meneilly.[48] Mr Meneilly conceded that the applicant commented on Ms Pham having taken on a management agreement. In this regard, Mr Meneilly’s evidence was:
He said something to the effect of ‘I can’t believe she had gotten out of here and they have convinced her to come back’. I don’t recall engaging him in that comment because [Mr Foody] was a talker and liked to be heard. I listened as I had done before. Other than this discussion, I do not recall having any other discussions with [Mr Foody] about [Ms Pham].
I did not speak to [Ms Kasman] about the fact that [Mr Foody] made these comments to me.[49]
[48] Affidavit of Andrew Emmett Foody sworn and filed 30 May 2018 at paragraph 20.
[49] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraphs 18 and 19.
The applicant stated that he also raised the issue of ‘Mr Tran’s bullying and coercion of [Ms Pham] with… [Mr] Meneilly’ and believed that Mr Meneilly raised this with Ms Kasman.[50]
[50] Affidavit of Andrew Emmett Foody sworn and filed 30 May 2018 at paragraph 20.
Mr Meneilly conceded in cross-examination that the applicant raised concerns about Ms Pham with him, and also that he had raised concerns about the way that he perceived Mr Tran to have been pressuring Ms Pham to enter into the management agreement which had been offered to her. He recalled that in relation to Mr Tran, the applicant was ‘not happy with his conduct and… [Mr Foody] had words with [Mr Tran] in the car park’.[51]
[51] Transcript day 3 (7 May 2019), page 78 at lines 31 to 32.
The following exchange then occurred:
Mr Foody:You have mentioned at paragraph 20 of your affidavit… you didn’t speak to [Ms] Kasman about our conversation. Why didn’t you speak to her?
Mr Meneilly: I didn’t believe that there was a benefit in doing so, and at that point [Ms Kasman] had put forward a proposal to [Ms Pham] based on [Ms Pham] coming back and asking for it that was agreed to by both parties. Your opinion on whether it was going to be beneficial or not beneficial without having been directly involved in it … I did not believe was worth sharing back with [Ms Kasman].
…
Mr Foody: I put it to you… that you did speak to [Ms] Kasman about the conversation we had. What do you say to that?
Mr Meneilly: I disagree.
…It is possible that I have spoken to [Ms Kasman] about that conversation post you leaving the business. However, that is not my recollection at all. At the time you came into my office and spoke to me about your concern with [Ms Pham] entering into an agreement, my opinion was that was none of your business.
…
Because that agreement was struck up between [Ms Kasman] and [Ms Pham] and that was based on [Ms Pham] coming back and requesting one… If you were concerned for [Ms Pham] I appreciated your concern, but that was not in my best interest or … I did not believe it was in the best interest of anybody at that point for me to go and raise that with [Ms Kasman].[52]
[52] Transcript day 3 (7 May 2019), page 79 at lines 29 to 36 and page 81 at lines 16 to 32.
I accept Mr Meneilly’s evidence in this regard. Whilst I accept the applicant raised concerns about Ms Pham, including Mr Tran’s alleged bullying tactics regarding the management contract with various people, on his own evidence, he did not raise it directly with Ms Kasman. Nor has the applicant established on the balance of probabilities that anyone with whom he did raise these concerns then raised them with Ms Kasman.
Mr Meneilly also confirmed that he recalled the applicant discussing an issue regarding Ms Pham and Mr Tran, where the applicant was unhappy because he felt that Mr Tran was seeking to coerce Ms Pham into executing a management agreement.[53]
[53] Transcript day 3 (7 May 2019), page 73 at lines 4 to 5.
The applicant stated that he had a conversation with Mr Tran ‘in the parking lot of head office regarding what he saw as the coercive, bullying treatment of Xian’.[54]
[54] Affidavit of Andrew Emmett Foody sworn and filed 30 May 2018 at paragraph 18.
He went on to say that he had:
very little doubt that his vocal objection regarding Mr Tran’s treatment of Xian was relayed to Ms Kasman as Mr Tran worked under her direction.[55]
[55] Affidavit of Andrew Emmett Foody sworn and filed 30 May 2018 at paragraph 18.
The applicant suggested that Mr Tran reported to Ms Kasman. On this issue, Mr Stewart, whose evidence I accept, said that although Mr Tran technically reported to him (Mr Stewart):[56]
[t]here was a very dotted line there of where it was at that stage. The structure was very new to the company, so of course, [Mr Cam Tran], before me, was reporting directly to [Ms Kasman] and you know, certain things would still be given to [Ms Kasman] of course.
[56] Transcript day 4 (8 May 2019), page 139 at lines 11 to 14.
Mr Tran’s evidence was that he did not recall any conversation with the applicant in which the applicant raised concerns relating to Ms Pham or complaints about the company more generally.
Mr Tran stated that he had worked with the Sushi Sushi group since its inception in 1998 and as he works in operations, he knew the applicant. Mr Tran said that he would arrange jobs for the applicant when required, generally via email. He said that sometimes he would see the applicant in the head office or in stores, but that he was not very confident with speaking English so his conversations with the applicant were limited.
Mr Tran’s English was not very good. He maintained that he did not have any arguments with the applicant about Ms Pham.[57]
[57] Transcript day 3 (7 May 2019), page 117 at lines 36 to 43.
The applicant put to Ms Kasman in the course of cross-examination that he made a complaint about Ms Pham only two weeks prior to his termination. When asked why Ms Kasman had not addressed this issue in her affidavit material, Ms Kasman replied, ‘[b]ecause it has got nothing to do with … [Mr Foody’s] position being made redundant.’[58]
[58] Transcript day 3 (7 May 2019), page 48 at lines 46 and 47.
The following exchange then followed:
Mr Foody:…Well I am alleging that I was made redundant because I complained about the treatment [of Ms Pham].
Ms Kasman:[Mr Foody] never complained… and it has got nothing to do with [him].[59]
[59] Transcript day 3 (7 May 2019), page 49 at lines 3 to 5.
Mr Meneilly
Mr Meneilly’s evidence was that he was engaged to take Sushi Sushi from a family run business to a more professional organisation.[60]
[60] Transcript day 3 (7 May 2019), page 68 at lines 14 to 15.
Mr Meneilly confirmed that shortly after commencing in the role, he went on a road trip with the applicant. During this trip, Mr Foody expressed a range of views about the business.[61] He said:
I found [Mr Foody] to be a very open person and thought we had a good rapport. He was a ‘talker’ and I like engaging with talkers because it can give me insights; even if I don’t agree with what they are saying, it can be useful.[62]
[61] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraphs 9 and 10.
[62] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 11.
Mr Meneilly continued:
I have an open door policy. From time to time Andrew would just drop in to my office and have a chat. He could be opinionated about how he thought the business could be better, especially if he didn’t think something was being done correctly. One time he said to me something along the lines of how he was hoping to have ‘felt my hand in the business’ and that he thought I would have had more impact. All of this was fine with me.[63]
[63] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 12.
Mr Meneilly also gave evidence that the only time he recalled discussing the applicant with Ms Kazman was following this road trip. His evidence was:[64]
I had said that he was insightful and his heart was in the right spot, or words to that effect. I had also given positive feedback regarding his work he did on her office and she had said she was impressed. These are the only times I recall mentioning [Mr Foody] to [Ms Kazman].
[64] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 14.
Mr Morley
Mr Morley commenced with the respondent in August 2016 as the respondent’s head of Human Resources.
Mr Morley stated that from time to time, the applicant would attend his office to discuss various matters, including his observations at the stores.[65]
[65] Affidavit of Paul Morley affirmed and filed 1 November 2018 at paragraph 9.
Mr Morley stated that the applicant:
would comment that the staff required greater recognition for their hard work. He would make suggested improvements to the systems of work. I do not recall any complaints being made, it was mainly operational issues and suggested improvements.[66]
[66] Affidavit of Paul Morley affirmed and filed 1 November 2018 at paragraph 9.
Mr Morley further stated that he would generally refer these matters to the applicant’s manager, Mr Stewart. Moreover, Mr Morley stated that he did not recall discussing with Ms Kasman any of the matters that the applicant raised with him.[67]
[67] Affidavit of Paul Morley affirmed and filed 1 November 2018 at paragraphs 10 and 12.
Maintenance services review
In relation to the process which ultimately led to the applicant’s position being made redundant, Mr Meneilly stated that the respondent investigated the provision of maintenance services to the respondent to determine whether the applicant’s role:
a)adequately met the respondent’s maintenance requirements;
b)was cost effective; and
c)should be outsourced to cut costs, boost productivity and decrease liability.[68]
[68] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 8.
Mr Meneilly further stated that the investigation was prompted by a range of factors, which included that:[69]
a)the respondent had a large and growing portfolio of stores across Victoria;
b)multiple stores often required urgent maintenance works to be completed at the same time; and
c)he was appointed to the role in September to undertake a complete business review, including of the maintenance department, which was aimed at ensuring the respondent had the right team to service its maintenance needs in a cost effective manner.
[69] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 9.
As part of this process, Ms Kasman was provided with a proposal to undertake the respondent’s maintenance work for a fixed hourly rate by D&R Domain Pty Ltd (“D&R”).
Ms Kasman’s evidence, which I accept, was that she had been introduced to D&R by colleagues who had used D&R for maintenance work and were satisfied with their performance.[70] Ms Kasman said that she used D&R for maintenance work on some other properties in which she had an interest, unrelated to the respondent, and D&R then approached her about possibly providing maintenance services to Sushi Sushi stores.[71]
[70] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 11.
[71] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 12.
Ms Kasman received a written quote from D&R on 31 October 2017 which stated that D&R would provide maintenance contractors at a rate of ‘$40 per hour plus GST for the hours we work in stores.’ The quote also stated that D&R would not charge for travel time or time to buy spare parts, and equipment would be passed on at cost with no mark-ups.[72] Ms Kasman stated that she understood D&R could provide qualified tradesmen, including electricians, painters and carpenters to provide services to the stores and they had appropriate insurance.[73]
[72] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at Annexure AK-2.
[73] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 14.
Ms Kasman said that after receiving the quote from D&R, she looked further into the respondent’s maintenance program and considered whether it would be preferable to have one maintenance co-ordinator or outsource the work to a number of qualified tradesmen from D&R.[74]
[74] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 15.
On or about 18 December 2017, Mr Meneilly sent an email in which he said that the organisation was ‘about to commence a comprehensive review of operations and payroll’[75], which was expected to take some three to four months to complete. The applicant suggested that if the decision about outsourcing the maintenance function was of genuine operational concern, it would have formed part of the overall operations review was conducted.
[75] Transcript day 3 (7 May 2019), page 68 at lines 28 to 30, 46; affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexure C.
In response, Mr Meneilly gave the following evidence:
The review started from the day that I started within that business.
And so I had been in the business 10 to 12 weeks at that point in time… when [Ms Kasman]) mentioned to me that she believes it would be more effective to go down an ultimate path, and she explained to me that she had been investigating it for a period of months, based on what she had said, based on my own observations, based on my awareness of the price and the service that was being offered, it made sense for us to stop and review it at that point, and that I didn’t necessarily need to do a great deal more review.[76]
…
My view was based on the fact that we had been in store together. You had shown me the numerous problems that are in every one of those stores that we visited and the amount of work that needed to be conducted. It was also based on the fact that you had put a proposal to me to employ a team of people to go out and start steam-cleaning all the stores because there was too much work to be done on your own.[77]
[76] Transcript day 3 (7 May 2019), page 69 at lines 31 to 40.
[77] Transcript day 3 (7 May 2019), page 71 at lines 30 to 35.
…
It was also based on the fact that [Ms Kasman] had informed me that she had been doing her own investigation since the start of the year. And then it was based on our discussion. … And also based on the fact that we did have 70 company operated stores, that the vast majority had not had a refurb in close to 10 years.[78]
[78] Transcript day 3 (7 May 2019), page 72 at lines 1 to 5.
On 13 November 2017, Ms Kasman asked Mr Meneilly to provide a ‘sense check’ for her as it was her preliminary view that it would be ‘operationally more efficient to outsource our maintenance requirements to D&R… I also thought it would be more cost effective…’[79]
[79] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 16.
In addition, Ms Kasman stated that during this discussion with Mr Meneilly, she:[80]
a)provided Mr Meneilly with the quote from D&R;
b)told him that she had a long term working relationship with D&R and that they were professional, fast, reliable and very affordable;
c)stated they needed to be able to maintain a growing business in the most cost effective manner and ensure that they are protected with insurance; and
d)asked Mr Meneilly to discuss these matters with the applicant and obtain his view.
[80] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraphs 16 and 17.
Mr Meneilly said that when he was made aware of the quote for services provided to Ms Kasman, he accepted that the most cost effective manner of dealing with the issues which confronted the business was to entirely outsource the maintenance function and make the applicant’s position redundant.[81]
[81] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 12.
Mr Meneilly also confirmed in the course of cross-examination that the applicant:
a)had a good relationship with staff;
b)genuinely cared about staff; and
c)was partly responsible for occupational health and safety in stores, which was of particular interest and focus for the applicant.[82]
[82] Transcript day 3 (7 May 2019), page 74 at lines 20 to 30.
Mr Stewart confirmed that the applicant was passionate about staff welfare and health and safety issues. He also confirmed that both he and Ms Phung-Lan supported him in this approach.[83]
[83] Transcript day 4 (8 May 2019), page 141 at lines 10 to 11.
Mr Stewart also confirmed that neither Mr Meneilly nor Ms Kasman spoke to him about whether it was cost-effective for the business to continue to employ the applicant. The applicant was critical of this in circumstances where it is not disputed that Mr Stewart worked most closely with the applicant and understood the added value which he brought to the role.[84] The applicant pointed to this as further evidence that the decision to make his position redundant was not based on genuine operational requirements but was made in response to the various complaints raised by the applicant outlined above.
[84] Transcript day 4 (8 May 2019), page 143 at lines 38 to 40.
In the course of cross-examination, the applicant conceded that the maintenance role was very important to the proper functioning of the respondent’s business to ensure, amongst other things, that it met its occupational health and safety obligations and therefore, if maintenance work was not attended to satisfactorily, it could have very significant adverse business consequences.[85]
[85] Transcript day 1 (13 November 2018), page 49 at lines 19 to 46.
The D&R quote provided that maintenance services would be provided at a fixed rate of $40 per hour plus GST.
The applicant’s rate of pay was $40.39 per hour based on a 38 hour week.[86] In addition to this base rate of pay, the respondent:
a)paid superannuation;
b)paid WorkCover premiums;
c)provided the applicant with a car for business purposes, including meeting petrol costs;
d)occasionally provided him with equipment required to perform his duties, if he did not already have the necessary equipment; and
e)paid him for travel, including interstate travel when required.[87]
[86] Transcript day 1 (13 November 2018), page 51 at lines 18 to 21.
[87] Transcript day 1 (13 November 2018), page 51 at lines 24 to 46 to page 52 at lines 1 to 36.
The applicant also conceded that:
a)he could not physically be in two places at once but if the need arose, he could engage a contractor to do any work that he was not able to attend to personally;[88] and
b)the work he undertook carried with it a risk of personal injury to himself and that if he was injured, the respondent would incur the costs associated with the injury and also would need to bear the costs of finding someone to undertake his work during any associated absence.[89]
[88] Transcript day 1 (13 November 2018), page 53 at lines 1 to 5.
[89] Transcript day 1 (13 November 2018), page 53 at lines 11 to 43.
In the course of cross-examination, the applicant:
a)conceded that he was not the person who was being underpaid during his employment and to the extent that there were others who were allegedly underpaid, he was simply relaying those complaints;[90]
b)maintained that the impact on the employees of being underpaid impacted on his employment[91] in that it made his job more difficult;[92]
c)conceded that his assessment of low morale amongst staff in the Sushi Sushi stores was based on his own assessment and no written complaints had been made to him;[93]
d)maintained that following a discussion with Ms Phung-Lan shortly after he commenced there, he was told to take leadership in stores and therefore saw it as part of his job to motivate people;[94]
e)conceded that Ms Phung-Lan did not wish to give evidence in these proceedings;[95] and
f)maintained that he received complaints about underpayment of staff and he passed those matters onto the CFO and managing director.[96]
[90] Transcript day 1 (13 November 2018), page 31 at lines 15 to 22.
[91] Transcript day 1 (13 November 2018), page 31 at line 38.
[92] Transcript day 1 (13 November 2018), page 33 at lines 4 to 5.
[93] Transcript day 1 (13 November 2018), page 33 at lines 40 to 46 to page 34 at lines 1 and 2.
[94] Transcript day 1 (13 November 2018), page 34 at lines 10 to 15.
[95] Transcript day 1 (13 November 2018), page 34 at lines 34 to 36.
[96] Transcript day 1 (13 November 2018), page 38 at lines 25 to 28.
The applicant conceded that he had not opened his own store nor had sought to do so.[97] In the face of this concession, the following exchange occurred:
[97] Transcript day 1 (13 November 2018), page 40 at lines 37 to 39.
Mr Aleksov: So the contractual or other relations between someone who is engaged in discussions about a management agreement with the respondent could not have ever affected your employment could it?
Mr Foody:Yes, it could.
…
It’s the same fact, that this young lady, with a young family, if she had taken that agreement and she had started working for that company … at the end of the one-year time, she would have been $160,000 in debt and been suffering from low morale.
Mr Aleksov: And none of that affected your employment, did it, Mr Foody?
Mr Foody:It all affects my employment. I have to work with those staff hand-in-hand. … The nexus is there... it’s related to my employment. Those employees I’m working with are reliant on me and I’m reliant on them.[98]
[98] Transcript day 1 (13 November 2018), page 40 at lines 44 to 46 to page 41 at lines 1 to 11.
14 November 2017 meeting
It was common ground that the applicant was invited to a meeting with Ms Meneilly at 4:30pm on 14 November 2017. It was also common ground that the applicant was not provided with any details about the purpose of the meeting prior to attending.
The applicant stated that the meeting with Mr Meneilly:
a)started at approximately 5:00pm and lasted for about one hour;
b)Mr Meneilly told the applicant that there had been an investigation regarding the financial viability of the applicant’s role within the company, and that as a result, his position was to be made redundant;
c)in response to his request for further details regarding the investigation, Mr Meneilly said he did not have those details as he ‘only knew about the redundancy yesterday when [Ms Kasman] told [him]’;[99]
d)the applicant asked when his position was to be made redundant and Mr Meneilly responded that ‘the decision was imminent’;[100] and
e)importantly, the applicant asked who had conducted the ‘investigation’ and was told by Mr Meneilly that it had been conducted by Ms Kasman, who had also made the decision to make him redundant.[101]
[99] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 40.
[100] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 41.
[101] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 41.
The applicant further stated that at this meeting Mr Meneilly told him about D&R and that:[102]
a)Ms Kasman had been using D&R to perform some works on other real estate properties;
b)D&R had provided a quote for the maintenance works for the respondent; and
c)D&R could perform the maintenance works more cheaply and efficiently and could service multiple locations at the same time.
[102] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 42.
In response to his enquiries about what the process would be from there on, the applicant gave evidence that Mr Meneilly said he would pass his comments onto Ms Kasman and would let the applicant know of the outcome.[103]
[103] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 44.
The applicant further stated he was told by Mr Meneilly:
a)not to discuss the proposed redundancy with his boss, Mr Stewart;
b)not to attend the Christmas party that evening;
c)not to attend work;
d)not to discuss his work situation with anyone at work; and
e)that Mr Meneilly would be travelling the following day, but would call the applicant at 11:30am to advise him of the organisation’s final decision once, he had a chance to speak to Ms Kasman.[104]
[104] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraphs 45 and 46.
The applicant gave evidence that he was in a state of shock during the meeting. He was disappointed that he had not been afforded the opportunity to have a support person attend with him and importantly, he felt that he had been targeted as a result of having exercised his workplace rights.[105]
[105] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 47 and 48.
Mr Meneilly’s evidence about the meeting with the applicant on 14 November 2017 was slightly more nuanced. He said that:
a)he told the applicant the business was considering outsourcing the maintenance function and making his role redundant, and invited the applicant to provide feedback;[106] and
b)the applicant provided feedback including why he believed that it was more cost effective for the respondent to continue employing him rather than outsourcing the function.
[106] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 13.
Moreover, Mr Meneilly acknowledged that the applicant was shocked by the proposed redundancy.[107] He denied that he said a final decision was imminent, but rather said that he and Ms Kasman would consider the applicant’s comments.[108]
[107] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 24.
[108] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 23.
In relation to redeployment, Mr Meneilly denied he was dismissive of the applicant. He said that he did consider options for redeployment and had made inquiries in this regard with Mr Morley, the head of the Human Resources department.[109]
[109] Transcript day 3 (7 May 2019), page 61 at lines 36 to 39.
Following this meeting, Mr Meneilly sent an email to the applicant attaching a letter which confirmed the discussion they had and the next steps in the process.[110] This email was consistent with the evidence given by Mr Meneilly about the matters discussed and reiterated importantly that at that point, no final decision had been made.
[110] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-1.
The letter also requested feedback from the applicant and noted that whilst he had already provided some feedback in the meeting itself, he was invited to take some further time to think about the matters discussed. The letter went on to say:
We agreed that we would then hold a telephone conference tomorrow morning at 11.30 am to discuss these proposed changes.[111]
[111] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-1.
Contrary to the assertion made by the applicant that he was prohibited from discussing the matter with Mr Stewart, the letter from Mr Meneilly stated:
Given the sensitive nature of this matter, we ask that you keep this matter confidential and not discuss it with other staff members apart from Jamie Stewart.(emphasis added)
I confirm that until further notice, you are directed not to attend for work and not to attend the work Christmas function scheduled the later this evening. (sic) During this absence period, you will be paid your usual salary.[112]
[112] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-1.
Ms Kasman gave evidence that after his meeting with the applicant on 14 November 2017, Mr Meneilly advised her of what was discussed at the meeting. She said that Mr Meneilly showed her his notes of the meeting and she saw the matters raised by the applicant.[113]
[113] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 18.
The following day, the applicant responded to Mr Meneilly’s email of 14 November 2017 and raised concerns about the manner in which the meeting had been called including the lack of proper notice given to him about it.[114] In that correspondence, the applicant requested a further meeting with Mr Meneilly, Mr Stewart and Mr Morley at which he would address the proposed redundancy.
[114] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-2.
Mr Meneilly responded by email later that same day, namely on 15 November 2017.[115] Among other things, Mr Meneilly indicated that he was interstate until the following Monday and that he would meet with the applicant at that time. The applicant was offered the opportunity to have a support person attend at that meeting and was advised that Mr Stewart could attend as well if the applicant wished.
[115] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-3.
Mr Meneilly concluded that letter with:
Finally, I stress that the termination of your employment on redundancy is not a foregone conclusion. What we will focus on is the most cost effective and productive outcome for the business.[116]
[116] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at Annexure SM-3.
Part of the applicant’s claim is that he was discriminated against because of his age in the redeployment process. Mr Meneilly’s evidence, which I accept, was that the only reference to age in their discussions was by the applicant who commented that if the maintenance function was to be outsourced, someone with experience would need to co-ordinate that work and the Operations Assistant, Maddison who was only 19 years old could not do that.[117] Mr Meneilly denied saying that the applicant was ‘not the right fit’[118] or making any reference to his age.
[117] Affidavit of Scott Meneilly affirmed and filed 11 May 2018 at paragraph 24.
[118] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 25.
The applicant produced two versions of the notes which Mr Meneilly made at the 14 November 2017 meeting. The first was the version which was given to him after the meeting itself[119] and the second was the version produced by the respondent as part of its response filed with the Fair Work Commission.[120] Additional words appear on the second version of this document.
[119] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure O.
[120] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure P.
Mr Meneilly gave evidence that it was his practice to write notes in his day book. He said that near the end of the meeting, the applicant asked for a copy of those notes and he gave him a copy.[121] He further said:
I do not recall making any further notes after I gave him the photocopy, but I believe that the discussion with [the applicant] may have continued for a short period after I did the photocopying and that I added a few sentences on the last page. [122]
[121] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 30.
[122] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 31.
The applicant put to Mr Meneilly in cross-examination that although he recorded the applicant’s comments in his notes, Mr Meneilly in fact did not give consideration to those matters. The following exchange occurred:
Mr Foody: What consideration did you give to those four pages of notes?
Mr Meneilly: So I gave consideration to the fact that you believed that you were multidisciplined and you had the ability to do more than one thing at a time. You would often refer to yourself as the guy who would go out and screw and glue and fix things, and if you were out there to fix a dripping tap that you might fix something else that had not been flagged, so that you were multitalented and you did more than what was requested of you. And that’s what you put to me, so I took that on board. You also put to me that there were multiple instances where things were not being resolved and one of them that comes to mind was a plumbing-related issue in the warehouse. The plumber couldn’t resolve it. You went there, assisted the plumber, got it resolved. So you had an ability to add to what other tradesmen were doing to help work on a positive outcome.
Mr Foody:Did you consider that?
Mr Meneilly: Yes I did.
Mr Foody: That quality?
Mr Meneilly: Absolutely.
Mr Foody:And did you discuss that with Ms Kasman?
Mr Meneilly: Yes I did.
Mr Foody:And you didn’t find that that was of value enough to the business to keep me?
Mr Meneilly: At the end of the consultation with [Ms Kasman] and myself, we believed that it was better for the business – despite the benefits that you brought, that it was better for the business for us to move the way in which we did and employ an external body that would have multiple people at their disposal to be able to assist us at any point in time, saving us cost and also helping us with risk management because of their own insurances.[123]
[123] Transcript day 3 (7 May 2019), page 82 at lines 1 to 26.
Redeployment
The applicant also took issue with the suggestion that there were no redeployment opportunities for him within the respondent’s business. He produced two job advertisements which appeared on seek.com.au at the time of his redundancy, being the positions of Storeperson/Driver and Administrative Assistant/Accounts. According to the applicant, neither of these positions were offered to him at the time of his redundancy.[124]
[124] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure U.
Mr Morley’s evidence, which I accept, was that there was ‘a rolling ad for storeman/drivers on seek.com.au’, but as at November 2017, there were no actual vacancies.[125]
[125] Affidavit of Paul Morley affirmed and filed 1 November 2018 at paragraphs 20 and 21.
In addition, in an email sent by Mr Morley to Mr Meneilly on 24 July 2018, Mr Morley stated that the job advertisement for the administrative assistant role:
…was posted on 3 November, as the CFO at the time Ann, had resigned and her final day of employment was 9 November. The business then removed the Admin Assistant role due to the new CFO… reassigning tasks to existing team members.[126]
[126] Affidavit of Andrew Emmett Foody sworn and filed 11 October 2018 at Annexure U.
I accept this evidence.
Mr Morley gave further evidence that:
a)he was on leave from 13 November 2017 to 2 December 2017;[127]
b)his last day of work was on 10 November 2017; [128]
c)he was asked by Mr Meneilly about available roles;[129] and
d)he provided that information at some time between 10 November 2017 and 12 November 2017.[130]
[127] Transcript day 3 (7 May 2019), page 90 at lines 11 and 12.
[128] Transcript day 3 (7 May 2019), page 92 at line 1.
[129] Transcript day 3 (7 May 2019), page 92 at lines 7 and 8.
[130] Transcript day 3 (7 May 2019), page 92 at lines 3 and 4.
Mr Morley deposed that at the time the applicant’s position was made redundant, he had looked into what, if any, redeployment options might have been available. He said that the only actual vacancy at the time was an executive assistant role for two senior executives, including Mr Meneilly. He said that this role was not appropriate for the applicant given the different skill set involved.[131]
[131] Affidavit of Paul Morley affirmed and filed 1 November 2018 at paragraph 18.
The applicant argued that as this discussion occurred before Mr Meneilly’s meeting with him, it meant that his redundancy was a foregone conclusion. I do not accept this submission.
Ms Kasman’s evidence was that she was not involved in exploring what, if any, redeployment opportunities were available for the applicant within the organisation, but relied upon her Human Resources team to look into that.[132]
[132] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 21.
Mr Meneilly stated that at the end of the meeting with the applicant on 14 November 2017, he said that he would give him a call the following day to continue the discussion at 11:30am.[133] As noted above, that discussion did not proceed.
[133] Affidavit of Scott Meneilly affirmed and filed 11 November 2018 at paragraph 33.
The applicant said that he did not wish to be sacked over the telephone and therefore postponed the redundancy telephone discussion until Mr Meneilly returned to Melbourne the following week.[134]
[134] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 49.
It was common ground that the applicant had a meeting with Mr Meneilly on 20 November 2017 at 9:30am. This meeting was attended by the applicant, Mr Meneilly and Mr Stewart. It was during that meeting that the applicant was advised that his position was redundant, there were no redeployment opportunities available to him and consequently, that his employment would come to an end.
Decision making process
Much evidence was led in relation to who ultimately decided to make the applicant’s position redundant. The applicant also focused on the nature of the ‘investigation’ undertaken by the decision maker or the decision makers.
Mr Meneilly and Ms Kasman each gave evidence, which I accept, that they made the decision to make the applicant’s position redundant jointly.
Having said that, Mr Meneilly accepted that as he had only been in the position of CEO for a relatively short period of time, he took his lead from Ms Kasman who knew the business more intimately, had run the business since its inception and was one of its founders. He nevertheless agreed that the rationale for the decision made sense financially and structurally.
Ultimately, I find on the basis of the totality of the evidence, that the decision to make the applicant’s position redundant was jointly made by Ms Kasman and Mr Meneilly.
As to the decision making process, Mr Meneilly gave the following evidence:
…after the discussion with [Ms Kasman] I sat down with [Mr Foody] and I put it to [him]… what the business was considering and why, and we had a… conversation in relation to that and [he] raised a whole number of points to me, which I thought were all very interesting and very well worth discussing. I took that… back to [Ms Kasman]. We had a discussion around that and we were waiting to see what overnight thoughts [he] had… I was intending having a conversation [with Mr Foody] the following day. That conversation… didn’t take place. [Ms Kasman] and I then met up when I returned to work, prior to meeting with [Mr Foody], and we talked through the points that [he] had raised. We talked through the… quote and the service that was going to be offered by… D&R… and logically, to me I could see why this was a consideration for the business and collectively we agreed.[135]
[135] Transcript day 3 (7 May 2019), page 63 at lines 30 to 44.
In response to questions about what else he did prior to coming to a view regarding the applicant’s redundancy, Mr Meneilly said:
…other than speaking to Ms Kasman… and speaking to [Mr Foody], I didn’t speak to anybody else because I was alerted to the fact that Ms Kasman had been… looking into it… since the beginning of the year. I do not know what she did and did not question that at that point. I had gained some insight into the business due to our road trips where [Mr Foody] pointed out the various issues in stores. I also had insight based on information that [Mr Foody] had provided me, such as the fact that we needed to get a team of people to come in because there … was more work than [he] could do on [his] own, because we had to get steam cleaners and people to go in an steam clean every aspect of the store, and we needed to buy high performance steam cleaners. So when putting all of this information together it made sense to me that at that time what was being proposed by [Ms Kasman] was a reasonable proposition.[136]
[136] Transcript day 3 (7 May 2019), page 64 at line 47 and page 65 at lines 1 to 12.
Mr Meneilly confirmed that he did not discuss the possible outsourcing of maintenance with Mr Stewart:
because I spoke to Ms Kasman… and [Ms Kasman] had explained to me that she had been investigating this since the beginning of the year.[137]
[137] Transcript day 3 (7 May 2019), page 65 at lines 41 to 43.
Ms Kasman’s evidence about how the final decision was made was as follows:
[Mr Meneilly] and I sat on this issue for a few days. I can’t recall how exactly the decision was made, but [Mr Meneilly] and I came to a common understanding that this was in the best interests of the business to proceed with engaging D&R. This meant that the internal maintenance coordinator role was redundant.[138]
[138] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 19.
Ms Kasman also stated that there were no other reasons for the decision to make the applicant’s role redundant.[139]
[139] Affidavit of Anna Kasman affirmed and filed 1 November 2018 at paragraph 22.
According to Mr Meneilly, the bases for this decision were that:
a)a contractor would provide access to multi-disciplined, fully qualified tradesmen which allowed the business to attend to multiple requests at once;
b)the quote provided of $40 per hour plus GST was very competitive, particularly given the contractor would only charge for time spent in stores and not for travel time;
c)the respondent would not be required to purchase tools, provide a company vehicle, mobile or laptop;
d)the respondent would have the benefit of the outsourced entity’s insurance; and
e)the project management function could be undertaken by the Operations Assistant, Maddison.[140]
[140] Affidavit of Scott Meneilly affirmed and filed 1 November 2018 at paragraphs 40 and 41.
I accept that these were the only factors which Mr Meneilly took into account in his decision making regarding the applicant’s redundancy.
After providing the applicant with a further opportunity to respond to the respondent’s rationale for outsourcing the maintenance work, he advised the applicant that his role would be made redundant and proceeded to take him through his final payout.[141] Mr Meneilly confirmed the applicant’s termination in writing by letter dated 23 November 2017.[142]
[141] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 17.
[142] Affidavit of Scott Meneilly affirmed and filed 15 May 2018 at paragraph 18 and Annexure SM-4.
I accept Ms Kasman’s evidence as to the reasons for making the decision to restructure the way in which maintenance services were provided to the respondent in 2017; namely, that she was solely motivated by trying to reduce costs and shift liability for any potential claims which might flow from that work.
At times, Ms Kasman was clearly frustrated with the process of this litigation and by the questions asked of her by the applicant. She had to be directed on a number of occasions to answer the applicant’s questions. On numerous occasions when asked questions by the applicant, Ms Kasman would reply with comments such as “I would like to know what has this got to do with this matter.”[143]
[143] Transcript day 1 (13 November 2018), page 70 at lines 30 and 31.
Notwithstanding this, in the face of repeated questions, Ms Kasman’s evidence was consistent, namely that she looked into the store maintenance program once she had received a quote from D&R to see if would be preferable to continue employing a full-time maintenance person for the whole company or to have access to multiple tradespeople to maintain the respondent’s stores.[144]
[144] Transcript day 1 (13 November 2018), page 72 at lines 9 to 12.
Ms Kasman also confirmed that she discussed the matter with Mr Meneilly on 13 November 2017.[145] As to what occurred during their discussion on 13 November 2017, Ms Kasman said:
…I presented [Mr Meneilly] with a quote... I mentioned to him that I… was introduced to… D&R from my colleague, and he has done a quite reasonable, good job and they’ve got qualified tradesmen such as electrician, plumber, painter and carpenter, which what we need as a business, and it’s a… company that will be covered by insurance in any of their work, especially it’s quite dangerous in terms of electrical works or plumbing works where if the certificate is not obtained by our maintenance program. …[Mr Meneilly] then look (sic) into, you know, the pros and cons. And we… basically… discuss (sic)… the pros and cons about having the full-time maintenance program.[146]
[145] Transcript day 1 (13 November 2018), page 72 at lines 20 to 33.
[146] Transcript day 1 (13 November 2018), page 77 at lines 37 to 47.
Ms Kasman’s evidence, which I accept, was that the decision to implement the restructure and make the applicant’s position redundant was ultimately a joint one between her and Mr Meneilly.[147]
[147] Transcript day 1 (13 November 2018), page 73 at lines 30 to 47.
Ms Kasman stated that the ultimate decision in relation to the restructuring of the delivery of maintenance services to the respondent was based on:[148]
a)the quote from D&R;
b)the current store maintenance program; and
c)the matters arising from Mr Meneilly’s meeting with the applicant.
[148] Transcript day 1 (13 November 2018), page 74 at lines 4 to 6.
Throughout cross-examination, Ms Kasman maintained that her principal concerns in dealing with this issue were:
a)ensuring that the maintenance work was completed in a timely manner; and
b)ensuring that work undertaken was covered by insurance.
In the course of cross-examination, Ms Kasman conceded that the respondent had underpaid employees during the period from June 2014 to 20 November 2017. However, she maintained that this had not been intentional.[149] Moreover, Ms Kasman maintained that any concerns raised by the applicant about this issue did not impact on her assessment of whether to outsource the maintenance function and make the applicant’s position redundant. I accept that evidence.
[149] Transcript day 3 (7 May 2019), page 14 at lines 10 to 32.
Mr Meneilly gave evidence that following the applicant’s redundancy, D&R was engaged to perform maintenance services in Victoria until about October 2018.[150]
[150] Transcript day 3 (7 May 2019), page 56 at lines 40 and 41.
He said the respondent then:
started to engage another organisation to do similar work to D&R. D&R are still on the books as people that we can turn to for maintenance work, however, I was informed yesterday that we don’t go to them very often any more. We are using the subsequent group.[151]
[151] Transcript day 3 (7 May 2019), page 56 at lines 41 to 44.
In relation to maintenance work in states other than Victoria, Mr Meneilly stated that he was:
not overly familiar with how that works outside of Victoria. My belief is that each issue that… comes up in store is dealt with independently, …where it arises.[152]
[152] Transcript day 3 (7 May 2019), page 57 at lines 5 to 7.
Mr Meneilly confirmed that the respondent did not enter into a formal contract with D&R, but rather they simply engaged D&R as required on the basis of the quote provided. He stated:
So we had a quote and [Ms Kasman]… had a relationship with these people and… has been working with them supposedly for many years. …what we would do is… engage them on specific jobs when the jobs were there to be done … as far as I’m aware, there was no formal contractual arrangement that tied us in with them.[153]
[153] Transcript day 3 (7 May 2019), page 66 at lines 44 to 47 and page 67 at lines 1 and 2.
Mr Stewart also gave evidence that after the applicant’s position was made redundant, in his capacity as the person in charge of maintenance for the business, he was provided with contacts at D&R for the company to use for maintenance matters going forward. He said that they did engage D&R to provide services as required, although they stopped using them between August and October 2018 as there was not enough work for them to do. He stated that as a result of the sale of or renovation to a number of stores, the respondent did not require their ongoing services.[154]
[154] Transcript day 4 (8 May 2019), page 133 at lines 37 to 40.
Mr Stewart confirmed that during both the applicant’s employment and the period where D&R were providing maintenance services where emergencies arose simultaneously at multiple locations, there were additional contractors that the respondent could call on to assist.[155]
[155] Transcript day 4 (8 May 2019), page 138 at lines 11 to 21.
Issues
Having regard to this evidence, the following issues arise for determination in this matter.
General protections claim
In order to succeed in this claim, the applicant must establish the following factual matters:
a)he made a complaint to Ms Kasman as claimed on 26 November 2015 about the respondent’s deliberate underpayment of wages of the respondent’s staff (“the November 2015 complaint”);
b)if so, following the November 2015 complaint:
i)Ms Kasman conducted herself in a discriminatory, bullying and harassing manner towards the applicant; and
ii)there was a causal nexus between the treatment so found and the November 2015 complaint;
c)throughout 2016 and 2017, the applicant continued to complain to various senior company employees regarding the respondent’s deliberate underpayment of staff (“the ongoing underpayment complaints”);
d)Ms Kasman told a number of senior company employees that she intended to terminate the applicant’s employment; and
e)between September and November 2017, the applicant made numerous complaints to senior employees of the respondent (including Mr Meneilly) about his concerns about the alleged coercion of Ms Pham to enter into a management agreement for a Sushi Sushi store (“the coercion complaints”).
If the applicant established each of those facts, he then needed to establish that either:
a)the making of the November 2015 complaint; and/or
b)the ongoing underpayment complaints; and/or
c)the coercion complaints;
falls within the definition of a workplace right pursuant to section 341 of the FW Act.
If so, pursuant to section 361 of the FW Act, the onus shifts to the respondent to establish on the balance of probabilities that the decision to make his position redundant was made for a reason other than because of
a)the applicant’s exercise of any of those workplace rights; or
b)reasons which included his exercise of those workplace rights.
Consideration and findings
Factual findings
Having regard to the totality of the evidence, I make the following findings, on the balance of probabilities:
a)the applicant’s role required him to have significant interface with staff in stores as well as in other parts of the respondent’s business;
b)the applicant is an affable person who engaged with his co-workers and gained their trust and confidence;
c)the applicant had a very strong sense of responsibility to those around him and took it upon himself to raise concerns or pass on concerns as he saw them;
d)the applicant raised concerns with his superiors from time to time about:
i)safety issues;
ii)the possible underpayment of wages of staff in the stores; and
iii)the fact that he felt that Ms Pham was being pressured into taking on a management agreement which might not be the best financial decision for her.
26 November 2015 meeting
In relation to the alleged meeting on 26 November 2015, I accept the applicant’s evidence that he had a discussion with Ms Kasman about the cleaning and maintenance of fridges in stores and how that might be completed more cost effectively. I am also prepared to accept, on the balance of probabilities, that in the course of that discussion, the applicant may have raised a question about whether the respondent’s staff were being paid appropriately.
In preferring the applicant’s evidence about the discussion on 26 November 2015, I do not make any adverse finding about Ms Kasman’s credit even though she denied having a meeting with him on that day. I accept her evidence that this was not a formal meeting and was not recorded in her diary.
Adverse action
The applicant alleged that the adverse action to which he was subjected to consisted of:
a)Ms Kasman’s bullying and exclusionary behaviour following him raising complaints about the underpayment of staff in 2015; and
b)the process which led to and the ultimate decision to terminate his employment for reasons of redundancy in November 2017.
Ms Kasman’s conduct between November 2015 and November 2017
In addition, whilst I accept that the applicant continued to raise concerns about the underpayment of staff throughout 2016 and 2017 and raised concerns about Ms Pham being pressured to enter into a management agreement with Mr Stewart and Mr McNeilly, I am not satisfied that these further concerns were passed on to Ms Kasman.
I find that the applicant has not established to the requisite standard that Ms Kasman told senior staff throughout 2016 and 2017 that she was ‘trying to get rid of him’. Not only do I accept Ms Kasman’s denials in this regard, but importantly I note that:
a)the applicant failed to call any evidence from witnesses who might have supported this contention; and
b)the applicant’s claims are not consistent with that fact that as the owner of the respondent, Ms Kasman could have acted sooner if she had wanted to ‘get rid of’ the applicant, rather than wait for two years.
It is inconceivable that if Ms Kasman had intended to terminate the applicant’s services that she would have tolerated his ongoing employment for over two years, in circumstances where she was the founder and owner of the respondent.
In his closing submissions, the applicant suggested that Ms Kasman was unable to terminate his services until Ms Phung-Lan left the company and found a ‘willing participant’ in Mr Meneilly:[156]
[156] Applicant’s outline of submissions filed 10 July 2019 at paragraph 85.
As stated, the applicant did not call Ms Phung-Lan to give evidence in these proceedings. He could have subpoenaed her if she was not willing to give evidence voluntarily. As a result, the applicant did not establish that Ms Kasman intended to terminate his employment since 2015 and was only able to do so after Ms Phung-Lan left the respondent’s employment.
Similarly, I do not accept the applicant’s claims that Ms Kasman subjected him to any bullying, intimidation and the like following the November 2015 meeting or throughout 2016 and 2017. The applicant’s evidence in this regard was scant, to say the least. The only specific allegation he made was that Ms Kasman made it known to senior staff members that ‘she was out to get him’ in 2016 and 2017. For the reasons set out above, I am not satisfied on the balance of probabilities that Ms Kasman said that she wanted to ‘get rid’ of the applicant.
The applicant has therefore failed to establish that he was subjected to adverse action after the November 2015 meeting and for the remainder of his employment. In light of that finding, it is not necessary for me to determine whether complaining about the underpayment of staff was the exercise of a workplace right in any event.
Adverse action arising from the restructure and redundancy
I then turn to the decision to outsource the respondent’s maintenance function and consequently make the applicant’s position redundant. These matters fall within the definition of ‘adverse action’ in section 342. The decision to consider whether to outsource a function is arguably conduct which alters the applicant’s position to his detriment, as it jeopardises his security of employment. Similarly, the ultimate termination of his employment clearly falls within the definition of adverse action.
Workplace rights?
In light of this finding, the question then becomes whether the applicant has established that he has, or has exercised, a relevant workplace right. In particular, the court must consider whether the applicant exercised a workplace right when he complained about:
a)the underpayment of staff; or
b)the alleged coercion of Ms Pham to enter into a management agreement which was, in his view, not in her interest.
As stated, I accept that the applicant raised these matters at various times with his superiors.
The applicant’s claim was essentially that he had a workplace right because he had a responsibility with respect to occupational health and safety matters. His evidence was that he had a conversation with Ms Phung-Lan, to whom he reported at the time, during which he was encouraged to take a leadership role in the stores with staff issues.[157]
[157] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraph 11.
As noted above, Ms Phung-Lan did not give evidence in these proceedings. Mr Stewart gave evidence that the applicant had a particular interest in food safety issues. In that context, the following exchange occurred during Mr Stewart’s evidence:
Mr Foody:We often discussed food safety issues, did we not?
Mr Stewart:Yes we did. It was one of my high standards as well, so yes, we did.
Mr Foody:We both shared that as a common denominator, didn’t we?
Mr Stewart:Yes
….
Mr Foody:And I assisted in helping in those situations?
Mr Stewart:Yes. You were a pair of eyes, I guess, in the network, for me to identify potential problems.
…
Mr Foody:…So I was performing tasks not normally the works of a maintenance coordinator. Would you agree with that?
Mr Stewart:Yes. … I think it was just a passion of yours.
Mr Foody:It was above and beyond … what was expected of me. Correct?
Mr Stewart:Yes
Mr Foody:And do you recall that APL gave me instructions to do this?
Mr Stewart:I can’t remember that, sorry.
Mr Foody:Well, … did you know that APL support me in doing these things?
Mr Stewart:Yes, I believe so, yes.
Mr Foody:So when I would see things go wrong, I would instruct the staff to correct them. Is that accurate?
Mr Stewart:Yes.[158]
[158] Transcript day 4 (8 May 2019), page 140 at line 24 to page 141 at line 14.
As noted above, section 341 of the FW Act provides that an employee has a workplace right if the person is:
a)Entitled to the benefit of, or has a role or responsibility under, a workplace law…;
b)…; or
c)they are able to make a complaint or inquiry:
i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii)if the person is an employee – in relation to his or her employment.
The applicant submitted that the fact the complaints he raised did not directly relate to his own employment was not critical. He relied on the decision in Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (No 3) [2012] FCA 697 in which the employee raised concerns about safety issues within the workplace and this was held to be the exercise of a workplace right.
The applicant submitted that this decision:
… establishes the principle that where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied.[159]
[159] Applicant’s outline of submissions filed 11 November 2018 at paragraph 86.
The applicant also relied upon the comments made by Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271.[160] Relevantly, her Honour said:
[160] Applicant’s outline of submissions filed 11 November 2018 at paragraph 93.
…
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.[161]
[161] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [29].
The applicant argued that a complaint about an employee’s employment for the purposes of section 342(1)(c)(ii) is to be interpreted broadly and such an interpretation would include the complaints made by the applicant about:
a)the underpayment of wages generally by the respondent; and
b)the coercion of Ms Pham into entering into a management agreement on unfavourable terms.
The respondent submitted that this argument is misguided and has not established that the applicant exercised a workplace right.[162]
[162] Respondent’s outline of submissions filed 5 June 2018 at paragraph 6.
In relation to the alleged complaint about underpayment of wages made by the applicant to Ms Kasman on 26 November 2015 as noted above, the respondent submitted the applicant had not established on the balance of probabilities that this complaint was made. It was submitted that the court should accept the evidence of Ms Kasman that there was no meeting held on 26 November 2015 as alleged.[163]
[163] Respondent’s outline of submissions filed 5 June 2018 at paragraphs 7 to 17.
It was properly conceded by the respondent that if the applicant’s evidence about this was preferred, the complaint about the underpayment of wages was a matter which is sufficiently connected to the applicant’s own employment that it qualifies as a relevant complaint under the FW Act.[164]
[164] Respondent’s outline of submissions filed 5 June 2018 at paragraph 18.
Ultimately, as set out above, I accept that the applicant did speak to Ms Kasman about a range of issues in November 2015 and further, he is more likely than not to have raised the issue of the underpayment of wages with her. In light of the concession properly made by the respondent, the applicant has therefore established that he has exercised a workplace right by raising the underpayment issue, both with Ms Kasman and other senior members of staff.
However, I am not satisfied that there is sufficient connection between the applicant’s employment and the circumstances under which Ms Pham entered into a management agreement with the respondent. This complaint is not the exercise of a workplace right.
Reason for adverse action
Having accepted that:
a)the applicant has established that the decision to outsource the maintenance function and the consequential decision to make his position redundant was adverse action; and
b)the applicant has arguably exercised a workplace right by raising the underpayment of wages with Ms Kasman, and continued to raise these concerns with others;
the question then arises as to whether there is a causal nexus between the two as required by section 340 of the FW Act.
Ms Kasman and Mr Meneilly gave evidence that they jointly made the decision to move to an outsource model for the business’s maintenance needs. They each gave evidence that the reasons for that decision which consequently resulted in the applicant’s position becoming redundant were:
a)the desire to reduce costs;
b)the capacity to deal with more than one issue at one time; and
c)to offset some of the risk which lay with the company when maintenance was conducted internally.
I accept that evidence. Neither Ms Kasman nor Mr Meneilly gave evidence that there was any issue with the applicant’s performance. Indeed, they both said that he was good at what he did.
For her part, Ms Kasman said that her concern was whether it was better for the business to have one maintenance manager employed internally or to outsource that function, having regard to the concerns outlined above. I accept that evidence.
Similarly, I accept Mr Meneilly’s evidence that he bore no ill will towards the applicant. He had only been employed with the respondent for a short period of time during which he had had some interactions with the applicant. I accept Mr Meneilly’s evidence that the only reason for supporting the decision to outsource the maintenance function and the applicant’s consequential redundancy was to address the concerns identified by Ms Kasman. I also accept his evidence that he gave consideration to the matters raised by the applicant in the 14 November 2017 meeting, but ultimately those matters, including the value which the applicant added to the business, did not outweigh those concerns.
The applicant maintained that the restructure merely concealed the real reason he was made redundant; namely, because of his continued complaints about underpayment of wages and the manner in which Ms Pham was being ‘coerced’[165] into entering into a management agreement.
[165] Applicant’s outline of submissions filed 10 July 2019 at paragraph 94.
The applicant invited the court to reject the evidence of Ms Kasman and Mr Meneilly in this regard. He submitted that Ms Kasman’s evidence was ‘evasive and deceitful’.[166]
[166] Applicant’s outline of submissions filed 10 July 2019 at paragraph 19.
The applicant also pointed to an inconsistency as to when Ms Kasman and Mr Meneilly first discussed the possible restructure. Their evidence was that this was first discussed on 13 November 2017. However, the applicant noted that Mr Morley said he had discussed the possible redeployment of the applicant with Mr Meneilly before he went on leave, which was at some point between 10 and 12 November 2017. The applicant pointed to this apparent inconsistency as evidence of Ms Kasman and Mr Meneilly’s dishonesty.
The applicant also pointed to the absence of any proper investigation into the value which he provided to the respondent and the paucity of evidence about the arrangement with D&R as further evidence that the decision was nothing more than a ruse to cover the respondent’s desire to get rid of him because of his ongoing complaints.
I do not accept these submissions.
I accept that the applicant had a different view as to how the maintenance function ought to be performed. He also had a very strong view as to the value he brought to the role and to the business. These views may be well founded. However, that is not the question.
The evidence of Ms Kasman and Mr Meneilly, which I accept, was that:
a)the business had grown significantly;
b)Ms Kasman had concerns about whether maintenance was being addressed in a timely and appropriate manner in circumstances where there was one full time maintenance manager on staff; and
c)for these reasons, she explored alternative arrangements.
I also accept that whilst Mr Meneilly took his lead on this issue from Ms Kasman, he considered the business’ needs and the matters raised by the applicant in the 14 November 2017 meeting, and ultimately concluded that the proposal to use D&R made business sense.
I do not accept that the alleged absence of a proper investigation into the applicant’s role was evidence of an ulterior motive for the restructure. The evidence led was that this was a business in transition moving from a family business to a more professionally run business. There was also evidence that other aspects of the businesses’ operations were the subject of ongoing review. The absence of a formal analysis of the respondent’s business operations does not evidence an ulterior reason for the restructure.
Having accepted the respondent’s evidence as to the reasons for the restructure and decision to terminate the applicant’s employment, I therefore find the respondent has discharged its onus to establish that it did not take adverse action against the applicant for a prohibited reason.
The applicant’s claim pursuant to section 340 of the FW Act is therefore not made out.
Discrimination claim
Similarly, I am not satisfied that the decision not to redeploy the applicant was in any way based on his age. I accept Mr Meneilly’s evidence, supported by his notes of the meeting he had with the applicant that the only person who made reference to age in the discussion about the restructure and possible redeployment options was the applicant.
I accept Mr Meneilly’s evidence that he made enquiries as to appropriate redeployment opportunities which were available at the time. He found there were no suitable options available and therefore proceeded to terminate the applicant’s employment. I am not satisfied that this was done for a prohibited reason.
For these reasons, the applicant’s claim under section 351 of the FW Act is not made out.
Section 389 claim
As stated above, the reference by the applicant to an alleged breach of section 389 of the FW Act in these proceedings was misconceived. Those provisions operate in the context of unfair dismissal claims. The court does not have jurisdiction to deal with such claims.
Unpaid work claim
Finally in relation to the unpaid work claim, the applicant bears the onus to make out this claim.
It was common ground that from time to time during his employment, the applicant would provide a quote for additional work, undertake such work outside of work hours and be paid on the provision of an invoice.
The applicant provided an example of this in his affidavit sworn 23 March 2018 and deposed to the following in relation to how he came to undertake further works at the South Oakleigh warehouse:
In August 2017, after an extensive HACCP audit was conducted at the Sushi processing warehouse in South Oakleigh, Foody was asked by Sushi management to complete the works identified in the audit. The works needed to be performed outside normal business hours so as to not interfere with the activities of production and dispatch. Foody was asked if he could start immediately. Foody agreed. The works took Foody 147 hours to complete outside normal business hours on Saturdays, Sundays and public holidays over a three month period.
Foody was not asked to prepare a quote for the works and so he did not do one. Foody accessed the sushi processing warehouse in South Oakleigh using a key-fob pass. Foody was required to turn on and off the alarm system when he entered or exited, which also recorded the day and time of his access.[167]
[167] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at paragraphs 30 and 31.
The applicant then sent an invoice to Mr Meneilly in February 2018 seeking payment for work performed outside of normal business hours for which payment had not been made.
The applicant claimed the sum of $9,388.48[168] consisting of $8,820 in labour and $568.48 in materials.
[168] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexures D, E and F.
Mr Meneilly invited the applicant to submit his invoice in relation to this work for consideration.
Mr Meneilly stated that on or about 12 February 2018, the applicant sent a letter to the respondent seeking payment of $9,388.48 within 7 days.[169] This letter was not in the form of a tax invoice. Further information was requested of the applicant in relation to this claim.
[169] Affidavit of Scott Meneilly affirmed and filed 1 November 2018 at paragraph 53.
Mr Meneilly responded to the applicant by letter advising that he would review the works claimed to
ensure that this was both commissioned and completed. Since January, we have spent significant money in the warehouse completing a lot of work including the repair of equipment and flooring, plus a great deal of cleaning and rust removal. At first glance it does appear that we have just completed some works that you are suggesting you had done however I will investigate further.[170]
[170] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexure D.
Mr Meneilly also requested that the applicant provide a breakdown of the number of hours spent on each piece of work and the dates and times for the work completed as well as the cost of any replacement parts and hourly rate applied.
The applicant provided this information and confirmed that he had undertaken 147 hours of work at $60 per hour. Mr Meneilly responded by letter dated 1 March 2018.[171]
[171] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexure E.
Relevantly, Mr Meneilly noted a discrepancy between the hours claimed and the respondent’s Podio records which showed that Mr Meneilly had been at the respondent’s premises for 73.5 of the claimed 147 hours.[172] In addition, the respondent noted that the Podio records indicated that the applicant did not perform his full range of hours required under his employment contract and therefore queried why work would have been performed outside normal hours when it could have been performed during work hours.
[172] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexure E.
Mr Meneilly confirmed that the applicant had been requested to perform work on the trucks and the flooring and was therefore prepared to pay for this work, although its records showed that this amounted to 45 hours, not the 64 claimed. In addition, the respondent maintained that the applicant had been given time in lieu for work performed outside of normal business hours of:
a)16 hours on 3 and 7 November 2017; and
b)23 hours for time in lieu on termination.
Taking these matters into account, the respondent agreed to pay a further 6 hours at the applicant’s hourly rate of pay. Although the applicant claimed $60 per hour, he provided no evidence of that rate of pay having been agreed to by the respondent.
Mr Meneilly further invited the applicant to provide any further evidence which would support his further claims which had not been agreed to and said:
upon the receipt of the written evidence, we will carry out the appropriate investigations and we will honour any previously written agreements our company made with you.[173]
[173] Affidavit of Andrew Emmett Foody sworn and filed 23 March 2018 at Annexure E.
The applicant responded to this letter but did not provide any further information; rather, he requested further documents and the like from the respondent. Importantly, the applicant did not identify the person who had requested that he perform these additional works or who had approved these works.
Mr Meneilly stated that during his road trip with the applicant in September 2017, the applicant told him that he would sometimes do work for the respondent after hours and on weekends for which he would invoice the respondent separately. He said that other than during this discussion, he was ‘not aware of the arrangement for [Mr Foody] to provide services out of hours’.[174]
[174] Affidavit of Scott Meneilly affirmed and filed 1 November 2018 at paragraph 50.
Mr Stewart stated that he was not responsible for allocating the applicant with work outside of normal work hours and that this related to a different department in the company.[175] Relevantly, in the course of cross-examination, Mr Stewart confirmed that he was aware that the applicant had been performing work at the Carroll Road facility both during normal business hours and also outside of business hours.[176]
[175] Affidavit of Jamie Stewart affirmed and filed 1 November 2018 at paragraph 11.
[176] Transcript day 4 (8 May 2019), page 148 at line 28.
As stated, the applicant did not identify who requested that he perform the additional work for which he now seeks payment, nor who approved the performance of that work. Moreover, in relation to the supplies and materials he claims, no receipts have been provided as evidence of payment by the applicant.
Accordingly, the applicant has not established, on the balance of probabilities, that he was requested to and did undertake the work for which he sought payment in these proceedings.
The applicant’s claim for unpaid work is therefore not made out.
Conclusion
As none of the applicant’s claims has been made out, I order that his application be dismissed.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 June 2020
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