Gardlenius v RF Martin Pty Ltd Trading as Advantage Panel and Paint
[2019] FCCA 2351
•26 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARDLENIUS v RF MARTIN PTY LTD TRADING AS ADVANTAGE PANEL AND PAINT | [2019] FCCA 2351 |
| Catchwords: EVIDENCE – Surveillance devices – covert recording of meeting – whether desirability of admission of recording outweighs desirability of non-admission. |
| Legislation: Evidence Act 1995 (Cth), ss.56, 138 Fair Work Act 2009 (Cth), ss.340, 341, 342, 345, 346, 360, 361, 370, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 |
| Applicant: | HANS-ERIK GARDLENIUS |
| Respondent: | RF MARTIN PTY LTD T/A ADVANTAGE PANEL AND PAINT |
| File Number: | PEG 395 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 10 October 2017 |
| Date of Last Submission: | 10 October 2017 |
| Delivered at: | Perth |
| Delivered on: | 26 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr F Robertson |
| Solicitors for the Respondent: | Fort Knox Legal |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 395 of 2015
| HANS-ERIK GARDLENIUS |
Applicant
And
| RF MARTIN PTY LTD T/A ADVANTAGE PANEL AND PAINT |
Respondent
REASONS FOR JUDGMENT
Introduction
Hans-Erik Gardlenius (“Mr Gardlenius”) has filed an application (“Application”) under the Fair Work Act 2009 (Cth) (“FW Act”) alleging that RF Martin Pty Ltd trading as Advantage Panel and Paint (“Advantage Panel and Paint”) dismissed him from employment in contravention of a general protection provision of the FW Act.
The Application
The Application filed by Mr Gardlenius alleges that he was told not to wear a respirator and when he did not comply he was dismissed from his employment at Advantage Panel and Paint. The Application made no reference to any provision of the FW Act, however Mr Gardlenius stated that the “EMPLOYER WANTED TO PUT ME IN HARMS WAY. I HAVE THE RIGHT TO PROTECT MY HEALTH.” Mr Gardlenius provided an attachment in the following terms:
As my former employer, RF Martin Pty Ltd, has no remorse for his actions and has no respect for the laws of this land, the gravity of future health problems I would have and still could have as a result of previous exposure to toxic chemicals and, the fact that tell me to expose myself to toxic chemicals amounts to the same as committing suicide.
I think it would be fair to compensate me for future potential earnings up until my retirement at $30,000/annum equals $690,000.
Plus wages and Superannuation still owing to me calculated from the 30 of June to 26 of August 2015 which amounts to approx. $7,000/wages and $700/Superannuation.
This employer has put me in a position, by his actions that I will find it very difficult to be successful in gaining new employment as this Court action will reflect back at me.
Advantage Panel and Paint filed a response opposing all orders for compensation sought in the Application, and also denying Mr Gardlenius’ employment was terminated as a result of his exercising a workplace right.
The matter proceeded to a final hearing on 10 October 2017 on the basis that Mr Gardlenius had bought the Application alleging Advantage Panel and Paint:
a)had unlawfully dismissed him from his employment contrary to s.340 of the FW Act for having exercised a workplace right to wear a respirator; and
b)had represented to Centrelink that there was a false and misleading reason for the dismissal of Mr Gardlenius contrary to s.345(1) of the FW Act.
While Mr Gardlenius indicated he had received some guidance from Legal Aid in relation to his Application, the Court notes that Mr Gardlenius was self-represented throughout these proceedings.
The hearing
At the commencement of the hearing on 10 October 2017 Mr Gardlenius stated that he was unaware that the matter was listed for the “trial”, rather he thought it was a hearing to set a “trial date”. Mr Gardlenius made the same remark when the matter was listed for hearing previously on 3 February 2017, and at that stage the Court adjourned the final hearing.
The Interlocutory matters were heard on 13 June 2017 and orders were made for the filing of further affidavits. At a directions listing on 28 July 2017 the Court made orders for the filing of further outlines of submissions and listed the matter for hearing on 10 October 2017. The matter was stated to be “listed for hearing on 10 October 2017 at 10.15am” in the orders of 28 July 2017. Mr Gardlenius was thus on notice of the matter being listed for hearing as opposed to directions.
The Court notes that:
a)the Application was filed on 2 November 2015, and thus when the matter came on for hearing on 10 October 2017 almost two years had passed;
b)Mr Gardlenius had been provided with ample opportunity to file affidavit evidence and had done so;
c)Mr Gardlenius had also filed other documents in support of his case and had provided written outlines of submissions;
d)Mr Gardlenius would not be deprived of an opportunity to present his case if an adjournment were not granted;
e)the amount of time this matter had been on foot, and the wastage of the Court’s resources, having convened for a final hearing on a second occasion, and the further delay the parties would face in the matter being re-listed for a final hearing (noting that at the time of the hearing in October 2017 the earliest the matter could be re-listed for final hearing was September 2018); and
f)any adverse consequences to Mr Gardlenius because of a failure to grant an adjournment were minimal where the Court was already mindful Mr Gardlenius’ status as a self-represented litigant, and careful in its conduct of the proceedings: Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, No 146 of 1986, 16 June 1986).
When considering the interests of the administration of justice, issues associated with case management and wastage of public resources, the Court was of the view that those matters weighed significantly against the granting of an adjournment: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ, and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Having regard to the broad discretion exercised when determining if an adjournment should be granted: Myers v Myers [1969] WAR 19 at 21 per Jackson J, the Court elected to proceed with the hearing on 10 October 2017. To the extent there was any oral application for an adjournment it was therefore dismissed.
Evidence
At hearing Mr Gardlenius indicated that he intended to rely upon:
a)his affidavit affirmed 14 June 2016 (“History Affidavit”);
b)his affidavit affirmed 15 June 2016 (“Video Affidavit”);
c)his affidavit affirmed 14 July 2016 (“Timeline Affidavit”); and
d)four additional documents filed on 25 June 2017 (“Toluene documents”).
Advantage Panel and Paint relied upon the affidavit of its director and business manager Mr Rodger Martin (“Mr Martin”) filed 11 July 2017 (“Mr Martin’s Affidavit”).
Subject to the rulings on the objections to evidence below, the History Affidavit, Timeline Affidavit and Mr Martin’s Affidavit were taken as read and in evidence. At hearing Mr Gardlenius and Mr Martin gave oral evidence and were cross-examined on their respective affidavit evidence.
Rulings on objections to evidence
The Court has addressed the objections to the Video Affidavit separately at [18]-[31] below.
In respect of the History Affidavit:
a)the words “the concentration of toluene fumes was high” in para.1 of the section titled “The day of alleged adverse action” (“Incident Statement”) and the words “which consists of toluene” through to “in my work area” inclusive in para.10 of the Incident Statement are struck out as being unqualified opinion evidence. The Court does not accept that Mr Gardlenius’ 25 years of alleged workplace safety training and his personal opinion that he has the capacity to identify a hazard, qualify him to draw the conclusions expressed;
b)it was accepted by Mr Gardlenius the words “the manager commented that” through to the end of the quote, “a lot of chemicals”, in para.10 of the Incident Statement were hearsay, and they will be struck out on that basis;
c)in para.12 of the Incident Statement, the words “experiencing narcosis” are struck out: despite Mr Gardlenius’ submitting that as when one has “a few beers” you feel the effects of alcohol and drunken narcosis, and thus the same can be said for being under the influence of the fumes in question and therefore suffering narcosis, the Court does not accept that submission or that Mr Gardlenius has expertise appropriate to the expression of the opinion as to the experience of narcosis;
d)Mr Gardlenius conceded that para.14 of the Incident Statement was to be struck out on the basis of being conclusionary and speculative in relation to the reason why Mr Martin did not want him to wear a respirator; and
e)Mr Gardlenius conceded paragraphs 1 to 5 of the section titled “History of events leading to adverse action application” (“Prior Events”) were irrelevant to the present action as there was no claim being made that Mr Gardlenius was dismissed as a result of previously taking sick leave. Those paragraphs are therefore struck out.
In respect of the Timeline Affidavit;
a)an objection arose with respect to the annexure referred to as “the Worksafe Inspection Report of 3 July 2015”, however, the Worksafe Inspection Report was not annexed to the Timeline Affidavit, and given that the events concerned occurred after the alleged adverse action was taken, and the other documents filed were not intended to be relied upon, paragraph 7 is struck out;
b)the words “due to Respondent withholding Separation Certificate” in para.8 were conceded to be inapplicable to the cause of action and irrelevant in circumstances where Mr Gardlenius did not intend to rely upon the other documents filed in his “List of Evidence”, and are struck out;
c)the words “as a result” in para.9, are conclusionary, and are struck out; and
d)in para.10 the words “with no successful outcomes or remorse shown by Respondent” are opinion and conclusionary, and are struck out.
The Toluene Evidence was comprised of four documents, being:
a)first, a document describing what toluene is from the “Centers for Disease Control and Prevention”;
b)second, a Safety Data Sheet on toluene appearing to be from a company called Recochem or Diggers;
c)third, a journal article titled “Oxidative stress effects from thinner inhalation” from the Indian Journal of Occupational and Environmental Medicine; and
d)fourth, an abstract in relation to high chromosomal instability allegedly caused by levels of toluene the source of which is not apparent.
The objection to the Toluene evidence was that it was all hearsay. The Court agrees that the documents are hearsay. The Toluene Evidence is therefore inadmissible and will be struck out in its entirety.
The Video Affidavit
The Video Affidavit annexed three video files described by Mr Gardlenius as follows:
1. (204) Discussion about a Medical certification Dangers present in the workshop (
2. (205) Continuation of video number 1 with abusive language
3. Abusive language and threat
and which the Court will refer to as “Part 1”, “Part 2” and “Part 3” respectively, and collectively as the “Video Footage”.
Part 1 commences in a workshop. Mr Gardlenius places the camera in his pocket, which has the effect of at least partially concealing it. Areas of the workshop are then passed through until an office setting is entered. An exchange takes place between Mr Gardlenius and Mr Martin regarding Mr Gardlenius’ absence and Mr Martin becomes agitated and profanely directs Mr Gardlenius to leave the office and return to work. Mr Gardlenius walks to another area where an employee is using a spray gun and he then makes a remark about the content of the spray gun being “lethal” which elicits a response from the other employee that it “stinks”. Part 1 ends shortly after with the camera being taken out of the pocket and switched off.
Part 2 again appears to have the phone operating from a place of at least partial concealment in a pocket as Mr Gardlenius again walks into Mr Martin’s office and passes a sheet of paper to another employee in the office who calls Mr Gardlenius a “smart arse”. Mr Martin says “unless you are on some other contract I don’t know about”. Once again profanities are exchanged, Mr Gardlenius appears to leave the office and the camera is removed from the pocket and switched off.
In Part 3 the phone is again at least partially concealed in a pocket and Mr Gardlenius returns to the office and engages in an exchange with Mr Martin who makes comments concerning Mr Gardlenius’ attitude and constant arguing. Mr Martin makes a comment that “he owns this place” and if Mr Gardlenius wants to work there and keep working there he should get back to work.
In each part of the Video Footage Mr Martin employs colourful language in his conversation with Mr Gardlenius and he is clearly agitated and annoyed with Mr Gardlenius. The vision in each part is distorted as a result of it having been concealed, and in each circumstance the camera is turned on in an area where no other persons can be seen or heard and immediately prior to entering the office and conversing with Mr Martin, and is thereafter removed from the pocket where it was concealed and turned off almost immediately after leaving the office and returning to an area in which there appears to be no other persons around. The Court makes the observation that the Video Footage also appears to have been recorded on or around 27 May 2015, that is more than one month before the event that led to Mr Gardlenius’ dismissal.
Advantage Panel and Paint objected to the admissibility of the Video Footage pursuant to s.138 of the Evidence Act 1995 (Cth) (“Evidence Act”) as the recordings were said to be made in breach of the Surveillance Devices Act 1998 (WA) (“Surveillance Devices Act”). In the course of cross-examination regarding the purpose of Mr Gardlenius taking the Video Footage Mr Gardlenius said as follows:
a)he did not put the camera in his pocket so he could conceal it, it was a mesh pocket so it was therefore see-through and the camera was red and he simply placed it in his pocket as it was convenient;
b)he did not tell Mr Martin he was recording the exchange or that there was a camera in his pocket, he did not do so because Mr Martin is “quite aggressive” and he did not think he would take it well;
c)Mr Gardlenius did not knock on the door or ask if he could enter Mr Martin’s office as Mr Martin had asked him to, because he had a rough idea it was about being on sick leave and needing a medical certificate as it had been raised two days earlier that Mr Martin would like to speak to him, and that is why he made the recording as it was about the sick leave issue and he was concerned as to what might occur and had no witnesses so he needed something to “back himself up”;
d)Mr Gardlenius believes it is appropriate to record conversations with his employer, however, the recordings he took of Mr Martin were the only time he has done so; and
e)when Mr Gardlenius went over to his fellow employee in Part 1 it was because he had seen a dangerous situation and went over to film it. At the time he was “more or less just milling around” as he was emotional at that time and didn’t “quite know what direction” he was going in to perform his regular duties.
Section 138(1) and (3) of the Evidence Act provides as follows:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Section 5(1) of the Surveillance Devices Act provides as follows:
(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device—
(a) to record, monitor, or listen to a private conversation to which that person is not a party; or
(b) to record a private conversation to which that person is a party.
Section 9 of the Surveillance Devices Act relevantly provides as follows:
(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
(2) Subsection (1) does not apply —
(a) where the publication or communication is made —
…(ii) with the express or implied consent of each principal party to the private conversation or private activity;
…(vi) for the protection of the lawful interests of the person making the publication or communication;
Mr Gardlenius contends the Video Footage should be admissible as:
a)the conversation was not private because the office door was open and customers entering the premise could easily have overheard the conversation and the same is true for employees in the vicinity, while the supervisor seen in the video was at the time on the telephone and the party on the other end could also hear the conversation between Mr Martin and Mr Gardlenius;
b)the Video Footage was recorded to protect Mr Gardlenius’ rights and interests which were being violated as Mr Martin was not following procedure for these types of situations, and if the correct procedures were followed Mr Gardlenius would not have been forced to resort to the unusual but necessary tactic;
c)the camera used to take the Video Footage was in a mesh pocket and could clearly be seen as it is bright red therefore not concealed; and
d)Mr Martin did not expressly forbid the recording of the conversation or ask me him if he was recording the conversation.
In the Court’s view, and despite Mr Gardlenius’ submissions to the contrary, it is evident that the Video Footage was taken with a mobile telephone which was sufficiently concealed to enable the Video Footage to be taken covertly.
In Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318 at [42]-[45] per Judge Lucev (from which an appeal in Ogbonna v CTI Logistics Ltd [2016] FCA 239 was dismissed) this Court referred to the following authorities, both binding and persuasive, on the admissibility of video evidence taken covertly:
42 In Metz Holdings Pty Ltd v Simmac Pty Ltd & Ors (No. 1) [2011] FCA 263; (2011) 193 FCR 195 (“Metz Holdings”) the Federal Court was dealing with the tender of a computer disk containing recordings of conversations by using a mobile telephone. The Federal Court held that in the circumstances where there was a dispute between the parties concerning legal obligations, and when the recordings were made they had been made in order to protect lawful interests, the further publication of the recordings was necessary in order to protect the same legal interests: Metz Holdings at [24] per Barker J.
43 In Jones v Chief of Navy [2012] FCAFC 125; (2012) 205 FCR 458; (2012); 294 ALR 28 (“Chief of Navy”) there was an appeal by a male naval officer against his dismissal for, amongst other things, smacking the buttocks of a junior female naval officer. In issue on the appeal was the admission of a recording between the male naval officer and service police, the recording having been admitted pursuant to the discretion in s 138(1) of the Evidence Act by the Federal Court at first instance. The appeal was rejected with the Full Court of the Federal Court observing that the male naval officer's extraordinary responses to the questioning about the pretext for recording was distinctly probative as tending to show a consciousness on his part that his conduct towards the female naval officer involved knowing manipulation of her: Chief of Navy at [161] and [163] per Keane CJ; Emmett, Edmonds, Besanko and Robertson JJ.
44 In Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694 (“Wintle (No.3)”) this Court admitted into evidence an inadvertent covert recording of a meeting, by consent of both parties, in circumstances where the parties, and the Court, considered that the recording was likely to assist with the determination of an issue concerning undue influence or undue pressure allegedly placed on an employee at a meeting…
45 In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; (2012) 261 FLR 211; (2012) 86 ACSR 713(“Georgiou Building”) the Western Australian Supreme Court held that whether the use of a device is reasonably necessary is to be judged on the circumstances that existed at the time of its use, and that a recording made where a serious dispute has erupted, and where there will be a dispute as to different versions of an arrangement, may give rise to a lawful interest, and the lawfulness of the interest may exist whether a dispute was either present or anticipated: Georgiou Building at [16]-[17] per Allanson J.
In Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248 (“Chappell”) at [29]-[38] per McKerracher J the Federal Court considered in extensive detail the authorities on the admissibility of evidence taken covertly, the meaning of “private conversation” and in particular the intention of provisions such as s.5 of the Surveillance Devices Act. In Chappell the issue concerned whether a recording, allegedly covert, made by security guards of a conversation between the applicant and an employer representative was admissible, with the focus on the meaning of “private conversation” The Federal Court observed that if the security guards could be regarded as having been part of the conversation, then arguably it would have been a “private conversation” which should not have been recorded: Chappell at [44] per McKerracher J. Ultimately, it was not necessary for the Court to decide the point conclusively. In Chappell at [38] per McKerracher J the Federal Court placed particular emphasis on the following extract
sfrom Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246 at [19] per Owen J:19 The second of the issues of construction relates to the extent of the exclusion in the last three lines of the definitions of ‘private activity’ and ‘private conversation’ respectively. Something is not a private conversation or private activity if the parties to it ought reasonably to expect that the conversation or activity may be overheard or observed. It is to be noted that the test here is largely objective. The problem arises because of the word ‘parties’(plural) in the exclusionary provision. The first part of the definition refers to ‘any of the parties’. The test under the first part is primarily subjective, that is, the person must actually hold that desire, although the circumstances must also be such as to make the indication of desire ‘reasonable’. Thus, if the circumstances reasonably indicate that any one or more, but not necessarily all, of the parties desired that the incident be observed or heard only by the principal parties, that is enough to satisfy the first part of the definition. But I do not think that the use of the word ‘parties’ (plural) in the exclusionary provision means the definition cannot be satisfied unless all of the parties ought reasonably to have intended the incident to be restricted to themselves. It may well be the case that one of the parties (being the one who is wearing the device) knows full well that the incident is being observed or listened to by third parties. I think the term ‘parties’ in the exclusionary provision refers primarily to the person who comes within the phrase ‘any party’ in the earlier part of the definition but may extend to other parties as well. The words of the exclusionary provision reinforce the need for objective, as well as subjective, considerations in drawing the appropriate inferences.
Ultimately, it is unnecessary for the Court to determine the admissibility of the Video Affidavit pursuant to s.138 of the Evidence Act. That is because in the Court’s view the evidence in the Video Affidavit is irrelevant to the alleged contravention of a general protection under the FW Act. The events in the Video Affidavit precede Mr Gardlenius’ dismissal by more than a month, and are unrelated to the events on the day that Mr Gardlenius was dismissed from his employment. They are therefore irrelevant, and, therefore inadmissible: Evidence Act, s.56(2). Further, even if the conversations in the Video Footage did amount to private conversations for the purposes of s.5(2) of the SD Act (a point which it is unnecessary to decide) the Court would not have taken the view that it was desirable to admit the evidence because its probative value is limited in light of its being irrelevant, and therefore its importance in the proceeding is also limited, and those two factors, referred to at s.138(3)(a) and (b) of the Evidence Act, would be sufficient to determine that the Video Footage was not admissible under s.138(1) of the Evidence Act. The mere fact that Mr Martin may have used improper language towards, or in the presence of, Mr Gardlenius on or about 27 May 2015 does not, in the Court’s view, make that conduct relevant for the purposes of assessing whether or not Mr Gardlenius was dismissed from employment in contravention of a general protection more than a month later when he abused Mr Martin in response to a request to remove a respirator while moving through non-workshop parts of the premises of Advantage Panel and Paint. There is no causal link between the language used by Mr Martin in the 27 May 2015 Video Footage and his reason for dismissing Mr Gardlenius when Mr Gardlenius abused him on 30 June 2015. If the Video Footage was tendered in an endeavour to establish “workplace culture” then it does not do so. At best the two earlier incidents in which profanities are used are isolated incidents, to some extent artificially forced by Mr Gardlenius’ conduct, and of themselves are not sufficient to establish a culture in the workplace of the use of inappropriate or foul language. It is also relevant to observe that the issue in these proceedings is whether or not there has been contravention of a general protection, and the Court is not assessing the fairness of the conduct of the employer. This was not, as the Court observed during the hearing, an unfair dismissal action: Transcript, pp.3, lines 28-30 and 53, line 36.
Mr Gardlenius’ Evidence
In the Timeline Affidavit, recounting the day of his dismissal, Mr Gardlenius says as follows:
1. On the day in question, I was walking from my detailing area towards the spray painting area of the workshop to get my next job, a Mercedes 200 series. I was wearing my respirator. When I passed the respondent's office, the respondent came out and told me “don't walk around wearing your mask” (respirator).
2. I continued walking as I found it best just to ignore him. I made the mistake of turning around and walking back to engage in conversation. The respondent then repeated his demand for me to remove the mask (respirator).
With the mask on I replied “why don't you go and fuck yourself ' as I was very frustrated after being antagonized about wearing the respirator for quite a while.
The respondent then asked if I had told him to go and get fucked to which after taking a breath with the respirator on, I answered in the affirmative. The respondent then told me I was dismissed for verbal abuse.
At which point the respondent told me if I didn't leave he would call the police to remove me from the premises stating “this is my workshop and I want you gone now”.
To which the respondent asked Kylie Bent (the receptionist and administrator) to call the police.
3. At this point, I decided the respondent was serious and had indeed dismissed me. I walked to the computer where staff clocked on and off. When I turned my back on the respondent, he started throwing rolled up bits of paper at my back.
4. Once I reached the computer to clock off, Paul Leckenby (spray painter) asked what had happened as he had observed the altercation at a distance. I told him I was dismissed for not taking off my respirator and swearing.
5. I then went back towards the respondent to reach my detailing area, and the exit, to gather my belongings to leave the premises as instructed. All the while the respondent goaded me. I walked away and the respondent kept his distance.
6. As I was driving away, I saw the police on King Edward Street around the corner. I presume the police were on their way to the respondent's workshop.
During cross-examination Mr Gardlenius confirmed that his recollection of the events of 30 June 2015 was “fairly good”. He said he remembered the basic events, however, his emotional state clouded his recollection of what occurred afterwards, and from the point at which he removed the respirator he stated his recollection was not “good”, and that it had also been two years from the time of the incident to the time when he was providing evidence: Transcript, p.31 lines 6-22, p.39 lines 39-45 and p.40 lines 1-5.
Mr Gardlenius accepted that on the day of his dismissal Mr Martin had not sworn at him when he was asked to take his respirator off, and that Mr Gardlenius had used offensive language in response to that request: Transcript, p.35 lines 1-12 and 46 and p.36 lines 1-3. Mr Gardlenius contended that that was an appropriate response, and that he had continued to wear the respirator despite being asked to take it off so he could “protect [my] health”. Mr Gardlenius denied that he had threatened to fight Mr Martin, but accepted when put to him that there was a verbal altercation: Transcript, p.36 line 39.
Advantage Panel and Paint’s evidence
In Mr Martin’s Affidavit he relevantly deposes as follows:
THE APPLICANT'S ROLE
6. Advantage employed Hans-Erik Gardlenius (the “Applicant”) as a car washer…
12. I never tasked the Applicant to perform duties, other than valet, that required him to be in spray-painting booths while work was underway, as he is not qualified [to] perform such jobs.
RESPIRATORY MASK
13. The Applicant insisted on wearing a painting respiratory mask even though he was not allowed in the spray-painting booths.
14. The Applicant's duties did not expose him to any hazardous chemicals. Washing cars did not require a respirator. I felt it is unnecessary for him to wear the respirator.
15. However, I acquiesced to his request to use the respirator at work to avoid an argument with him.
16. For the avoidance of doubt there was no requirement, safety concern or rationale for the Applicant to wear a respirator in the performance of his duties
REASON FOR DISMISSAL
26. The altercation took place in a section of the workshop that did not require the wearing of a respirator, and the Applicant was in no danger whatsoever when I instructed him to remove the painting respirator.
27. I dismissed the Applicant because when I gave him what I considered to be a lawful instruction, he responded by verbally abusing me and making threats of violence.
When Mr Gardlenius was called upon to cross-examine Mr Martin the following occurred:
MR GARDLENIUS: Now, in your affidavit, Mr Martin, you base your decision making on what? Can you tell me that
MR MARTIN: On – decision making on how the – how the business is going. How it’s performing.
MR GARDLENIUS: Whether or not I could wear a respirator. How did you come to that decision? It says in your affidavit that you felt it was unnecessary for me to wear one?
MR MARTIN: No. I wanted to talk to you to shift some cars, and you had a respirator on, and it was smoko.
MR GARDLENIUS: Yes, but in your ‑ ‑ ‑?
MR MARTIN: There were no cars in that vicinity.
MR GARDLENIUS: But in your ‑ ‑ ‑?
MR MARTIN: That you stated.
MR GARDLENIUS: But in your affidavit you said that you felt that it was unnecessary for me to wear a respirator?
MR MARTIN: At that time, yes.
MR GARDLENIUS: Yes. So you based that on – what codes or laws do you base that on or do you just base that on a feeling?
MR MARTIN: On because I employed you as a car washer.
MR GARDLENIUS: So that’s – that’s the only way. Okay. And what about – sorry, that’s – that’s all, your Honour. That’s all I’ve got.
(Transcript, p.46 lines 1-21).
The Court explained to Mr Gardlenius that if there was a matter in dispute or in contention in the proceedings, and a matter of fact in Mr Martin’s evidence he wished to challenge, it was necessary for him to put to Mr Martin what it was that was in dispute or challenged, in order to give Mr Martin the opportunity to meet that issue. Mr Gardlenius advised the Court he was unaware the matter was listed for final hearing and had not come prepared and had not brought Mr Martin’s Affidavit to Court: Transcript, p.46 lines 33-44 (the Court has addressed this matter in the context of the adjournment issue at [6]-[9] above). To alleviate Mr Gardlenius’ concern the Court adjourned for lunch (at 12.30pm) and provided Mr Martin’s Affidavit to Mr Gardlenius to consider during the luncheon adjournment: Transcript, p.47 lines 1-5. Upon the Court resuming at 2.17pm Mr Gardlenius further cross-examined Mr Martin, and Mr Martin:
a)stated that he was not aware what the active ingredient in the materials Mr Gardlenius used in his everyday duties was;
b)acknowledged that Mr Gardlenius ordered a respirator without advising anyone, and that Mr Gardlenius apparently did so because he did not feel comfortable wearing the paper masks provided by Advantage Panel and Paint;
c)admitted he believed this was “a bit of overkill” but just to make Mr Gardlenius happy allowed him to wear it “halfway”, although he remained of the opinion it was not a “good look” for customers to see;
d)said that Mr Gardlenius’ supervisor, “stood up” for Mr Gardlenius and agreed to allowing Mr Gardlenius wearing the respirator; and
e)said he based his decision-making process in allowing Mr Gardlenius to wear the respirator on the fact that Mr Gardlenius had told him that when the cars came down and were dusty from being worked on, it was more comfortable to wear a proper respirator than a paper mask which Advantage Panel and Paint supplied for him: Transcript, p.48 and p.49 lines 1-11.
Submissions
Mr Gardlenius submitted that:
a)Mr Martin instructing him to remove the respirator was an illegal instruction in contravention of workplace safety law, specifically citing ss.19, 20 and 22 of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”), and the spray painter’s code of conduct and practice published by the Department of Commerce;
b)to argue that Advantage Panel and Paint was acting within its rights to dismiss him for swearing is not a valid defence because Advantage Panel and Paint was acting outside the law before he reacted by swearing and the Video Footage shows clearly that Mr Martin himself swears at his employees thus demonstrating to employees the behaviour acceptable to Mr Martin in the workplace;
c)Advantage Panel and Paint caused this situation which was avoidable, but it chose “wantonly, wilfully and in a maliciously premeditated manner” to cause him as much harm as possible financially and personally and with a total contempt for the law without remorse or contrition;
d)he was asked to expose himself to this hazard by his employer who was in fact trying to kill him, and what has occurred can be likened to a war crime, by analogy the Holocaust of World War Two and the extermination of Jews in the gas chambers of Auschwitz;
e)Advantage Panel and Paint withheld the “Separation Certificate” on a false representation to Centrelink so as to deprive him of any way to feed or shelter himself for nearly six weeks; and
f)damages in the amount of $690,000 should be awarded and according to “Brad and Dunn Streets” online financial information service of business income lists Advantage Panel and Paint is in the top ten percent of earners in the vehicle repairers industry with an annual turnover of $17 million and as such Advantage Panel and Paint can easily pay for their actions.
The Court notes that the “Spray Painters Code of Conduct and Practice” and the online financial business income lists were not tendered in evidence.
Advantage Panel and Paint submitted that:
a)Advantage Panel and Paint was entitled to summarily dismiss Mr Gardlenius from employment on the grounds of serious misconduct and the claim that the request to remove the respirator was the reason for dismissal is incorrect in law and fact;
b)it is lawful and reasonable for an employer to impose dress and appearance standards where the employee deals with customers, and failing to comply with an instruction to comply with a dress code is a lawful and valid reason for dismissal from employment at common law, as is insolence and swearing towards a supervisor: Australian Telecommunications Commission v Hart (1982) 65 FLR 41; (1982) 43 ALR 165 at 43-49 per Fox J; Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285; (2005) 57 AILR 100-415 at [46] per Lawler VP, Lloyd SDP, Bacon C; Farley v Lums (1917) 19 WALR 117 (“Farley”);
c)Advantage Panel and Paint allowed Mr Gardlenius to wear a respirator during his duties only at the request of Mr Gardlenius, not pursuant to any legal obligation or industry requirement, further Mr Gardlenius was never hindered or not allowed to wear a respirator even though the wearing of a respirator was wholly unnecessary and he was in no danger when requested to remove the respirator, and was only asked to do so in order to communicate an instruction;
d)Advantage Panel and Paint complied with their duties under ss.19 and 22 of the OSH Act as evidenced by a WorkSafe inspection that Advantage Panel and Paint passed without censure, the inspection being was the result of a complaint lodged by Mr Gardlenius relating to perceived contraventions of the OSH Act by Advantage Panel and Paint;
e)despite its opinion that the respirator was unnecessary personal protective equipment as there was no hazard during car washing duties, Advantage Panel and Paint paid Mr Gardlenius half the cost of the respirator and did not forbid it being worn in Mr Gardlenius' work space;
f)Mr Gardlenius cannot establish that his working environment was such that he had a right to wear a respirator, and in the absence of proof of such an entitlement, Mr Gardlenius’ case must fail; and
g)Mr Gardlenius did not put to Mr Martin his version of events for Mr Martin to respond to and never challenged Mr Martin on the statement that his reason for dismissal was because “when he gave him what he considered to be a lawful instruction, he responded by verbally abusing me and making threats of violence” and, therefore the presumption that ordinarily applies by s.361 of the FW Act has been rebutted by Mr Martin’s evidence and the failure to challenge that evidence.
Consideration
Essentially, there were two issues for the Court to determine arising from the Application:
a)whether adverse action was taken against Mr Gardlenius by reason of the exercise of a workplace right (“Workplace Right Issue”); and
b)whether or not there was a false and misleading representation made in relation to a workplace right and adverse action taken (“Misrepresentation Issue”).
Workplace Right Issue
Mr Gardlenius alleges that Advantage Panel and Paint, in terminating his employment, contravened s.340(1) of the FW Act which provides as follows:
(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.
Section 341(1) of the FW Act defines a “workplace right”, and provides as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Section 342 of the FW Act defines the meaning of “adverse action”. Relevantly, s.342(1), item 1, column 2(a) of the FW Act provides that adverse action is taken by an employer against an employee when an employer “dismisses” the employee. There is no dispute in the present circumstances that the dismissal of Mr Gardlenius constitutes adverse action as defined, and the real question is whether or not the adverse action was taken because of any workplace right that Mr Gardlenius had under s.340(1) of the FW Act, that is, whether the adverse action was taken for a prohibited reason.
The word “because” in s.340 of the FW Act requires a causal link between the applicant’s workplace right and the adverse action: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [60] per Foster J. The meaning of “because” is not defined in the FW Act. Its meaning, albeit in relation to s.346 of the FW Act (which is similar terms to s.340), was discussed in Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”) at [100] to [104] per Gummow and Hayne JJ as follows:
100.The application of s 346 turns on the term “because.” This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101.The use in s 346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.
102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability”. Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
“Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3- 1.”(emphasis added)
The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling.
104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
Mr Gardlenius must establish that any alleged adverse action was taken “because” of the circumstances alleged and needs to “establish the existence of the circumstances as an objective fact…”: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J.
If Mr Gardlenius can establish, on the balance of probabilities, that:
a)the conduct alleged occurred;
b)he has a “workplace right”; and
c)Advantage Panel and Paint took “adverse action”,
the onus then shifts to the employer to prove that the adverse action was not motivated by an impermissible reason, but rather was taken for a reason unrelated to any workplace right held or exercised by Mr Gardlenius: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; (1999) 47 AILR 4-239 at [221] per RD Nicholson J; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [368]-[369] per Barker J. In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
The reverse onus is created by operation of s.361(1) of the FW Act which provides as follows:
(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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The principles, in determining whether an employer has proven otherwise were established in Barclay, and can be summarised as follows:
a)the central question to be determined: “why was the adverse action taken?” is one of fact;
b)the central question is to be answered having regard to all the facts established in the proceeding;
c)the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;
d)it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;
e)even if the decision-maker gives evidence that they acted solely for non-proscribed reasons, other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and
f)if, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s.361 of the FW Act.
See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.
In Barclay the High Court also said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person may be regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.
The Court observes that:
a)Mr Gardlenius alleges that he was dismissed for a prohibited reason in contravention of s.340(1) of the FW Act;
b)specifically Mr Gardlenius alleges he was dismissed because of an occupational, safety and health issue in relation to the wearing of the respirator;
c)it is not in dispute that Advantage Panel and Paint dismissed Mr Gardlenius from his employment;
d)it is for Advantage Panel and Paint to prove that the dismissal was not for a prohibited reason: s.361 of the FW Act;
e)the prohibited reason must be a substantial or operative factor influencing the dismissal or, alternatively, an “operative or immediate reason” for the action: Barclay at [104] per Gummow and Hayne JJ, and [140] per Heydon J; and
f)if the decision-maker gives direct evidence that:
i)the decision-maker did not act for a prohibited reason; and
ii)that evidence is accepted as reliable,
then the burden of proof imposed by s.361 of the FW Act will be discharged: Barclay at [45] per French CJ and Crennan J.
Adverse action
Mr Gardlenius was clearly the subject of adverse action: he was dismissed on 30 June 2015 following the incident with Mr Martin.
Was there the exercise of a workplace right?
What then stands to be determined is, firstly, whether Mr Gardlenius was exercising a workplace right and, secondly, if there was the exercise of a workplace right, whether Mr Gardlenius was dismissed for his exercise of a workplace right.
The alleged workplace right Mr Gardlenius has founded his claim upon was a right to wear particular personal protective equipment, namely a respirator, in the workplace.
The Court notes it has previously recognised that for the purpose of s.341 of the FW Act, the OSH Act is a “workplace law”: Australian Rail, Tram & Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954; Picos v Healthengine Pty Ltd [2015] FCCA 1983.
Advantage Panel and Paint contended that Mr Gardlenius’ role as a car washer did not require him to wear a respirator, and he was not entitled to the benefit of the Spray Painters Code of Practice, and nor was there a requirement under the OSH Act that he was required to wear a respirator to complete his duties.
Mr Gardlenius must satisfy the Court he was entitled to wear a respirator by virtue of the OSH Act, that is he must satisfy the Court he was exercising a workplace right: Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241 at [10] per Collier J.
It is relevant to note the duties of employers under s.19(1) of the OSH Act as follows:
(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall—
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b) …
(c) …
(d) where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e) make arrangements for ensuring, so far as is practicable, that—
(i) the use, cleaning, maintenance, transportation and disposal of plant; and
(ii) the use, handling, processing, storage, transportation and disposal of substances.
at the workplace is carried out in a manner such that the employees are not exposed to hazards.
Mr Gardlenius referred to Awwad v Topline Paint Pty Ltd [2007] SAIRC 47 and Inspector Cooper v Ward [2013] NSWIRComm 95. Both of these cases had a factual matrix where an employer has been held liable for failing to provide respirators to those cleaning spray painting guns with toluene. These cases can be distinguished on the basis that Mr Gardlenius was responsible for washing and cleaning cars, and would occasionally shift the cars on instruction. Mr Gardlenius admitted he was not responsible for cleaning the spray painting guns, but alleged that residual fumes would often blow into his workspace and the “washing bay”.
The Court observes that there is no reliable evidence, expert or otherwise which:
a)establishes exactly what chemicals, if any, Mr Gardlenius might have been exposed to in the course of his employment as a car detailer working for Advantage Panel and Paint; or
b)that, if Mr Gardlenius was exposed to any chemicals, at what level the exposure was, and whether those levels would have required the wearing of the respirator which Mr Gardlenius had opted to wear.
Bearing in mind that Mr Gardlenius was employed to wash cars, and not as a spray painter, the Court is of the view that expert evidence was required to establish both the nature and extent of any exposure to chemicals which Mr Gardlenius would have had, before it can be established that he had a workplace right to wear a respirator.
The Court further observes that:
a)Mr Martin and others who are not engaged in spray painting duties did not wear respirators;
b)the offices in the workshop were directly parallel to the spray painting workshop where the spray painting guns were cleaned;
c)Mr Gardlenius’ supervisor did not wear a mask because “he doesn’t paint” (the Court noting that Mr Gardlenius “doesn’t paint”);
d)the use of the respirator was insisted upon by Mr Gardlenius as he found the paper masks provided by Advantage Panel and Paint “uncomfortable”;
e)Advantage Panel and Paint had therefore provided “practicable” PPE, being the paper masks, at no cost to Mr Gardlenius: OSH Act, s.19(d); and
f)it was Mr Gardlenius who chose to order and wear the respirator for which Advantage Panel and Paint agreed to pay half.
On the evidence Mr Gardlenius’ wearing of a respirator was a matter of preference as opposed to a matter of right. The evidence suggests that Advantage Panel and Paint were compliant with s.19(1)(d) of the OSH Act whereby Mr Gardlenius was provided with a “paper mask”. The Court cannot be satisfied Mr Gardlenius had either a need or a workplace right to wear a respirator. Therefore, no exercise of a workplace right pursuant to s.341(1)(a) of the FW Act is established.
The Court is therefore of the view that insofar that the Application claims Mr Gardlenius was dismissed in breach of a general protection, that claim is unfounded and should be dismissed. Mr Gardlenius has failed to satisfy the Court that there was an exercise of a workplace right.
Was there a causal connection?
Even if the Court’s conclusion that there was not the exercise of a workplace right is incorrect (which the Court does not consider it is) the Application still cannot succeed because in the Court’s view, for the reasons that are set out below, it has not been established that Advantage Panel and Paint dismissed Mr Gardlenius because of the exercise of a workplace right, even if he was exercising one.
By virtue of s.361 of the FW Act, where Mr Gardlenius has been the subject of adverse action, and for present purposes assuming that he exercised a workplace right, the presumption the adverse action was taken for a prohibited reason arises and the onus shifts to Advantage Panel and Paint to prove otherwise. Advantage Panel and Paint can do so by leading evidence that the adverse action was not taken “because of” the exercise of the workplace right: that is, there must be some causal connection between the exercise of the workplace right and the adverse action: FW Act, s.340; Barclay.
In Barclay it was stated that direct evidence from the decision-maker as to their state of mind, intent or purpose will bear upon the question of why adverse action was taken, and the central question the Court shall direct itself to determine will be “why was the adverse action taken?”: Barclay at [44] per French CJ and Crennan J. Mr Martin’s Affidavit provided direct evidence as to his state of mind and reason for dismissing Mr Gardlenius:
18. I called the Applicant to instruct him to move a customer's car.
19. When I tried to communicate with the Applicant, I could not understand him. I considered that the painting respirator was inhibiting my ability to understand him.
20. I therefore requested that he remove the respirator. The reason I did so was to ensure that I could hear him and communicate an instruction.
21. Upon removing the respirator, the Applicant cursed and abused me, and repeated the verbal attacks in the presence of a female employee, Kylie Bent. He repeated several times that I must “fuck off' and that I am a “fat cunt”.
22. I ordered him to leave the premises immediately, fearing that customers might witness the altercation and in order to defuse the situation.
23. The Applicant then escalated his verbal abuse to threatening behaviour, such as threatening to harm me.
24. The Applicant also made direct threats of violence. The Applicant used words to the effect that he wanted to fight me.
25. The Applicant only left after Kylie Bent moved to call the police.
REASON FOR DISMISSAL
26. The altercation took place in a section of the workshop that did not require the wearing of a respirator, and the Applicant was in no danger whatsoever when I instructed him to remove the painting respirator.
27. I dismissed the Applicant because when I gave him what I considered to be a lawful instruction, he responded by verbally abusing me and making threats of violence.
Mr Gardlenius did not challenge this evidence in cross-examination. Mr Gardlenius was made aware by the Court of the necessity to challenge any evidence that was disputed: see [37] above. Mr Gardlenius did not cross-examine Mr Martin. The Court therefore can do no more than accept the content of Mr Martin’s Affidavit as true. In any event, it is fair to observe that Mr Gardlenius’ own evidence as to what he admits saying to Mr Martin, whilst different to Mr Martin’s recollection, is not inconsistent with the tenor of what Mr Martin says Mr Gardlenius said to him. Indeed, in some respects, Mr Gardlenius’ own version of events is more damning to Mr Gardlenius insofar as it plainly shows him calling into question the authority of the employer. Mr Gardlenius’ evidence was that Mr Martin had not used any foul language when asking that he remove the mask, and that Mr Gardlenius had responded with profanity and the situation escalated from there.
Swearing in the workplace may be sufficient for an employer to dismiss an employee, but often the context of the incident is critical. Advantage Panel and Paint referred to Farley, where, a century ago, the employer was held to have been justified in dismissing the employee for using the language “bloody” and “damn” toward the employer, and where it was held that:
It all depends upon the act for which he is dismissed, or the words he speaks, because every case must be dealt with on its own peculiar facts, and in every case the question is whether what is put forward as misconduct is sufficient to justify dismissal. In this case the magistrate took into consideration the words used and the circumstances under which they were used, and he was in a much better position to deal with the facts than we are, because he would know from the way the evidence was given the manner in which the words were uttered.
In Drury v BHP Refractories Pty Ltd (1995) 62 IR 467 (“Drury”) an employer and employee had partaken in a colourful exchange and the employee was thereafter dismissed. In Drury at 473 per Wilcox CJ the Industrial Relations Court of Australia observed that:
Having said all this, the fact remains that Mr Drury 's behaviour was unacceptable. I agree with Mr Raymond that it did not constitute “serious misconduct”, warranting instant dismissal. But it was behaviour that went beyond even the “give and take” atmosphere of a modern Australian workplace. It was disruptive behaviour that called into question the authority of the person who was in charge of the project. If continued after a clear warning, it was conduct that constituted a valid reason, connected with the operational requirements of the project, for Mr Drury 's termination… The unacceptable aspect of Mr Drury's behaviour was not the pressing of his claim for the two days pay, whether or not the claim was well-founded, but his doing so in an abusive and insubordinate manner.
Neither Farley nor Drury are, however, directly on point because:
a)in Farley the issue was whether there had been misconduct such as to give right to a rise of summary dismissal by the employer, thereby vitiating what would otherwise have been a breach of contract giving rise to a requirement to make a payment in lieu of notice of termination of employment; and
b)in Drury the issue was whether there was a “valid” reason for termination,
where as in this case the question is whether or not the adverse action, that is the dismissal of Mr Gardlenius, was taken because of the exercise of a workplace right. Nevertheless, both Farley and Drury, (and other cases cited by Advantage Panel and Paint at [40(b)] above) do indicate that an employer may dismiss an employee from employment on the basis of the use of abusive language in the workplace, particularly where that abusive language is directed toward the employer’s representative.
Mr Gardlenius was not entitled to act in an abusive and insubordinate manner as he did. To sustain an action under s.340 of the FW Act tan applicant must establish that the substantial and operative reason for the adverse action is “because of” the exercising of a workplace right: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J. It cannot be said that the substantial and operative reason for dismissal was “because of” Mr Gardlenius wearing the respirator. Rather, it was Mr Gardlenius’:
a)failure to comply with the instruction of Mr Martin to remove the respirator;
b)use of aggressive and foul language in response to Mr Martin’s instruction;
c)continued disregard of the instruction to remove the respirator; and
d)threats of violence and harm directly made to Mr Martin, and also implicit in Mr Gardlenius saying words to the effect that he wanted to fight Mr Martin.
In the Court’s view there is no doubt that Mr Gardlenius’ conduct as set out in [75(a)-(d)] above was serious misconduct because it demonstrated a disregard of the essential conditions of a contract of service, and a single act can justify a dismissal, especially where it is destructive of the relationship between employer and employee: Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 at 701 per Lord Evershed MR; North v Television Corporation Ltd (1976) 11 ALR 599; (1976) 177 CAR 1278, ALR at 609 per Smithers and Evatt JJ; Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312; (2000) 103 IR 160; (2000) 176 ALR 693; (2000) 49 AILR 4-436 at [51] per Kiby J; Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209 at [104] per Lucev FM. Mr Gardlenius’ conduct in this case falls within the bounds of serious misconduct, and it was that misconduct that was the substantial and operative reason for his dismissal, not the exercise of a workplace right (assuming, as is not the case here, that he was in fact exercising a workplace right).
Misrepresentation Issue
Section 345 of the FW Act reads as follows:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
With respect to s.345 of the FW Act, a representation is considered to be a broader concept than a mere statement, and has a mental element that requires the representation to have been made either recklessly or with knowledge as to its falsity: Construction, Forestry, Mining & Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; (2007) 173 IR 360; (2007) 248 ALR 169 at [11] per North, Lander and Buchanan JJ.
Mr Gardlenius’ claim was that:
The evidence submitted containing the Separation Certificate and Verbal Separation Certificate obtained under FOI constitutes adverse action as specified under the Fair Work Act 2009 s345-(1)(a)(b) because it is false and misleading to the reason for dismissal, and is giving false information to a government department(Centerlink.) about my conduct.
In essence Mr Gardlenius claim was that Advantage Panel and Paint had misrepresented the circumstances of his dismissal to Centrelink, which thereby denied him access to government benefits from Centrelink. Mr Gardlenius made no submissions on this point at the hearing and there was no evidence given at hearing establishing his claim of a false and misleading misrepresentation. It therefore follows that this claim must be dismissed.
Advantage Panel and Paint submitted that Mr Gardlenius’ case was premised on his exercising an alleged workplace right to wear a respirator and as the workplace right was not exercised, then this aspect of Mr Gardlenius’ case falls away. The Court has already made findings above that Mr Gardlenius was not exercising a workplace right in respect to wearing the respirator, and furthermore that even if he were exercising a workplace right to wear a respirator that was not the substantial and operative reason for his dismissal. Therefore, the misrepresentation, or any representation, Mr Gardlenius considered was in breach of s.345 of the FW Act could not have been established even if Mr Gardlenius had led evidence as to the alleged false and misleading representation.
The misrepresentation claim is not made out and must be dismissed.
Conclusion and orders
The Court has concluded that Mr Gardlenius’ allegation of contraventions of a general protection by Advantage Panel and Paint in dismissing him from employment and in making a false or misleading representation concerning his workplace rights have not been made out, and the Application must therefore be dismissed. There will be an order accordingly.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferris & Ors (No 2) [2017] FCCA 1713). If, however, Advantage Panel and Paint considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 August 2019
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