Gee v Macmahon Underground Pty Ltd (No.2)
[2019] FCCA 2398
•30 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEE v MACMAHON UNDERGROUND PTY LTD (No.2) | [2019] FCCA 2398 |
| Catchwords: INDUSTRIAL – Alleged dismissal from employment in contravention of a general protection. |
| Legislation: Fair Work Act 2009 (Cth), Pts.3-1, 3-2, ss.340, 341, 342, 361, 389, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1; (2006) 59 AILR 100-581 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 Construction, Forestry, Mining and 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 Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No 2) [2017] FCCA 1713 Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd [2014] FCCA 721; (2014) 284 FLR 403; (2014) 66 AILR 102-149 |
| Applicant: | CRAIG ADAM GEE |
| Respondent: | MACMAHON UNDERGROUND PTY LTD |
| File Number: | PEG 22 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 7 April 2015 and 12 May 2015 |
| Date of Last Submission: | 12 May 2015 |
| Delivered at: | Perth |
| Delivered on: | 30 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr S Heathcote |
| Solicitors for the Applicant: | APX Law Pty Ltd |
| Counsel for the Respondent: | Mr A Drake-Brockman |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 22 of 2014
| CRAIG ADAM GEE |
Applicant
And
| MACMAHON UNDERGROUND PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Craig Adam Gee (“Mr Gee”), made an application (“Application”) in this Court alleging a dismissal by the respondent, Macmahon Underground Pty Ltd (“Macmahon”), from his employment in contravention of a general protection under the Fair Work Act 2009 (Cth) (“FW Act”). Mr Gee seeks orders for reinstatement and a pecuniary penalty to be imposed upon Macmahon, while Macmahon denies any contravention of the FW Act and seeks dismissal of the Application.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the transcript of the hearing (“Transcript”) and Exhibits; and
b)the various Court documents, including the witness statements relied on by Mr Gee and Macmahon and outlines of submissions filed by Mr Gee and Macmahon, as to which see [16] below.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
It is necessary to provide a brief background of the matter before turning to consider the Application. Basic contextual matters that are not in dispute are as follows:
a)the nature of Macmahon’s business is as a mining contractor engaged by clients to undertake mining related services;
b)Mr Gee commenced employment with Macmahon in September 2010 as a truck driver, he was engaged as a CITEC Operator with Macmahon from 1 March 2012 and as a Pitram Operator from 5 February 2013. A Pitram Operator works in an office, generally at the surface entrance of the mine, and uses computers and radio communications to gather information and enter it into a computer system in order to provide mine managers with up-to-date information about the mining operations, including location of personnel, amongst other matters;
c)at the relevant time, Mr Gee was one of four persons engaged as a Pitram Operator, and was required to work 12 hour shifts on a 7 day swing rotation at the Argyle Diamond Mine, referred to as the Argyle Underground Project (“Project”);
d)the client who engaged Macmahon to provide services on the Project was Rio Tinto Ltd (“Rio Tinto”) and the Project’s original scope of works in 2006 engaged Macmahon to undertake mining activities and mining operations on the Project;
e)on 23 May 2013 Mr Gee reported to the onsite nurse with symptoms of numbness and slight tingling in his left “pinky” finger. Mr Gee attributed this injury to his duties, namely repetitive use of a two-way radio;
f)on 31 May 2013 Mr Gee lodged a Workers’ Compensation Claim Form (“Compensation Claim”) in respect to the injury. Mr Gee continued to work, without complaint or adjustments, in the same conditions until 27 August 2013 when he was advised he would require surgery;
g)as a result of Rio Tinto changing the scope of works on 20 July 2013 to end surface mining operations on the Project, approximately 70 positions were made redundant by Macmahon. Mr Gee was advised that Pitram Operators were not a redundant position and his employment continued;
h)on 12 September 2013 Macmahon’s workers’ compensation insurer accepted liability for Mr Gee’s injury and on 13 September 2013 Mr Gee was required to have surgery. It was anticipated he would return to light duties approximately six weeks later and on 28 October 2013 he returned to office duties in Macmahon’s Perth office with a “Suitable Duties Plan” in place to manage his return to work;
i)Mr Gee was anticipated to return to his role as a Pitram Operator on the Project on 6 November 2013, however upon reporting aggravation of his injuries working in the office, this was delayed until 20 November 2013. Mr Gee’s Injury Management Co-ordinator, Kurt Marcus Davies (“Mr Davies”), made recommendations that Mr Gee be allowed to take a 15 minute break every 2-3 hours and he utilise a headset as opposed to a two-way radio upon his return to the Project;
j)in early November 2013 Rio Tinto again made further changes to the scope of works and Macmahon was required to reduce personnel from approximately 206 to 134 (“Rio Tinto Directive”), Rio Tinto advised Macmahon it required only three Pitram Operators, and in an email sent 11 November 2013 Rio Tinto supplied a list of 25 names of Macmahon employees it wished to retain on a labour hire. Three Pitram Operators were on that list, and Mr Gee was not;
k)Mr Gee called the Macmahon offices on 19 November 2013 to confirm the details of his returning flight for his first shift back. He was diverted to the Mine Superintendent, Andrew Malcolm Robinson (“Mr Robinson”) who advised Mr Gee he had been made redundant and the letter confirming this was received on 20 November 2013. The approval of Mr Gee’s redundancy was signed by the Project Manager, Garth Russell Hamilton (“Mr Hamilton”);
l)Mr Gee applied for a number of positions after his redundancy but was unable to obtain any alternative work and proceeded to do casual work and undertake study in order to re-skill in other areas; and
m)on 22 August 2014 Macmahon ceased work on the Project.
Application
Form 2 and claim
As required by r.45.06 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) filed with the Application was a “Form 2”, the designated Court form for applications of this type, and which forms part of the Application. In Part G of the Form 2 at [10]-[14] the applicant alleges that Macmahon took adverse action against him having dismissed him from his employment because he had exercised a workplace right, being the benefit of two workplace laws. Mr Gee claimed he was entitled to a safe work place and to make the Compensation Claim, and because of the additional resources and change to working practices that were required as a result of his injury he was “less attractive” than his uninjured colleagues and was dismissed from his employment.
The essence of Mr Gee’s Application was that he believed he was dismissed from his employment as he had made the Compensation Claim. The Court notes that it was Mr Gee’s contention that he was the only Pitram Operator to be made redundant in November 2013, another individual was brought in to fill his position shortly after and there were other vacancies he could have been redeployed to, but as he had made the Compensation Claim and had required Macmahon to make adjustments he was dismissed.
During the course of the hearing it was conceded by Mr Gee’s Counsel that Mr Gee’s redundancy from the Project was ultimately because of a decision of Rio Tinto and the evidence establishes that Macmahon was provided a list of 25 names and Mr Gee was not on that list: Transcript, p.57 at [22]-[31]. It was, however, contended that Mr Gee had at that stage simply been displaced because his position had become redundant, though what followed was a failure to redeploy him and this was what Mr Gee contends was the “dismissal”. This was distinct from the redundancy which Mr Gee’s representative conceded was “because of” the Rio Tinto Directive. Macmahon raised objections: first, that this was taking the case beyond what was claimed in the Application, specifically in the Form 2; and second, if Mr Gee was seeking to amend his Application then further evidence would be required were leave granted. The Court will address this at [10]-[14] below.
Mr Gee’s submissions
In summary, Mr Gee’s submissions were as follows:
a)the fact that a job becomes redundant does not necessarily mean that an employee will be dismissed, the adverse action that Mr Gee relies upon was a dismissal, not a redundancy. Mr Gee was placed in a “deployment pool” and when a decision was made that Mr Gee could not be redeployed he was dismissed and that is the adverse action complained of;
b)the dismissal occurred when the decision was made that Macmahon had no place to redeploy Mr Gee to, or alternatively, it had some other reason for doing it such as because Mr Gee had exercised a workplace right;
c)a reason for Mr Gee not being redeployed was because he had exercised a workplace right by virtue of seeking the benefit of workplace laws, Workers’ Compensation and Injury Management Act 1981 (WA) (“WCIM Act”) and the Mines Safety and Inspection Act 1994 (WA) (“MSI Act”);
d)Macmahon deliberately failed to redeploy Mr Gee to any of the positions that remained available after the changes implemented by Rio Tinto or redeploy him to another available position within its business, nor did it give meaningful consideration to whether he could be redeployed to another position;
e)Mr Hamilton was functioning as “a rubber stamp” for unidentified persons in Macmahon’s Human Resources Team (“HR Team”), and the recruitment team if there was one, who made the “real decision” as to whether Mr Gee could be redeployed or he could not, and there is no evidence of what things the HR Team took into account in deciding not to redeploy Mr Gee;
f)Mr Hamilton did not know what was taken into account and he simply signed the letter approving the dismissal, however, he did so on the basis of the HR Team’s decision that Mr Gee could not or should not be redeployed, and there is no evidence about the reasons as Mr Hamilton could not confirm if the Compensation Claim was a factor considered;
g)Macmahon has the burden of demonstrating that the Compensation Claim, being the exercise of the workplace right relied upon, had no operative part in the decision to terminate; and
h)pursuant to s.361 of the FW Act, the Court is required to presume that the adverse action was taken for the prohibited reason unless, on the balance of probabilities, Macmahon demonstrates that it was not taken for such a reason and without evidence from the HR Team there is some doubt about whether the Compensation Claim was considered as part of his dismissal, and Macmahon having failed to discharge that onus Mr Gee is entitled to succeed.
Macmahon’s submissions
At all times throughout the proceedings Macmahon has maintained that Mr Gee’s employment was dismissed by way of redundancy as a result of the Rio Tinto Directive. The following submissions were made:
a)Mr Gee’s dismissal from employment, along with 70 other Macmahon employees, was by reason of redundancy which had nothing to do with Mr Gee’s alleged exercise of a workplace right, rather was for the reason that the position of Pitram Operator was made redundant by virtue of the Rio Tinto Directive;
b)evidence provided by Macmahon establishes that on the balance of probabilities, Macmahon did not take adverse action against Mr Gee by dismissing him because of a workplace right or an exercise of a workplace right;
c)it was Mr Hamilton who issued Mr Gee with the dismissal letter, and whether or not it is held by the Court that another person was the ultimate decision-maker in relation to the dismissal, based on the evidence it cannot be said that the dismissal was “because of” the Compensation Claim given:
i)the Compensation Claim was accepted by Macmahon’s insurer on 31 May 2013;
ii)Macmahon did not employ any other person to fill the role of Pitram Operator during the period of Mr Gee’s absence due to his surgery and enabled Mr Gee to return on light administrative duties pursuant to a return to work plan; and
iii)Macmahon was making arrangements so that Mr Gee and other Pitram Operators could have appropriate rest-breaks during the course of their shift to reduce the risk of injury or fatigue, and access to a telephone headset, while also making arrangements for an ergonomic chair;
d)Macmahon sought redeployment opportunities for Mr Gee, however, due to a downturn in the mining industry at the time there were very limited suitable alternative positions for redeployment within Macmahon’s business for any employees affected by the Rio Tinto Directive;
e)in relation to the Christmas Creek operations, this was a surface mining operation as opposed to underground mining operations which did not employ Pitram Operators and Mr Gee did not have the qualifications required;
f)the only reason for Mr Gee’s dismissal was that the position of Pitram Operator was made redundant as a result of the Rio Tinto Directive; and
g)there is no causal nexus or connection between the Compensation Claim and Mr Gee’s redundancy and therefore the Application should be dismissed.
Proposed amendment to the Application
Macmahon objected to Mr Gee amending the Application to raise the issue of redeployment. Macmahon indicated to the Court that if an amendment were granted it would be required to call at least one further witness. At [11] of Part G of the Form 2 Mr Gee states:
The Respondent took adverse action against the Applicant when it dismissed him from his employment…
In Mr Gee’s witness statement at [39]-[46] references were made to Mr Gee learning of vacancies in Macmahon from former colleagues, Mr Davies and through the Macmahon website. He states this was “contrary to what I’ve been told in my Notice of Redundancy…” and also refers to learning his position had been filled on a “temporary basis”. In respect of the filling of Mr Gee’s position on a “temporary basis” this is irrelevant given the concession made at hearing that Mr Gee’s position had become a redundant position, and in any event the filling of this position was by a Rio Tinto employee which was consistent with other evidence before the Court that Rio Tinto were reducing Macmahon personnel as they would be deploying members of their own personnel to fill those positions.
In Mr Gee’s written submissions filed 2 April 2015 (one day late pursuant to an order of the Court made 1 December 2014 and five days before the hearing), the failure to redeploy was adverted to as being considered “adverse action”. At [37] and [43] of those submissions Mr Gee states:
37. The Respondent took adverse action against the Applicant when it:
(a) declined to deploy him to one of the 4 available for Pitram Operator jobs on or shortly after 11 November 2013;
(b) declined to redeploy him to another project including but not limited to Christmas Creek; and
(c) dismissed him on 20 November 2013.
…
43. The Respondent’s representatives were well aware of the Applicant’s workers compensation claim and the safety-related qualifications attaching to his return to work when they were considering whether:
(a) he should be deployed to an available position on the Project;
(b) he should be redeployed to another position in the Respondent’s business;
(c) he should be dismissed.
Counsel for Mr Gee indicated that these matters only became clear when relevant witness statements of Macmahon were filed. The witness statements were filed, approximately 20 days prior to the hearing. There is no explanation for the delay in seeking to amend the Application, or in at least foreshadowing the possible amendment to the Application to Macmahon’s lawyers or to the Court. In that regard, the Court notes that Mr Gee’s lawyers must have been aware of the matter sometime prior to filing the written submissions referred to above on 2 April 2015. For reasons which will now become apparent, however, it is unnecessary to deal further with that issue of delay in seeking to amend the Application. Counsel for Mr Gee asked if it was sought to amend the Application. Following a brief adjournment, the Court was advised that Mr Gee did not seek to amend the Application, but would deal with the evidence concerning redeployment raised in the context of explaining the dismissal: Transcript, p.4. It was therefore confirmed that the one ground of adverse action relied upon was the “dismissal” on 20 November 2013.
In closing submissions Macmahon again objected to Mr Gee’s submissions pertaining to redeployment. The Court noted the objection and stated that to the extent what was being submitted fell outside of what was claimed in the Application the Court would address this, and consider any prejudice or disadvantage to Macmahon.
Evidence
In preparing these Reasons for Judgment the Court has had regard to the Application, the Form 2, the Response and the outlines of submissions filed by each party.
At hearing the following witness statements and Exhibits were tendered (and the witness statements relied upon as the evidence-in-chief of each witness):
a)Mr Gee’s witness statement, including Annexures CAG1-CAG8, dated 2 March 2015 which was marked as Exhibit 1 (“Mr Gee’s Statement”);
b)Mr Robinson’s witness statement, including Annexures AMR1-AMR7, dated 16 March 2015 which was marked as Exhibit 2 (“Mr Robinson’s Statement”);
c)Mr Davies’ witness statement, including Annexures KMD1-KMD4, dated 16 March 2015 which was marked as Exhibit 3 (“Mr Davies’ Statement”);
d)Mr Hamilton’s witness statement, including Annexures GRH1-GRH3, dated 16 March 2015 which was marked as Exhibit 4 (“Mr Hamilton’s Statement”); and
e)an email chain from Greg Evans to Garth Hamilton dated 11 November 2013 which was marked as Exhibit 5 (“Exhibit 5”).
At hearing each witness was cross-examined and re-examined. The evidence of each witness is set out below.
The Court is satisfied that the evidence of each witness was a truthful account of their recollection and understandings of what had occurred at that time. Each witness was composed and appeared to answer the questions honestly.
In summary, there is little dispute as to the course of events that unfolded leading to Mr Gee’s dismissal, and the evidence was almost entirely directed to whether Mr Gee exercised a workplace right, and if he did, what was the reason for his dismissal, and whether it was because of his exercise of a workplace right.
Mr Gee’s Evidence
The pertinent points of Mr Gee’s evidence are as follows:
a)he has no certificates or degrees and his working history has included working in a bank prior to moving to the mining industry where he has been a truck driver, CITEC Operator and Pitram Operator;
b)Mr Davies was very helpful, he had advised Mr Gee that he had made recommendations for adjustments for his return to work, however, Mr Gee had received no notification that these had been approved, and at no time was Mr Gee told by anyone at Macmahon that these adjustments had caused any problems;
c)Christmas Creek was a surface mining operation not an underground mine like the Project, and Mr Gee did not apply for any vacant positions with Macmahon or forward his resume to Mr Davies as it was some two months before Macmahon returned his belongings from the Project site and his laptop was amongst those belongings;
d)Mr Gee was aware that around 70 other employees were made redundant in November 2013 and that in July 2013 a number of employees were made redundant and he was not included in those redundancies, though at the time of the July 2013 redundancies he had made his Compensation Claim and was receiving physiotherapy treatment while continuing in his employment;
e)during the redundancies that occurred in July 2013 Mr Gee was made aware of the fact that Rio Tinto were looking at taking over the Pitram Operator roles at some time in the future, and while his job was safe in July, the foreseeable future was that the Pitram Operator roles would no longer be available;
f)on 19 November 2013 he called Macmahon’s offices and was put through to Mr Robinson who told Mr Gee his position had been made redundant, the three other Pitram Operators were remaining on the Project and he was not the “only one with a workers’ compensation claim to be made redundant”;
g)subsequent to his dismissal Mr Gee spoke to Mr Davies whom informed him he was unaware of the dismissal but had heard that Macmahon was hiring for the Christmas Creek site and that Mr Gee should email him his resume to pass along; and
h)a position as a Pitram Operator on the Project had been advertised internally to Rio Tinto employees and Mr Gee applied for this role however was told that as he was not a Rio Tinto employee his application would not progress.
Mr Gee’s Statement annexed a copy of the notice of redundancy signed by Mr Hamilton at CAG-5, the relevant portion reading as follows:
…
Due to an operational review conducted by our client Argyle Diamond Mines, it has been identified that there is a requirement to reduce the Macmahon workforce at our Argyle Underground Project. As a result of this process I regret to inform you that your current position has been made redundant.
The Company has completed a search for suitable alternate employment within Macmahon and have not been able to source a suitable alternative position. Unfortunately, we have no alternative but to terminate your employment by reason of redundancy. Your final date of employment will be on the 20th November 2013 with payment in lieu of notice.
Any annual leave entitlements, your severance pay (where applicable) and any other entitlements which are due upon termination will be paid in the pay period following your termination date.
…
Mr Robinson’s Evidence
Mr Robinson was at all relevant times the mining superintendent of the Project and therefore had daily oversight of the operations on the Project, including fulfilling the manning requirements to ensure Macmahon was able to meet the required work and services it was providing to Rio Tinto. The relevant parts of Mr Robinson’s evidence include:
a)during the period Mr Gee was away from work due to his injury, Mr Robinson temporarily rostered on other employees who had previously undertaken Pitram Operator duties and did not employ any other person to fill Mr Gee’s position;
b)Mr Davies had made recommendations to Mr Robinson that Mr Gee be provided a 15 minute break every 2-3 hours, a new ergonomic chair be supplied and a headset be used as opposed to a radio. Discussion had been occurring with Rio Tinto for some time to try and obtain a headset for Pitram Operators;
c)at the time Mr Gee was due to return the recommendations of Mr Davies were “probably not” ready to go as while he had asked the supervisor of the Pitram Operator’s office to make a request and order the equipment, as it was a Rio Tinto site approval was required by Rio Tinto to bring in any equipment;
d)Pitram Operators did not have a “full-blown relief break”, it was somewhat inconvenient to have someone take a 15 minute break every 2-3 hours however there are two persons in the Pitram Operator’s office and they do have the capacity to relieve each other, and they do relieve each other, therefore breaks are feasible and have been made feasible;
e)there was “cross-pollination” training occurring such that the two persons in the office could relieve each other for breaks however Mr Robinson was unsure if the person who Mr Gee worked with on his shift had received this training at the last time he was working on the Project, which was August 2013 given the surgery and recovery period thereafter;
f)there was a potential for people to take breaks and as the industry does regularly, it would have adapted and dealt with the restrictions of Mr Gee when he returned to work, however as he never returned due to the redundancy what would and would not have occurred is now hypothetical;
g)when making the redundancies Mr Robinson looked at the requirements and looked at the vacancies, took account of the number of employees who were wanting to be made redundant, and looked at the skillset, the main aim being to maintain multi-skilling;
h)the three Pitram Operators that remained on the Project stayed on as labour-hire employees for a period of time, and upon Mr Robinson himself being made redundant those employees were offered employment and accepted such with Rio Tinto;
i)Mr Robinson was “kept up to date about redeployment opportunities” by the HR Team by email and Mr Robinson would be advised if there were any opportunities on a daily basis, however there was very few in this period due to a significant downturn in the mining industry;
j)if there was an opportunity elsewhere enquiries would be made to Mr Robinson by the site itself or by the HR Team whether there was somebody qualified for what that site required. If there was any opportunity, at Christmas Creek or elsewhere, the HR Team would have ensured redeployment happened but at the time of Mr Gee’s redundancy, to Mr Robinson’s knowledge, there were no jobs available at Christmas Creek; and
k)between 8 and 20 November 2013 there was consideration given to all employees that were being made redundant about relocation elsewhere and recourse was had to a “skill matrix” that identifies the skills of all employees.
There was an inconsistency between Mr Robinson and Mr Davies’ evidence concerning “cross-pollination” or the two persons in the Pitram Operator office collaborating and being able to relieve each other. Mr Davies’ evidence was that he never observed this, however, the Court is not satisfied Mr Robinson or Mr Davies were untruthful. It appears from Mr Robinson’s evidence that the “cross-pollination” training may not have been implemented at the time Mr Gee was at the Project, however it was being implemented upon Mr Robinson’s own redundancy from the Project in January 2014. Mr Davies’ evidence was that in early November 2013 he did not see this occurring does not indicate Mr Robinson was untruthful, it may simply have been that as a result of Mr Davies’ recommendation the introduction of “cross-pollination” training was going to begin.
Mr Davies’ Evidence
Mr Davies was Mr Gee’s Injury Management Co-ordinator and was responsible for assisting Mr Gee return to work following the surgery for his injury. Mr Davies’ evidence was as follows:
a)Mr Davies’ came to the Project site on 7 November 2013 to inspect the area in which Mr Gee operated and made recommendations including that Mr Gee have rest breaks and use of a radio headset. Mr Davies made recommendations for the Pitram Operators generally, not specifically for Mr Gee, as he considered some aspects of the work environment were unreasonable;
b)there had been no correspondence from those on the Project that his recommendations were not going to be organised or could not be procured, and if that were the case Mr Davies would have organised desk based duties in Perth;
c)when Mr Davies recommended to Mr Gee that Christmas Creek may have opportunities he did so as at that because stage Mr Gee was deemed medically fit, and while he was aware that Pitram Operators were not used at Christmas Creek he was also aware that Mr Gee commenced his employment with Macmahon as a truck driver and felt perhaps he could have worked on the Christmas Creek site in that capacity, though had no knowledge of what positions were available;
d)two other employees whom also had workers’ compensation claims at the times the redundancies were made due to the Rio Tinto Directive continued to work on the Project and Mr Davies managed their respective return to work plans; and
e)Mr Davies advised that there may be a possibility of further surgery in an email dated 1 November 2013 and Mr Gee would be having a further test in the week following. On 12 November 2013 Mr Davies advised that the test revealed there had been no worsening of Mr Gee’s condition and he would continue with some therapy and have a further review in coming weeks. While further surgery could never be ruled out, there was no real suggestion of any further surgery on 12 November 2013 when Mr Davies advised Macmahon that Mr Gee was fit to return.
Mr Hamilton’s Evidence
Mr Hamilton was the Project Manager of the Project and was the signatory of Mr Gee’s notice of redundancy. His evidence can be summarised as follows:
a)Mr Hamilton terminated Mr Gee’s employment, in addition to the 74 other employees affected by the Rio Tinto Directive, on 20 November 2013 by way of redundancy;
b)the reason he authorised the termination of Mr Gee’s employment was that the position of Pitram Operator was made redundant by virtue of the Rio Tinto Directive;
c)the HR Team had sought to find redeployment opportunities for each employee affected by the Rio Tinto Directive from the time Macmahon was notified by Rio Tinto of the operational changes on 11 November 2013 until the redundancies were effected on 20 November 2013;
d)when Mr Gee was not placed into a position on the Project he was put into a pool of surplus labour whereby redeployment options were explored by the HR Team and Mr Hamilton for suitable employment alternatives;
e)Mr Hamilton was provided a list of persons on 11 November 2013, Mr Gee being included on that list, who were to be made redundant and immediately searches began for other opportunities, even when the letter dismissing Mr Gee was dated on 20 November 2013 opportunities were still being sought. It was on 17 or 18 November 2013 that the decision was made that redundancies would be issued to the surplus;
f)it was a fluid situation as to the list of persons who would be made redundant as it would change depending on client requirements. For example, what positions and how they would be contracted to Rio Tinto were changing regularly;
g)three avenues for alternative employment were consulted, the first being the internal jobs notice board where internal vacancies are advertised that anyone can see, the second was engaging the HR Team directly who may not have advertised a position yet or had received notification of a requirement coming up and the last was talking to project managers directly. Macmahon would look for a suitable opportunity that fitted the person’s work history, both current and previous, recommendations from their line manager and that the person would be competent to fill the role;
h)Mr Hamilton recalls being in attendance at a meeting and being given certain responsibilities to attend to, and one of these was to help with redeployment and he then asked the HR Team for any vacancies from the three avenues explained;
i)Mr Hamilton was aware of Mr Gee’s injury and he did not mention it to the HR Team, however he believes they likely would have been aware of the Compensation Claim, although at the time there was a separate recruitment team and he was unsure if they would have been aware of the Compensation Claim though it was possible;
j)Christmas Creek was an option that was explored, though Mr Hamilton could not recall what opportunities were specifically considered for Mr Gee, however he was aware one position was for a maintenance fitter. He was aware that Christmas Creek was a big site but was not aware if there were a number of positions available and if there were he would only be speculating why a small number, if any, were deployed to Christmas Creek;
k)from his recollection less than 10 of the 74 employees were redeployed and effectively the decision of whether or not to redeploy an individual was made by the HR Team; and
l)Mr Hamilton did not know what matters were taken into account, although workers’ compensation was not one when determining if someone was suitable for a position to be redeployed as his role was to make sure that whatever opportunities were there he put forward the employees for consideration.
Legal Principles
Under s.340(1) of the FW Act a person must not take adverse action against another person:
a)relevantly, because the other person has a workplace right, or has exercised a workplace right, or proposes, or has at any time proposed to, exercise a workplace right; or
b)to prevent the exercise of a workplace right by the other person.
The adverse action in this case is the “dismissal” of Mr Gee from his employment: FW Act, s.341(1), item 1(a). A workplace right includes an entitlement to the benefit of a workplace law: FW Act, s.341(1)(a). In this matter Mr Gee complains he exercised the right to benefit from the WCMI Act and the MSI Act. A causal link must be established between any alleged adverse action in s.342 of the FW Act which is complained of, here an alleged dismissal from employment, and the matters in s.340 of the FW Act: 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 at [62] per French CJ and Crennan J and [104] per Gummow and Heydon J (“Barclay”).
It is common ground that Macmahon dismissed Mr Gee from employment, and that during the course of his employment Mr Gee had exercised his entitlement to the benefit of a workplace law, being the WCIM Act, and his Compensation Claim. Therefore, the “particular circumstance” relevant to Mr Gee’s claim of adverse action has been established as an objective fact and enlivens s.361 of the FW Act to place the onus upon Macmahon to establish the adverse action was not taken for a prohibited reason: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 at [59] per Katzmann J; Stephens v Australian Postal Corporation [2014] FCA 732 at [13] per Flick J.
The principles in determining whether the causal element of s.340 has been rebutted can be summarised as follows:
a)the central question to be determined is one of fact that asks: “why was the adverse action taken?” and that question is to be answered having regard to all the facts established in the proceeding: Barclay at [14] per French CJ and Crennan J;
b)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: Barclay at [124] per Gummow and Hayne JJ and [146] per Heydon J;
c)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 though 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;
d)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 and 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;
e)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;
f)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;
g)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ;
h)“[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; and
i)it is sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [63] per Foster J.
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.
Given the context of this case, it should also be noted s.360 of the FW Act provides that a “person takes action for a particular reason if the reasons for the action include that reason”. In essence the prohibited reason must be a “substantial or operative factor” influencing the adverse action, or alternatively, an “operative or immediate” reason for the adverse action: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J.
Consideration
Obligation to redeploy?
The Court wishes to make some brief observations on the notion of redeployment. During opening submissions the Court raised with Mr Gee’s representative whether there was in fact an obligation for Macmahon to redeploy Mr Gee. Mr Gee’s contract was at annexed at CAG-1 of Mr Gee’s Statement and was provided as follows:
4.2 Redundancy and Severance
Employees whose job is no longer required because of operational reasons will be subject to redundancy. Operational reasons may include restructuring, technological or economic changes. In this circumstance, the employee will be provided with notice and severance in accordance with the legislation.
The Rio Tinto Directive constituted “operational reasons”. However, based on the wording of the contract clause, this is not a case where there is a “redeployment policy”, and it cannot be said, from the materials that are before the Court, that there was an obligation to redeploy or process to be undertaken prior to a redundancy being effected. Neither party referred the Court to s.389 of the FW Act, a provision the Court discerns was the only legal obligations Macmahon was required to address when effecting the redundancy:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the 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.
The Court notes that s.389 of the FW Act is contained in Pt.3-2 of the FW Act whereas the general protections claim before this Court is the subject of Pt.3-1 of the FW Act. Therefore, perhaps the point that Mr Gee’s representative was trying to make would have been better pleaded as a matter of unfair dismissal as opposed to a general protection claim.
What s.389 of the FW Act indicates to the Court is that in order to be a genuine redundancy, a consideration must be given to the opportunity to be redeployed prior to the redundancy being decided or effected. The consideration of redeployment is a part of the process of a genuine redundancy and therefore, is not a distinct action as Mr Gee submits it was. The obligation to consider redeployment is found in s.389(2) of the FW Act, and redeployment is a consideration undertaken prior to dismissal, in the course of the individual’s employment. Therefore, the obligation for Macmahon to redeploy was an element of the redundancy, and the Court notes that Mr Gee has not pleaded that the redundancy was not genuine.
The Court accepts that disappointment of an expectation of re-employment, even where there is no legal right to such, can constitute an alteration of an employee’s position to their prejudice: Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165; (2003) 53 AILR 100-095. Whether that principle extends to an expectation of redeployment is unnecessary to consider in the present circumstances given Mr Gee confirmed that the only adverse action he wished to press was the “dismissal” for failure to redeploy because he had made the Compensation Claim. The case authorities on the question of redeployment in a general protections claim each address it in the context of injuring an employee or altering a position to their prejudice: Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1; (2006) 59 AILR 100-581; Maritime Union of Australia & Ors v Geraldton Port Authority & Ors [1999] FCA 899; (1999) 93 FCR 34; (1999) 165 ALR 67; (1999) 94 IR 244.
Having found there was no contractual obligation to redeploy Mr Gee, and the obligation to consider redeployment arose in the context of effecting a genuine redundancy, the Court will now consider the arguments of the parties on what constituted the “dismissal”.
How was Mr Gee dismissed?
Macmahon’s position was that Mr Gee was dismissed or “terminated by reason of redundancy” as his position was no longer required. Mr Gee suggests that the redundancy was not a dismissal, rather it was the decision not to redeploy which was the adverse action and dismissal. In Rowland v Alfred Health [2014] FCA 2 (“Rowland”) the Federal Court was required to determine if the non-selection of the applicant under a restructure amounted to adverse action. The applicant in Rowland was made redundant upon not being selected by the selection panel for a position under the new structure. In Rowland at [47]-[48] per Marshall ACJ stated as follows:
Did the decision to restructure the Unit constitute adverse action?
47 Mr Rinaldi submits that the decision of Alfred Health to restructure the Unit did not constitute adverse action with respect to Mr Rowland. He contends that the decision to restructure the Unit involved non-discriminatory action in which all six employees subject to the restructure were in the same position, having to apply for a position in the Unit, with the potential of adverse action. The Court does not accept that submission. Adverse action includes, in s 342(1) of the Act, an alteration of an employee’s position to his or her prejudice. In accordance with Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4], subjecting an employee to a situation where he or she is compelled to re-apply for his or her position, with the threat of redundancy looming is an “… adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The decision to restructure the Unit constituted adverse action against all employees employed in the Unit whose continued employment was put at risk by the “spill and fill” process. The position of all existing employees in the Unit was made less secure by having to re-apply for their jobs. Mr Rowland was one such employee.
Did the non-selection of Mr Rowland for a position in the restructured Unit constitute adverse action?
48 Counsel for Alfred Health submits that the non-selection of Mr Rowland for a position in the Unit was not adverse action but rather “inaction” in that there was a failure to appoint him. The Court rejects the submission that inaction cannot constitute adverse action. For example, an employee may be denied a promotion notwithstanding that he or she satisfied established criteria while others (who do not) are promoted. The non-selection of Mr Rowland was adverse action, but this issue is not one of consequence. That is because the parties agree and the Court accepts that the termination of Mr Rowland’s employment constituted adverse action. The decision of Mr Way to accept the selection panel’s recommendation and not select Mr Rowland for a position in the Unit had the logical flow-on effect that he was made redundant.
In this matter it is also accepted that the adverse action was the termination of Mr Gee, however the issue is whether Mr Gee was dismissed for reason of redundancy, or a decision not to redeploy him. While a judgment delivered sometime after the Court had heard the parties in this case, it is relevant to note the remarks made in Dutta v Telstra Corporation Ltd [2018] FCA 1994 at [193] per Raniagh J:
Telstra’s dismissal of Mr Dutta from his employment was plainly adverse action. The decision to select Mr Dutta for redundancy altered his position to his prejudice. The decision not to redeploy Mr Dutta to an alternative position within Telstra injured him in the course of his employment. There is no difficulty in finding that each of these actions was adverse action within s 342(1).
The Court draws attention to the fact that in Rowland and Dutta the decision not to select or not to redeploy and to make redundant were matters that fell into s.342(1), items 1(b) and (c) of the FW Act. Specifically, the Court draws attention to s.342(1), item 1(b) of the FW Act that provides adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment. In Dutta, the decision not to redeploy to an alternative position occurred in the course of the applicant’s employment. Mr Hamilton’s evidence was that he was provided a list around 11 November 2013 with the names of those employees who were to be “surplus” and immediately thereafter searches for redeployment began: Transcript, p.43 at [44]-[45].
During Mr Hamilton’s evidence he stated that on around 17 or 18 November 2013 it was realised there were no further internal positions and that those people remaining on the surplus list would be made redundant. When asked if those who were being made redundant were identified prior to 17 November 2013, Mr Hamilton responded that he was provided a list around 11 November 2013 identifying the surplus employees and when again asked if the list of those who were to be made redundant was compiled prior to 17 November 2013 he confirmed that there was a list identifying those who were surplus, and that list was fluid until the last minute to ensure any opportunities could be taken advantage of. The list of those who would be made redundant was decided on 16 and 17 November 2013: Transcript, p.43 at [3]-[19].
In the Court’s view, the decision not to redeploy Mr Gee, or the inability to redeploy Mr Gee as it may emerge, was a decision made prior to the decision to make him redundant. Indeed the prospect of redundancy if positions could not be found was prepared for by Macmahon, however on Mr Hamilton’s evidence, and indeed Mr Robinson’s Statement at [49], the decision to implement the redundancies was made on around 17 November 2013 to have effect from 20 November 2013. The letter advising Mr Gee of this confirms that the redundancy was effective from that date.
Mr Gee has not pleaded that adverse action was taken pursuant to s.342(1), item 1(b) of the FW Act, and on the Court’s findings the decision not to redeploy Mr Gee was made prior to the decision to dismiss him by reason of redundancy. The decision not to redeploy Mr Gee “had the logical flow-on effect that he was made redundant” however Mr Gee was ultimately terminated “by reason of redundancy”. The Court’s findings in respect of the timing of the decision not to redeploy Mr Gee also supports the contention that the decision to make one redundant is a consequence of a failure to find an opportunity to redeploy the person to, not the other way around.
The Court has concluded that Mr Gee was dismissed by reason of redundancy on 20 November 2013. He was not dismissed on the failure to be redeployed.
For finality the Court has considered whether the decision to make Mr Gee redundant, including the subsidiary decision prior to this that he would not be redeployed, were made because Mr Gee had exercised a workplace right. As noted, it may be that the redundancy was by all accounts genuine, but that does not preclude the Court from considering if it was for a prohibited reason that Mr Gee was made redundant.
Who was the decision-maker
Mr Gee conceded that the reason for the redundancy was “because of” the Rio Tinto Directive, however the Court has proceeded on the basis that the decision not to redeploy Mr Gee was causally related to his redundancy by virtue of s.389(2) of the FW Act. It is clear that the substantial and operative reason for the redundancy was the Rio Tinto Directive, however an “immediate and operative reason” for the redundancy was that there were allegedly no opportunities for Mr Gee to be redeployed into. It was Mr Hamilton’s evidence that:
…So at that point we had a list of names, and it would have been the 17th or the 18th that very quickly we realised we didn’t have internal positions and we issued the redundancy notices…
(Transcript, p.42 at [37]-[39]).
Macmahon referred to Mr Hamilton being the decision-maker given he was the person who approved Mr Gee’s redundancy, however, Mr Hamilton’s evidence was that he was a “conduit” in the decision, which, in context, the Court understood to mean that he was part of a collaborative decision-making process. In Rowland it was held that if there are multiple decision-makers then all of the decision-makers’ reasons are to be taken into account. In Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 the Federal Court had before it a matter whereby an employer had adopted a redundancy process in which two persons assessed the applicant for redundancy by reference to certain criteria. Another individual, the General Manager, then made the final decision to terminate. The Court held that, if the assessment made by either assessor was influenced by a prohibited reason, that would have impugned the decision of the General Manager as he had “inadvertently” adopted a prohibited reason.
In Bland v Australia Portable Camps Service Pty Ltd [2014] FCCA 2397; (2014) 66 AILR 102-282 (“Bland”) the Court was considering an interlocutory matter in respect of evidence concerning the identity of the decision-maker which was in dispute between the parties. The applicant contended that the human resources manager at the time had caused his redundancy because of the applicant’s trade union affiliation. The following remarks are of note from Bland at [84], [86] and [113] per Judge Brown:
84 It is a question of fact whether Mr Devey was a relevant decision-maker, so far as the decision to terminate Mr Bland’s employment is concerned.
…
86 As such, it is the effect of Mr Hardie’s submission that Mr Devey’s alleged anti-unionism must be regarded as objectively permeating the decision to terminate Mr Bland’s employment, so rendering his termination illegal, as a consequence of the combined effect of sections 360 and 361 of the FWA.
…
113 Thereafter its relevance depends on whether Mr Devey was a substantive decision-maker concerning the decision to terminate Mr Bland. If he was not, it is irrelevant when the matters to be considered under section 361 of the FWA are taken into account.
Mr Hamilton’s evidence confirms to the Court, as a matter of fact, that the HR Team and the employing project manager and superintendent of the prospective redeployment site had the final call as to determining whether Mr Gee would be redeployed: Transcript, p.46 at [28]-[31]. Mr Hamilton could not make the decision as to whether a person was redeployed or not: Transcript, p.47 at [19]-[20]. Mr Gee’s representative suggested in the absence of evidence of what members of the HR Team took into account, and on the basis that there was some indication that the HR Team was aware of the Compensation Claim, the Court could not be satisfied it was not considered in the decision not to redeploy and therefore Mr Gee was the subject of adverse action for a prohibited reason.
The Court notes that when the issue of “redeployment” arose in the context of an amendment to the Application, Macmahon indicated that there may be further evidence to be lead in respect of this. The Court accepts that may well be so, however does not consider it of significance in the present matter. Although it may usually be attended by difficulty: see Barclay, the Court has noted on previous occasions that it is possible to prove adverse action was not taken for a prohibited reason without having to call evidence from the person or persons who made the decision: Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd (2014) 284 FLR 403; (2014) 66 AILR 102-149; [2014] FCCA 721 at [242] per Judge Manousaridis.
Therefore, the Court is satisfied that while other evidence may have been led, where the decision as to redeployment is but a factor to be weighed against the entire redundancy process, and the concession was made by Mr Gee that the Rio Tinto Directive was essentially the catalyst for the action, the evidence before the Court is sufficient to find, on the balance of probabilities, that the adverse action was not taken for a prohibited reason, as will be explained below.
Was the action taken for a prohibited reason?
The Court again repeats that Mr Gee has conceded that the reason for the redundancy was the Rio Tinto Directive and not “because of” Mr Gee exercising a workplace right. However, for the purpose of finality the Court has also endeavoured to explain why the antecedent decision that Mr Gee was not going to be redeployed was not a decision made based upon a prohibited reason.
The Court refers to the following from Bland per Judge Brown:
87 I consider that, both at final hearing and at this stage, I must guard against falling into the error, identified and disapproved by the High Court in Bendigo Institute v Barclay of potentially approaching the matter by applying the following logic:
• Mr Bland was a unionist;
• Mr Devey knew that Mr Bland was a unionist and disapproved of him because of it;
• Mr Devey was part of the management team at APC;
• The management team at APC terminated Mr Bland;
• Therefore, Mr Bland was terminated by APC because he was a unionist and so APC has not discharged its onus arising under section 361.
88 The difficulty with this analysis, besides the attribution of a motive for the termination of Mr Bland arising from objective circumstances - the alleged history of anti-union feeling on Mr Devey part - is that there is not as yet any evidentiary basis established for the implied assertion that Mr Devey was a relevant decision-maker in respect of the decision to end Mr Bland’s employment at APC.
Mr Gee submitted that there was “some doubt” about whether the Compensation Claim was considered as part of the HR team’s decision to redeploy Mr Gee, and because there was some doubt the reverse onus of s.361 of the FW Act had not been discharged. In essence, what Mr Gee said that the Court should find was as follows:
a)Mr Gee made the Compensation Claim;
b)the HR Team were aware that Mr Gee had made the Compensation Claim;
c)the HR Team was a part of the group that determined if redeployment was available and an individual could take up a position;
d)Mr Hamilton terminated Mr Gee when the HR Team was unable to secure any redeployment opportunities; and
e)therefore, Macmahon redeployed Mr Gee because he had made the Compensation Claim and that led to his being made redundant and dismissed.
While it is accepted that the HR Team was a “relevant”, although not necessarily substantive, decision-maker, the Court would still be attributing a motive for the inability to redeploy Mr Gee from objective circumstances that were, in the Court’s views, not affirmatively or confidently stated in Mr Hamilton’s evidence. That there may be some doubt as to what was considered by the HR Team does not preclude the Court from finding, on the balance of probabilities, that the decision not to redeploy was made for a prohibited reason, nor does it entitle the applicant to success.
The Court is satisfied that Macmahon has discharged the onus of proof and that the decision not to redeploy Mr Gee was not made for a prohibited reason. It does so based on the following evidence:
a)in July 2013 Mr Gee was not one of the individuals made redundant, notwithstanding he had made the Compensation Claim at that stage, and further, individuals who had workers’ compensation claims had not been made redundant because of the Rio Tinto Directive: Mr Gee’s Statement at [10] and [15] and Mr Davies’ Statement at [38];
b)Mr Gee was aware that redundancies were likely to be made in the future and that Rio Tinto were planning on taking over the Pitram Operator roles internally sometime in the future: Transcript, p.10 at [33]-[39] and Mr Gee was one of 74 persons made redundant in November 2013;
c)at no time was Mr Gee given any indication that the modifications to his workplace arising from, or the fact of, his Compensation Claim were going to be a problem: Transcript p.8 at [28];
d)Mr Robinson did not employ any person to take Mr Gee’s vacancy in his absence while undergoing surgery and recovery: Mr Robinson’s Statement at [24]-[25]. There was no indication there was any resistance to implementing the return to work adjustments for Mr Gee and Mr Robinson had sought to make the recommendations feasible and available: Transcript, p.14 at [8]-[13];
e)while Mr Robinson conceded it was “inconvenient” for an individual to take breaks, he later clarified that having Mr Gee return with such a condition would not be inconvenient, adjustments would be made and when Mr Gee returned to the site they would have adapted and moved on: Transcript, p.18 at [40]-[46] and p.20 at [6]-[9];
f)Mr Hamilton had close interaction with the HR Team during the period of 11 November 2013 and 18 November 2013 and sought opportunities for redeployment of the employees named in the Rio Tinto Directive through a variety of avenues which he explained to the Court. Mr Hamilton also gave evidence of what records Macmahon was able to access to determine if suitable redeployment opportunities could be identified; Transcript, p.44 at [6]-[34];
g)Mr Robinson referred to a significant downturn in the mining industry in 2013 at [52] of his statement, and was not challenged on this, nor was Mr Hamilton challenged on his statement that there were very few positions available: Transcript, p.42 at [37]-[40];
h)the alleged vacancies at Christmas Creek were with respect to a surface mining operation and did not require a Pitram Operator: Mr Davies’ Statement at [33];
i)when looking for redeployment opportunities Mr Hamilton looked at skill sets and while he cannot know what matters were taken into account by the HR Team or other persons, workers compensation was not a matter considered and he simply put forward the employees for whatever opportunities were there: Transcript p.47 at [9]-[14] and p.50 at [33]-[35]; and
j)both Mr Hamilton and Mr Robinson were genuine in their evidence that they had made what endeavours they could and tried to the best of their abilities to retain the employees and keep them in employment: Transcript, p.31 at [38]-[40] and p.51 at [1]-[2].
What the evidence indicates to the Court is that Macmahon made genuine and bona fide attempts to secure employment for their employees, and that workers’ compensation claims were not matters that were considered in determining a person’s liability for redundancy or capacity for redeployment. The evidence collectively suggests that Mr Gee was an unfortunate victim of the mining downturn, and despite reasonable endeavours there were limited positions, if any, available to be filled at the time. Mr Gee may have found that there were vacancies at the Christmas Creek site in the week following his dismissal, however, the Court is satisfied on the evidence that he was not placed in those vacancies as it was not considered a “suitable alternative position”. The Court is satisfied that Mr Hamilton and the HR Team sought to place a number of persons into opportunities and were ultimately unsuccessful in almost all 74 cases, including at Christmas Creek.
The substantial and operative reason for Mr Gee’s dismissal was that his position had been made redundant by virtue of the Rio Tinto Directive. The Rio Tinto Directive was implemented on 16 and 17 November 2013 and Mr Gee’s redundancy was effected on 20 November 2013. The Court, on the balance of probabilities, is satisfied that in the period from 11 November 2013 to 17 November 2013, and even thereafter Macmahon sought redeployment opportunities and made an assessment based on the skills of the individual, and the Court finds that although a person had made a workers’ compensation claim (and specifically that Mr Gee had made the Compensation Claim) this was not a factor, or a factor of any significance, in determining if there was a suitable opportunity.
The reasons for Mr Gee’s dismissal were, firstly, “because of” the Rio Tinto Directive, and, secondly, “because of” the inability to find any suitable redeployment which was “because of” a lack of suitable alternatives and limited positions available at the time the redundancy was effected. Mr Gee was therefore not dismissed by Macmahon for a prohibited reason.
Conclusion and orders
The Court has concluded that Mr Gee was not dismissed for a prohibited reason and therefore the application must 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 Ferries & Ors (No 2) [2017] FCCA 1713). If, however, Macmahon 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 sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 August 2019
0
21
6