Gibbons v C&M Plant Hire Pty Ltd Trading as C&M Plant Hire
[2020] FCCA 849
•17 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIBBONS v C&M PLANT HIRE PTY LTD TRADING AS C&M PLANT HIRE & ANOR | [2020] FCCA 849 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim – discrimination claim based upon attribute of religion – discharge of s. 361 onus by respondents – applications dismissed. |
| Legislation: Fair Work Act 2009 (Cth) ss.340, 341, 342, 351, 359, 360, 361, 545, 550. |
| Cases cited: Ryan v Furney's Stock Feeds Ltd (1996) 66 IR 298. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250. Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335. |
| Applicant: | DARRAN GIBBONS |
| First Respondent: | C&M PLANT HIRE PTY LTD |
| Second Respondent: | CHRIS AIKEN |
| File Number: | BRG 844 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 26 & 27 February 2020 |
| Date of Last Submission: | 9 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr. van Oeveren of Fair Work Employment Lawyers |
| Solicitors for the Respondents: | Mr Chen of NB Lawyers |
ORDERS
The Application filed on 16 August 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 844 of 2018
| DARRAN GIBBONS |
Applicant
And
| C&M PLANT HIRE PTY LTD T/A C&M PLANT HIRE |
First Respondent
CHRIS AIKEN
Second Respondent
REASONS FOR JUDGMENT
At the time of trial, the applicant was a person in apparent good health. He described himself as a student of Jehovah’s Witness whose faith guided his actions.
The first respondent (C&M) was a company primarily engaged in the laying/installation of pipes and cables to be used as part of the National Broadband Network (NBN). The second respondent (Aiken) was a director of the first respondent and its guiding mind. He was the person who dismissed the applicant from his employment with the first respondent.
The applicant commenced employment with C&M in the capacity of a trades assistant (TA) on or about 23 April 2018. The applicant’s employment with C&M ceased on or about 12 June 2018. A condition of the applicant’s employment was that he was on probation for a twelve (12) month period (commencing on 23 April 2018) during which time his suitability for full-time employment was to be assessed.
The purpose of probationary employment is to provide for a period in which an employee can be trained to do the work required, and in which an assessment can be made of his or her aptitude and capacity to do the work once the employee has been trained or partly trained: Ryan v Furney's Stock Feeds Ltd (1996) 66 IR 298. The purpose of a probationary period has also been described as to gauge, from the perspective of both the employee and employer, the viability of continuing the employment relationship: Tadd v Electronic Services Canberra Pty Ltd, AIRC unreported 1997, Print P 5892.
The applicant filed an application in Form 2 on 16 August 2018 alleging that he had been dismissed from his employment with C&M in contravention of provisions of the Fair Work Act 2009 (Cth) (FWA). [1]
[1] Exhibit 1 (Ex. 1) – pp. 84 – 94.
At the hearing of this matter, the applicant relied upon the allegations as set out in an Amended Statement of Claim (ASOC) filed on 21 November 2018.
Both parties relied upon final written submissions – the respondents’ submissions were filed on 3 March 2020 and the applicant’s submissions were filed on 9 March 2020.
The Law
The relevant sections of the FWA for first consideration in this matter are ss. 340(1)(a)(ii), 341(1)(c)(ii), 342(1)1(a), (c) and (d), 351, 359, 360, 361, 545, 550.
In the ASOC, the applicant relevantly sought the following relief:
a)Declarations that the first respondent had contravened the provisions of ss. 340 and 351 of the FWA.
b)Declarations that the second respondent was an “involved person” in the contraventions of the first respondent pursuant to the provisions of s. 550 of the FWA.
c)Compensation.
The provisions of s. 340, 351 and 550 of the FWA are respectively as follows:
“Section 340 – Protection
(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.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
Section 351 – Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
…
Section 550 – Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted, and established, that:
·he exercised a workplace right or rights as pleaded in his ASOC;
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it is established by the applicant that the impugned conduct was carried out for a prohibited reason, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, ss. 360 and 361 of the FWA provided as follows:
“Section 360 – Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 – Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 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. This appeal was concerned with identifying the correct approach to that task.”- at [5] per French CJ and Crennan J
“[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.”- at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” at [129] per Gummow and Hayne JJ;
“… Examining 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.”- at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” - at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
“[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
It will always be a question of fact as to whether the proscribed reasons, as pleaded in a statement of claim as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is factual and is to be considered objectively.
The applicant’s case, based upon his allegedly having made complaints or inquiries, was as set out at [14] – [30] inclusive of his ASOC as follows:
“[14] As to Andrew Nichols - Supervisor:
(a) On 16 May 2018, the Applicant was making inquiries about a job site to Andrew Nichols, the Applicant's supervisor. This was the first interaction with Mr Nichols whom then repeatedly told the Applicant to "shut the fuck up" The Applicant made complaints:
(b) On 17 May 2018, Andrew Nichols and Anthony "Tony" Grieco told the Applicant words to the effect of "Go shit over there amongst the trees near the water's edge" when the Applicant queried where he could relieve himself. Tony then stated to the Applicant "You need to shit before work":
(c) On 17 May 2018, the Applicant spoke with the Second Respondent and made complaints about the conduct of his Supervisor. Andrew Nichols and his conduct towards him in his employment.
(d) On 12 June 2018, the Applicant made complaint about Andrew Nichols to the Second Respondent. The Applicant stated that Andrew Nichols was always trying to find fault with the Applicant when no fault existed, subsequent to this verbal complaint, the Applicant was dismissed.
[15] The Applicant made verbal complaints about "Greg" as the Applicant was the subject of invasive questions on or around 9 May 2018. This included "Greg" stating to the Applicant words to the effect of: "What is wrong with you you Darran, and why don't you just go to a nightclub and see strippers?" The Applicant was making complaint about the conduct of others in his employment.
[16] The Applicant during the course of employment and subsequent to making complaints in relation to his employment. was told by the Second Respondent that he was the only person whom was making complaints and that because of this, was sabotaging himself and "putting yourself in the spotlight".
[17] On or around 4 June 2018, the Applicant spoke to the Second Respondent:
(a) the Applicant stated that while he was able to undertake the work expected of him, that he was different to his work colleagues and required the Second Respondent's assistance:
(b) The Applicant made complaint about the conduct of the bullying and harassment that the Applicant was the subject of:
(c) the Second Respondent replied by stating words to the effect of' "My father was a priest and he tried to ram that shit down my neck" the Second Respondent then instructed the Applicant to words to the effect of: "Do not talk about that shit"
[18] On 5 June 2018, the Applicant was instructed by the Second Respondent to "spot" for him while using heavy machinery.
(a) The Applicant made complaint about this to the Second Respondent. The complaint related to the Applicant's employment as this went against the instructions of Telstra and also that this was a safety concern.
(b) The Applicant was ignored.
[19] On the date of dismissal, that being 12 June 2018:
(a) the Applicant was approached by Andrew Nichols and asked about a task that the Applicant had been in the process of completing. The Applicant responded by stating that this task had not yet been completed.
(b) The Second Respondent heard this conversation and repeatedly told the Applicant to "fuck off”
(c) The Applicant stated to Andrew Nichols that he was aware Mr Nichols was trying to have the Applicant fired.
(d) The Second Respondent stated with words to the effect of: "You are trying to get my supervisor sacked"
(e) The Applicant then made two complaints to the Second Respondent: ""I know you have been trying to get rid of me, since we worked in Figtree Pocket." and being upset at the treatment received stated to the Second Respondent "I am going to tell ASIC".
(f) The Second Respondent then stated words to the effect of: "Darran you are a threat to my business" and "You're a direct threat to my business, go."
[20] The Applicant understood from this interaction with the Second Respondent that he was dismissed.
[21] The Applicant avers that subsequent to and because of the complaints that
waswere made throughout the period of employment and prior to the employment ceasing, that the Applicant was dismissed on 12 June 2018.8 March 2018.[22] The actions of the First Respondent in dismissing the Applicant, as outlined above, was adverse action within the meaning of s.342(1) item 1 (a) of the FW Act.
[23] By the operation of s.361 of the FW Act the Court may assume that the reason the First Respondent engaged in adverse action against the Applicant was because of, or (within the meaning of s.360 of FW Act) for reasons that included that the Applicant:
(a) had the Workplace Rights; and
(b) had exercised those workplace rights;
(c) to prevent the Applicant from further exercising his Workplace Rights alleged above.
[24] Because of the matters alleged above, the First Respondent has contravened s.340(1 )(a)(ii) of the FW Act.
[25] Because of that contravention, a penalty may be imposed on the First Respondent pursuant to s359 Item 11 FW Act.
[26] The Applicant made the complaints to the Second Respondent. i
tIt is because of these complaints that the Applicant was dismissed by the Second Respondent.[27] The Applicant was told verbally moments before the dismissal words to the effect of "Darran you are a threat to my business" and "You're a direct threat to my business, go."
[28] The Second Respondent was aware of all the material facts that constituted the above contravention or contraventions of s.340 of the FW Act because he was the human agent through which the First Respondent engaged in the acts and omissions that constituted the contravention.
[29] The Second Respondent was knowingly concerned in the First Respondent's contravention or contraventions of s.340 of the FW Act because he was the human agent through which the First Respondent engaged in the acts and omissions that constituted the contravention.
[30] Because of the matters alleged above, the Second Respondent was involved with the First Respondent's contravention or contraventions within the meaning of s.550(1) of the FW Act and so is taken to have also contravened s.340 of the FW Act.”
Applicant’s Allegations as to Wrongful Termination
The applicant relevantly relied at trial upon two (2) affidavits, respectively filed on 17 December 2018 and 1 March 2019.
As to the affidavit filed on 17 December 2018, under the heading Complaints made about Andrew Nicholls and others, the applicant:
a)asserted that he had made a number of complaints about his employment to Aiken;
b)made complaints which were “general complaints about a number of things, including safety and the way that I feel I was being treated by others who also worked for the first respondent;” [2]
[2] Paragraph [11] of applicant’s affidavit filed 17 December 2018 – p. 138 of Ex. 1.
c)says he made diary notes of the different issues that he said he was experiencing at work. The diary notes were said to have been recorded by him on a Microsoft Word document after downloading notes that he took on his phone as soon as an incident occurred during his employment. [3] (It is to be noted that the applicant referred to Aiken as “Chris” in his diary notes);
[3] Paragraphs [14] – [18] on p. 138 of Ex. 1 and pp. 146 – 168 of Ex. 1.
d)complained that whenever he had questions or comments for his supervisor – one Mr Nicholls – he would be told to “shut the fuck up;” [4]
e)complained that a fellow employee named Greg had asked him personal questions which made him feel uncomfortable, and which he considered inappropriate; [5]
f)complained that fellow employees had become angry with him when he had left the worksite for his personal toilet needs; [6]
g)said that he complained to Aiken about bullying and harassment from his co-workers. He included bad language in his complaint;
h)said that Aiken, when responding to a complaint of the applicant about his mistreatment because of his religious faith, said:
“My father was a priest and he tried to ram that shit down my neck. … Do not talk about that shit.” [7]
i)complained that he was being required to do something by Aiken to cover up unauthorised work involving drilling into a Telstra pit which contained asbestos; [8]
j)asserted that the reason recorded on his employment separation certificate as being “unsuitable for this type of work” was wrong and that he was dismissed because of the complaints which he had made. [9]
[4] Paragraphs [20] and [24] on p.139 of Ex. 1.
[5] Paragraph [41] on p. 139 of Ex. 1.
[6] Paragraphs [25] – [36] on p. 139 of Ex. 1.
[7] Paragraph [37] on p. 140 of Ex. 1.
[8] Paragraph [38] on p. 140 of Ex. 1.
[9] Paragraphs [41] – [44] inclusive on p. 140 of Ex. 1.
As to the affidavit of the applicant filed on 1 March 2019, such affidavit purported to deal with the allegations made in the affidavits of the respondents’ witnesses Aiken and Grieco. Though the applicant addressed some of the allegations made against him in a general way in such affidavit, the applicant failed to address significant and specific allegations made against him, as will later be detailed.
The applicant’s evidence, both contextually in the case of his sworn evidence, and orally during cross examination, was unconvincing. His remarkable evidence that Aiken had said to him that his father was a minister of religion was plainly untrue – Aiken said so. On credibility issues, the Court prefers the evidence of Nicholls, Aiken and Grieco. The Court was particularly impressed with the evidence of Aiken who presented as forthright, sensible, consistent and plausible. Instances where the Court finds that the applicant gave contradictory, implausible or inconsistent evidence during his cross examination are as follows:
a)He asserted that discrepancies between diary entries in his phone [10] and further documentary recollections submitted to the Court in a word document [11] were caused because an additional set of hand-written notes used by him to record events had allegedly been ‘destroyed’ when the applicant was compiling his documentation. [12]
b)He stated in his diary notes that ‘Greg’ had made intimidating comments for ‘three days’, [13] when the applicant had deposed in his affidavit that Greg’s comments were only made over two days, namely 8 and 9 May 2018. [14] He also conceded that that was so during the course of cross examination. [15]
c)He gave oral evidence as to the events of 17 May 2018 (leaving the then worksite with work vehicle incident) which was largely inconsistent with his affidavit evidence on point. Notably, the applicant asserted orally that he had left the work site alone in a work van, and was later alerted by a telephone call that a co-worker’s medicine was inside the van, whereas the applicant had erroneously deposed in his affidavit that such co-worker was in fact in the van with the applicant when he left the work site. [16]
d)He alleged in affidavit evidence that he had ‘not been spoken to about my performance because this is not true’, [17] yet conceded during cross-examination that he had been given a ‘lecture’ regarding the incident when a work vehicle and a toolbox were damaged because the applicant had driven off in the vehicle without first ensuring that a trailer being towed by that vehicle had been properly secured to it. [18]
e)Saying that he needed supervision when installing conduits during cross-examination, [19] despite stating in his dairy notes that he did not need supervision. [20]
f)Deposing in his sworn affidavit evidence that he felt uncomfortable with swearing on site, [21] yet failing to make a record of his making a complaint to Aiken about that in his alleged contemporaneous diary notes.
[10] Annexure ‘DG-01’ to Applicant’s affidavit filed on 17 December 2018.
[11] Annexure ‘DG-02’ to Applicant’s affidavit filed on 17 December 2018.
[12] T. p. 32.43.
[13] Page 1 of Annexure ‘DG-02’ to Applicant’s affidavit filed on 17 December 2018.
[14] Paragraph 52 – 64 inclusive of the Applicant’s affidavit filed on 17 December 2018.
[15] T. p. 36.13 – 36.14.
[16] Paragraphs 69 and 70 of the Applicant’s Affidavit filed on 1 March 2019.
[17] Paragraph 6 of Applicant’s affidavit filed on 1 March 2019.
[18] T. p. 50.3 – 50.15.
[19] T. p. 55.36 – 55.38.
[20] Page 7 of Annexure ‘DG-02’ to Applicant’s affidavit filed on 17 December 2018.
[21] Paragraph 51 of the Applicant’s affidavit filed on 1 March 2019.
As to issues of credibility, the Court had the benefit of assessing the evidence of all witnesses, and observing their demeanour during the course of their evidence. [22]
[22] The Court acknowledges the approach of McHugh J in Re Minister for
As to Aiken’s evidence, the Court found Aiken to be honest. Some convincing aspects of his evidence were as follows:
a)when asked about how people fitted in to what was suggested to be a tough industry, Aiken responded in a direct manner as follows:
“They fit into any industry. If you follow instructions, you do what you’re told to do. You get trained properly. You fit in.” [23]
[23] Transcript (T) p. 68.27.
b)he readily acknowledged that jokes, bad language and crude language were prevalent in the construction industry; [24]
[24] T. p. 68.35 – 40.
c)when questioned about aggression in the workplace, he pointed to a raised voice, pointing and shouting as being indicia of aggression. [25] The following exchange during cross-examination occurred:
[25] T. p. 70.22.
“So talking generally, does that behaviour occur amongst other employees within the organisation?---That there has been one or two instances of other employees, we discuss it, we work it out like we tried to do with Dan. But unfortunately, it was just time after time after time with Dan, and he wasn’t following instructions. It makes him a danger on-site.
So the question remains – is there aggression amongst other employees in the workplace?---There was been different points where people have rubbed together. But not shouting and screaming and swearing at each other, the way that Darran was.” [26]
[26] T. p. 70.29 – .37.
d)denied that he had been aggressive to the applicant; [27]
[27] T. p. 71.13.
e)he said during cross-examination that his was a diverse workplace but that the applicant didn’t fit in. [28]
[28] T. p. 115.4 – p. 115.17.
f)he denied that he told the applicant that he needed to toughen up a bit and that he would turn him into a cunt within six (6) months; [29]
[29] T. p. 75.10 - .14.
g)he said that he spoke to the applicant about his toilet breaks and especially arranged for the applicant to take his own car to every site so as to avoid a situation where the applicant was required to take a work vehicle away from the site, so he could go to the toilet, when such vehicle was needed to be used on site. Aiken’s evidence on point during cross examination was as follows:
“Perfect. The applicant made a lot of complaints during his employment, didn’t he?---No. He didn’t, actually. He made two complaints and we put solutions together and sorted it out.
What are those complaints that you recall?---He felt that when he took away – what he did was he took the van away with all the tools in it to go to the toilet. And I –
there’s no problem going to the toilet, but sometimes three times a day for an hour at a time. So all the tools - - -
HIS HONOUR: I’m sorry. Your accent - - -?---Yes. Sorry. Too fast.
- - - deceived me at that time, Mr Aiken. What did you say then?---I said so what he did - - -
Sometimes two or three times a day?---He would take the van to go to the toilet.
Yes?---All right. But he would take it away for an hour at a time. You know, you can go to the toilet, but there’s usually a servo 10 minutes up the road. Go to the toilet and come back. But when you’re taking the vehicle away with all the tools in it, the boys couldn’t work, so Darran brought that to my attention. We worked out that, “Okay. You can’t do that anymore, so take your car to site.” So we took his car to every site after that, and he left any time he wanted.” [30]
[30] T. p.76.40 – p. 77.15.
h)he explained that he was not a religious person and didn’t care if his employees were religious, or if they were, what religion they practised. The following exchange during cross-examination was an example of that attitude:
“What are your current thoughts with respect to religion?---I don’t have any.
So you say you don’t discriminate on the basis - - -?---No.
- - - of religion. Now, you’ve said that you’ve got a variety of different religions in your - - -?---Of course.
- - - workplace. Do you ever find difficulty with particular views - - -?---No.
- - - and - - -?---Never.
- - - them getting along? So you quite comfortably tolerate these religions - - -?---What do you mean tolerate? They can be whatever - - -
- - - within your workplace?--- - - - they want to be. There’s no – absolutely no bother of mine. Anybody can do what they want.
So, from my perspective, that sounds like you tolerate it, but I do need it from your words?---Tolerate is the wrong word, mate. I don’t tolerate anything. If someone wants to believe this or that, that’s nothing to do with me.
Perfect. Now – so you allow religion in your workplace, as long as it doesn’t mess with the workflow?---Allow religion? What are you talking about? What has religion got to do with my workplace?
One of the components that is on trial today relates to discrimination on the basis of religion?---And I’ve already told you - - -
HIS HONOUR: An allegation of discrimination.
MR VAN OEVEREN: My apologies, your Honour. An allegation of discrimination currently before the - - -?---I’ve already told you, it doesn’t – we have Muslims, we have Christians, we have every walks of life. We have people who don’t believe in God at all. Who cares? They’re just there to work, mate, and be safe and go home.
And so that speaks to the question I asked, which is you have no issues with religion in your workplace - - -?---Definitely not.
- - - as long as it doesn’t mess with your workflow?---No. No. I don’t have any problem at all, nothing to do with the workflow. It does not matter. As long as they’re to dig. That’s all I need them to do, mate. They just have to work and be safe.” [31]
[31] T. p. 75.44 – 76.38.
i)he said that in an effort to ameliorate the tension between the applicant and the supervisor Nicholls he endeavoured to “separate them until they could sort it out.” [32]
[32] T. p. 78.24 – .27.
j)he explained how he referred to some of the applicant’s complaints as meaningless during cross-examination as follows:
“HIS HONOUR: Well, what were examples of the meaningless complaints?---Exactly what I was saying: putting the glue on or - - -
Go slowly, Mr Aiken?---Sorry. Sorry. Sorry. So, yes, I can’t remember everything. It’s 18 months ago. So all I can remember is talking about – let me try and get an example. The last one would have been on the 11th, was the day before he came in and was abusive to me in the morning, was he was complaining that we were trying to instruct him how to put together the pipe, because what he was doing was completely wrong. We – Andrew tried to explain to him how to do it, then another employee tried to explain to him how to do it, but he just didn’t understand what he was doing was wrong. And he wouldn’t take any – any directions for that. He started shouting at all the boys, he started becoming aggressive to everyone. He was complaining about “You never listen to me. You do this. You do that.” If that’s what you want to call a complaint, I call it just being aggressive and abusive. And then he got asked to leave site.
MR VAN OEVEREN: Because the issue is – you say here:
…would often make meaningless complaints.
You’re speaking to us about a single incident, but you’ve used the word “often” here, so what were these often meaningless complaints?---Well, that was one.
How often were they made?---Well, I don’t know exactly how many of them.
You’ve sworn to it on an affidavit here, so I’m asking - - -?---Yes, but I - - -
- - - for a bit more context. How often were the complaints made?---I don’t know exactly. I can’t – I don’t have the number off the top of my head.
So you don’t recall these complaints very well, do you?---No, well, they were told to me by staff.
So I put it to you that you disregarded most of these complaints, didn’t you?---I wouldn’t say disregarded. I listened to them, and I addressed the things that I felt needed to be addressed, and I talked to Darran about things that needed to be talked about.
But you felt that most of them were meaningless or had no basis, didn’t you?---Some of the things he was talking about. I never said “most”. But some of the things he was talking about were definitely not something that was a major issue. Correct.
So what percentage would you say had no basis?---I don’t know. I can’t remember.
And what percentage would you say were meaningless? Now, you thought you had addressed these complaints, hadn’t you?---I addressed the two major complaints, yes.
Well, you’ve said – yes. You’ve said he has brought you these two major complaints?---Yes.
That you thought had no basis, but you’ve - - -?---No, no.
- - - thought you’ve addressed those?---The other two we – the other two major complaints we addressed immediately. They were the ones that were a major – complaints.
But - - -
HIS HONOUR: And were those the two that you referred to before - - -?---That’s correct.
- - - about the toilet and problems with Andrew Nichols?---That’s correct.” [33]
[33] T. p. 79.9 – 80.25.
k)he denied that he had received any complaints from the applicant about the employee named Greg, but Aiken readily admitted that he had received complaints from the applicant about Nicholls behaviour toward him. [34] The Court accepts that Aiken was being truthful when he denied that a complaint had been made by the applicant about the employee named Greg. If he had been untruthful, one would have expected him to deny both allegations. The employee named Greg had had his employment terminated before the termination of the applicant’s employment for reasons unrelated to the applicant.
[34] T. p. 82.5 - .12.
l)He explained that the practice of having an employee “spot” for him was most often to keep a lookout for, and to observe whether, pedestrians were approaching the pit where drilling into some asbestos might be taking place, such that the pedestrians could be warned to walk away from the pit. So much was common sense. As to the applicant’s assertion that he was asked by Aiken to spot for the purpose of warning Aiken of the approach of Telstra staff, Aiken explained that such allegation made no sense because it was not unlawful for him to drill into a Telstra pit which contained asbestos, him being authorised, as a licensed contractor, to do just that. [35]
[35] T. p. 91.15 – 93.24.
m)he denied that his father was a priest. It is entirely understandable, and logical, that someone whose father was not a priest would deny that that was so. The Court finds that it was incredible for the applicant to have recorded in his notes that Aiken had said that his father was the head of a church / priest when there was no factual basis for the making of such assertion. [36]
[36] Page 149 of Ex. 1.
n)he denied that Nicholls said to him that he didn’t like the applicant. He admitted that Nicholls said that he didn’t want to work with the applicant; [37]
[37] T. p. 95.15.
o)he denied that he said to the applicant that the applicant was putting himself in the spotlight by making complaints, or that he was sabotaging himself. The relevant passage in the transcript is as follows:
“MR VAN OEVEREN: Now, it remains our position that there were more than these two complaints as has been put to you a number of times. Now, the complaints that the applicant made annoyed you, didn’t they?---No.
You told the applicant he was putting himself in the spotlight by making complaints, didn’t you?---No.
You told the applicant that he was sabotaging himself and that things would go bad, and bad things would happen if he kept making complaints, didn’t you?---Why would I say that? No.
I put it to you that that’s simply incorrect, and you did say those things to the applicant?---No, I didn’t.” [38]
[38] T. p. 94.10 - .24.
p)he explained how the applicant had caused damage to one of the company trailers because he had driven off in a vehicle without having first properly attached and secured the trailer to it; [39]
[39] T. p. 102.15 - .40.
q)he explained how there were performance issues before the applicant’s date of termination of employment on 12 June 2018. [40] The example of the applicant failing to properly secure the trailer when driving off in a work vehicle, thereby resulting in damage to the vehicle, was but one example of poor work performance;
[40] T. p. 107.24.
r)he denied that he told the applicant to “fuck off” on the morning of 12 June 2018. His cross-examination on point was as follows:
“Do you recall the events of 11 and 12 June, and I appreciate that’s a broad question but we’ve talked about them in some detail and they’re outlined - - -?---Specifically.
- - - in the affidavit. So I will turn your attention to paragraphs 16 and 17 at page 132 of the materials. On 12 June – well, on 11 June, there was an initial dispute between Mr Nichols and the applicant; is that correct?---Correct.
And that continued on 12 June; is that correct?---It certainly did.
Now, you’ve said to the court earlier that you were present for that interaction, and you witnessed - - -
HIS HONOUR: Which one?
MR VAN OEVEREN: The dispute that occurred on the 12th.
HIS HONOUR: Yes.
MR VAN OEVEREN: That specifically relates to the termination.
So you were present for that interaction?---Dan came up and started abusing me straightaway in the morning. I didn’t even say hello.
Were you aware of the dispute that had occurred between Mr Nichols and the applicant?---I was told about it, yes. And we were going to be talking about it in the morning, correct.
And so you’ve – you witnessed them arguing?---No, I wasn’t there.
Okay. Now, the applicant brought his concerns to you about that dispute?---No. He came and he shouted at me.
The applicant approached you with respect to that dispute, and you told the applicant to fuck off, didn’t you?---That is – no, rubbish.
I put it to you that that’s not true?---Well, you’re wrong.
Now, the applicant complained to you and said that Mr Nichols was trying to do whatever he could to get him fired, didn’t he?---Andrew didn’t complaint to me. Dan didn’t complain to me. Dan shouted at me and abused me.
The applicant told you that Mr Nichols was doing whatever he could to get him fired, didn’t he?---That was what he was trying to say, correct.
And so the applicant did say those words?---He shouted them at me, yes, correct.
I put it to you that that is a complaint?---No, it’s screaming at me. It’s abusing me.
I put it to you that it is still expressing concerns about matters relating to his employment?---Wasn’t a complaint. If he had of come to me with a complaint .....
different. He came up and he started shouting at me with a piece of paper. I didn’t even know exactly what he was talking about.
Now, Mr Nichols witnessed that interaction, didn’t he?---Correct.
Mr Nichols was present?---No, he wasn’t present. He witnessed it. Because he was shouting at me, the whole yard witnessed it.
So Mr Nichols was within earshot of this interaction?---Correct. He was standing over by his care, about 20 metres away.
Perfect. Now, Mr Nichols seemed angry, didn’t he?---No. I brought Mr Nichols over to try and work out what the problem was.
I put it to you that Mr Nichols was angry?---No.
I put it - - -?---Mr Nichols came across and we tried to sort it out.
I put it to you that Mr Nichols was upset?---He was probably frustrated, would be a better word.
You told us earlier that Mr Nichols was very upset by the events - - -?---At the end of it. Correct.
- - - of the day. I put it - - -?---You’re talking about leading up to what happened. He was frustrated when he came across and then when Darran continued to shout at him – and me – he did get angry, and he walked off.
I put it to you that you are conflating those two points and I put it specifically to you that Mr Nichols was upset, as you’ve acknowledged earlier?---Frustrated. Correct. And that that occurred immediately after his interaction with the applicant that morning, and had continued through your interaction with the applicant on that day?---I don’t understand the question.
I put it to you that at the time the applicant was interacting with you – as we’ve been speaking about – Mr Nichols was frustrated and remained frustrated?---When they brought over to the conversation and they tried to sort out what was actually happening, what the problem was.
HIS HONOUR: What time in the morning was this?---First thing. 6 o’clock. 6 o’clock in the morning. Yes.
6 am. Right.
MR VAN OEVEREN: Now, Mr Nichols said that he was trying to get the applicant fired, didn’t he?---No.
I put it to you that that’s not true, and that Mr Nichols admitted and acknowledged – and stated – that he was trying to get the applicant fired?---Not correct.
Now, you pushed back against the applicant, didn’t you?---What does that mean?
You were unhappy with the applicant’s approach?---No one likes getting shouted at when they don’t understand exactly what’s happening there.
And that annoyed you, didn’t it?---It didn’t annoy me. I was trying to work out what was going on. I was actually a bit more shell-shocked than anything else, would be the correct terminology.” [41]
[41] T. p. 109.45 – 112.12.
Aiken never admitted that Nicholls said to him that the applicant’s employment should be terminated. Aiken admitted that that’s what the applicant was saying to him on the morning of 12 June 2018, but Aiken specifically denied that Nicholls had said as much to him.
s)he explained the circumstances of the termination of the applicant’s employment in cross-examination as follows:
“I put it to you that you became aggressive towards the applicant?---I tried to defuse the situation where I have a guy standing, shouting in my ear here, I have all my employees standing around, I have him abusing me, abusing Andrew and abusing anybody that wanted to listen. And he actually – one of the words I specifically remember him saying is, “You’re all out to effing get me.” Is what he said.
I put it to you that you became aggressive with the applicant?---No, I did not. I tried to defuse the situation. You’re wrong.
You specifically told the applicant, “You’re trying to get my supervisor sacked.” Didn’t you?---No.
I put it to you that that’s not correct?---Well, I’m telling you you’re wrong.
The applicant told you he was going to make a complaint to ASIC, didn’t he?---I don’t even know what he’s talking about there. I don’t know what you’re saying.
Regardless of whether you understand that or not, the applicant still told you he was going to complain to ASIC, didn’t he?---I did not hear that. No.
I put it to you that the applicant did?---I don’t agree.
How do you feel when employees make accusations at yourself or at your supervisors?---Try and resolve it.
How do you feel when you are told you’re going to be taken to a regulatory authority, or reported - - -?---How do you feel?
- - - to a regulatory authority?---Obviously you don’t want that. Like, what kind of question is that?
So it annoyed you that - - -?---No. It wasn’t said.
I put it to you that it was, and I put it to you that it annoyed you?---I put it to you you’re wrong.
You didn’t think his complaints were valid. You wanted to have the back of your supervisor, so it really got under your skin that he said he was going to make that complaint to ASIC, didn’t it?---Didn’t happen.
You just got very angry and lost it when you heard that the regulator was going to receive a complaint, didn’t you?---Didn’t happen.
And it’s a threat to your business, a complaint like that, isn’t it?
HIS HONOUR: He has denied it, Mr van Oeveren.
MR VAN OEVEREN: The question, your Honour, is - - -
HIS HONOUR: He has denied it. There is no point labouring the issue when he has denied that the complaint was ever made.
MR VAN OEVEREN: Is such a complaint a threat to your business? Would - - -
HIS HONOUR: It’s irrelevant. I won’t allow the question.
MR VAN OEVEREN: You told the applicant that he was a threat to your business, didn’t you?---No.
You told him to leave the site because he was a direct threat to your business, didn’t you?---I told him to leave the site because I had had enough.
I put it to you that that’s not the truth. I put it - - -?---Well, it is.
- - - to you that you told him to leave, because he was a direct threat to your business?---That’s not correct.
The termination was never about performance, was it?---Yes, it was.
I put it to you that it was never about the quality of the work?---It was.
I put it to you that it was because you wanted him out, because he didn’t fit and because he didn’t fit, he was making the complaints based on his religious views and that those complaints were about your supervisors?---It was about the fact that he wasn’t following instructions, he was a danger to himself and a danger to the other workers. He was not the right fit for my business. That’s why it was. The work – all the work performance and things were added to that. But he was a danger to himself and other people.
I put it to you that it just didn’t happen like that. What happened was that you could no longer ignore the applicant’s complaints, now that they were directed at you and your supervisors, and you needed him out of your company?---We dealt with the complaints as we sorted out earlier. This was due to his work performance. Due to the fact that he was a danger to himself and a danger to the other people.
What happened was that the applicant’s religious views meant that you felt he just didn’t – and would never – fit in with your business, and you needed him gone?---Not correct.
I put it to you that that’s not correct?---Well, you’re not correct.” [42]
[42] T. p. 112.46 – 114.41.
t)he clarified his thoughts about the applicant’s employment performance before termination, as well as the incident involving the trailer, in re-examination as follows:
“MR CHEN: Mr Aiken, you mentioned that you received two specific complaints from the applicant, correct?---Correct.
And these complaints had been dealt with?---Correct.
When were they made during Mr Gibbons’ employment?---I can’t remember specific dates if that’s what you’re after.
Was it earlier on or later?---On was early on and then, obviously, the one about Andrew it was a bit further on because they had to have time to work together to figure out that things weren’t working out.
Now, Mr Aiken, what was your state of mind prior to making the decision to terminate Mr Gibbons’ employment?---Well, it was becoming clear that he wasn’t suitable for the type of work that I do in my business, which is fine, not everyone is. So as far as I was concerned he wasn’t – he wasn’t capable of following the correct instructions that were being given to him and I felt that it would be better for him to go somewhere else.
Mr Aiken, could you describe the incident on the morning of 11 June 2018. That was the toolbox – the damage to the toolbox?---Well, that’s when – when they didn’t – so what had happened was there was couple of - - -
HIS HONOUR: Well, first of all were you present?---Yes, I was.
All right?---For the toolbox, yes. So there was a couple of employees around the vehicle. I was just beside it. I don’t know exactly – I don’t know if Darran put it on or who put the hitch on but someone put the hitch on the trailer - - -
Well, when you say hitch, are you talking about a knot or are you talking about a bolt?---The hitch. So the ball – and the hitch of the trailer was onto the ball. So when it goes down there’s a clip on the side and whoever put it on hadn’t obviously secured that properly and put it down so it locks on but Darran then drove off and he braked, for whatever reason, and the trailer jumped up and smashed into the back of the truck. Now, it’s the driver’s responsibility to check all stowed loads and secure the load, no matter what it is. It doesn’t matter if it’s a truck, anything, a car. That’s the law. And Darran didn’t do that.
MR CHEN: Would you consider it to be a health and safety incident?---I did.
And what steps did you take to sort that out?---Darran and I had a chat about that and we had a talk to see – look, man, why did you not do this. Darran got very agitated. He didn’t get angry that time. He didn’t do that now but he did get very agitated and didn’t like the thought that he had done something else wrong but that was, you know, that started to raise a lot – a flag for me and that was when I started to make the decision that he wasn’t a right fit for the business.” [43]
[43] T. p. 116.22 – 117.21.
u)he explained how he would receive feedback about the applicant’s work performance as follows:
“Thank you. And just to confirm, Mr Aiken, much of the feedback you received in relation to Mr Gibbons was relayed to you through your supervisors?---And other works, yes.
Could you tell me some of the procedures that would be taken to give that feedback to you? What - - -?---It’s just a general – it’s just a general conversation – at the end of the day. And it’s not even “heated this” or “heated that” it’s more feedback of “Look, we think we need to develop this fellow here. There is a bit of an attitude adjustment that we need to, sort of, chat here. They’re very aggressive with this.”
So you know, all of those things, we taken into account and try and mentor through – the new workers through the program.
You mentioned this was a daily meeting?---Aye, that happens at the end of the day. Yes.
At the end of the day?---Yes. More to see the progress of the work. And then if anything is raised, it’s raised. If it’s not, it’s not.
But it lets you keep track of how workers are progressing?---100 per cent.” [44]
[44] T. p. 117.37 – 118.10.
The affidavit evidence of Aiken was generally consistent with his oral testimony. Such consistency assisted in the Court’s assessment of Aiken’s credibility relative to the credibility of the applicant on issues where their evidence differed. The one occasion on which Aiken’s evidence during cross examination arguably conflicted with his sworn evidence was in relation to whether Nicholls had said to Aiken prior to 12 June 2018 that he refused to work with the applicant. In his cross examination, that issue was clarified to the Court’s satisfaction, as recorded in the transcript, as follows:
“MR VAN OEVEREN: I put it to you that Mr Nichols told you that he refused to work with the applicant?---No, he said there were issues and he wouldn’t follow instructions, and he was a danger onsite and he didn’t want to have the responsibility.
Can I please turn you to your affidavit. My apologies, simply – I believe that is – my apologies, your Honour. I’m simply confirming the page for you. Can I please turn you to page 132, and specifically bring your attention to paragraph 14. Now, you have just told this court that Mr Nichols never told you that he refused to work with the applicant. And yet you have specifically stated on the second line on paragraph 14:
Andrew - - -
Who to my understanding is Mr Nichols; is that correct?---Yes. Correct.
You specifically stated the words:
Andrew has previously informed me that he refuses to work with Darran.
?---Okay.
So which is incorrect? The affidavit or what you have just told the court now - - -?---That happened on the 12th, whenever they were leaving, where Andrew actually said, “I’m refusing to work with him,” on that day. So that was the day he left. It wasn’t beforehand and they ..... and they said that he went and walked off and said either, “I’m going, because I can’t work with him anymore”. So that was what happened that day.
HIS HONOUR: The word – Mr Aiken?---Yes, sir.
The paragraph says:
And Andrew has previously informed me that he refuses to work with Darran.
The 12th was the day of dismissal?---Correct.
So it couldn’t have been the 12th, because you have said that Andrew said that he had – Andrew has previously informed me that he refuses to work with Darran?---This was written after the fact so my wording could be potentially a little bit wrong there, as I stated. So what I was meaning was, when I wrote this, which was after the fact, he did previously tell me on that day that he wouldn’t work with him anymore and he was going to leave. He was actually going to leave his employment because of the way that Darran was behaving.
MR VAN OEVEREN: So you would say that Mr Nichols was quite upset?---That day, most definitely.
Perfect. So simply on that point, before, it was the case that Mr Nichols had told you that he refused to work with the applicant, wasn’t it?---No. It was, as I said to you, this was written after the fact and that’s what I meant by that.
So it remains that Mr Nichols told you he refused to work with the applicant, didn’t he?---On that day, correct.
Mr Nichols wanted the applicant gone from the workplace, didn’t he?---Well, he didn’t feel that he was suited to the work.
And he wanted him gone, didn’t he?---Well, he was – he made his point to me that he didn’t feel he was suitable for the work, so we tried to mentor him through the work. It didn’t work, and he was right. He wasn’t suited to the work.”
Evidence was adduced by affidavit and orally from an employee of C&M named Grieco. The oral testimony of Grieco appears at transcript pages 122 – 130 inclusive. The affidavit of Grieco appears at pages 133 – 135 inclusive of Exhibit 1. That affidavit relevantly provided as follows:
“[1] I am a current employee of the First Respondent.
[2] I worked with Darran Gibbons, the Applicant, during his employment with the First Respondent.
[3] Darran's performance during his employment made me feel that he was unsuitable for manual civil construction work because he had to be told how to do tasks even though they had previously been taught to him.
[4] Darran also had poor attitude when he was told what to do and gave me the impression that he felt like an expert once he has completed a task and did not need guidance from other employees.
[5] It is my opinion that Darran did not show any initiative during his employment which is important for the team to be able to work together well given the nature of the construction industry.
[6] As an example, for our trenching work to lay down conduits, employees are expected to unload equipment, get tools ready, and clean up debris and waste after the work is finalised. On numerous occasions, I had to specifically tell Darran to perform these tasks as he would be standing around doing nothing.
Fig Tree Pocket Job
[7] On 17 May 2018 at the Fig Tree Pocket worksite, Darran informed me and Andrew in the morning that he wanted to go to the toilet right after work had commenced.
[8] I recommended that Darran should try and use the toilet before work because all employees need to be able to start at the same time in order to avoid bottlenecks in the work. I told him that it might take some time to get into the rhythm of using the toilet before work.
[9] It is my opinion that Darran had to use the toilet a lot and I would consider them excessive.
[10] Andrew did not point towards the water’s edge and tell Darran to go to the water’s edge to relieve himself.
[11] After the discussions with Darran, he left the site to go to the toilet after getting authorisation from Chris.
[12] I left the site shortly as well in order to meet a Downer supervisor for a job site approximately 2km away from the Fig Tree Pocket worksite. I saw Darran driving past and assumed that he was heading to the toilet. I subsequently learned that he was going home as he had enough of work and was not coming back.
[13] I received a call from Brendan informing me that Darran had driven off with his bag. Brendan managed to speak to Darran and talking him into coming back and staying at work.
[14] After Darran returned to work, he advised that he was not quite with it due to a recent death in the family. I therefore requested that he take 2 days off in order to help him recover from his loss.
[15] I was understandably frustrated with Darran because he had taken a work vehicle containing tools and the property of another employee, however I did not suggest that Darran should be sacked.
[16] I deny that I said “I will give you another chance” to Darran. This is untrue and I do not have the authority to manage Darran’s employment.”
The above sworn evidence of Grieco raised significant issues going to the issue of poor work performance on the part of the applicant. During the course of Grieco’s cross-examination, it was not put to him that his sworn evidence was untrue, unreliable or implausible in important respects. Cross-examination of Grieco, rather, was general in character, mainly relating to workplace culture, and whether Grieco had ever heard Aiken use crude language on work sites. Though the applicant’s affidavit filed on 1 March 2019 in part addressed issues raised in the Grieco affidavit, [45] it failed to do so in respect of the allegations at paragraphs 6 (relating to the failure of the applicant to “unload equipment, get tools ready, and clean up debris and waste after work is finalised”), 12 and 15 (relating to the applicant leaving work and going home and leaving work with a work vehicle containing work tools). To the extent that the applicant failed to contest such allegations, the Grieco evidence on those issues was unchallenged. Those were important allegations made against the applicant in relation to his poor work performance which were not addressed in reply affidavit evidence, and which were not put to Grieco during cross examination.
[45] Paragraph 47 on p. 118 of Ex. 1.
No affidavit filed on behalf of the applicant addressed the allegations contained in the Nicholls affidavit filed on 3 April 2019. The same failure to put the applicant’s case in important respects in respect of Grieco’s sworn affidavit evidence also occurred in relation to affidavit evidence of the witness Nicholls. The oral evidence of Nicholls in cross-examination was persuasive. It was relevant to the applicant’s case as follows:
a)he admitted that he used swear words when talking to the applicant; [46]
[46] T. p. 133.42.
b)he denied that swearing in the workplace was common or that aggression in the workplace was common; [47]
[47] T. p. 134.45 – 135.5.
c)he was questioned about the circumstances surrounding the argument said to have occurred on 11 June 2018. Nicholls’s affidavit evidence on point was as follows:
“[22] I recall an incident where Darran was 'spotting' for me whilst I was operating plant equipment This is an important measure of workplace health and safety to ensure that no worker is injured.
[23] At some point, Darren had wandered off to take a personal call whilst he was spotting for me. I noticed that Darran had wandered off and therefore made a decision to stop working given that it is a serious breach of workplace health safety if I continued to operate plant equipment without a spotter.
[24] After waiting for an extended period of time for Darran to return, I asked a junior employee (in terms of age) to ask Darran to finish his call as soon as possible and to return. I explained to the junior employee that I could not resume work without Darran being present and that Darran was delaying the work.
[25] When the junior employee spoke to Darren, Darran immediately abused the junior employee using all manner of expletives and yelling that the junior employee 'could not tell him what to do' and further stated that 'you are just a fucking junior, you are at least 15 years younger than me, fuck off’.”
Nicholls evidence in cross-examination on this point was as follows:
“HIS HONOUR: What happened on the 12th to result in the argument between you and the applicant?---Okay. We were working on a particularly difficult site that day.
We had - - -
Where? Was it a footpath? Was it a yard? Was it a hill?---We were on the nature strip out the front of a house.
A nature strip. A footpath?---On – on the – well, there was no concrete footpath. It was a grassy area between the front fence and the gutter. There was no concrete footpath in that specific spot.
All right?---But we were on the – we were on the nature strip in Albany Street. It’s quite a wide area. I remember it specifically because we use a machine called a Grundomat, and we had to – to come in previously, which – coming from behind the property, and it left us with a – a very deep connection that we had to do because we had to under the footings of the – of the fence that was there.
Just explain what a Grundomat is?---It’s a device for making a hole under the ground– that’s like a tunnelling device, a basic, crude tunnelling device. Operates off a compressor. But I don’t believe that’s relevant, except for that’s what it is. It was a difficult site, it involved a deep hole, a connection going into a property, there were services out the front, our area to work in was quite tight and restricted.
What time of the day was this?---We were there pretty well most of the day, off the top of my head. We were there pretty well all day because there was quite an extensive site. So there were works completed in that vicinity over a number of days. But on this specific day, we had to do this one connection going in under the house. And we had driveways on this and driveways on that side, so it was a – there was a tree there. It was quite a restricted site. I had asked Darran to work that day as the spotter for the machine. I – I should also mention my – my role is to basically operate the excavator. So I’m on the machine, operating the excavator. Darran was asked to be the spotter, which involves watching carefully the bucket going through the ground to avoid existing services, etcetera, etcetera. So that’s what he was asked to do, but that’s not what he did. For reasons unknown, he decided he was going to make up this fabrication of fittings and pipe and – that’s the genesis of the argument. The fact that Darran didn’t follow instructions.
Didn’t follow the instruction to do what?---To be a spotter. To – to operate with the machine, to stay with the machine and – and look at the bucket and guide me. To be– when you’re sitting up on the machine, you can’t see what’s happening behind. So the idea of the spotter is he would stand behind the bucket and he would be my eyes and ears on the blind side of the bucket. But he wasn’t doing – he – he didn’t do that. He decided, I don’t know why, to make up this – this fabrication, I can call it – as I say, it was extremely awkward. It was a difficult site, and he, for whatever reason, got it in his head he was going to make up this – this pre-fabricated fitting, which is not the normal way we would go about doing that work. Normally we would – we would open everything up, have a look at what’s there, and then basically do it piece by piece to get it into place. So he – he was continuing with that work. He was – he had made up the – the fabrication, and he was proceeding to – to try and connect it in the hole, and I could see that it wasn’t being done properly and I asked him to stop. And that’s really where it – it blew up.
Yes. And what happened after that?---I asked him to – to stop doing that. He took offence at that. He started ranting and raving, and I said to him, you know, it’s not – it’s not going to work. It’s not how we do it. He took exception to that. He started swearing. He was swearing at me. There were two other guys there, Brendan and – yes, I don’t – the other young fella’s name escapes me, but – but, yes, he started swearing and carrying on. He took offence, and somehow he took it that I was telling him that he – he wasn’t good enough or something along those lines. And the other guys said to him, they tried to calm him down and say no one is saying anything like that to you. Just – just let us do our job. Just let us get on with it. But he basically – he took offence. He started swearing, and I said to him, “Darran, you know, you can’t be swearing at me. You can’t be carrying on like that and stay on the site. I need you to leave the site.” And, again, he got – you know, you could see his face was flushed, he was very agitated. And I asked him several times, and he wasn’t – he was hanging around and – we had stopped work by this stage. I got off the machine and I said, “You need to leave the site.” And after saying that a number of times – again, he’s swearing at me. He got in my face, and I said, “Look, mate, just fuck off, would you. Just get out. Go and ring Chris. Do whatever you need to do, but just please leave the site.”
MR VAN OEVEREN: I put it to you that that’s not an accurate recount of what occurred, and that you swore substantially more throughout the argument and subsequent events?---That’s not correct.
I put it to you that you were very aggressive towards the applicant throughout this entire dispute or argument over we’re referring to it?---Not at all.
I put it to you that the applicant complained, and said that you were trying to do whatever you could to get him fired?---Not correct.
I put it to you that when the applicant made this statement, you responded that, yes, you were trying to get him fired?---Those words did not come out of my mouth.
I put it to you that that’s not correct? I put it to you that you were angry for this entire exchange?---No.
I put it to you that you were very upset through this entire exchange?---I was not upset.
Now, you’ve identified before that there were two employees who witnessed all of this, Brendon, and based on your affidavit at page 114 - - -?---James. - - - 93, James. That’s correct. They witnessed this entire sequence of events; is that correct?---That is correct.
They’ve not been called in as witnesses in this?---I don’t know.
Is that correct?---I don’t know.
I put it to you that had they give evidence in this matter, their evidence would have been inconsistent with your own?---I don’t agree.
MR CHEN: Your Honour, this is - - -
HIS HONOUR: No, he’s entitled to put that to the witness.
MR VAN OEVEREN: I put it to you, again, that your account of the events is not truthful, and that had these two witnesses been called to give evidence, they would disagree with the evidence you’ve put before the court today?---I don’t agree.
Now, what’s your relationship with – sorry. Finally on that, I – what was Mr Aiken’s demeanour during this argument?---He wasn’t on site. So at no point on 12 June did Mr Aiken join in the dispute – join in the argument that you were having?---On site?
On site?---No.
I put it to you that that’s not correct and that he was on site. Be that as it may, I will move on in those circumstances, your Honour.” [48]
[48] T. p. 144.9 – 146.34.
It is clear from the above that cross-examination of Nicholls on the spotting issue did not descend to it being put to Nicholls that his affidavit evidence or his oral evidence on point was inaccurate. In those circumstances, the Nicholls evidence on that issue was relevantly unchallenged. Suggesting to Nicholls that had other witnesses been called, their evidence (unspecified as it was) would have contradicted that of Nicholls, without more, does not constitute putting the applicant’s case to him. Further, though there seemed to be confusion about the date of the spotting incident relative to the date of termination on 12 June 2018, it is clear from a reading of the totality of the evidence:
i)that the trailer incident where damage was caused to a work vehicle driven by the applicant, and to a toolbox, occurred before the spotting incident (probably earlier on 11 June 2018 before the spotting incident). [49]
[49] See applicant’s typed up notes of 11 June 2018 (where applicant said he would pay for a new
ii)that the spotting incident at Albany Street occurred on 11 June 2018.
iii)and that the applicant’s employment was terminated soon after 6 am on 12 June 2018 following the verbal altercation between the applicant, Nicholls and Aiken.
d)he was not challenged during the course of cross-examination on the contents of paragraphs [40] – [51] inclusive of his affidavit. Those paragraphs, under the heading “Darran’s poor work performance”, are as follows:
“[40] I consider that the work required by construction employees of the First Respondent to be repetitive in nature, and we basically do the same tasks and works every day of the week. Nonetheless, we are constantly changing our worksites and there are always work site specific challenges that need to be accounted for and dealt with.
[41] Whilst there may be a million permutations to perform the work, the basic work is pretty consistent. We lay pipes and install pits and notes for the National Broadband Network (NBN). Nonetheless, the First Respondent has some very specific procedures end requirements that must be followed to maintain consistency.
[42] In my view, Darran had an arrogant attitude and believed that he was always better than other employees, and constantly challenged instructions and directions in a demeaning and undermining way. Whenever I personally gave instructions to him, he regularly questioned me stating 'why am I doing this' and 'why wasn't another employee doing this'.
[43] I understand that the Second Respondent takes pride in the fact that he provides employment opportunities to people who have been unemployed for a long time. I respect the altruistic nature of the Second Respondent's recruitment practices, and I actively try to assist the Second Respondent by being patient in training new employees who may need some time to settle into their employment with the First Respondent.
[44] Nonetheless, Darran gave me an impression that be thought himself as being better than other employees, even in circumstances where the other employees had much more experience. Darran was constantly going off and doing tasks at his own whim, which is frustrating for me as a supervisor given that I have to co-ordinate the tasks performed by employees so that we can complete work in a timely manner.
[45] The primary way I tried to manage Darran's attitude was to be as clear and concise in my directions and requirements for the work each day. We have a pre-start 'toolbox meeting' each day and I use this opportunity to outline tasks and hazards and how I would like the tasks to be carried out. I also ask for any comments and suggestions from the employees invite them to put their views forward to me.
[46] Given that I always outlined the tasks for each day, I do not consider it plausible that Darran did not know the expectations of the First Respondent in terms of his duties and performance requirements.
[47] For the majority of the time I worked with Darran, all of the discussions I had regarding work performance were done in a group environment and I did not single out Darran or identify an individual. As mentioned previously in my affidavit, I also avoided private one to one interactions with Darran as much as possible.
[48] It appeared to me that Darran resented my authority as his supervisor and saw himself as somehow superior to me which was bizarre. It is my opinion that be took every opportunity to undermine me, question me in a negative manner or simply disregard the instructions I gave him. Effectively, 1 consider that Darran's conduct was insubordination.
[49] In order to make everyone's life a bit easier, there were many instances on site where I re-organised the work of other employees around what Darran had decided he would do for the day, just to ensure peace between everyone. Other times, I would direct Darran to perform tasks that were away from the immediate work site to ensure that he would not constantly criticise other employees.
[50] As time went on however, I was having more regular and more specific discussions with Tony Grieco, Operations Manager in respect of Darran's performance. I recall that on several occasions I specifically mentioned to Tony that I considered Darran’s continued employment with the First Respondent to be a 'danger'.
[51] It is my understanding that Tony sought a termination letter to be drafted for Darran, however this was not sent I consider that it was not sent because the Second Respondent was patient with its new employees and tried to help them with meaningful employment. I wish to make it very clear that I respect the Second Respondent for this, and do not resent him for this even if I was directly supervising Darran.”
In those circumstances, the evidence of Nicholls, where it was alleged that there was ongoing poor work performance on the part of the Applicant, was unchallenged. The Court accepts Nicholls’s evidence in that regard. It is of note that Nicholls stated in paragraph [51] of his affidavit that though Grieco was seeking the applicant’s earlier termination, Aiken held off terminating the applicant’s employment, was patient with the applicant, and tried to help the applicant with his work.
Rule in Brown v Dunne
The Court has had regard to, and placed reliance upon, the decision of the Court of Appeal in Curwen & Ors v Vanbreck Pty Ltd (per Redlich & Bongiorno JJA and Hansen AJA) where it was said: [50]
[50] (2009) 26 VR 335 at 346-347 ([21]-[22]) and at 349-350 ([26]-[29]).
“21. The rule in Browne v Dunn has been expressed as an obligation to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of the witness’s evidence.12 It is a rule of law and practice13 which requires the cross-examining party to provide the witness with the opportunity to deal with such evidence — or such inferences as may be drawn from the evidence — as the other party proposes to rely upon and which contradict the testimony of the witness.14
22. It was submitted that the trial judge failed to have regard to the qualification to the rule, that it will not be applied to the detriment of a party where the other party has been given adequate notice of the case that is intended to be put.15 In support of that qualification, the appellants pointed to the joint judgment of Gummow, Kirby and Callinan JJ in MWJ v R (2005) 222 ALR in which it was observed: 17
…
26. Returning then to the operation of the rule, this court said in Rees v Bailey Aluminium Products Pty Ltd: 24
… The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal’s assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not “put” to the witness in cross-examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.25
27. If the appellants’ submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness’s evidence or impugn the witness or party’s conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory. But whatever the effect of “notice”, the burden of persuasion as to that fact does not shift.26 It remains upon the party who seeks to establish the allegation. The cross-examiner who because of “notice” refrains from “putting” the allegations to the witness embarks upon a potentially dangerous forensic course.27 The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue.28 That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.
28. The rule facilitates the tribunal’s assessment of the issue. If the tribunal’s capacity to properly assess the merit of the allegation has been impaired because the issue was not explored with the witness, the cogency and weight to be attached to the allegation is likely to be affected.29 As Redlich J stated in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd:
Credit issues need to be identified when the witness is cross-examined and the trial unfolds. The judge’s capacity to assess the credibility of witnesses ought not to be impeded. Any relaxation of the obligation to comply with the rule in Browne v Dunn has the potential to do so, thereby increasing the risk of injustice to a witness or party.
29. Where, because there is “notice”, it is not considered necessary that the witness be cross-examined, the risk arises that the tribunal will not be able to reach an affirmative conclusion on the issue. That is to say, the consequence of the forensic choice to abstain from challenging the witness may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness.”
(footnotes omitted)
More recently, in Toula Holdings Pty Ltd and Ors v Morgo's Leisure Pty Ltd and Ors [2014] QCA 201 at [127], Muir JA (with whom Gotterson JA and Henry J agreed), stated:
“[127]Even if there was no obligation on the part of the respondents’ counsel to cross-examine, the failure to do so gave rise to the dangers identified in the reasons of the court in Curwen v Vanbreck Pty Ltd (2009) 26 VR 335 at 349: …”
It is not enough for the legal representative of a party to address specific allegations in a general way in cross examination, if specific allegations made by a witness in sworn affidavit evidence have not been the subject of specific challenge in affidavit evidence in reply. The applicant’s cross-examination of Nicholls failed to address important issues which went to poor work performance on his part during the course of his employment, as claimed by the respondents. In those circumstances, the Court is satisfied that the allegations of poor work performance on the part of the applicant, unchallenged as they were, have been established based upon the collective evidence of Grieco, Aiken and Nicholls.
Discrimination
The applicant further alleged that he was discriminated against during the course of his employment. Those allegations are as set out in [31] – [43] inclusive of the ASOC as follows:
“Contravention of section 351 of the FW Act
31. The First Respondent has contravened s.351 of the of the FW Act by taking adverse action against the Applicant by engaging in conduct upon which amounted to dismissal (discrimination) within the meaning of s.342(1 )(1 )(a) of the FW Act.
32. The attribute that the Applicant states was the basis of him receiving adverse action is religion.
33. At all relevant times, the Applicant had the right to be free from adverse action or be discriminated against, on the basis of religion as per s 351 of the FW Act.
34. Subsequent to and because of the protected attribute, that being the Applicant's religion whom identifies as a student of Jehovah's Witness, the Applicant was the subject of adverse action.
35. During the period of employment, the Applicant was the subject of adverse action by the First Respondent and its human agents, that being specifically the Second Respondent as well as other human agents of the First Respondent.”
36. On or around 8 May 2018. the Applicant was working with work colleagues "Greg" and "Sabash" at 133 - 135 Payne Street, lndooroopilly OLD:
(a) "Greg" was asking a variety of personal questions to the Applicant. "Greg" stated words to the effect of wanting to know how the Applicant would deal with him as the Applicant is a Student of Jehovah's Witness.
(b) Greg was asking a number of questions of which the Applicant noticed he was the only one who was being asked the same line of questions.
(c) These questions and statements, included but were not limited to:
(i) What would you do if I fucked your old girlfriend?;
(ii) Don't be a pussy and cry to your mother because I didn't help you fill in a large pothole:
(iii) What would you do if I stabbed you with a knife, would your God save you?
(iv) Have you ever smoked? Have you ever smoked?
(v) Do you drink and get drunk?
(d) "Greg" then stated to the Applicant words to the effect of "I hate religion and the bible is full of false stories from just men"
(e) Or around 9 May 2018 "Greg" stated to the Applicant words to the effect of: "What is wrong with you Darran and why don't just go to a nightclub and see strippers?" referencing the previous conversation with the Applicant.
(f) The series of questions were made to demean the Applicant or in the alternative to shock and distress the Applicant or to hurt and humiliate him.
37. In addition to this, the Applicant had made complaints about this behaviour to the Second Respondent about this conduct.
38. On or around 4 June 2018, the Applicant spoke to the Second Respondent:
(a) the Applicant stated that while he was able to undertake the work expected of him, that he was different to his work colleagues and required the Second Respondent's assistance;
(b) The Applicant made complaint about the conduct of the bullying and harassment that the Applicant was the subject of;
(c) the Second Respondent replied by stating words to the effect of' "My father was a priest and he tried to ram that shit down my neck" the Second Respondent then instructed the Applicant to words to the effect of: "Do not talk about that shit"
39. Because of the Applicant's religion, he was the subject of the following adverse action:
(a) Having the Applicant's employment altered to the Applicant's prejudice pursuant to s.342(1 )(1 )(c) of the FW Act:
(i) The Applicant was the subject of bullying and harassment due to his religion; and
(ii) this behaviour and conduct of the First Respondent and its human agents including the Second Respondent became a regular fixture within his employment: and
(iii) the First Respondent failed to prevent the bullying behaviour.
(b) being discriminated against comparatively to other employees within the First Respondent pursuant to s.342(1)(1)(d) of the FW Act, the Applicant was treated less favourably in comparison to his work colleagues as plead above.
40. The Applicant avers that he was the subject of adverse action on the basis of a protected attribute, that being religion.
41. The Applicant is of faith and was subject to adverse action prior to, and then which,
separately, culminated in dismissal.42. The actions of the First Respondent in dismissing the Applicant, as
pleadpleaded above, was adverse action within the meaning of s.342(1) item 1 (a) of the FW Act.43. By the operation of s.361 of the FW Act the Court may assume that the reason the First Respondent engaged in adverse action against the Applicant was because of, or (within the meaning of s.360 of FW Act) for reasons that included that the Applicant:
(a) had identified as having a religion; and
(b) that the First Respondent and its human agents, including the Second Respondent, had engaged in adverse action against the Applicant because of his religion.”
The evidence of Aiken, during cross-examination, relating to alleged discrimination against the applicant, was relevantly as follows:
“How diverse would you say your workplace is?---Yes. We do various skills.
By way of personal background. I appreciate one of the components under discussion today is the applicant’s religious views. Do you have - - -?---Sorry?
One of the elements under consideration today relates to the applicant’s religious views. Do you have people in the workplace of various faiths?---I do indeed.
Do you have people in the workplace of various religions?---I do, yes.
How many women do you have - - -?---One - - -
- - - on the worksite?--- - - - two, three, four.
And at the time the applicant was employed?---There was only three, but there were admin staff at that time.
Thank you. So you like the idea of diversity - - -?---Of course.
- - - don’t you? Perfect. Is it difficult managing such a diverse workforce?---No.
No? Given that it’s such - - -?---It’s not difficult. It can be challenging, but it’s not difficult.
Perfect. Now, you’ve made reference earlier to it being a tough industry when you’ve got such diversity in your workforce. Do you ever run into any difficulties - - -?---Of course.
- - - managing those diverse people?---Of course you do.
You like trying to help people fit in, don’t you?---I like, sorry, what?
You like trying to help people fit - - -?---Of course.
- - - in with your organisation? How do you usually go about getting these diverse personalities to mesh with your workplace?---We train them, we mentor them, we give them every opportunity to voice their opinion. We have meetings – monthly meetings where the employees to get an opportunity to speak out if there are any issues that they feel that they are coming up against the workplace. We do audits. We have management site visits. We do all of those things.
Now, bringing back to the fact that the industry is a tough industry, you need to toughen up some of these people, don’t you?---No. You just need people to follow instructions and not be a danger on site. It’s as simple as that.
Now, if people don’t fit in with the attitude, with the aggression on the workplace, with the bad language - - -?---Nothing to do with - - -
- - - you want them?--- - - - that. They need to follow instruction and follow what they’re doing, so they’re safe and they’re safe to other people on site. That’s as simple as that.
Now, when the applicant first started in his employment, you liked him, didn’t you?---I like everyone.
Perfect. And you told him such, didn’t you?---Of course I did.
He didn’t fit in very well into the workplace, did he?---There was a lot of things that he didn’t do right, which is not follow instructions, which made him a danger to himself and others.
But as a cultural fit, how was his cultural fit in the workplace?---I have cultures from everywhere. I’ve got people from Tunisia, I’ve got people from - - -
Yes. Well, we’re not?--- - - - Syria.
- - - talking about - - -
HIS HONOUR: Let him finish?---We’ve got people from all over the world working for me, mate. I’ve got women working on the site. I’ve got a woman who’s a civil supervisor who works machines. We do not care.
MR VAN OEVEREN: But the applicant didn’t mesh very well with the culture, did he?---That was his personality and his attitude towards everyone else, not the other way around.
But the question remains, the applicant didn’t fit very well - - -?---No, he didn’t.” [51]
[51] T. p. 72.8 – p. 73.39.
The evidence of Aiken on point during re-examination was as follows:
“MR CHEN: Thank you, your Honour. Mr Aiken, Mr Gibbons approached you on 24 June 2018 about his religion. What is your recollection of what was said?
HIS HONOUR: Sorry. 24 June.
MR CHEN: Sorry. 4 June 2018?---He come up and he said to me “I’m religious”. I said “that doesn’t matter” and he said to me, “I’m a Jehovah’s Witness.” And I said, “Mate – quote unquote – “I don’t care if you’re black, white, yellow, blue, pink, purple stripes. I just need you to dig.”
HIS HONOUR: To dig?---To dig.
Right.
MR CHEN: And that is how you recall what happened?---That’s quote unquote.”
The evidence of Aiken where he said that the applicant had approached him on 4 June 2018 and said “I’m religious”, is consistent with what the Court finds was the applicant having an attitude that his expressed religious belief warranted his being treated differently, and deferentially, by his employer, his supervisors, and his fellow employees. That attitude was also consistent with the applicant’s pleaded case, namely that which was alleged to have occurred on 4 June 2018, as follows :
“(a) the Applicant stated [to Aiken] that while he was able to undertake the work expected of him, that he was different to his work colleagues and required the Second Respondent's assistance:
[brackets and underlining added] [52]
[52] Paragraph 17(a) of ASOC filed on 21 November 2018 – page 32 of Ex. 1.
The Court finds that the reason why the applicant did not “fit in” with others employed by C&M, consistent as it was with the evidence of Aiken, was the applicant’s own rigid lack of resilience, and sense of self-importance, in what was otherwise an egalitarian and fair work place.
The Court does not accept that the applicant was discriminated against in the course of his employment, either because of his religion, or for any other reason. The Court additionally finds that the applicant did not endear himself to his fellow workers, or to Nicholls, Grieco or Aiken, because of his lack of willingness to either follow instructions, or perform work in a competent and safe way. The applicant’s poor work performance, lack of attention to detail and unpreparedness to follow instructions meant that others had to work harder to get jobs done. That necessarily led to resentment toward the applicant by those people working with him.
On the question of the non-calling of the witnesses “Greg”, Brendan, and James, the Court was invited to draw an adverse inference against the Respondents based upon the rule in Jones v Dunkel. [53] As to Greg, there was advice provided to the Court by the lawyer for the respondents that he was believed to be uncontactable. [54] Due to his dismissal from employment with C&M, it was understandable that the respondents would not have called him as a witness on the basis that he may have been hostile. As to the other named employees, no attempt to explore their availability or unavailability to appear at trial was made during the course of the cross examination of any of the respondents’ witnesses. No excuse for their non-calling was sought. There was more than ample opportunity for that to be done. The applicant led no evidence as to why Brendan and James were not called in the applicant’s case. In circumstances where the reason for the non-calling of each of those witnesses had been left in a void, the Court is unprepared to draw any adverse inference against the respondents as sought by the applicant.
[53] (1959) 101 CLR 298.
[54] T page 12.12 - .31
As to the applicant’s claims, the Court:
a)does not accept that the applicant made any complaints of discrimination to Aiken concerning the employee named Greg as pleaded in paragraphs [36] – [40] inclusive of the ASOC.
b)The Court accepts that, consistent with his practice to deal with workplace issues quickly with a view to resolving them, Aiken would have convened a meeting with the applicant and Greg to discuss any complaint about Greg been one been made to him. The fact that there was no evidence of any such meeting is supportive of the evidence of Aiken that no such complaint had been made.
c)It could not be said, in any event, that Aiken was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, any actual verbal misconduct by the employee Greg. He had no direct knowledge of the matters the subject of the applicant’s allegations, and he reasonably had in place a system of regular meetings (daily and monthly) where employees were encouraged to air any grievances they had, if and when they arose. That system was appropriate to deal with any complaint about bad language. It could not be said that he had otherwise been involved in a contravention of the provisions of the Act pursuant to s. 550 of the Act.
In Fair Work Ombudsman v Hu [2019] FCAFC 133, the Full Court of the Federal Court (Flick, Reeves and Bromberg JJ), approved the summary of principles to be considered for the purpose of establishing what constitutes being knowingly concerned in a contravention as set out by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] – [179] inclusive where it was said:
“[176] Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:
[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …
[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
… [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. …
[178] The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325].
[179] As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.”
d)does not accept that either Aiken, Grieco, Nicholls, or any other employee in a management role at C&M, either knew, or ought reasonably to have known, of any conduct on the part of any employee which constituted religious vilification, religious discrimination or verbal bullying of the applicant, as alleged by him, during the course of his employment. The Court accepts the evidence of Aiken that the applicant was treated no differently to other employees of different race, gender and religion who were employed by C&M at the same time as the applicant. The Court does not accept that the applicant was treated differently from any other employee by reason of his particular religious attribute.
e)does not accept that crude language or swear words which may have been overheard by the applicant during the course of his employment with C&M (as distasteful as they may have been) were, objectively, so contextually or culturally offensive as to constitute bullying behaviour or discrimination in the workplace. One example is the alleged suggestion made to the applicant that he should “shit before work”. Though the Court accepts that that was never said to the applicant, even if it had been said, it would not constitute language discriminatory of the applicant. It was the type of unseemly yet ubiquitous language which the Court finds would commonly be directed (in workplaces such as C&M’s) to any employee who regularly sought to excuse himself or herself from a site in order to attend to their personal toileting needs, irrespective of whether its use was intended to convey to the employee that they would be shirking their work responsibilities in doing so or not. Crude language or swear words were said by the applicant to be used soon after he commenced employment with C&M, yet the Court notes that that the applicant continued on in his employment, notwithstanding the alleged use of such language, without his making any contemporaneous first complaint in respect of such language, and before he allegedly made any complaint in that regard.
The Decision to Terminate the Applicant’s Employment
There is no dispute that Aiken was directly responsible for the termination of the applicant’s employment by C&M. He was the company’s guiding mind in all respects.
The Fig Tree Pocket incident involving the applicant leaving the worksite in a company vehicle occurred on 16 May 2018. [55] From that time until the date of termination of the applicant’s employment on 12 June 2018, there had been ongoing incidents of poor work performance on the part of the applicant. The unchallenged evidence of Grieco and Nicholls is testament to that. Aiken was an impressive witness. He presented very much as a practical individual who tried to get the best out of each of his employees for the benefit of both the employees and C&M. Nicholls and Grieco were each frustrated by the applicant’s inability to follow instructions, or competently carry out tasks. Aiken personally witnessed the applicant’s poor work performance and ultimately properly concluded that he was a danger on site.
[55] Paragraph [22] of applicant’s affidavit filed on 17 December 2018 – p. 139 of Ex. 1.
Where possible, Aiken tried to help the applicant by personally coaching him. By 12 June 2018, Aiken believed that the applicant was unsuited to the type of construction work required of him at C&M. The Court finds that the abuse directed by the applicant to Aiken personally on 12 June 2018 was the final straw.
The Court accepts the evidence of Aiken that the operative reasons for the termination of the applicant’s employment on 12 June 2018 were the applicant’s poor work performance, his unpreparedness to follow instructions which gave rise to on-site safety concerns, and his verbally aggressive and abusive conduct, both to Aiken and to C&M’s other employees, during the course of his employment. The concession on the part of Aiken that the applicant made two (2) complaints to him – namely the complaint in relation to toilet breaks, and the complaint about Nicholls’s attitude to the applicant – was a reflection of how Aiken was honest in giving answers asked of him. The Court finds that the making of those two complaints did not motivate Aiken to terminate the applicant’s employment. Those complaints were made prior to the particularly egregious and unacceptable conduct of the applicant on 11 and 12 June 2018.
Findings
The Court finds that the respondents did not discriminate against the applicant in contravention of the provisions of s. 351 of the FWA.
The Court finds that the respondents have discharged their onus and have rebutted the presumption in s. 361 of the FWA that the applicant’s termination of employment was adverse action for a prohibited reason.
The applicant’s claims as pleaded in the ASOC are dismissed.
In the light of the Court’s findings, it is unnecessary for the questions of civil penalty and compensation to be dealt with.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 17 April 2020
Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2001) 74 ALJR 405 at
[67] where His Honour referred to credibility findings made by primary decision makers as
being functions of such decision makers par excellence.. tool box arising out of the trailer incident) which recorded that the incident occurred that day –
page 166 of Ex. 1.
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