Gofton v Queensland Newspapers Pty Ltd - [2012] FMCA 64

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOFTON v QUEENSLAND NEWSPAPERS PTY LTD

[2012] FMCA 64

INDUSTRIAL LAW – Claim alleging dismissal in contravention of a general protection – applicant claims terminated because of claim for supplementary personal leave pursuant to Award and other legitimate workplace activity – respondent claims termination for disciplinary reasons – termination for genuine disciplinary reasons – application dismissed.

Crimes Act 1914, s.4AA
Fair Work Act 2009, ss.340(1), 342, 345(1), 350(1), 351, 351(1), 361, 361(1), 369, 539(1), 539(2), 545, 545(2)(b), 546(1), 546(2)(b), 546(3)(c), 546(5), 547(1)(2), 547(3)
Industrial Relations Act 1999
Workplace Relations Act 1996, s.664
Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2000, cl.27

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490
Jones v Queensland Tertiary Admissions Centre Ltd(No.2) [2010] FCA 399
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770

Applicant:

RONALD LESLIE GOFTON

Respondent:

QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778

File Number:

BRG 424 of 2010

Judgment of:

Jarrett FM

Hearing dates:

4 & 5 October 2010

Date of Last Submission:

5 October 2010

Delivered at:

Brisbane

Delivered on:

7 February 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Tayler

Solicitors for the Applicant:

Workers First Australia Pty Ltd

Solicitor for the Respondent:

Ms Milner

Solicitors for the Respondent:

Milner Lawyers

ORDERS

The application filed on 4 May, 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 424 of 2010

RONALD LESLIE GOFTON

Applicant

And

QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778

Respondent

REASONS FOR JUDGMENT

Until his employment was summarily terminated on 4 February, 2010, Ron Gofton worked as a printing machinist with the respondent, Queensland Newspapers. Mr Gofton claims that the circumstances of his dismissal engage the remedial provisions of the Fair Work Act 2009. Consequently, he brings this application alleging that his dismissal was effected in contravention of a general protection set out in the Act. He claims compensation, reinstatement, the imposition of a pecuniary penalty upon Queensland Newspapers and other relief. Although Mr Gofton’s dismissal is not in dispute, the reasons for his dismissal are.

The uncontroversial background

The following uncontroversial facts appear from the pleadings:
a)Mr Gofton was employed by Queensland Newspapers as a printing machinist from 16 September, 1975 to 4 February, 2010.
b)Mr Gofton’s employment was terminated by Queensland Newspapers on 4 February, 2010.
c)Mr Gofton had a workplace right because Mr Gofton was entitled to the benefit of a workplace instrument, namely the Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2000 (“the Award”) and the News Group – AMWU Metropolitan Printing Agreement 2008 (“the Agreement”).
d)The Award contains provisions relating to personal leave, personal injury and sickness and supplementary personal leave.
e)In December, 2009 Mr Gofton attempted to exercise his workplace right in relation to his entitlement to supplementary personal/sick leave.
f)Queensland Newspapers failed to accept that Mr Gofton was entitled to exercise his workplace right in relation to his entitlement to supplementary personal/sick leave.
g)On 4 February, 2010 Queensland Newspapers required Mr Gofton to attend a meeting with a Mr Grant Galvin.
h)On 4 February, 2010 Queensland Newspapers terminated Mr Gofton’s employment.

The Statutory Framework

This application arises against the statutory framework set out in the Fair Work Act 2009. The Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision of the Act: s.545(1) of the Act. Sections 340(1), 345(1) and 351(1) of the Act are civil penalty provisions for the purposes of s.545(1): s.539(1) of the Act. Mr Gofton has three broad aspects to his claims based in each of those sections.
The orders the Court might make if it is satisfied that one of the provisions relied upon by Mr Gofton has been contravened include an order for compensation for loss that an applicant has suffered because of the contravention: s.545(2)(b) of the Act.
Further, the Court may order a person to pay a pecuniary penalty that the Court considers is appropriate if the Court is satisfied that the person has contravened a civil remedy provision: s.546(1) of the Act. In the case of a body corporate, the pecuniary penalty must not be more than 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2) of the Act: s.546(2)(b) of the Act. A penalty unit is currently set at $110.00: s.4AA of the Crimes Act 1914. Thus the maximum pecuniary penalty that can be imposed on Queensland Newspapers in this case is $33,000.
The Court may order that the pecuniary penalty, or a part of the penalty, be paid to the applicant: s.546(3)(c) of the Act. The Court may award compensation and order the payment of a pecuniary penalty: s.546(5) of the Act.
In making an order (other than a pecuniary penalty order) the Court must, on application, include an amount of interest unless good cause is shown to the contrary: s.547(1)(2) of the Act. The court must take into account the period between the day the relevant cause of action arose and the day the order is made when fixing the amount for interest: s.547(3) of the Act.
Sections 340(1), 345(1) and 351 of the Act provide as follows:
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.
…
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
…
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 preference, 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.
Section 342 of the Act defines the term “adverse action” to include, not only dismissal, but action by an employer that injures the employee in his or her employment or alters the position of the employee to the employees prejudice or discriminates between the employee and other employees of the employer.
Section 361(1) of the Act is important. It provides:
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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Logan J explained the nature of the onus cast upon applicants like Ms U in applications such as this in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:
13. Subject to the operation of s 360 and s 361 of the Fair Work Act, [the applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 summarised the effect of s.361 as follows:
10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
Such an approach is consistent with the approach outlined by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490. In that case his Honour was dealing with s.664 of the Workplace Relations Act 1996 (Cth), but what his Honour there said is equally apposite to a consideration of the comparative provisions of the Fair Work Act 2009. After tracing the history of provisions similar to s.361 and the approach by Courts to those provisions, his Honour summarised the approach thus:
34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
a) Mr Gofton proving the fact of employment and its termination;
b) Mr Gofton proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
d) In discharging that onus Queensland Newspapers do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.
In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Gray and Bromberg JJ, pointed out:
The onus cast by s.361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s.346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s.346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s.346 attribute or has or had engaged in or proposes to engage in the s.346 industrial action.
Those observations are equally apposite, in my respectful view, to the operation of s.361 where the relevant contraventions are alleged to arise under ss.340(1), 345(1) and 351(1) of the Act.

The claims

Mr Gofton claims he is entitled to relief under the Fair Work Act 2009 because Queensland Newspapers breached several provisions of that Act. They are as follows:
a)s.340(1):
i)Mr Gofton had a workplace right to the benefit of supplementary sick leave under the Award and the Agreement;
ii)Mr Gofton attempted to exercise that right;
iii)Queensland Newspapers took adverse action against Mr Gofton by:
(1)failing to pay him supplementary sick leave that he claimed he was entitled to;
(2)failing to adequately respond to the applicant’s complaints about the non-payment of sick leave;
(3)requiring him to attend a meeting with management; and
(4)terminating his employment summarily and without notice.
b)s.340(1):
i)Mr Gofton had at all times during the course of his employment the workplace right to participate in a process or proceeding under workplace law and question the application by the employer from time to time with its obligations and responsibilities under the law generally and in particular under the Industrial Relations Act 1999, the Workplace Relations Act 1996, Fair Work Act 2009, the Award and the Agreement.
ii)Mr Gofton regularly exercised his workplace right by being outspoken in relation to industrial issues in the workplace;
iii)Queensland Newspapers adversely acted against Mr Gofton for exercising that workplace right by:
(1)requiring him to meet with management; and
(2)summarily terminating his employment without notice.
c)s.345(1):
i)Mr Gofton had a workplace right to the benefit of supplementary sick leave pursuant to the Award and the Agreement;
ii)The employer knowingly or recklessly made misleading representations to Mr Gofton about the workplace right on four occasions, namely:
1.   In a memorandum for one Sherry Hawkes dated 10 December 2009;
2.   In a phone conversation between Cherie Hawks and Mr Gofton when Queensland Newspapers denied the applicant’s claim for supplementary leave and represented that he was not entitled to it;
3.   In a memorandum for Cherie Hawks to Mr Gofton dated 21 December 2009 when Queensland Newspapers again denied the employees claim for supplementary sick leave and represented that he was not entitled to it;
4.   In a meeting between Mr Gofton and Grant Galvin on 3 February 2010 when Queensland Newspapers denied the applicant’s claim for supplementary sick leave and represented that he was not entitled to it.
d)s.350(1):
i)During the period November 2009 to the date of his termination, Mr Gofton suffered from an impairment, namely a psychiatric disorder with mixed anxiety and depressed mood. The employer discriminated against Mr Gofton as a result of the impairment by failing to take into account the impact of the applicant’s impairment on the ability to communicate within the workplace.
ii)Failing to adequately or at all consult with Mr Gofton about the extent of his impairment;
iii)Failing to take the applicant’s impairment into account and disciplining Mr Gofton for alleged unacceptable behaviour on 3 February 2010.
Mr Gofton brought proceedings in Fair Work Australia as he was required to do. Those proceedings were not able to be successfully conciliated and a certificate was issued under s.369 of the Act certifying the same.

General observations about credit

Before dealing with each of Mr Gofton’s claims, it is necessary to make some general observations about the credit of the witnesses who gave evidence in these proceedings.
Mr Gofton was a less than impressive witness. Even making allowances for the difficulties set out in Mr Gofton’s affidavit (paragraph 4 – level of education, “stigmatism” and “current psychiatric condition”). There were significant inconsistencies in his evidence. His manner of answering questions was aggressive and argumentative and I needed to remind him to direct his answers to the questions asked of him and not to give evidence about matters that were not relevant to the question, on many occasions.
As to the inconsistencies in his evidence, sum of the more significant inconsistencies were;
a)The words used by him on 3 February 2010 at the meeting with Mr Galven;
b)His responses to various correspondence sent to him;
c)The reason for no response to the supplementary sick leave argument.
Robert Krause also gave evidence in the applicant’s case. Mr Krause was also a difficult witness in the sense that his answers were not always to the point directed by the question. There were some significant inconsistencies between Mr Gofton’s evidence and Mr Krause’s. For example, one point at issue was whether, during the course of a training meeting Mr Gofton had removed his shoes and put his foot or feet on his desk in a disrespectful manner. Mr Gofton’s case was that he had put his left foot on “a chair” (both in his evidence in chief and in cross examination) but what Mr Krause described was quite different. He described that Mr Gofton put his right foot on the front edge of the chair he (Mr Gofton) was sitting on.
By contrast I found the two witnesses for Queensland Newspapers more generally credit worthy. Both answered questions directly and without argument. Generally, each witnesses evidence was internally consistent (in cross examination and in examination in chief) and consistent with each other.

Claims for contravention of s.340(1) of the Fair Work Act 2009

The first way in which Mr Gofton alleges that Queensland Newspapers breached s.340(1) of the Act relates to his supplementary personal leave entitlements. That claim falls to be determined according to the terms of the award. Clause 27.11 deals with supplementary personal leave as follows:
27.11 Supplementary Personal Leave
27.11.1 Supplementary personal leave can be used to claim payment for illness and non-compensable injury except:
27.11.1(a) absences of less than one week duration after paid personal leave has expired,
27.11.1(b) any deliberate self-inflicted injury or illness,
27.11.1(c) alcohol or drug related traffic accidents,
27.11.1(d) injury and illness arising from professional and paid activity.
27.11.2 Payment for supplementary personal leave requires medical certification for the whole period off work, specifying the condition suffered by the employee. Backdated certificates will not be accepted. In some cases before making payment, the Company may require a second opinion from a Company nominated medical practitioner, at the Company’s expense.
27.11.3 Subject to the foregoing, payment will be made for the duration of the absence.
27.11.4 Each supplementary personal leave claim will stand on its own.
27.11.5 A person is entitled to claim supplementary personal leave in any continuous 12 month period.
27.11.6 Supplementary personal leave entitlement will only apply when an employee exhausts their paid personal leave entitlements which will be utilised after credits transferred from service at Bowen Hills have been exhausted.
27.11.7 Should the employee qualify for future paid personal leave entitlements during a period of supplementary personal leave, supplementary personal leave will be suspended until paid personal leave entitlements have again expired.
27.11.8 Payment will be made on the basis as described in clause 27.5.
27.11.9 Production team members must be physically absent from work for a full calendar week before they can claim supplementary personal leave.
27.11.10 Such supplementary personal leave must be paid from the initial date of a production team member’s absence.
27.11.11 Untaken supplementary personal leave does not accumulate from year to year.

Mr Gofton’s mother passed away on 23 November, 2009. He spent a considerable period of time caring for her before she passed away. As at the date of her passing, Mr Gofton had no personal leave entitlements left – he had exhausted that entitlement looking after his mother.
Between 23 November, 2009 and 6 December, 2009 Mr Gofton was absent from work. On 6 December, 2009 he wrote to the Human Resources Department, Queensland Newspapers, and claimed supplementary sick leave. He enclosed two medical certificates. The first dated 23 November, 2009 and covering the period up to and including 30 November, 2009. The second was dated 1 December, 2009 and covered the period up to and including 5 December, 2009. Both certificates certify that in the opinion of the issuing doctor, Dr Tran, Mr Gofton was suffering from “a medical condition”. Mr Gofton thought that he was entitled to supplementary personal leave for the period between 23 November, 2009 and 6 December, 2009.
Mr Gofton’s claim for supplementary personal leave was rejected. It was rejected on the basis that supplementary personal leave was not intended to replace compassionate leave. On 10 December, 2009 Sherry Hawkes wrote to Mr Gofton and informed him that “as Compassionate Leave is not covered by the Supplementary Sick Leave Clause outlined in the Award” he would not be granted supplementary personal leave.
Mr Gofton requested a review of the decision and Ms Hawkes undertook to do so. Upon review, however, the original decision was confirmed.
Mr Gofton deposes that he did not take the matter any further with the human resources section but he thought that he would take the first opportunity he had to speak to a more senior manager. He did not attempt to contact another manager as, he says, in his experience it has always been difficult to meet up with managers because of their availability and his unusual hours doing shiftwork. However, Mr Gofton says that he knew that at some stage he would come across a higher manager and would be unable to discuss the issue with them at that point.
Mr Gofton alleges that Queensland Newspapers took adverse action against him “as a consequence of his exercising that workplace right” in four different ways.
The first type of adverse action alleged by Mr Gofton was that Queensland Newspapers failed to pay him supplementary sick leave for the period 23 November, 2009 to 30 November, 2009 to which he was entitled. I accept, however, Queensland Newspapers’ contention that those that made the decision not to pay Mr Gofton supplementary personal leave genuinely believed that he was not entitled to it pursuant to the Award. Indeed, it seems to me that he had no entitlement to supplementary personal leave because it could only be used to claim payment for “illness and non-compensable injury”. Further, the claim required medical certification for the whole period off work “specifying the condition suffered by the employee”. Mr Gofton’s claim was not accompanied by sufficient medical certification. He did not meet the conditions set out in cl.27.1 1.2 of the Award for the payment of supplementary personal leave. In my view, he was not entitled to it.
My finding in relation to this matter also disposes of Mr Gofton’s claim that Queensland Newspapers has breached s.345(1) of the Act. In that respect, he claims that Queensland Newspapers knowingly or recklessly made misleading representations to him about his supplementary personal leave entitlement. The basis of Mr Gofton’s claim is that on a number of occasions different managers (Ms Hawkes on two occasions and Mr Galvin on two occasions) represented to him that he was not entitled to supplementary personal leave. In my view their representations were not false and so, were not misrepresentations such as to engage the operation of s.345(1) of the Act.
The second category of adverse action alleged by Mr Gofton against Queensland Newspapers is that it failed to respond “adequately or at all to the employee’s complaints about the non-payment of his supplementary sick leave”. I am satisfied, however, that Queensland Newspapers did respond adequately to Mr Gofton’s complaints about the failure to meet his supplementary sick leave claim. The claim was one which he was not entitled to make.
The third category of adverse action alleged by Mr Gofton against Queensland Newspapers is that on 4 February, 2010 he was required to attend a meeting with Grant Galvin where he was accused of threatening Mr Galvin. The fourth category of adverse action alleged by Mr Gofton is that on 4 February, 2010 his employment was summarily terminated without notice. I will deal with the third and fourth categories of adverse action later in these reasons. It is sufficient to say at this point, that I am not satisfied that either of these matters occurred because Mr Gofton made, or pursued a claim to supplementary personal leave.
The second aspect of Mr Gofton’s claim which is based upon a breach of s.340(1) of the Act is that “at all times during the course of his employment [he] had a workplace right to participate in a process or proceedings under workplace law namely to question the application by the employer from time to time of its obligations and responsibilities under the law generally and in particular under the Industrial Relations Act 1999 (Qld), the Workplace Relations Act 1996, the Fair Work Act 2009, the Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2000 and/or the News Group – AMWU Metropolitan Printing Agreement 2008.” Mr Gofton alleges that he regularly exercised his workplace right by being “outspoken in relation to industrial issues in the workplace”.
In support of this claim under this heading, Mr.Gofton recounts in his evidence occasions in the past (as long ago as 1995) when he was active in ensuring that workplace health and safety issues were addressed by Queensland Newspapers. He was, in the past, concerned about manning levels and other practices within the Printing Hall where he worked. Mr Gofton raises these matters, however, in the abstract. There is nothing in his evidence, or in the evidence or cross-examination of the witnesses for Queensland Newspapers (Mr Galvin and Mr Watt) that suggests that any of those matters raised by Mr Gofton in paragraphs 35 – 72 of his affidavit of evidence in chief in any way informed any of the actions taken by Queensland Newspapers against him. Those matters, as distant in time as they seem to be and as poorly particularised as they are, do not engage the operation of s.361(1) of the Act.
Nonetheless, Queensland Newspapers sought to demonstrate the real reasons for which Mr Gofton’s employment was terminated. The person who made the decision to terminate Mr Gofton’s employment was Dennis Watt, the General Manager for Queensland Newspapers at the time. Mr Watt’s decision was informed by information that he received from Mr Grant Galvin, the Operations Director for Queensland Newspapers. Mr Galvin referred to four matters which informed his decision to recommend to Mr Watt that Mr Gofton’s employment be terminated.
The first matter was an incident which occurred in either December, 2006 or January, 2007 which concerned the implementation of a performance measuring and management procedure in the Press Hall where Mr Gofton worked. The procedure was introduced by Mr Grant Fleet the Systems Manager at the relevant time. He implemented a system to keep record or otherwise keep track of “web breaks”. A web break occurs when the paper in the presses breaks or tears. It results in down time in the printing process and, therefore, is to be avoided.
Mr Gofton was angry about the introduction the recording procedure and, at 4.00am one Saturday morning, telephoned Mr Fleet to tell him as much. He left a message on Mr Fleet’s answering machine. The message was uncomplimentary and was characterised by expletives. Mr Fleet brought the telephone message to Mr Galvin’s attention. Mr Galvin resolved that Mr Gofton should be warned that he should not make telephone calls to managers or any staff of the nature of the call to Mr Fleet. Mr Galvin instructed Mr Ian Stewart, the Operations Manager at the time, to warn Mr Gofton that his behaviour was not acceptable. Mr Galvin says, and I accept, that Mr Gofton was given a verbal warning about his behaviour. In cross-examination, Mr Gofton accepted that he had made the relevant telephone call although he denied that it was as offensive as was claimed. He accepted that he had been spoken to by Mr Stewart about the call.
The second matter referred to by Mr Galvin concerned Mr Gofton’s conduct at a seminar given to Queensland Newspaper employees by a Senior Deputy President of the Australian Industrial Relations Commission in February, 2008. During the seminar Mr Gofton asked the Senior Deputy President a number of questions in an impertinent and disrespectful tone. Another employee, who was also a Union representative, was moved to ask Mr Gofton to cease his questions and to show some respect to Senior Deputy President.
The third matter which concerned Mr Galvin was Mr Gofton’s conduct during an harassment and sexual harassment training session held on for about 3 February, 2008. The session was conducted by Katie Aitken and Sherry Hawkes. The session was held at the end of a night shift. As they entered, the employees from the Press Hall were asked to remove their boots so that they did not get ink stains on the carpet. When Mr Gofton arrived at the training he sat down and put his feet up on top of the armrest of another chair. Mr Gofton made a joke about a hole in one of his socks. When asked to remove his feet he did so but he moved them off the armrest and onto the seat of the chair. His feet remained there for the rest of the training session.
Mr Gofton gave evidence about this episode. He said that he had a sore foot. He said that placing his left foot on the chair helped him to manage his pain. I do not accept Mr Gofton’s evidence. I am not satisfied that he was suffering from any injury that required him to relieve any pain by placing his foot or his feet on a chair. I found his explanation of this episode unconvincing. His explanation was inconsistent with the observations given by Mr Krause in cross-examination.
Before the training commenced, Mr. Gofton joked with another colleague in a way which was disrespectful and inappropriate given the training that was being undertaken. He blew kisses to another employee across the room. During the course of the training session Mr Gofton took issue with what was being spoken about, but in a disruptive way. Mr Gofton mocked the content of the session by suggesting that a note that had been sent to he and his team from Mr Galvin thanking them for their performance was a form of harassment.
Mr Gofton’s behaviour at the training session was the subject of a complaint by the presenters and by Mr Mike Malloy, the Night Production Manager at that time. As a consequence of those complaints Mr Gofton received a letter from Mr Ian Stuart setting out the allegations that were made about his conduct at the seminar. He was informed that his employment was suspended until such time as Queensland Newspapers had determined whether to terminate his employment altogether. Mr Gofton was asked to provide a written response “outlining any issues you believe Queensland Newspapers should take into consideration prior to making this decision”. Mr Gofton was suspended on full pay.
Mr Gofton did not respond in a written form to the letter. He chose to respond verbally. On 22 February, 2008 Mr Gofton attended a meeting with Mr Galvin and Mr Stuart. I accept Mr Galvin’s evidence that Mr Gofton accepted that his behaviour was unacceptable in the training session. He told Mr Galvin that he would seek assistance from the company’s employee assistance program and would get advice to help him with his behaviour. Mr Gofton offered to lead his own work team in a second training session on harassment and sexual harassment and he would be attentive. Consequently, Mr Galvin resolved to provide Mr Gofton with one more chance to demonstrate acceptable behaviour.
By letter dated 22 February, 2008 Mr Gofton was given a final warning. The letter made clear that Queensland Newspapers was considering terminating Mr Gofton’s employment, but that he should be given one final chance to modify his behaviour. That letter set out Mr Galvin’s understanding of the meeting that took place earlier that day. It purports to record what occurred at the meeting and what was agreed between Mr Gofton, Mr Galvin and Mr Stuart. Although Mr Gofton now takes issue with some of the matters that are contained in the letter and that are deposed to by Mr Galvin, it is clear that Mr Gofton received the letter but took no steps to correct any inaccuracies in it. I accept Mr Galvin’s evidence about what happened at that meeting and I accept that the letter is an accurate reflection of what occurred. Even making due allowance for what Mr Gofton described as his poor literacy, if he thought that the letter was inaccurate in any respect he had the opportunity to take the inaccuracies up with Mr Galvin or Mr Stuart. There is no evidence that he did so in any meaningful way.
The matters focussed upon in the meeting of 22 February, 2008 and recorded in the letter speak for themselves. They were matters clearly of serious concern for Mr Galvin and Queensland Newspapers. They did not concern any of Mr Gofton’s other activities in the workplace such as his agitation over manning levels. They did not concern any of the matters set out in Mr Gofton’s affidavit filed on 6 September, 2010 between paragraphs 35 and 72. Mr Gofton attended and led a second training session for his team concerning harassment and apologised to the presenters of the course as was set out in the letter of 22 February, 2010.
The fourth matter which concerned Mr Galvin arose out of a meeting between Mr Galvin and Mr Gofton on 3 February, 2010. On that day Mr Galvin had called a meeting of the night shift Press Hall staff. The meeting was attended by Dennis Watt and Sherry Hawkes. Before the meeting commenced Mr Gofton approached Mr Galvin in an agitated state. I accept Mr Galvin’s evidence that Mr Gofton appeared angry. Mr Gofton said to Mr Galvin that he wished to speak to him about his access to his supplementary sick leave. He was speaking about the claim to supplementary personal leave that I have referred to earlier in these reasons. Mr Galvin told Mr Gofton that the issue had been finalised by Sherry Hawkes in December, 2009. Mr Galvin, however, offered to meet with Mr Gofton after the meeting had ended. Mr Gofton walked away saying in a voice loud enough for those nearby to hear: “It’s not over, it’s not over…”. Mr Watt was nearby and although he did not hear the preliminary conversation between Mr Gofton and Mr Galvin he observed Mr Gofton to be agitated. He heard Mr Gofton say the words I have just set out.
I accept Mr Galvin’s and Mr Watt’s evidence about this incident. I reject Mr Gofton’s evidence about it.
When the meeting finished Mr Gofton approached Mr Galvin again. I accept that Mr Galvin was leaning or sitting on a desk. Mr Gofton said to Mr Galvin words to the effect that the company’s decision to refuse his request for access to supplementary sick leave was wrong and should be reversed. Mr Gofton and Mr Galvin then had a conversation about the purpose of supplementary personal leave. I accept Mr Galvin’s evidence that Mr Gofton became very agitated and was standing very close to him. Mr Gofton said in a very angry tone “I am very unhappy with your decision”. I accept that Mr Galvin replied by saying “Getting angry or upset with me is not appropriate behaviour and is not going to change my decision”. I accept that Mr Gofton moved very close to Mr Galvin and said: “I don’t get angry Grant, I get even”. I accept that Mr Galvin perceived Mr Gofton’s tone of voice as threatening and that he felt uncomfortable and concerned for his personal safety. Mr Watt saw Mr Gofton move closer to Mr Galvin and speak to him, but did not hear what was said.
Mr Gofton gave a different version of this encounter to that set out above in his affidavit of evidence in chief and in his oral evidence. In particular, Mr Gofton said that whilst he said “I’m not going to get mad but I will get even”, he suggested that it was not said in a threatening tone and was not intended as a threat. For the reasons I have set out above when discussing the witnesses’ credit generally, I prefer the evidence of Mr Galvin and Mr Watt. I am satisfied that the words were said in a tone that was perceived by Mr Galvin as a threat and Mr Gofton intended them to be so perceived.
Mr Gofton left the meeting room and Mr Galvin spoke to Mr Watt about what it was that Mr Gofton had said to him. Mr Watt told Mr Galvin that he did not think that threats such as that made by Mr Gofton should be tolerated.
Mr Gofton was called to a meeting the next day – 4 February, 2010 with Mr Galvin and Mr Watt. Mr Galvin recounted the events of the evening before and how he had felt in threatened by Mr Gofton’s words. Mr Gofton did not deny that he had said the words that Mr Galvin alleged he had said. He did say, however, that he had been advised by his doctor to say things to “deescalate a potentially agitated situation”. Mr Galvin recounted a number of other matters and warnings including the warning already referred to in these reasons. Mr Gofton was told that Mr Watt and Mr Galvin were considering terminating his employment because there was a pattern of unacceptable behaviour that he had not modified. Mr Gofton was asked if there were any extenuating circumstances which meant that his employment should not be terminated. I accept Mr Galvin’s evidence that Mr Gofton said to him that he had an anger management problem and if he was given one more chance he would modify his behaviour. Mr Watt pointed out that it was the same response Mr Gofton had given after his last warning. Mr Gofton suggested that someone could “shadow” him at work and assist him to curb his behaviour when he was getting angry. Mr Gofton suggested that he was taking medication and that sometimes he comes across the wrong way when he is taking that medication.
Mr Gofton was asked if there was anything else that he wanted Mr Galvin and Mr Watt to take into account. I accept that he replied that there was not.
Mr Watt and Mr Galvin discussed Mr Gofton’s employment in private. They determined that Mr Gofton’s employment should be terminated. I accept the evidence of Mr Galvin and Mr Watt that in their discussion they agreed that there was nothing new that Mr Gofton had presented. His conduct in the training seminar of on 22 February, 2008 had been the subject of a written warning. His other conduct, set out above, was discussed. When they met with Mr Gofton again, about half an hour later, he was given a letter of termination. There was an issue between the parties about when the letter was prepared, but in my view, it does not matter when the letter was prepared. It is the reason or reasons for the termination that are important.

Conclusion

For the reasons given above, I am not satisfied that the adverse action taken against Mr Gofton represented by the termination of his employment was for a reason proscribed by the Fair Work Act 2009. I am satisfied that the real reason for the termination of his employment was his unacceptable behaviour exhibited over a period of time and about which he had been warned. I am not satisfied that his employment was terminated because he sought to exercise a workplace right, namely to access his supplementary personal leave entitlements. As I have said above, he was not entitled to claim for supplementary personal leave.

Moreover I am not satisfied that the activities in which Mr Gofton had engaged in the course of his employment as set out in paragraphs 35 – 72 of his affidavit were the reason, or any part of the reason, for the decision to terminate his employment.
In the circumstances, the application filed on 4 May, 2010 is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 7 February 2012