Granada Tavern v Smith

Case [2008] FCA 646

FEDERAL COURT OF AUSTRALIA

Granada Tavern v Smith [2008] FCA 646

INDUSTRIAL LAW – appeal from Federal Magistrates Court – whether error in finding employer applied duress to employee in connection with an Australian Workplace Agreement

EVIDENCE – proper application of Briginshaw principle – isn’t there something in the Evidence Act about this?

PRACTICE AND PROCEDURE – adequate reasons for judgment

Evidence Act 1995 (Cth) s 140
Federal Magistrates Act 1999 (Cth) ss 3(2)(a), 42
Workplace Relations Act 1996 (Cth) s 400(5)

Briginshaw v Briginshaw (1938) 60 CLR 336 discussed
Canturi v Sita Coaches Pty Ltd (2002)116 FCR 276 applied
Employment Advocate v Williamson (2001) 111 FCR 20 cited
Fox v Percy (2003) 214 CLR 118 cited
Hope v City of Bathurst (1980) 144 CLR 1 cited
Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33 cited
Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 cited
Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 cited
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 cited
Qantas Airways Ltd v Gama [2008] FCAFC 69 applied
Rejfek v McElroy (1965) 112 CLR 517 cited
Smith v Granada Tavern [2007] FMCA 904 affirmed

GRANADA TAVERN, MICHAEL DAVID HIBBERD and JOCELYN MAREE BERECHREE v RAYMOND MURRAY SMITH

TAD 35 OF 2007

HEEREY J
15 MAY 2008
MELBOURNE (HEARD IN HOBART)


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 35 OF 2007

BETWEEN:

GRANADA TAVERN
First Appellant

MICHAEL DAVID HIBBERD
Second Appellant

JOCELYN MAREE BERECHREE
Third Appellant

AND:

RAYMOND MURRAY SMITH
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

15 MAY 2008

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 35 OF 2007

BETWEEN:

GRANADA TAVERN
First Appellant

MICHAEL DAVID HIBBERD
Second Appellant

JOCELYN MAREE BERECHREE
Third Appellant

AND:

RAYMOND MURRAY SMITH
Respondent

JUDGE:

HEEREY J

DATE:

15 MAY 2008

PLACE:

MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

  1. Ms Emily Wills, a student at the University of Tasmania, is a casual employee at the Granada Tavern in Berriedale, a suburb of Hobart. The Tavern is owned by the first appellant (the Company), a company trading under that name. In an application brought by a Workplace Inspector, Burchardt FM in the Federal Magistrates Court found that the Company, its director the second appellant Mr Michael Hibberd, and the manager of the Tavern, the third appellant, Ms Jocelyn Berechree, had applied duress to Ms Wills in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth): Smith v Granada Tavern [2007] FMCA 904.

  2. His Honour imposed penalties of $24,750 on the Company, $4,950 on Mr Hibberd and $1,980 on Ms Berechree.

  3. The appellants now appeal to this Court.  Essentially the duress alleged was the threatened and actual…

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Details
AGLC
Granada Tavern v Smith [2008] FCA 646
Case
[2008] FCA 646
Decision Date

CaseChat Overview and Summary

In the case of Granada Tavern v Smith, the primary dispute involved the employment conditions of Ms Wills, who worked at the Granada Tavern and later at the Tasmanian Racing Club at Elwick. Ms Wills had been employed under an Award, but following certain discussions with the employer, she was removed from weekend work. The case was heard in the Fair Work Commission, and the decision was subsequently appealed to a higher court.

The central legal issues revolved around whether the employer had lawfully removed Ms Wills from weekend work, and if there were any retaliatory or discriminatory actions taken against her. Specifically, the court had to determine if Ms Wills' removal from weekend work was a direct consequence of her refusal to sign an Agreement for Working Away from Base (AWA) and her indication that she wished to be treated as an Award employee.

The court examined the evidence and found that Ms Wills had unequivocally expressed her desire to be treated under the Award on 20 August. This led to a series of events, including a telephone call from Mr Hibberd and a meeting on 27 August. The court found that Ms Wills was perceived as a ringleader among the employees who had not signed the AWAs, and Mr Hibberd had formed the view that she would be difficult. Consequently, Ms Wills was removed from weekend work, a change that was directly linked to her note of 20 August. The court also noted that Mr Taylor was troubled by Mr Hibberd's instructions and that Ms Berechree subsequently directed that Ms Wills be removed from the roster, though later allowed her one weekend shift to placate her.

The appeal was ultimately dismissed, affirming the original decision that the employer's actions were not retaliatory but rather a response to Ms Wills' refusal to sign the AWA and her insistence on being treated under the Award.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY J
Ms Wills commenced working under the Award a few weeks after the discussion with Mr Hibberd on 21 October. She was not rostered for any weekend work after 21 October although occasionally she was called into work on a weekend. In about early February 2007 Ms Wills commenced to work as a Bar Attendant at the Tasmanian Racing Club at Elwick. She now works there on weekends and the Granada Tavern on weeknights.The judgment under appeal His Honour made detailed findings about the evidence ([224] et seq). They included the following. For a number of years the Company had a practice of issuing to staff what were thought to be valid AWAs. Mr Hibberd became aware that the AWA regime he had in place was in fact invalid. There was a real prospect of underpayments which might need to be addressed. He was keen to have employees sign up to a new AWA by no later than 7 August 2006. Ms Wills’ note of 20 August “indicated unequivocally that she desired to be treated as an Award employee”. This provoked “a rapid response” from Mr Hibberd by way of telephone call made to her and not to any of the other employees who had not signed an AWA by that stage. At the meeting of 27 August only the five employees who had not at that stage signed AWAs were summoned. His Honour found:233 It is overwhelmingly clear from the general tenor of the evidence given by all concerned that in the period up to that meeting [of 27 August 2006] there had been a lot of discussion amongst the employees of the Granada Tavern about the AWAs and it is equally clear, both from the evidence given and from the manner in which Ms Wills was cross-examined, that by no later than that meeting, Mr Hibberd had formed the view that Ms Wills was something of a ringleader on the part of the group of five employees who had not signed an AWA. At the meeting of 7 August Ms Wills stood out as an employee who was “likely to be difficult”. She laughed in a fashion that was felt by some to be inappropriate and Ms Berechree was annoyed by this. Ms Wills raised the issue of a pay rate under the Award and Mr Hibberd’s reply was dismissive of that assertion. Prior to August 2006 Ms Wills’ employment had “by and large been unexceptionable”. There was nothing to suggest she had been given any written or oral warnings as to the performance of her duties. Ms Wills had generally worked a pattern of three or four dinner shifts during the week and been rostered regularly to work both on Saturdays and Sundays, being almost always rostered to work on the Sunday lunch shift. The pattern was such that, absent the events that transpired, it would have continued. Following the note of 20 August it seemed “perfectly clear” that Ms Wills’ prior pattern work changed. His Honour accepted Ms Wills’ evidence that her removal from weekend work thereafter “arose directly because of that note and its sequelae”. His Honour continued:249Those sequelae included that on the very next day Mr Hibberd became aware early in the morning of Ms Wills’ note because Mr Taylor told him about it. Within approximately half an hour thereafter, the conversation to which I have earlier referred took place. Mr Hibberd made it clear that he did not want Ms Wills working weekends. It is interesting to note that Mr Taylor was immediately troubled by the instructions Mr Hibberd gave him.250Thereafter, at a point not precisely indicated by the evidence but reasonably soon, Ms Berechree came into the kitchen before Mr Taylor had time to complete the roster for the period 28 August 2006 to 10 September 2006 and the conversation took place in which, as I find, Ms Berechree said, “Take Emily off the roster completely.” The ultimate outcome was, as I find, that Ms Berechree said, “Well, give her one shift on a weekend then to keep her happy.”

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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