FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384
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Details
- Case
- [2024] FedCFamC2G 384
- Decision Date
CaseChat Overview and Summary
The matter of Guthrie v Mondiale VGL Pty Ltd involved a dispute regarding the termination of employment of Mr Guthrie by Mondiale, a freight forwarding and customs brokering company. The dispute encompassed several claims, including alleged adverse action, contravention of workplace rights, underpayment of wages, and failure to include information on payslips. The Federal Circuit and Family Court of Australia was the forum for this industrial law case.
The central legal issues the court had to address were whether Mondiale had met the reverse onus of proof in relation to adverse action, given the multiple decision-makers involved in the termination of Mr Guthrie's employment, none of whom were called to give evidence. Additionally, the court needed to determine whether the claims concerning underpayment of wages and failure to include information on payslips were substantiated, despite the absence of relevant award details and payslips in evidence. The court also considered the impact of a notice of discontinuance on the proceedings.
The court concluded that Mondiale had not met the reverse onus of proof in relation to the adverse action claim, due to the absence of testimony from the relevant decision-makers. The claims regarding underpayment of wages and failure to include information on payslips were dismissed due to the lack of evidence, specifically the absence of relevant awards and payslips. Furthermore, the court found that the notice of discontinuance did not result in the dismissal of the claims, as the dismissal was not on the merits but rather due to the procedural failures.
In conclusion, the court dismissed the claims made by Mr Guthrie against Mondiale. The decision underscored the importance of meeting the reverse onus of proof in adverse action cases, as well as the necessity of providing adequate evidence to substantiate claims of underpayment and failure to include information on payslips. The court's ruling highlighted the importance of procedural compliance in industrial law disputes.
The central legal issues the court had to address were whether Mondiale had met the reverse onus of proof in relation to adverse action, given the multiple decision-makers involved in the termination of Mr Guthrie's employment, none of whom were called to give evidence. Additionally, the court needed to determine whether the claims concerning underpayment of wages and failure to include information on payslips were substantiated, despite the absence of relevant award details and payslips in evidence. The court also considered the impact of a notice of discontinuance on the proceedings.
The court concluded that Mondiale had not met the reverse onus of proof in relation to the adverse action claim, due to the absence of testimony from the relevant decision-makers. The claims regarding underpayment of wages and failure to include information on payslips were dismissed due to the lack of evidence, specifically the absence of relevant awards and payslips. Furthermore, the court found that the notice of discontinuance did not result in the dismissal of the claims, as the dismissal was not on the merits but rather due to the procedural failures.
In conclusion, the court dismissed the claims made by Mr Guthrie against Mondiale. The decision underscored the importance of meeting the reverse onus of proof in adverse action cases, as well as the necessity of providing adequate evidence to substantiate claims of underpayment and failure to include information on payslips. The court's ruling highlighted the importance of procedural compliance in industrial law disputes.
Orders
Orders of the court
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Background
Background to the litigation
In relation to the lack of information on payslips reg 3.46(3) of the FW Regulations provides as follows:(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:(a)the rate of pay for the employee's ordinary hours (however described); and(b)the number of hours in that period for which the employee was employed at that rate; and(c) the amount of the payment made at that rate.GENERAL BACKGROUND FACTS – ADVERSE ACTIONThe evidence The evidence set out below is based on the affidavits filed and oral evidence given in these proceedings. In that regard it is important to observe at the outset that the Mondiale personnel directly involved in some aspects of the matters relied upon as forming as part of the reason for the decision to dismiss Mr Guthrie did not give evidence about those matters, whereas Mr Guthrie did so.Mondiale Mondiale is a freight forwarding and customs brokering company with offices in all States of Australia.Events leading up to the decision to dismiss Mr Guthrie Mr Guthrie commenced employment with Mondiale on 10 June 2014 in NSW, and was initially employed as a casual Day Shift Heavy Combination Driver (“Day Shift Driver”): First Guthrie Affidavit at [4]. On 29 January 2015 Mr Guthrie commenced as a permanent Day Shift Driver: First Guthrie Affidavit at [4]. Mr Guthrie subsequently requested to work as an Afternoon Shift Driver, a move approved by Mondiale, resulting in Mr Guthrie commencing as an Afternoon Shift Driver on 17 August 2017: First Guthrie Affidavit at [4], Annexure JG-1. In November 2018 Mr Guthrie:(a)advised Mondiale that he would be relocating to Western Australia (“WA”) for family reasons, and he requested to work an afternoon or night shift pattern to enable him to care for his child; and(b)was transferred to Mondiale’s operations in WA as a Day Shift Driver: Coleman Affidavit at [8]. A new contract of employment dated 23 January 2019 was prepared to give effect to the employment arrangement in WA: Coleman Affidavit at [9]. Mr Guthrie moved to WA in January 2019 and began working as a Day Shift Driver: First Guthrie Affidavit at [5], Annexure JG-2. During this time Mr Guthrie requested that he be moved to an afternoon shift in Perth should a position become available. Mr Guthrie was informed by Mr Kesby that as soon as a position became available for night shift, Mr Guthrie would get priority: First Guthrie Affidavit at [9], Annexure JG-4. In or around early May 2019 Mondiale says that Mr Guthrie did not stop at the stop line and did not radio the forklift driver at Mondiale’s Kwinana yard (“Yard”) when he entered the Yard (“Yard Entry Incident”): Punter Affidavit at [31]. Mr Guthrie contests this: Transcript, p 38. Mr Punter did not become aware of the alleged Yard Entry Incident until at least October 2019, and neither he nor Ms Coleman had any involvement in relation to it at the time it is alleged to have occurred. The only evidence concerning what actually happened from a person involved is that of Mr Guthrie. Mr Guthrie’s evidence was that the allegation in relation to the Yard Entry Incident was not true and that he did not fail to stop at the stop sign and did not fail to radio the forklift driver when he entered the Yard: Third Guthrie Affidavit at [5]. Cross-examined, Mr Guthrie did not resile from his denial, and gave a detailed account explaining what had happened, including the fact that the forklift driver, Mr Awhitu, was in a truck, rather than a forklift, and therefore may not have heard the call, and simply assumed that Mr Guthrie had not called, when in fact he had called, and the call had been heard by Mr Kesby who told the forklift driver, Mr Awhitu when he raised the matter, in the presence of both Mr Guthrie and Mr Kesby, that Mr Guthrie had in fact called in on the radio: Transcript, pp 38-39. The only evidence in relation to this incident is therefore that Mr Guthrie did stop at the stop line, and did call the forklift driver on the radio, and that call was heard by the Transport Supervisor, Mr Kesby. Neither Mr Kesby nor Mr Awhitu were called by Mondiale. Mr Mu Sung, who evidently heard the last part of the discussion involving Mr Awhitu, Mr Kesby and Mr Guthrie, was not involved until he came out from his office to chastise Mr Awhitu for his foul language: Transcript, p 39. Mr Mu Sung was also not called by Mondiale.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mondiale is a freight forwarding and customs brokering company with offices in all States of Australia.Events leading up to the decision to dismiss Mr Guthrie Mr Guthrie commenced employment with Mondiale on 10 June 2014 in NSW, and was initially employed as a casual Day Shift Heavy Combination Driver (“Day Shift Driver”): First Guthrie Affidavit at [4]. On 29 January 2015 Mr Guthrie commenced as a permanent Day Shift Driver: First Guthrie Affidavit at [4]. Mr Guthrie subsequently requested to work as an Afternoon Shift Driver, a move approved by Mondiale, resulting in Mr Guthrie commencing as an Afternoon Shift Driver on 17 August 2017: First Guthrie Affidavit at [4], Annexure JG-1. In November 2018 Mr Guthrie:(a)advised Mondiale that he would be relocating to Western Australia (“WA”) for family reasons, and he requested to work an afternoon or night shift pattern to enable him to care for his child; and(b)was transferred to Mondiale’s operations in WA as a Day Shift Driver: Coleman Affidavit at [8]. A new contract of employment dated 23 January 2019 was prepared to give effect to the employment arrangement in WA: Coleman Affidavit at [9]. Mr Guthrie moved to WA in January 2019 and began working as a Day Shift Driver: First Guthrie Affidavit at [5], Annexure JG-2. During this time Mr Guthrie requested that he be moved to an afternoon shift in Perth should a position become available. Mr Guthrie was informed by Mr Kesby that as soon as a position became available for night shift, Mr Guthrie would get priority: First Guthrie Affidavit at [9], Annexure JG-4. In or around early May 2019 Mondiale says that Mr Guthrie did not stop at the stop line and did not radio the forklift driver at Mondiale’s Kwinana yard (“Yard”) when he entered the Yard (“Yard Entry Incident”): Punter Affidavit at [31]. Mr Guthrie contests this: Transcript, p 38. Mr Punter did not become aware of the alleged Yard Entry Incident until at least October 2019, and neither he nor Ms Coleman had any involvement in relation to it at the time it is alleged to have occurred. The only evidence concerning what actually happened from a person involved is that of Mr Guthrie. Mr Guthrie’s evidence was that the allegation in relation to the Yard Entry Incident was not true and that he did not fail to stop at the stop sign and did not fail to radio the forklift driver when he entered the Yard: Third Guthrie Affidavit at [5]. Cross-examined, Mr Guthrie did not resile from his denial, and gave a detailed account explaining what had happened, including the fact that the forklift driver, Mr Awhitu, was in a truck, rather than a forklift, and therefore may not have heard the call, and simply assumed that Mr Guthrie had not called, when in fact he had called, and the call had been heard by Mr Kesby who told the forklift driver, Mr Awhitu when he raised the matter, in the presence of both Mr Guthrie and Mr Kesby, that Mr Guthrie had in fact called in on the radio: Transcript, pp 38-39. The only evidence in relation to this incident is therefore that Mr Guthrie did stop at the stop line, and did call the forklift driver on the radio, and that call was heard by the Transport Supervisor, Mr Kesby. Neither Mr Kesby nor Mr Awhitu were called by Mondiale. Mr Mu Sung, who evidently heard the last part of the discussion involving Mr Awhitu, Mr Kesby and Mr Guthrie, was not involved until he came out from his office to chastise Mr Awhitu for his foul language: Transcript, p 39. Mr Mu Sung was also not called by Mondiale.
Ratio Decidendi
Legal Principle Established
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