Guthrie v Mondiale VGL Pty Ltd
[2024] FedCFamC2G 384
•23 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384
File number(s): PEG 101 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 23 May 2024 Catchwords: INDUSTRIAL LAW – Termination of employment – alleged adverse action – alleged contravention of workplace right – where multiple decision-makers – where several decision-makers not called to give evidence - whether reverse onus met
INDUSTRIAL LAW - alleged underpayment of wages – where relevant award not in evidence
INDUSTRIAL LAW – alleged failure to include information on payslips – where no payslips in evidence
PRACTICE AND PROCEDURE – Effect of a notice of discontinuance
Legislation: Evidence Act 1995 (Cth) s 135, 140, 144
Fair Work Act 2009 (Cth) Part 3-1, ss 45, 65, 340, 341, 342, 360, 361, 536, 544, 570, 588, 592
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Fair Work Commission Rules 2013 (Cth) r 10
Fair Work Regulations 2009 (Cth) reg 3.46
Cases cited: Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954
Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332
Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829
Beasley v Australian National University [2011] FMCA 792
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132; (2013) 219 FCR 245; (2013) 239 IR 407
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505; (2003) 155 ALR 454
Cai v Tiy Loy & Co Ltd [2015] FCCA 715
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Service) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659
D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 319
Elliot v Kodak Australasia Pty Ltd [2001] FCAFC 1804; (2001) 129 IR 251
Fair Work Ombudsman v A to Z Catering Solutions Pty Limited & Anor (No 2) [2018] FCCA 2299; (2018) 281 IR 366; (2018) 336 FLR 246
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 ALR 201
General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479
Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014
Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278; [1959] ALR 367
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241
Lower v Comcare [2002] FCA 1394; (2002) 124 FCR 498; (2002) 36 AAR 220
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) FCR 225; (2020) 292 IR 317
Rowland v Alfred Health [2014] FCA 2
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust [2021] FCCA 1335
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414
Wintle v RUC Cementation Mining Contractors Pty Ltd (No 3) [2013] FCCA 694
Wotton v State of Queensland [2009] FCA 758; (2009) 109 ALD 534
Division: Division 2 General Federal Law Number of paragraphs: 180 Date of hearing: 14-15 February and 9 March 2022 Date of last submission/s: 9 March 2022 Place: Perth Counsel for the Applicant: Mr J Raftos Solicitor for the Applicant: Argos Legal Lawyers Counsel for the Respondent: Mr J Parkinson Solicitor for the Respondent: Kingston Reid Lawyers ORDERS
PEG 101 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN GUTHRIE
Applicant
AND: MONDIALE VGL PTY LTD ACN 002 433 267
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
23 MAY 2024
THE COURT:
1.Declares that the termination of the Applicant’s employment by the Respondent contravened section 340(1) of the Fair Work Act 2009 (Cth).
2.Orders that:
(a)the application be dismissed insofar as it relates to alleged contravention of:
(i)the Road Transport and Distribution Award; and
(ii)regulation 3.46(3) of the Fair Work Regulations 2009 (Cth);
(b)the proceedings be adjourned to 11:00am on 28 June 2024 for further directions as to a penalty hearing in relation to the Respondent’s contravention of s 340(1) of the Fair Work Act 2009 (Cth); and
(c)costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an Originating Application lodged by the applicant, Mr John Guthrie (“Mr Guthrie”), on 2 April 2020 alleging that on 9 December 2019 the respondent, Mondiale VGL Pty Ltd ACN 002 433 267 (“Mondiale”) (previously known as Visa Global Logistics Pty Ltd), dismissed him from his employment as a truck driver in contravention of s 340 of the Fair Work Act 2009 (Cth) (“FW Act”) because he exercised a workplace right. Mr Guthrie also alleges that he was underpaid by Mondiale in contravention of the Road Transport and Distribution Award 2010 (“RTD Award”), and that required information was not included on his payslips in contravention of reg 3.46(3) of the Fair Work Regulations 2009 (Cth) (“FW Regulations”).
Mr Guthrie claims:
(a)compensation from, and the imposition of a pecuniary penalty upon, Mondiale for the alleged contravention of s 340 of the FW Act;
(b)for underpaid wages; and
(c)the imposition of a pecuniary penalty for the alleged contravention of reg 3.46(3) of the FW Regulations.
In the Originating Application Mr Guthrie did not seek reinstatement of his employment as a truck driver with Mondiale. The Court (then the Federal Circuit Court):
(a)on 23 March 2021 dismissed an application in a case filed 24 September 2020 by Mr Guthrie seeking a temporary injunction reinstating him in employment until the final hearing or determination of this matter: Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479 (“Guthrie”) at [104]-[105] and [110] per Judge Lucev; and
(b)on 20 May 2021 dismissed, by consent, an application in a case filed on 4 March 2021 for leave to amend the Form 2 filed as part of the Originating Application to include reinstatement as a remedy sought by Mr Guthrie.
MATERIAL BEFORE THE COURT
For the purposes of the final hearing the materials before the Court included the following:
(a)the Originating Application and Statement of Claim filed 2 April 2020;
(b)the Defence filed 1 May 2020;
(c)Mondiale’s Notice of Objections to Mr Guthrie’s evidence filed 1 March 2021 (“Mondiale’s Objections”);
(d)Mr Guthrie’s Notice of Objections to Mondiale’s evidence filed 1 March 2021 (“Mr Guthrie’s Objections”);
(e)Mondiale’s Notice of Objection to Mr Guthrie’s affidavits filed 27 July and 4 October 2021 filed by Mondiale on 17 January 2022 (“Mondiale’s Further Objections”);
(f)the affidavits of Mr Guthrie, being those affirmed on:
(i)24 September 2020 (“First Guthrie Affidavit ”);
(ii)27 July 2021 (“Second Guthrie Affidavit ”); and
(iii)4 October 2021 (“Third Guthrie Affidavit”),
(g)the affidavit of Mr Michael Punter (“Mr Punter”) affirmed 7 September 2021 (“Punter Affidavit”);
(h)the affidavit of Ms Tanya Coleman (“Ms Coleman”) affirmed 7 September 2021 (“Coleman Affidavit”);
(i)Mr Guthrie’s Outline of Submissions filed 24 January and 4 March 2022 (“Mr Guthrie’s Submissions”); and
(j)Mondiale’s Outline of Submissions filed 31 January and 4 March 2022 (“Mondiale’s Submissions”).
THE PEOPLE INVOLVED
It is convenient at the outset to set out the names and the positions of the principal persons involved at various times in the events the subject of these proceedings, as follows:
(a)Mr Guthrie, a truck driver for Mondiale;
(b)Mr Michael Punter, the National Transport Manager for Mondiale;
(c)Mr Tom Mu Sung, the Western Australian State Manager for Mondiale;
(d)Mr Damon Awhitu, a driver with Mondiale;
(e)Mr Leigh Kesby, Western Australian Transport Supervisor for Mondiale;
(f)Mr Steve McLaughlin, Western Australian Transport Manager for Mondiale;
(g)Mr Laurence Pilgrim, Queensland Transport Manager for Mondiale;
(h)Ms Tanya Coleman, National Human Resources Manager for Mondiale; and
(i)Mr Garth Harris, a Partner in Mondiale.
HEARING
The Court has had regard to the evidence contained in the affidavits (subject to rulings on objections made at the hearing) tendered at hearing, and the evidence given orally at hearing, and regarding the latter has had access to, read and referred to the transcript of the hearing on 14 and 15 February and 9 March 2022 (“Transcript”) in preparing these Reasons for Judgment.
At hearing oral evidence (primarily cross-examination and re-examination) was given:
(a)by Mr Guthrie on his own behalf; and
(b)by Ms Coleman and Mr Punter for Mondiale.
RELEVANT LAW
It is convenient at this stage to set out some of the law with respect to adverse action proceedings, and what must be proven by the respective parties.
Adverse action
The FW Act states at s 340(1) as follows:
(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.
(b) to prevent the exercise of a workplace right by the other person.
…
At s 341 (1) and (2) the FW Act states as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee-in relation to his or her employment.
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
In the context of adverse action proceedings it is for an applicant to assert and establish that:
(a)they exercised the workplace rights pleaded in their statement of claim;
(b)the conduct complained about in fact occurred; and
(c)that conduct constitutes adverse action under s 342(1) of the FW Act.
If Mr Guthrie proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for Mondiale to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s 361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”) at [43]-[44] per French CJ and Crennan J.
In Barclay the High Court said:
(a)the task of a court in a proceeding alleging a contravention by reason of adverse action “…is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J (and see also State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 (“Grant”) at [32] per Tracey and Buchanan JJ);
(b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
(c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
(d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s 340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s 340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”). In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action (as to which see s 360 of the FW Act), but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
(a)French CJ and Crennan J in Barclay said:
(i)at [41] that “…why an employer took adverse action against an employee is a question of fact…”;
(ii)at [44] 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?'“; and
(iii)at [45] that:
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.
(b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s 361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer's own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Under s 360 of the FW Act a prohibited reason need only be one of the reasons for the adverse action for a contravention of the general protections provisions to arise. However, a prohibited reason must be a “substantial or operative factor” in influencing the adverse action or “an operative or immediate reason for acting”: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J.
A decision-maker's reasons are to be determined from all of the facts and circumstances and inferences properly drawn from them. This ordinarily includes positive evidence from the decision-maker that the action was not taken for a prohibited reason. It also includes evidence of the actual reason or reasons why the adverse action was taken: Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414 (“Western Union”) at [117] per O'Callaghan and Thawley JJ.
If the decision-maker's evidence is accepted as being reliable, the onus under s 361 of the FW Act will be discharged. This involves an assessment of the evidence given by the decision-maker: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 (“Dawson Services”) at [28] per Jessup J. The Court is not, however, bound to accept the decision-maker's evidence. It may be unreliable if there is contradictory evidence or other objective facts that undermine it. Where a decision-maker is believed it is difficult to undermine that evidence: Grant at [49] and Barclay at [45] per French CJ and Crennan J.
For the purposes of s 361(1) of the FW Act it will usually not be enough for an employer to simply deny unlawful adverse action. Reasons for the action will need to be articulated: Cai v Tiy Loy & Co Ltd [2015] FCCA 715 (“Cai”). Likewise, if there is no evidence that there were no additional reasons for the adverse action. In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914 at [20] per Gray J stated that:
Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.
In Batista v Wells Fargo International Finance (Australia) Pty Ltd (No 2) [2020] FCCA 829 (“Batista”) at [134] per Judge Kendall the Federal Circuit Court referred to Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ when explaining its process in evaluating witness testimony: namely that the Court assesses the evidence of each of the witnesses in light of the objectively known facts, the consistency or inconsistency between the accounts, and the plausibility of the accounts given. In Batista the Federal Circuit Court at [135] and [137] per Kendall J also observed that it must consider whether:
(a)there is nothing inherently “incredible” in the evidence given by any of the decision-makers; and
(b)the reasons given by each of the decision-makers in their affidavits is internally consistent, plausible, corroborated by contemporaneous correspondence and substantiated by any concessions.
It follows then, and it is important to observe that, the decision-maker's subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears the onus to show that it did not take adverse action for a prohibited reason.
Further discussion in relation to the law as it relates to adverse action is set out in the Court’s consideration of the adverse action issues below.
Underpayment – contravention of an award
In relation to alleged underpayment the FW Act states at s 45 as follows:
45 Contravening a modern award
A person must not contravene a term of a modern award.
Lack of information on payslips
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 ACTION
The 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.
Mondiale also allege that Mr Guthrie caused damage to an A-Frame trailer and jockey wheel (“A-Frame Incident”). Mr Guthrie denies causing damage, and says that the allegation that he had caused the damage was put to him by Mr Awhitu on or around 29 April 2019. Mr Guthrie says that on or around 30 April 2019, Mr Mu Sung, the Western Australian State Manager for Mondiale, said, in effect, that the damage did not appear to be new and he had no idea why he was even discussing the issue. Mr Guthrie says that on or around 2 May 2019 Brian Hall, a driver for Mondiale, returned from annual leave and told him that the A-Frame Trailer had been in a state of disrepair for some time including having a bent and broken jockey wheel which couldn’t been wound down: Third Guthrie Affidavit at [4(a)-(f)] (noting that [4](c), (e), (f), (h) and (i) were admitted on a limited basis). Mr Guthrie’s evidence was that the only part he played in the A-Frame Trailer Incident was to take a photo of the damage at the request of Mr Mu Sung: Transcript, p 42. This is the only direct evidence concerning the A-Frame Trailer Incident. On the basis of Mr Guthrie’s direct evidence in cross-examination, the Court has concluded that Mr Guthrie was not responsible for any damage to the A-Frame Trailer.
Mr Punter, the National Transport Manager for Mondiale, said at [31] of the Punter Affidavit that:
31.In or around May to September 2019, Tom Mu Sung, Branch Manager (WA) advised me during the course of several conversations of the following matters in relation to Mr Guthrie's employment:
(a)In or about early May 2019, the Company had concerns that Mr Guthrie had caused damage to a trailer A-frame and jockey wheel. Mr Guthrie denied he had caused the damage but could not justify his denial as he had not performed the pre-start correctly.
(b)In or about early May 2019, Mr Guthrie did not stop at the stop line and did not radio the forklift driver when he entered the yard.
It is not in dispute that Mr Punter was not located in Perth and was not in Perth or the Yard at the time of the alleged A-Frame Trailer and Yard Entry Incidents, and that his only knowledge of the alleged incidents came from his discussions with Mr Mu Sung. Mr Mu Sung was not called to give evidence by Mondiale.
In relation to the alleged A-Frame Trailer and Yard Entry Incidents Mr Guthrie’s evidence is to be preferred. His direct evidence is the only evidence given by a person who was involved in relation to the alleged incidents, and his direct evidence about what he did or did not do, and what was said or not said by others, is detailed, relates directly to the time at which the alleged incidents were said to have occurred, and is not contradicted by direct evidence from any other Mondiale employees involved in the incidents. Mr Punter’s evidence in relation to these incidents is curious: he says that there were several conversations with Mr Mu Sung concerning the incidents over a period of some five months. Yet, these conversations did not result in the incidents being raised with Mr Guthrie until the time of his dismissal some two to three months after Mr Mu Sung is last alleged to have raised them with Mr Punter. Nor were they, seemingly, the subject of any written incident or safety reports, or any email correspondence between any Mondiale supervisory or management employees and Mr Punter or Mr Mu Sung, the respective National and State Managers. Mr Mu Sung was not called to give evidence about his knowledge of the incidents in his capacity as State Manager for Mondiale. Mr Awhitu, who appears to be the originating source for the allegations in relation to the incidents, was also not called to give evidence. The Court can only conclude in that regard that their evidence would not have assisted Mondiale: Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278; [1959] ALR 367 (“Dunkel”), CLR at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J. In all these circumstances, and particularly having regard to the fact that Mr Guthrie’s evidence is plausible direct evidence of what did or did not occur, the Court has concluded that neither the alleged A-Frame Trailer and Yard Entry Incidents took place in the manner described by Mondiale, and in particular in the manner described in the Punter Affidavit at [31], or at all.
On 10 June 2019 Mr Guthrie sent an email to Mr Kesby confirming his intention to seek a night shift position at Mondiale: First Guthrie Affidavit at [16], Annexure JG-6.
Following a meeting between Mr Guthrie, Mr Kesby, Mr Mu Sung and Mr Pilgrim, on 19 June 2019 Mr Mu Sung sent an email to Mr Guthrie outlining the outcomes from the meeting, as follows: First Guthrie Affidavit at [18], Annexure JG-7:
(a)whilst Mr Kesby was on annual leave, a night-shift position was given to another employee and Mr Guthrie was overlooked for this position due to the need to immediately fill the role without training;
(b)Mr Guthrie would remain as the “front runner” for the next position that became available. The timeline for this relied heavily on Mondiale’s ability to bring on additional business as the current workload did not support an additional night shift worker;
(c)Mondiale would aim to create a hybrid position specifically for Mr Guthrie which would permit him to commence employment at 3:00pm in the afternoon, and to offer Mr Guthrie the flexible working arrangement that he had requested; and
(d)Mr Guthrie had raised concerns regarding irregular and inconsistent shift start times (“Inconsistent Start Times”). Mr Mu Sung apologised for the delay in addressing Mr Guthrie’s concern. Mr Mu Sung advised Mr Guthrie that since the end of May 2019, this had been “tightened up dramatically” and reinforced that Mondiale’s stance was that:
… each driver does have an agreed start time. If … [Mondiale] requires any particular drivers to come in earlier due to business demands, then those drivers will be asked specifically if that is feasible. If they are unable to be flexible with the business requirements because of pre-existing commitments, we will be understanding and respectful of those drivers decisions, especially because of the short notice given. In those situations, the drivers' regular shift times will be as agreed.
Mondiale, and Ms Coleman specifically, assert that part of the reason for the decision to terminate Mr Guthrie’s employment was because of Mr Guthrie’s alleged non-compliance with Mondiale’s Code of Conduct and the Health, Safety, Environment and Quality Administrative ‘Three Strike Policy’” (“Three Strike Policy”). Ms Coleman’s affidavit evidence was, that over the period from August to November 2019 there had been escalating disrespectful treatment by Mr Guthrie to others in the business and continued harassment and badgering of her specifically: see generally Coleman Affidavit at [19]-[45]. The nature of this assertion has caused the Court to set out below most of the email correspondence between Mr Guthrie and Ms Coleman (usually copied to others, in particular Mr Punter) in full (and without amendment or correction of error, except where otherwise indicated) so as to facilitate a proper consideration of, and explanation as to, whether Mr Guthrie’s conduct was as alleged.
Ms Coleman says that she was first copied into correspondence from Mr Guthrie on 27 August 2019 when he sent an email to Mr Pilgrim, the Queensland Transport Manager for Mondiale, Mr Punter and herself, but that she understood that the request made in that email (which was for a “fresh request for a change of shift in accordance with section 65” of the FW Act) had been dealt with at the Transport Management level and that she therefore had no cause to get involved or intervene in the matter at that stage: Coleman Affidavit at [21] and Annexure TC- 7. The 27 August 2019 email was in the following terms:
Thank you for your email Laurence.
I have made a fresh request for a change of shift in accordance with section 65 of the Fair Work Act as the written agreement we had achieved at the meeting in June appears to have now been completely rescinded by VGA following your email of 22 August 2019.
The previous agreement of an alleged new position created for me was set in place at the meeting in June to facilitate my request for a change of work pattern whilst also protecting the mess created by Leigh Kesby by not wanting to Move … [name deleted]. Leigh had started the meeting by apologising for his conduct towards me and keeping me in the dark over the available night shift position before advising that as … [name deleted] had similar family commitments, he did not want to change his shift which is why a fresh position was now going to be created for me. The meeting ended with you advising to Leigh, Tom and myself that this has to happen Sooner rather than Later and if it didn't happen then I was to come direct to you. At this point you then sent me a text with your number.
After speaking with Leigh on 15 August be advised that the best he could do at the moment was for me to cover … [name deleted] night role over Christmas whilst he was on leave but I would have to return to the day shift upon his return. l advised Leigh that this wasn’t acceptable and was nothing short of a kick in the teeth as it certainly wasn’t what had been agreed at the meeting in June. At this point Leigh advised me to put my concerns in an email to yourself Laurence in accordance with your previous advice. That email of 19 August has now resulted in the agreement effectively being rescinded.
As I have therefore now been left with no other option than to make a fresh request for a change of shift in accordance with section 65 of the Fair work Act I would expect that the necessary procedures will now be followed without the need for matters to progress further. I have been extremely patient over this issue and had not pursued the additional and more serious matter of the Adverse Action which Leigh had taken against me despite being fully aware in June that this is what it amounted to, notwithstanding Leigh’s own confession at the meeting. I had advised Tom of this in my response to the written agreement he had sent to me.
I therefore again look forward to catching up with you upon my return and hope that we can all move forward.
On 13 September 2019 Mr Pilgrim responded to a 27 August 2019 email from Mr Guthrie and notified him that Mondiale was unable to provide Mr Guthrie with a nightshift position at this time: First Guthrie Affidavit at [20], Annexure JG-9. On 14 September 2019 Mr Guthrie emailed Mr Punter and Ms Coleman that he intended to seek assistance from the Fair Work Commission (“FWC”): First Guthrie Affidavit at [21], Annexure JG-10. Ms Coleman was copied into the email from Mr Guthrie to Mr Punter dated 14 September 2019: Coleman Affidavit at [22] and Annexure TC-8, which was in the following terms:
Dear Micheal
With regard to the email from Lawrence Pilgrim to me on 13 September 2019 concerning my fresh request for a change of shift which I had made on 26 August 2019. Lawrence has advised that the company is unable to provide me with a night shift position at this point.
I therefore wish to advise you that I will now place the matter before the Fair Work Commission for consideration. I am in the firm belief that the refusal is not only unreasonable but despite being provided with a further opportunity to follow the correct procedures before making the decision following my follow up email to Lawrence on 27 August 2019, he has failed to follow those procedures in any way whatsoever which is a breach of the Fair Work Act.
I will be requesting that the Fair Work Commission also consider my original request for flexible working which had been made in January 2019 to Leigh Kesby and whether or not the correct procedures had been followed at that time regardless of the outcome. Again, Leigh had failed to follow any of those procedures despite HR also being included in his email communications with me.
I will be requesting that the Fair Work Commission also consider my claim of wilful & deliberate Adverse Action taken against me by Leigh Kesby at the end of May 2019. Leigh had decided to keep me in the dark about an available night position in direct retaliation to my complaint to Tom Mu Sung (at the same time) regarding the constantly changing daily start times which was a General Protection under the Fair Work Act. As we know, the decision was taken to employ a friend of Leigh Kesby who had been contacted and interviewed by Leigh for this position. This was despite Leigh being fully aware that he had already confirmed via email to me that I was his priority for the next available night shift position, something that he reconfirmed with me just before he went on his vacation at the end of April 2019.1 am therefore quite satisfied that Leigh's actions towards me and the chronology of those events will be found to have been Adverse Action in the extreme for my complaint to Tom Mu Sung.
Should any of the above alleged contraventions be found to have occurred, Visa Global Logistics face significant fines from the Fair Work Commission for each contravention and particularity with the issue regarding Adverse Action which places the reverse onus on VGL to disprove my allegations. This would be in addition to any compensation that the Commission feels appropriate to award to me.
I have not taken this decision lightly and have been extremely patient in my rightful request for Flexible working in order to accommodate my family commitments. The agreement which we had reached at the meeting in June to create a new position for me rather than moving the new employee had effectively been rescinded due to work levels not picking up sufficiently. That is not in question and I would not expect the company to create a fresh position for me under these circumstances. However, Lawrence has failed to understand that he therefore had a duty under the Fair Work Act to revisit the decision made in June regarding the new employee or Indeed any other employee on the night shift when considering my fresh request for flexible working which I had made on 26 August 2019, as well as following the correct updated procedures as stipulated in the Fair Work Act which came In to force on 1 December 2018 regarding requests for flexible working regardless of the eventual outcome.
I therefore gratefully request that Visa takes a step back from Lawrence's decision on 13 September 2019 and considers all the points which I have raised above. I am in the firm belief that VGL could not successfully defend any of my allegations but again, this is not path I wish to go down if it can be avoided at this late stage. As such, I look forward to hearing from you within the next 7 days before I make an application to the Fair Work Commission.
Yours sincerely,
John Guthrie
Following a meeting on 1 October 2019 involving Mr Punter and Mr Harris and Mr Guthrie, but not Ms Coleman, Mr Punter sent an email to Mr Guthrie, copied to Mr Harris and Ms Coleman indicating that Mondiale was trying to work on a solution to get Mr Guthrie onto a “PM shift sooner rather than later”: First Guthrie Affidavit at [21]-[22], Annexure JG-11. It is of some significance that in that email Mr Punter also said:
Keep up the good work as you have been and we will talk soon.
On 6 October 2019 Mr Guthrie sent an email to Mr Punter and Ms Coleman: Coleman Affidavit at [25] and Annexure TC 10, which was in the following terms:
Thank you for your email Michael of 4 October.
I have taken the decision to now proceed with an application to the Fair Work Commission in order to determine if any contraventions of the Fair Work Act have occurred. Those complaints will be.
1.An Unreasonable Refusal for Flexible Working, contrary to section 65 of the Fair Work Act.
2.A failure by my employer to follow due process when receiving a request for flexible working, including failing to arrange a meeting and failing to provide a detailed written response within 21 days of receiving the request. This relates to my most recent request made via email to Lawrence Pilgrim on 26 August 2019 and his refusal to that request made via email on 13 September 2019.
3.I was subjected to wilful and deliberate Adverse Action by Leigh Kesby at the end of May 2019 by not being considered for the available night shift position in retaliation to making a complaint to Tom Mu Sung regarding the constantly changing daily start times. Changing the regular start time of an employee on a daily basis is a contravention of the Fair Work Act. Taking action against an employee for making a complaint over any such contraventions is also a contravention of the Fair Work Act.
It is also noted that whilst the issue over the Start times was resolved following my complaint, my employer has never rectified the non payment of overtime which occurred as a result of Leigh Kesby's actions in this regard going back many months for all employees working at the Perth depot. That is a contravention of the FWA which Visa should have rectified as soon as they became aware of what was taking place. If employees were entitled to overtime payments which had previously been wrongly recorded as standard hours then this had to be rectified without delay.
I will set out the chronology of events which I believe demonstrates overwhelming evidence of my claim of Adverse Action.
1a.I had made a request for flexible working to Leigh Kesby in January of 2019. This was followed by an email from Leigh Kesby on 17 January 2019 advising that I was his priority for the next available night shift position. Something that he had reconfirmed with me at the end of April 2019 just before he went on vacation.
2a.I had made a complaint to Tom Mu Sung regarding the constantly changing daily start times on 30 April 2019.
3a.Leigh Kesby returned to the Perth depot from vacation as well as a few days at the Brisbane office on Wednesday 22 May 2019. Upon his return he had been advised of my complaint and had also been advised that one of the night shift drivers was leaving.
4a.At some point prior to Thursday 23 May 2019, … [name deleted] had handed his resignation letter to Visa advising that his last day of employment would be Friday 24 May 2019. Obviously, VGL will in due course advise of exactly when they had been made ware of [… name deleted]'s resignation.
5a.On Thursday 23 May 2019 a new employee was interviewed by Leigh Kesby for the available night shift position despite it not being general knowledge to the rest of the workforce in Perth that … [name deleted] was in fact leaving the following day and the role was therefore vacant. The argument later put forward by VGL was that the new employee held a Dangerous Goods Licence and the role need to be filled quickly. Under the provisions of the Fair Work Act, the reasons first advanced by VGL for this decision now stand and cannot be changed to another reason.
6a.Another day shift employee of VGL was offered that available night shift position despite not holding a DG Licence.
7a.The first time I was made aware of [… name deleted]'s departure was at the Toolbox meeting held on Friday 24 May 2019. This was also the same meeting which Leigh Kesby had lost his temper with me over my complaint to Tom mu Sung regarding the constantly changing daily start times.
8a.Surprisingly, it wasn't until over 2 and a half weeks later that the new employee actually commenced employment with VGL on Monday 10 June 2019. This was the first time that I had been made aware that the available night shift position had in fact been filled with someone from outside the business despite the role not being advertised either internally or externally. It was at this point I was made aware that the individual who I had seen being interviewed by Leigh Kesby on Thursday 23 May 2019, was actually being interviewed for the available night shift position despite it being a complete secret to me and the majority of the other Perth employees that the role was going to be vacant. it also appeared odd that the argument later put forward by VGL that the role needed to be filled quickly, yet had rather strangely remained empty for over 2 weeks whilst the new employee worked his notice period with his previous employer.
9a.I raised a formal complaint with Leigh Kesby via email on Monday 10 June 2019 regarding being kept in the dark over the available night shift position which he had previously confirmed that I would be his priority. The answer put forward by Leigh was that Tony in Brisbane had taken the decision due to the new employee allegedly holding a DG licence. This appeared to be somewhat odd considering that nobody knew whether or not I held a DG licence as they never asked and not once had Leigh ever advised that I must obtain DG licence in order to fulfil my long standing request for flexible working which had stood since January. In any event, it is quite apparent that Leigh was fully aware of his previous commitment to fulfil my request for flexible working yet it had now been completely disregarded in favour of a new employee who was also a friend of Leigh Kesby and who Leigh had personally interviewed for the position.
I had also made a fresh request to Leigh Kesby within the same email for flexible working in accordance with section 65 of the FWA.
10a.A meeting was arranged on 18 June 2019 with Leigh Kesby, Tom Mu Sung and myself. Lawrence Pilgrim was also present. Leigh started the meeting by Immediately apologising for his actions towards me and advised that going forward he would be straight with me in the future. Leigh went on to advise that as the new employee had similar family commitments to myself then he didn't want to move him to the day shift. As such, it was proposed that a new shift was going to be created for me. Lawrence Pilgrim advised Leigh and Tom that this had to happen Sooner rather than later, and if it didn't, then I was to come back to Lawrence.
Unfortunately, due to work levels not increasing sufficiently after more than 2 months, the proposed new role for me was not forthcoming and as such, I was left with no other option than to raise fresh request for flexible working with Lawrence Pilgrim on 26 August 2019 in order to accommodate my family commitments. That request was refused by Lawrence on 13 September 2019 without following any of the statutory procedures as required under the FWA and without providing a detailed response for the refusal within 21 days as also required under the FWA.
Had Lawrence conducted a meeting as required under the FWA, it would have been my request that as the previously planned new role couldn't now be created due to insufficient work levels, then I believe that the decision taken at the end of May to give the night shift role to the new employee must be revisited. If the outcome was still going to be a refusal to my request, then Lawrence had a legal duty to provide a detailed response in accordance with the FWA as to why he was still favouring the new employee over me. This cannot simply be a decision taken by the company which I must accept with being provided with the reasons for the decision and is again a contravention of the FWA and the right to request flexible working as well as being provided with written details of any refusal to a request.
I therefore believe that my complaints to the Fair Work Commission will be made out. I will be requesting compensation for the contraventions taken against me as well as being paid the appropriate night shift rate from Monday 3 June 2019 when I believe the night shift role should have commenced had the Adverse Action not been taken against me by Leigh Kesby. As previously stated, it is quite apparent that VGL face significant fines by the Fair Work Commission for many of the above contraventions should they be found to have occurred. But again, that will be for the Fair Work Commission to determine one way or another.
I hope you understand my reasons for pursuing a complaint to the FWC. Had this have all been sorted out many months ago then I would have let matters rest but it has unfortunately dragged on for far too long and I appear to be the subject of on going discrimination to my rightful request for flexible working in order to accommodate my family commitments. I realise that this was non of your making Michael and that you have now found yourself in a difficult position. However, the company should have realised the gravity of the situation they found themselves and in as a result of Leigh Kesby's actions and in turn, taken the appropriate action to rectify the problem with delay.
Yours sincerely,
John Guthrie
Mr Punter says that on 9 October 2019 he received an email from Mr McLaughlin, the then WA Transport Supervisor, informing him that he had issued Mr Guthrie a verbal warning in relation to a safety matter. Mr McLaughlin noted that Mr Guthrie “Drove the wrong way in the yard and breached safety practices, to fuel up his truck.”: Punter Affidavit at [32] (“Yard Driving Incident”). Mr McLaughlin’s email was sent to Ms Coleman and copied to Mr Punter: Coleman Affidavit, Annexure TC-6, but is not annexed to the Punter Affidavit. Again, there is no evidence that Mr Punter had any direct knowledge of, or involvement in, the Yard Driving Incident. Mr McLaughlin was not called to give evidence in relation to the Yard Driving Incident. Ms Coleman repeats the allegation made in relation to the Yard Driving Incident by Mr Punter in her affidavit: Coleman Affidavit at [12]. Like Mr Punter, there was no evidence that Ms Coleman worked in Perth, or was in Perth or in the Yard at the relevant time. Mr Guthrie:
(a)denied that at any time during his employment with Mondiale did he drive the wrong way in the Yard or breach any safety practices when fuelling up; and
(b)said he never received any verbal or written warnings for doing so from Mr McLaughlin or anyone else: Transcript, pp 40-41.
Once again, the only direct evidence of what occurred in relation to the Yard Driving Incident is the evidence of Mr Guthrie. The Court can infer from the failure to call Mr McLaughlin that his evidence would not have assisted Mondiale in establishing that the Yard Driving Incident occurred or that a verbal warning was given to Mr Guthrie by Mr McLaughlin in relation to the Yard Driving Incident. In all the circumstances, the Court is satisfied on the evidence that the Yard Driving Incident did not occur and that no verbal warning was given to Mr Guthrie in relation thereto.
Ms Coleman now became directly involved in the matter, and responded to Mr Guthrie’s 6 October 2019 email on 11 October 2019 in her capacity as National Human Resources Manager: Coleman Affidavit at [26] and Annexure TC-11, in the following terms:
Dear John
Thank you for your email dated 6 October 2019.
While I do not want to get into a lengthy debate with you about the facts or the law, I do want to take the opportunity to briefly set out the reasons why VISA has made the decisions it has in relation to you and its position with respect to your claims. I hope that this means we can move on and concentrate on continuing your good work and trying to find you a position on the night shift as soon as operational requirements allow us to do so.
1.We have not unreasonably refused any flexible working request nor failed to comply with the Fair Work Act process regarding these requests. Firstly, your email to Leigh in January was not as “flexible working request” as contemplated by the Act. Rather, it was the confirmation that you would like to pursue the transfer to Perth and then secondly, that as soon as something came up on the night shift you would be interested in securing it. Leigh responded that day and said that when something did come up you would get priority. Even if it was a “flexible working request”, the requirement to respond in writing giving a reason (that there was not a position) was clearly satisfied. As a result, there is no basis to continue to threaten penalties and proceedings related to this request. Any subsequent communications about the issue were all part of the continuing dialogue.
2.There has not been any “adverse action” as you allege. You were not provided with the night shift role that [… name deleted] was hired to perform because you made a complaint to Tom Mu Sung. Your complaint to him had absolutely no bearing on the decision at all. This means there is no basis for an adverse action claim and as with the above, please do not continue to threaten proceedings and penalties in relation to this decision. You did not have a legal right to that role and VISA’s reasons for hiring [… name deleted] were not unlawful in any way.
Putting aside the legal position (which does not help us resolve this matter), we absolutely recognise that you have made a request to transfer to night shift and that the transfer is requested because of your family commitments. We are understanding of this position and genuinely want to help as we have discussed with you.
We would like you to continue to focus on your work and trust that we will make any reasonable endeavour to try and meet your request. We will continue to communicate with you about the operational need for an additional night shift and do what we can to accommodate your family responsibilities.
On 11 October 2019 Mr Guthrie made an application to the FWC: First Guthrie Affidavit at [24].
On 14 October 2019 Mr Guthrie sent an email to Ms Coleman: Coleman Affidavit at [27] and Annexure TC-12, in the following terms:
Dear Tanya,
Further to my complaint to the Fair Work Commission. I have just received a call from the Commission’s Perth Office requesting that I re-lodge my complaints separately as they fall under different areas of the Fair Work Act. As such, I will now lodge my complaint separately concerning the Adverse Action complaint.
With regard to my complaint concerning my employer failing to follow the current procedures when receiving and responding to a request for Flexible Working, the FWC have requested that I first initiate a dispute resolution with my employer or obtain confirmation that my employer is not prepared to enter in to dispute resolution with me over this issue.
On 26 August 2019 I had made a fresh request to Lawrence Pilgrim for flexible working in accordance with section 65 of the Fair Work Act in order to help look after my son who is now 2 and a half. Unfortunately, Lawrence had failed to discuss the request with me in any way whatsoever. In turn, failing to genuinely try and reach an agreement as required under the Act. This was subsequently followed with a formal refusal to my request within an email Lawrence had sent to me on 13 September 2019. Unfortunately, Lawrence had failed to provide me with any of the supporting information for the refusal as also required under the act.
I have already raised my concerns with yourself and Micheal Punter on numerous occasions regarding Lawrence failing to follow the correct procedures as required under section 65 of the FWA when receiving a request for flexible working. Unfortunately, based on your last email to me of Friday 11 October 2019, it appears that you are also unaware of the updated process (As of 1/12/2018) which an employer must now follow when receiving and responding to a request for flexible working.
I therefore would like to initiate a dispute resolution process with my employer over this issue or confirmation that my employer is not prepared to discuss the matter any further.
Yours Sincerely,
John Guthrie.
Ms Coleman responded to Mr Guthrie’s 14 October 2019 email by email on 15 October 2019: Coleman Affidavit at [28] and Annexure TC-13 as follows:
Dear John
As I pointed out in my last email we do not consider that there is anything further to discuss.
We would like you to concentrate on your work and we will consider you for a shift transfer if a night shift becomes available. There is no purpose in continuing to debate the point.
Your applications to the Fair Work Commission are a matter for you. If and when you file something we will respond as required and our response will not differ.
Please consider that I have provided all of the information we can at this stage and there is no utility in further argument.
Mr Guthrie, Mr Punter and Ms Coleman participated in a conference in the FWC on 11 November 2019: Punter Affidavit at [23]. The FWC conference on 11 November 2019 resulted, according to Ms Coleman, in an outcome which was that which had been previously expressed to Mr Guthrie by Mondiale, that is that Mondiale would consider a shift transfer if a position became available: Coleman Affidavit at [29].
On 17 November 2019 Mr Guthrie filed a Notice of Discontinuance of the FWC proceedings with the FWC: Third Guthrie Affidavit at [3].
On 18 November 2019 Mr Guthrie sent an email to Ms Coleman headed “Complaint update”: First Guthrie Affidavit at Annexure JG-14, in the following terms:
Hello Tanya,
It has now been a week since commitment was given to Deputy President Beaumont of the Fair Work Commission that my employer would be in contact with me with regard to undertaking dispute resolution in accordance with clause 10 of the Road Transport and Distribution Award 2010.
However, as yet, I have so far had no further correspondence following the conference call with the Fair Work Commission on 11 November.
Please could you therefore advise before the end of this week when this is going to be conducted.
On a separate note, I have received no response whatsoever from your solicitor, Alice Deboos, regarding the separate complaint made to her almost 3 weeks ago. That complaint concerns the incorrect casual loading applied to my basic pay between June of 2014 and February of 2015 contrary to clause 12.5 of the Road Transport and Distribution Award 2010. This, in turn, meant a shortfall in the correct amount of employer Super contributions paid to me of just over $10 per week. It is quite apparent that VGL had decided to apply their own rate of casual loading of around 13% instead of applying the correct 25% loading.
I therefore would like a response from my employer regarding both of the issues raised above by Friday 22 November 2019.
Your sincerely
John Guthrie.
Ms Coleman responded to Mr Guthrie’s 18 November 2019 email on the same day: First Guthrie Affidavit at Annexure JG-14, in the following terms:
Dear John
We did not receive the notice of discontinuance of your Fair Work Commission dispute until Friday, 15 November 2019 at 6.09pm ESDT.
As previously noted on 17 January 2019, 10 June 2019 and 13 September 2019, the Company remains unable to accommodate your requested change to the night shift. We have provided you with detailed reasons as to why this request cannot currently be accommodated and we rely on those previous letters. We can however meet with you again, at a suitable business operational time, to discuss the matter including the reasons the Company is unable to accommodate the request. As has also been previously advised, as soon as our circumstances change and we obtain further customer work and demand for a further night shift we will let you know.
In relation to your casual loading query, I can confirm that between June 2014 and February 2015 you received payment for the entitlements you would have otherwise received under the Road Transport and Distribution Award 2010 (Award), including (but not limited to) the casual loading. During this period of time, you received $27 per hour. We are unsure why you are referring to a 13% casual loading to K&L Gates, but to clarify, the casual loading that formed part of your hourly rate of pay was a 25% casual loading.
Under the Award, the hourly rate of pay between June 2014 and February 2015 was $20.18 plus 25% casual loading = $25.23 for a Transport Worker Grade 8 Classification. Your hourly rate of $27 therefore compensated you for the hourly rate and casual loading that was otherwise payable under the Award.
Please contact me if you have any questions.
Kind regards
Mr Guthrie responded to Ms Coleman’s email of 18 November 2019 later that evening: First Guthrie Affidavit at Annexure JG-14, as follows:
Thank you for your email Tanya,
It appears somewhat odd that you personally spoke up last week in the background of the telephone conference call and advised Deputy President Beaumont that you would undertake Dispute Resolution which is a requirement of the relevant award, yet now claim that it had previously been resolved through earlier letters. As such, you appear to have had no intention of honouring that commitment given to Deputy President Beaumont confirming that you would be in contact with me with regard to now entering in to dispute resolution procedures.
To confirm, Laurence Pilgrim did not follow any of the procedures as required under Clause 28A of the Road Transport and Distribution Award 2010 when receiving and responding to a request for flexible working, including genuinely trying to reach an agreement with me. It is a breach of the Act for those procedures to not have been followed and as such, I require dispute resolution procedures to be initiated in order to get to the bottom of why my employer did not follow the correct process in any way whatsoever. I had previously requested for those procedures to be followed yet , as you will be aware, you had refused to discuss the matter any further.
With regard to the casual loading applied to my basic pay between June of 2014 and February of 2015, you appear to have a limited understanding of how this loading should have been applied in accordance of the relevant award. VGL had also failed to advise what the base rate of my pay was within any of my payslips or within my employment contract which is a breach of the Fair Work Act. Further, the rate of 27 per hour only existed until July of 2014 when I received an increase to $29 Per hour for being moved on to Sideloader operations. Upon being made a permanent employee in February of 2015, my rate of pay reverted back to $25.50 per hour in accordance with other permanent employees conducting sideloader operations. It can therefore be established without any doubt that the 25% casual loading applied to the base rate should have given a causal rate of $31.87 per hour with Super contributions then paid accordingly. Unfortunately, VGL had decided to apply their own casual loading rate which quite clearly equated to just 13 . 7% on top of the base rate giving a rate of $29 per hour.
If Visa Global Logistics believe that they had applied the correct casual loading to my pay as well as also conforming to payslip requirements regarding casual loading, then I request for a formal letter to be supplied to me advising as such in order for matters to quickly proceed to the Fairwork Ombudsman for determination. At this stage, I haven't mentioned the failure by VGL to also apply the correct afternoon shift loading of 17.5% to my pay between August of 2017 and January of 2019 which was not only contrary to the relevant award, but also contrary to my contract of employment with VGL. My base pay was over $1 short per hour throughout the whole of this period taking in to account a couple of increases in the base pay for all employees which had occurred. As such, this also meant a shortfall in the correct rate of Super contributions paid to me.
My base rate of pay in August of 2017 was $29.50 per hour. This therefore required an afternoon shift base rate of $34.66 per hour. However, as you will be aware, I was only paid $33 per hour.
At the beginning of October 2017, VGL increased the base rate of all dayshift MC and sideloader drivers to a rate of $30 per hour. This therefore required an afternoon shift base rate of $35.25. However, as you will be aware, I was only paid $34 per hour.
Around February of 2018, VGL had decided to increase the rate of pay again for sideloader drivers in accordance with previous agreements. This raised the base rate by $1 to $31 per hour. This therefore required an afternoon shift base rate of 36.42. However, as you will be aware, I was only paid $35 per hour.
All of those daily base rates were reverted back to when calculating weekend overtime so were most certainly in existence and did apply to my pay. Therefore, why was the correct afternoon shift loading of $17.5% never applied which also gave a shortfall in the correct amount of Super contributions.
I therefore look forward to your detailed response to all of the above as this is an extremely serious matter which should warrant VGL contacting the Fair Work Ombudsman themselves to discuss those underpayments.
Yours sincerely,
John Guthrie.
In relation to Mr Guthrie’s email on the evening of 18 November 2019 Ms Coleman says: Coleman Affidavit at [36]-[39] as follows:
36.I was troubled by this email. Given the time it was sent, and the nature of the allegations raised, there were no further reasonable steps available to me that could redress the Applicant’s opinion.
37.Further, given the history of the matter at that point in time, I felt as if the Applicant was badgering and harassing me when all I had done was state VGL’s pay practices to date and confirm that the night shift issue was one subject to availability as previously expressed to the Applicant.
38.At that time, it was my belief that no matter what VGL did, if it did not result in total capitulation with his requests, even where those requests could not reasonably be accommodated, there would be disagreement and disparaging and unprofessional remarks made against whoever was dealing with the Applicant.
39.I have no problem with employees raising queries about workplace issues. But there is a way to raise issues without engaging in disparaging and unprofessional conduct toward those looking into the issue.
Ms Coleman responded on 19 November 2019: Coleman Affidavit at [40] and Annexure TC-15, as follows:
Dear John
To clarify, I did not speak on behalf of the Company during the Fair Work Commission conference. Solicitor, Shelley Williams, Kingston Reid represented the Company in the conference. You had the opportunity to discuss the matter within that forum and chose to discontinue the matter because it was your view that the parties had not followed the dispute resolution procedure in clause 10 of the Award. As you may recall, our Solicitor expressed the view that the process in clause 10 had already been followed and therefore we could proceed with the conference. It was your submission which brought an abrupt end to the conference, nothing that was said on behalf of VISA. Your approach at the conference took away a valuable opportunity to discuss this matter and find a resolution.
We have remained willing to meet with you in relation to this matter. However, we do not accept that the requirements of clause 28A of the Award have not been met. The requirement to meet with you and discuss your request and provide you with a written response was satisfied back in January 2019. Your request has remained the same. Equally, the Company's position and circumstances have remained the same, despite you making the same request on numerous occasions. We advised you that should the Company's circumstances change we will let you know immediately.
In relation to your pay queries, we have carefully reviewed your calculations and confirm that they are incorrect. Your understanding of your entitlements under the Award is mistaken. Between June 2014- February 2015, you were entitled to receive $20.18 per hour plus 25% casual loading. You received $27 per hour during this period which included the casual loading. This casual loading was not required to be paid on your actual hourly rate but the award rate.
This miscalculation appears to have been applied to all of your calculations for 2017 and 2018 below. You are applying the afternoon shift allowance to a higher hourly rate not the hourly rate contained in the Award at that time.
You are reminded of your obligation to conduct yourself in a professional manner and in accordance with the Company's Code of Conduct which is attach.
Kind regards
Mr Guthrie then responded to Ms Coleman later on 19 November 2019: Coleman Affidavit at [42] and Annexure TC-15, as follows:
Thank you for your email Tanya,
To be clear, I was asked by Deputy President Beaumont a straight forward question as to whether or not Dispute Resolution procedures had been followed. Based on my truthful answer, it was therefore the decision of Deputy President Beaumont that the complaint could not proceed until those procedures have been followed internally. Notwithstanding, your solicitor was asked by Deputy President Beaumont to confirm that her client would therefore be in contact with me to now enter in to dispute resolution and the answer which was clearly heard to be given from yourself before then being relayed via your solicitor was a straight forward yes. I therefore gratefully request that the company now enter in to dispute resolution with regard to my lawful complaint over the failure to follow clause 28A of the Road Transport and Distribution Award when receiving and responding to a request for flexible working. I am more than happy to receive a letter from the company stating whatever they feel to be an appropriate response in order that we can then move forward.
It is also noted that there appears to now be a complete oversight of the Adverse Action taken against me by Leigh Kesby in June of this year simply for making a complaint over a work place right. It has been the company's position that it was a valid decision to offer the available night shift position to somebody from outside of the company due to the fact that I allegedly did not hold the requisite qualifications for the role, namely a DG licence. This was despite the fact that Leigh Kesby had no idea what I held as he never asked and another day shift employee, who also didn't hold a DG licence, was offered that night shift position prior to Leigh Kesby then contacting his old friend in order to offer him the position whilst keeping me completely in the dark. Not forgetting that Garth Harris had also advised within the meeting we had on 1 October that it wasn't a requirement for a role on the night shift. If it is therefore established that holding a DG licence wasn't a requirement for a role on the night shift, then the simple question will obviously be asked as to what was the real reason why I wasn't approached by Leigh Kesby for this available night shift position after he had confirmed with me via email in January that I would be his priority for the next available night shift position, something that he had reconfirmed with me at the end of April which was just 4 week earlier. What had changed in such a short time?
Not once did Leigh ever advise that I would need a DG licence in order to be considered for a role on the night shift. That only changed after he returned from his vacation at the end of May and had heard that I had made a complaint to Tom over the constantly changing daily start times. Just 2 days later Leigh Kesby exploded at me in front of everybody else at the May toolbox meeting over my complaint. So much so that I was left with no other option than to send him an email that very evening in disgust at his behaviour towards me. I think that email will be crucial in determining whether or not Leigh Kesby had in all probability taken adverse action against me, despite the fact that I wouldn't become aware of what he had done for another 2 weeks when it then transpired that he had already interviewed his friend for the night shift role the very day before the toolbox meeting had taken place. He was in an absolute rage that I had challenged his decisions over the daily start times by making a complaint to Tom and decided to make me pay for it.
I will therefore allow the Fair Work Commission to now determine whether or not Adverse action was taken against me by Leigh Kesby in June of this year as the company appear to be in complete denial.
With regard to the correct application of casual loading. It is in fact the prevailing base rate of pay of a permanent employee within the company which the loading must be based upon. As you are aware, my wife is an extremely qualified senior accountant with over 20 years worldwide experience as well as a highly qualified pay roll accountant within Australia. She has confirmed that it has nothing to do with minimum award rates unless the permanent employee is paid the minimum award rate. With regard to shift loading, the same rule applies. Any other calculation in the shift loading would require a lower base rate for the afternoon shift employee below that of a day shift employee. Notwithstanding that VGL clearly state within their own contract of employment that an afternoon shift will receive 17.5% loading of the day rate. The shift loading which I received was quite clearly a breach of that particular clause of my contract of employment As such, it is therefore appropriate that the Fair Work Ombudsman now make a decision in this matter.
I take great exception of being reminded of the company policy with regard to my conduct when I have simply exercised my lawful right to try and enforce various clauses within the Road Transport and distribution Award which I believe that my employer is not following. You have now idea at the amount of stress that Visa Global has put me through over the last 6 months and I am extremely close to having to take some time away form work, something which my doctor has already suggested to me. I take the enclosure of the attached company policy as a direct threat against my rightful pursuance of the rights afforded to me under the Fair Work Act.
I therefore believe that I have said all that needs to be said and will not contact you any further over these issues. I will now allow the relevant Fair Work departments to deal those various issues in the appropriate manner.
Yours sincerely,
John Guthrie.
Making the decision to dismiss
What Ms Coleman said concerning the dismissal
In relation to the 19 November 2019 evening email from Mr Guthrie to Ms Coleman: Coleman Affidavit at [43], Ms Coleman said that this was a “tipping point for me” and went on to observe that, at [44]-[45] as follows:
44.Further, to take "exception" at the need to act professionally and with courtesy at all times made plain to me that the employment relationship had broken down. There is no exception or scope for disagreement about a need or requirement to treat others with courtesy and respect even if in disagreement about the substance of a particular issue.
45.The Applicant had treated me and others in business with disrespect and continued to harass me despite meaningful engagement with the Applicant with a view to try and accommodate his requests and provide considered responses to his queries. These matters, coupled with a poor safety record despite VGL's attempts to train and improve the workforce in respect of safety issues favoured the decision to bring the Applicant's employment to an end. I deny that the Applicant's employment was terminated as a result of him making complaints or inquiries in respect of alleged entitlements arising under the Road Transport and Distribution Award 2010 or as a result of his requests to be moved to an alternative shift in lieu of his day shift arrangements whilst engaged in Perth.
On 20 November 2019 Ms Coleman met with Mr Harris “to convey my views and concerns regarding the Applicant’s conduct, both professionally and from a safety perspective, and to notify Mr Harris that it was my recommendation that the business implement a decision to terminate the Applicant’s employment. Mr Punter supported the decision and it was resolved that, as National Transport Manager the letter should come from him”: Coleman Affidavit at [46].
Ms Coleman says that during “the conversation held between Mr Harris and Mr Punter and me, it was decided that as Mr Punter was going to be in Perth” from on or about 27 November to 4 December 2019 “he would be able to implement the termination decision in person”: Coleman Affidavit at [47].
With respect to Ms Coleman’s “recommendation” no written recommendation was put in evidence, nor any other written record referring to the recommendation, or the conversation between Ms Coleman, Mr Harris and Mr Punter, or as to the process agreed upon at that meeting.
On 3 December 2019 Ms Coleman emailed Mr Punter as follows:
As discussed please find attached letter dated today for the above. I have kept this short and noted off to 2 company policies that continual breaches are within.
Mr Guthrie was not at work on 3 and 4 December 2019.
On 4 December 2019 Ms Coleman emailed Mr Punter under the subject line “RE: Term Letter – J Guthrie”. The Court can reasonably infer that “Term Letter” is a reference to the termination, or dismissal, from employment of Mr Guthrie. Letter. The one-line email was as follows:
Do you think Tom and Steve can deliver it without entering into much conversation?
The dismissal letter was ultimately given to Mr Guthrie by Mr Mu Sung on 9 December 2019: Coleman Affidavit at [50] and Annexure TC-17, with Mr Mu Sung sending an email to Mr Punter and Ms Coleman, copied to Mr McLaughlin, as follows:
Hello Punter and Tanya,
Steve and I handed the term letter and terminated John Guthrie this afternoon at around 12:30 Perth time.
We offered him a support person before beginning the meeting, which he declined.
I advised him that it was a decision from management that Steve or I had not been involved in.
He obviously had many questions and frustrations that he wanted to discuss, but given we were not part of the decision making process, we advised him that unfortunately we couldn’t comment or advise.
We escorted him to his truck, he got his belongings, he returned his keys and then we walked him to his car and then he drove off site about 15 mins ago.
@TanyaColeman – Attached letter is an exact duplicate / original of the version that I handed to John. Do you want me to express the original or are you OK with the scan?
The dismissal letter of 9 December 2019 was, relevantly, as follows: First Guthrie Affidavit at annexure JG-3:
The purpose of this letter is to advise you that we will not be continuing your employment with VISA with immediate effective [sic] due to your nonprofessional work behaviours displayed in the workplace which contravene the company Code of Conduct and our Health and Safety HSEQ Administrative Three Strike Policy.
What Mr Punter said concerning the dismissal
Mr Punter says that in October and November 2019 he had conversations with Ms Coleman as set out at [20] and [30] of the Punter Affidavit: Punter Affidavit at [33].
In the Punter Affidavit at [20] Mr Punter says that:
After receiving that email from Mr Guthrie, I had a phone call with Tanya Coleman. I do not recall the details of the conversation. I do recall the nature of the conversation was that matters raised in Mr Guthrie's email had been addressed by the Company several times and that there was no night shift position available at that time. We agreed that Ms Coleman would respond confirming the matters had been addressed.
In the Punter Affidavit at [30] Mr Punter says that:
Shortly after this email, in late November 2019 I received a call from Ms Coleman. Ms Coleman said to me that she felt Mr Guthrie was harassing her and that he was being offensive and condescending by saying she had a limited understanding of the Award. I agreed that his manner was incredibly rude. I expressed my frustration to Ms Coleman that Mr Guthrie had taken exception to being asked to conduct himself in accordance with the Code of Conduct. These Company values and standards applied to all employees. As senior leaders Ms Coleman and I were required to ensure that all employees, including the Applicant, upheld those values and standards of behaviour in all of their professional dealings. A copy of the Code of Conduct is Annexed to this Affidavit and marked MP-6.
Ms Coleman denied in her affidavit evidence that complaints or inquiries in relation to the alleged underpayments were a reason for Mr Guthrie’s termination: Coleman Affidavit at [45]. Ms Coleman cannot however in this regard speak for Mr Punter or Mr Harris with whom she was discussing Mr Guthrie’s dismissal. Mr Harris did not give evidence. Mr Punter’s evidence as to whether there were other reasons for the Dismissal Decision is dealt with below: see [154]-[155] below.
In circumstances where:
(a)Ms Coleman initiated discussions with Mr Harris and Mr Punter on dismissing Mr Guthrie on 20 November 2019, the day after Mr Guthrie said in his 19 November 2019 email that it was “appropriate that the … [FW Ombudsman] now make a decision in this matter” of the alleged underpayment of casual and afternoon shift loadings;
(b)both Ms Coleman and Mr Punter admit that there were “other reasons” for Mr Guthrie’s dismissal, that is reasons other than those contained in the dismissal letter;
(c)Ms Coleman’s scribbled notes of her conversations with Mr Punter and Mr Harris on and after 20 November 2019 concerning Mr Guthrie’s dismissal were not attached to the Coleman Affidavit;
(d)Mr Harris, a “Partner” in Mondiale: Code of Conduct, p 12, did not give evidence, from which it can be inferred that his evidence would not have assisted Mondiale: Dunkel, CLR at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J;
(e)Ms Coleman’s email of 3 December 2019 to Mr Punter attaching the dismissal letter indicates that it has been “kept short” and “noted off” to the two reasons given in the dismissal letter; and
(f)Ms Coleman’s email of 4 December 2019 to Mr Punter, sent when Mr Guthrie was absent from work and Mr Punter was therefore unable to give him the dismissal letter, queries whether Mr Mu Sung and Mr McLaughlin can “deliver it [the dismissal letter] without entering into much conversation”, indicating a desire by Mondiale not to discuss the reasons for dismissal,
the Court’s view is that it can be inferred that there were reasons for Mr Guthrie’s dismissal other than those contained in the dismissal letter, and that those other reasons included, at least, Mr Guthrie’s complaints or inquiries in relation to the alleged underpayment of casual and afternoon shift loadings. It follows that, in this respect, adverse action was taken against Mr Guthrie by Mondiale in relation to a workplace right in contravention of s 340(1) of the FW Act.
Who made the decision to dismiss Mr Guthrie?
In relation to who the decision-maker or decision-makers were in relation to the decision to dismiss Mr Guthrie, Mondiale submitted that the decision-makers were Mr Punter and Ms Coleman.
The evidence of Mr Punter, in particular, and Ms Coleman, to a much lesser extent, disclosed quite a different story as to who the decision-makers were.
Under cross-examination: see [76] above, Mr Punter said that the decision to dismiss Mr Guthrie was made by a senior management team comprising himself, Ms Coleman, Mr Mu Sung, Mr Harris and Mr McLaughlin, and that “we made the decision we made”: Transcript, p 144 (emphasis added). In context, the “we” there referred to can only be a reference to the “team” comprising himself, Ms Coleman, Mr Mu Sung, Mr Harris and Mr McLaughlin, and that he had individual conversations with each of the members of the “team” over the phone: Transcript, p 145. A little later in his cross-examination Mr Punter confirmed, one by one, that each of the named persons (including himself) was a member of the “team” and that they were the five people who made the decision to dismiss Mr Guthrie: Transcript, p 145. Mr Punter was not re-examined on this evidence (or at all): Transcript, p 149.
Under cross-examination: see [75] above, Ms Coleman’s initially conceded that the dismissal decision was made by her, Mr Punter and Mr Harris, but then sought to qualify that by saying that Mr Harris was not involved in the final decision and that Mr Harris was “supporting” Ms Coleman and Mr Punter: Transcript, pp 64-66 and 123. Ms Coleman was not re-examined on this evidence (or at all): Transcript, p 124.
The oral evidence in cross-examination on this issue was given voluntarily by Mr Punter, in the sense that it initially did not have to be extracted by probing questioning but was rather offered up in response to a general question about why Mr Punter felt that Mr Guthrie needed to be dismissed. Moreover, it was specific in the sense that Mr Punter referred to the “team”, and then specifically named the individuals who “made” the dismissal decision, and with whom he had individual phone discussions. In respect of those discussions, Mr Punter’s evidence is also consistent with that part of Ms Coleman’s evidence in which she said she was aware that Mr Punter was discussing Mr Guthrie’s potential dismissal with Mr Harris. Ms Coleman’s oral evidence in cross-examination was contradictory in relation to who were the decision-makers: see [153] above. Initially, she conceded in cross-examination that Mr Harris was a decision-maker, but then sought to qualify that by limiting the decision-makers to herself and Mr Punter. It suffices to observe that Ms Coleman’s evidence in this regard lacked surety, and the Court does not feel it can be relied upon as to the ultimate question of who the decision-makers were in relation to the Dismissal Decision. Mr Punter’s oral evidence on this issue is to be preferred to that of Ms Coleman.
The timeline of events also suggests that Mr Punter’s account is more likely to be accurate. Ms Coleman had initial discussions with Mr Punter and Mr Harris concerning dismissing Mr Guthrie on 20 November 2019. It was not however until 3 December 2019 that Ms Coleman provided a draft dismissal letter to Mr Punter. That almost two week period provided more than sufficient time for Mr Punter, the National Transport Manager, based in Queensland, to have the discussions referred to in his oral evidence in cross-examination as to a possible dismissal of Mr Guthrie, and in particular to have those discussions with his State and line management subordinates Mr Mu Sung and Mr McLaughlin, who had had direct involvement with Mr Guthrie, and to do so without involving Ms Coleman.
The Court has therefore concluded that Mondiale’s submissions that Mr Punter and Ms Coleman were the joint decision-makers is not capable of being sustained on the evidence, and that the evidence establishes that the joint decision-makers were Mr Punter, Ms Coleman, Mr Harris, Mr Mu Sung and Mr McLaughlin.
Where there is more than one decision-maker the Court may consider the reasons of each decision-maker or person who influenced or had a material effect on the final decision: Elliot v Kodak Australasia Pty Ltd [2001] FCAFC 1804; (2001) 129 IR 251 at [37] per Lee, Madgwick and Gyles JJ; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 (“Australian Red Cross Society”) at [91] per Greenwood, Besanko and Rangiah JJ; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 (“Clermont Coal”) at [103]-[104] and [121]-[122] per Reeves J. In Australian Red Cross Society at [91] per Greenwood, Besanko and Rangiah JJ the Full Court of the Federal Court observed that:
…a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.
Aside from Mr Punter and Ms Coleman, the other joint decision-makers were not called to give evidence as to the reasons for Mr Guthrie being dismissed (as they probably ought to have been: Clermont Coal at [103]-[104] per Reeves J). Mr Punter conceded that he could not speak for Mr Mu Sung or Mr McLaughlin or Mr Harris or Ms Coleman as to what motivated their thinking concerning the dismissal decision: Transcript, p 145. Ms Coleman could have had no idea what motivated the thinking of Mr Mu Sung or Mr McLaughlin because there is no evidence to indicate that she ever spoke to them about Mr Guthrie’s dismissal. This is particularly pertinent in relation to Mr Mu Sung who was involved in the management of the flexible working arrangement/night shift issue and the dispute resolution issue. Both of these issues were seemingly also the subject of discussions at the FWC conference which occurred just nine days before Ms Coleman first involved Mr Harris, and “they were talking about what they were looking to do”: Transcript, p 64, and that was that “we were looking to terminate Mr Guthrie”: Transcript, 119.
There is no evidence before the Court that Mr Punter’s and Ms Coleman’s other joint decision-makers excluded the workplace rights summarised at [104] above in determining to dismiss Mr Guthrie. There was no opportunity for the state of mind or mental processes of the not called other joint decision-makers to be exposed to or considered by the Court. Further, the Court can also infer that those other joint decision-makers were not called because their evidence may not have assisted Mondiale’s case that the reasons for the dismissal were limited to alleged safety issues and alleged unprofessional behaviour: Dunkel, CLR at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J.
In relation to the other joint decision-makers the Court is thus left with no explanation or evidence capable of discharging the reverse onus imposed on Mondiale under s 361 of the FW Act, and is thus satisfied that adverse action was taken again Mr Guthrie by Mondiale by dismissing him from his employment because of the exercise of the workplace rights asserted, and summarised at [104] above.
UNDERPAYMENT
Mr Guthrie pleaded that Mondiale had “failed to pay the applicant, including casual loading, in accordance with the … [RTD Award], in contravention of s 45 of the … [FW Act]”: Form 2 at Part G Q24 at [44]. No further particulars or evidence of the alleged failure were ever provided. There was, for example, no particulars or specific evidence as to what amounts had allegedly not been paid, or what hours had allegedly been worked on particular days for which payment ought to have been made. And, apart from the very general reference to “casual loading” in the Form 2 and some very general references to RTD Award provisions in the email exchanges between Mr Guthrie and Ms Coleman, there was no particularisation of the RTD Award provisions said to have been contravened. Further, there was no specification, in either the written or oral submissions, of the alleged contraventions of the RTD Award. The necessity for particularisation and specification of the claim for Award entitlements in the liability phase of a hearing was discussed with Counsel for Mr Guthrie during final submission: Transcript, pp 162-163 and 167-168, and it was ultimately conceded that “that detail … isn’t in”: Transcript, p 168, and that “unless … [Mr Guthrie] can get it [the detail of the claims] in at a later stage then that’s the end of the matter”: Transcript, p 168.
Mr Guthrie also failed to put the RTD Award, or relevant extracts therefrom, in to evidence. This failure was:
(a)drawn to the attention of Mr Guthrie’s Counsel during the proceedings: Transcript, pp 112 (during Ms Coleman’s cross-examination on 15 February 2022) and 162-163 (during final submissions on 9 March 2022); and
(b)discussed with Mondiale’s Counsel during final submissions: Transcript, p 159 (on 9 March 2022),
but the failure remained unremedied.
When the failure to put the RTD Award into evidence was drawn to the attention of Mr Guthrie’s Counsel during closing submissions Counsel submitted that the failure could be remedied by the Court itself providing the RTD Award utilising s 144 of the Evidence Act 1995 (Cth) (“Evidence Act”), as it had done in Fair Work Ombudsman v A to Z Catering Solutions Pty Limited & Anor (No 2) [2018] FCCA 2299; (2018) 281 IR 366; (2018) 336 FLR 246 (“A to Z Catering Solutions)at [86] per Judge Manousaridis and D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 319 (“Ellenbrook Family Medical Centre”) at [14]-[15] per Judge Lucev and submissions could then be made about the alleged contraventions of the RTD Award: Transcript, pp 163-164.
In the course of Mr Guthrie’s final submissions the Court said that what was being proposed was arguably prejudicial to Mondiale under s 135(a) of the Evidence Act, because Mondiale had had no need, in the absence of particulars or evidence as to the alleged contraventions of the RTD Award, to cross-examine Mr Guthrie on, for example, days or hours worked: Transcript, pp 163-164, and especially so when it was now seemingly being suggested that that evidentiary gap might be filled by written submissions.
The Court notes that there was no application by Mr Guthrie to allow the giving of further evidence in relation to liability, and that issue rose no higher than what was said by Mr Guthrie’s Counsel at Transcript, p 168:
Your Honour, that detail isn’t – isn’t in and I think that’s the answer. That’s – unless we can get it in at a later stage then that’s the end of the matter 10 unfortunately. I certainly would like to try and convince you to allow us to let that information in but I suspect I know what the answer will be.
It is relevant to observe that Mr Guthrie availed himself of the opportunities afforded by the Court’s orders to file a total of six affidavits in this matter, three of which were relied on for the purposes of the liability hearing, the others being relevant to earlier interlocutory hearings.
Mondiale objected to the RTD Award going into evidence at such a late stage of the liability proceedings (that is, during or, as was seemingly more likely, after closing submissions). Mondiale submitted at Transcript p 169 that:
(a)the time for putting the RTD Award into evidence had passed, as the proceedings had been on foot for two years and every opportunity to put evidence in had been exhausted;
(b)given that the period concerned in relation to the alleged breach of the RTD Award might cover the period from 2014 to 2019, and given the likely variations to a Modern Award over such a period, there were likely to be disputed evidentiary issues as to what version of the RTD Award was to be relied upon with respect to the (as yet) unparticularised claims of breach of the RTD Award.
Section 144 of the Evidence Act provides that:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
In A to Z Catering Solutions at [46]-[51] per Judge Manousaridis the Court admitted the relevant award in that matter into evidence relying on s 144(1)(b) of the Evidence Act. It is not possible to tell from the judgment in A to Z Catering Solutions at what stage of the proceedings the relevant award in that matter was tendered.
In Ellenbrook Family Medical Centre both parties in a matter in the small claims jurisdiction of the Court were not legally represented, and at [15] per Judge Lucev the Court observed that:
The Court, bearing in mind the possible difficulties for non-legally represented parties in preparation of a composite version of any award and anticipating that neither party might tender the Health Award, arranged for a consolidated version of the Health Award as at 22 August 2016, together with variations from that date to 18 April 2019, as published by the FWC, to be made available to the parties at the beginning of the hearing: Evidence Act [1995 (Cth)], s 144(2) and (4). The parties did not object to the Health Award in this form being made available to them, or to it being marked as an exhibit. At hearing the Court, therefore, considered it appropriate to admit the Health Award into evidence, relying on s 144(1)(b) of the Evidence Act, and it was marked as “Exhibit 1”.
It would thus appear that the Court can, in an appropriate case, admit an Award made by the FWC into evidence under s 144 of the Evidence Act. But to do so in this case would be otiose in circumstances where Mr Guthrie has failed to:
(a)particularise; and
(b)give evidence as to the specifics (for example, of the days and hours said to have been worked) of,
the alleged contraventions of the RTD Award.
In short, there is no, or no proper, evidentiary foundation to which the RTD Award provisions can be applied to prove any alleged contravention.
There was also no application made, or properly made, to re-open the evidence on the liability hearing to allow evidence to be given as to any alleged contraventions, which would first have had to be particularised or put in some proper or coherent form. Even if such an application had been made it would have been refused. Mr Guthrie was legally represented at all times in these proceedings, and it ought to have been obvious to his lawyers that both particulars and evidence of any alleged contraventions of the RTD Award were necessary. No particulars were provided. Further, despite Mr Guthrie filing a number of affidavits, he did not take advantage of the opportunity afforded him in the three affidavits, filed between 24 September 2020 and 4 October 2021 and which were relied upon at hearing, to give evidence concerning any specific alleged RTD Award contraventions, nor did he in his oral evidence assert such specific contraventions. No reason for the failure to particularise or give evidence was given in evidence or suggested in submissions. It is not the role of the Court to give a litigant every opportunity to make their case, but rather a reasonable opportunity to do so. Mr Guthrie was provided with that opportunity and failed to grasp it with respect to any alleged RTD Award contraventions. In those circumstances, to allow the re-opening of Mr Guthrie’s case, if that had been sought, would have been contrary to the over-arching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The Court has therefore determined that the RTD Award will not be admitted into evidence, and that if an application had been made to re-open the liability evidence that application would not have been granted.
In the circumstances, Mr Guthrie has failed to prove the alleged underpayments under the RTD Award by Mondiale, and that claim must be dismissed.
PAYSLIP INFORMATION
Mr Guthrie alleged that Mondiale breached reg 3.46(3) of the FW Regulations, in relation to what information must be included in a pay slip, and that the Court has jurisdiction to hear such matters together with adverse action claims: Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust [2021] FCCA 1335.
No payslip said to contravene reg 3.46(3) of the FW Regulations was put into evidence by Mr Guthrie. With respect to that failure similar observations to those made at [173]-[174] apply. There is therefore no proof that information required by reg 3.46(3) of the FW Regulations to be included in a pay slip has not been so included.
In the circumstances, Mr Guthrie has failed to prove that required information was not included on payslips in contravention of reg 3.46(3) of the FW Regulations, and that claim must be dismissed.
CONCLUSIONS
The Court finds that:
(a)Mondiale has not discharged the reverse onus under s 361 of the FW Act with respect to the dismissal of Mr Guthrie from his employment. It follows that there must be a conclusion that adverse action under s 342(1), Item 1(a) of the FW Act was taken against Mr Guthrie by Mondiale by dismissing him from his employment in contravention of s 340(1) of the FW Act by reason of his having exercised the workplace rights asserted at [104] above. There will be a declaration accordingly;
(b)Mr Guthrie has failed to prove:
(i)the alleged underpayments under the RTD Award by Mondiale, and that claim must be dismissed; and
(ii)that required information was not included on payslips by Mondiale in contravention of reg 3.46(3) of the FW Regulations, and that claim must be dismissed,
and there will be orders accordingly.
Otherwise, there will be orders that:
(a)the matter be adjourned to a further directions hearing in relation to penalty proceedings for the contravention of s 340(1) of the FW Act; and
(b)costs, if any, be reserved: FW Act, s 570(2).
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 23 May 2024