Hagos v Volvo Group Australia Pty Ltd
[2016] FCCA 688
•1 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGOS v VOLVO GROUP AUSTRALIA PTY LTD | [2016] FCCA 688 |
| Catchwords: INDUSTRIAL LAW – General protections claim – complaints and inquiries about employment – where employee made complaint about employment and conduct of other employees – whether action taken against employee adverse action – whether adverse action taken for a prescribed reason. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(b), 16.05(2)(c) or 16.05(2)(d) |
| Hagos v Volvo Group Australia [2013] FMCA 1252 |
| Applicant: | BERHANE HAGOS |
| Respondent: | VOLVO GROUP AUSTRALIA PTY LTD |
| File Number: | BRG 1109 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21-24 May, 10 July 2013 |
| Date of Last Submission: | 26 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Saunders |
| Solicitors for the Respondent: | Clinch Long Letherbarrow |
ORDERS
The application filed on 23 August, 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1109 of 2011
| BERHANE HAGOS |
Applicant
And
| VOLVO GROUP AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Mr Hagos commenced employment with Volvo Group Australia Pty Ltd as an assembler on 25 June, 2010. His employment contract was in writing and, on its face, was for a fixed term of six months. On 10 September, 2010 he left before the completion of his work on that day, never to return to Volvo’s premises for work purposes again.
In these proceedings Mr Hagos claims an injunction, compensation and the imposition of a pecuniary penalty against Volvo because, he alleges, Volvo contravened the Fair Work Act 2009 (C’th) in a number of respects. More particularly, Mr Hagos claims that Volvo took a number of forms of adverse action against him because he exercised his workplace right to make a complaint or an inquiry in relation to his employment.
Volvo opposes the orders sought by Mr Hagos and denies that it has breached the Fair Work Act as Mr Hagos alleges.
The scope of Mr Hagos’ claim was initially larger than it is now. On 29 November, 2012 I ordered that certain parts of Annexure “A” to his Amended Claim (Form 4) filed on 23 August, 2012 be struck out (Hagos v Volvo Group Australia [2013] FMCA 1252). Those parts struck out related to Mr Hagos’ claim that Volvo had taken adverse action against him by terminating his employment. However, I found that because his employment contract was for a fixed term, that claim could not succeed. His employment came to an end because his employment contract expired by effluxion of time.
Mr Hagos is also pursuing his claim in these proceedings on the basis that “the Respondent failed to defend the case against it with due diligence”. This argument relates to certain failures by Volvo or its lawyers to abide by the Court’s directions from time to time.
Some preliminary matters
This application was initially listed for trial commencing on 9 August, 2012. On that day Mr Hagos applied for and obtained an adjournment of the trial. I ordered him to pay Volvo’s costs thrown away by the adjournment. The costs payable pursuant to that order were assessed at $12,598.05. Mr Hagos paid those costs.
Mr Hagos argues that I should now set aside those orders pursuant to Federal Circuit Court Rules 2001 rr.16.05(2)(b), (c) or (d) because the orders were obtained by deceit. He also seeks an order that Volvo pay those costs back to him. He has filed no formal application to that effect. His application is made in his written submissions filed on 4 July, 2013.
The deceit relied upon by Mr Hagos is twofold. First, he says that Volvo failed to produce certain documents as I had ordered it to do on 12 July, 2012. Mr Hagos says that the relevant documents were not produced until some three months after they were required to be produced by the order. Second, Mr Hagos claims that the respondent failed to comply with another order that I made on 12 July, 2012. That order extended the time within which affidavits of evidence in chief might be filed. One of the affidavits relied upon by Volvo in these proceedings – the affidavit of James Georgiades filed on 6 August, 2012 was filed six days late and served upon Mr Hagos seven days late.
Mr Hagos relies upon these matters to also demonstrate that Volvo has failed to defend the proceedings diligently.
When I adjourned the first trial, I accepted that he had demonstrated that he was not in position to proceed with the trial because he was medically unfit to do so. Mr Hagos claimed that because of the late delivery of the Georgiades affidavit, he was panicked and stressed. He claimed that he had little time to deal with the late affidavit. He produced evidence that demonstrated that upon receipt of the late affidavit, he had immediately made an appointment to see his doctor. He saw his doctor on 8 August, 2012 who certified that Mr Hagos was unable to attend to the trial.
Mr Hagos says that on 9 August, 2012 he successfully represented himself on the adjournment application. He says that Volvo failed to inform the Court that it was in breach of the orders of 12 July, 2012 in the respects that Mr Hagos alleges. He argues that instead Volvo chose to mislead the Court by “falsely stating I did not give proper and timely notification of my intention to seek adjournment and on that basis requested a Costs order against me.” Mr Hagos had notified his application for an adjournment of the trial to Volvo’s lawyers on 8 August, 2012. He rejected the argument put by Volvo on 9 August, 2012 that he had not given proper and timely notice of his intention to seek an adjournment.
There are two reasons why Mr Hagos’ application to set aside the relevant cost order should be rejected. The first is that whilst it is correct to say that Mr Georgiades’ affidavit was filed on 6 August, 2012 and served upon him on 7 August, a signed copy of the affidavit was given to him on 31 July, 2012 and a sealed copy of it was given by email on 6 August, 2012. He had much longer to deal with it than his submissions would suggest. That was one of the matters that informed my decision to order that he pay Volvo’s costs of the adjournment.
Secondly, the matters now agitated by Mr Hagos were agitated before me on 9 August, 2012 when I made the relevant order. Mr Hagos brought no appeal against those orders, even when Volvo sought to enforce them. It is entirely inappropriate to now suggest that the Court should entertain further argument in relation to the order. Mr Hagos’ application to set aside the costs order of 12 July, 2012 will be dismissed.
I am not satisfied that Volvo’s defaults identified by Mr Hagos lead to the conclusion that Volvo has not diligently defended his claim. It is not appropriate to give judgment for Mr Hagos against Volvo on that basis.
Mr Hagos also seeks an order that the orders I made on 29 November, 2012 be set aside. That order struck out certain paragraphs of Annexure A to the Amended Application filed on 23 August, 2012. The paragraphs that were struck out related to Mr Hagos’ claim that Volvo had taken adverse action against him because Volvo had terminated his employment. However, I formed the view that Volvo had not terminated his employment, but rather, it had not offered Mr Hagos further employment when his initial contract of employment expired by effluxion of time.
Mr Hagos now argues that the strike out order was obtained by Volvo by deceit. He argues that when it secured those orders Volvo and its lawyers acted fraudulently by providing to the Court misleading evidence and submissions. Further, he says the order is interlocutory and should be set aside on that basis. Finally, he argues that the order does not reflect the intention of the Court, given that the Court made the order on the basis of Volvo’s fraudulent conduct.
Each of these arguments should be rejected. There is no evidence that the relevant order was obtained by fraud, deceit or any misleading conduct by Volvo or its lawyers. The assertion is scandalous. Mr Hagos seems to adopt the position that whenever Volvo’s lawyers make submissions to the Court with which he does not agree, the submission must be characterised as misleading or fraudulent.
The order I made on 29 November, 2012 properly reflected the Court’s intention. I delivered reasons for the decision at which I arrived: Hagos v Volvo Group Australia (above). There was no appeal from that order. Notwithstanding that the order was interlocutory, no proper basis for setting it aside is demonstrated by Mr Hagos. I decline to do so.
Background and Facts
On or about 17 June, 2010 Mr Hagos was sent a Letter of Offer and Standard Conditions of Employment for the position of Assembler with Volvo. The offer was for employment for a period of six months commencing on 25 June, 2010 and concluding on 24 December, 2014.
On about 25 June, 2010 Mr Hagos commenced his employment. He undertook Volvo’s Employee Induction program. During his induction training, I am satisfied that Mr Hagos was provided with Volvo’s Employee Induction program material. That material included, amongst other things, Volvo’s policies on training and employee leave entitlements. On that day, Volvo’s Human Resources Manager, Mr Jim Georgiades completed an Employee Induction Checklist with Mr Hagos. I accept Mr Georgiades’ evidence that the Employee Induction Checklist was explained to Mr Hagos by him and was signed by Mr Hagos.
I also accept that during Mr Hagos’ induction Mr Georgiades informed Mr Hagos of Volvo’s Anti-harassment and Bullying Policy and advised him that a copy of the full policy was available on Volvo’s intranet. I accept that during Mr Hagos’ employment a copy of Volvo’s Anti-harassment and Bullying Policy was available on Volvo’s intranet.
When Mr Hagos commenced work for Volvo he commenced in the Mack Piping section. In that section, the brake and other piping was fitted to heavy motor vehicles that were being assembled in the Volvo plant. Mr Hagos was placed with Mr Reinaldo Pina for training and mentoring. Mr Pina was responsible for teaching Mr Hagos how to do the piping work. He did that for approximately three to four weeks.
One of Mr Hagos’ tasks was to cut certain cables to be installed in trucks then under assembly to the correct length. Mr Pina taught Mr Hagos how to cut the relevant cables to the correct length. The cutting of the cables and piping to the correct length was critical from a safety point of view.
Mr Pina’s observation was that Mr Hagos kept making a lot of mistakes when cutting the relevant cables. Mr Pina also observed that Mr Hagos left kinks in some cables which, according to Mr Pina’s evidence, were a risk to the later safe operation of the vehicle.
In or about July, 2010 Mr Pina had cause to talk with Mr Hagos about his work. He specifically spoke to him on three separate occasions about Mr Hagos cutting the cables incorrectly. Mr Pina tried to teach him again how to cut the correct cable lengths, but Mr Pina says that Mr Hagos did not appear to be listening to him when he was teaching him. To Mr Pina’s observations Mr Hagos did not seem interested in what Mr Pina was trying to teach him.
Mr Pina resorted to giving Mr Hagos a copy of the Mack Piping Manual to reinforce his training, but Mr Hagos’ reply was to suggest that he was a very busy person and he did not have time to read. I accept Mr Pina’s evidence about that.
Mr Pina has a heavy Peruvian accent. He thought that it might be an impediment to Mr Hagos understanding the instruction and training that he was being given. In July, 2010 Mr Pina suggested to Mr Hagos that he should go to work with another trainer and mentor, Mr Stephen Lo.
It seems that Mr Hagos took that advice because Mr Hagos says that he “started to have difficult working relationship” with another employee Mr Stephen Lo. The genesis of Mr Hagos’ claims about Mr Lo seems to be a verbal altercation with Mr Lo on 11 August, 2010.
Mr Hagos says that the trouble had started earlier in mid-July, 2010 when his supervisor, Mr Stuart Thomson, gave Mr Hagos a verbal warning for cutting a cable too short. The detail of that complaint is not more fully set out in the evidence, but Mr Hagos says that “the warning from Mr Thomson occurred as a consequence of negative feedback the (sic) Mr Lo gave to Mr Thompson”. Mr Hagos says that the reason for that belief was that he (Mr Hagos) was not aware that Mr Thomson knew him at the time he gave him the warning and Mr Thomson would not have had any knowledge of the length of the relevant cables that Mr Hagos had cut.
On 11 August, 2010 Mr Hagos claims that he was “provoked” by Mr Lo who, he says, accused him of “lying to management” by misrepresenting his abilities in order to be offered paid overtime. Mr Hagos claimed that Mr Lo came very close to him and was talking loudly. Mr Hagos says that he found Mr Lo’s tone and posture very intimidating. Mr Hagos also says: “He also questioned my right to work overtime in circumstance where I felt threatened and/or bullied.”
In cross-examination, Mr Hagos was unable to recall much of the conversation that occurred on this occasion, but agreed with Counsel for Volvo that Mr Lo had asked Mr Hagos about whether he had worked overtime the previous weekend. For reasons that are not immediately apparent, Mr Hagos took offence at the question because he did not consider that it was Mr Lo’s business whether Mr Hagos had worked overtime. Mr Hagos took the view that whether he worked overtime was a matter entirely for his Team Leader, Mr Terry Sheppard.
Mr Lo gave evidence by affidavit in these proceedings. He was not cross-examined. At the commencement of the trial I explained to Mr Hagos the importance of cross-examining witnesses. I addressed Mr Hagos in the following terms:
…Cross-examination is important in this sense: the purpose of cross-examination is to assist you to – I’m talking from the cross-examiner’s point of view – is to assist the cross-examiner to prove his or her case or to damage the other side’s case, to put it bluntly. If there are statements made by a witness in their affidavits that you think are important, then you need to challenge those witnesses about what they say. Because it may be if their evidence goes unchallenged, I will accept their evidence because it wasn’t the subject of challenge.
So not every statement needs to be challenged, because not every statement is important, but it’s up to you to make a decision from your point of view what you think is important or what needs to be challenged and what doesn’t.
In his affidavit filed on 23 July 2012, Mr Lo said that he was Mr Hagos’ mentor from July, 2010 until Mr Hagos left the Mack Piping Line. Mr Lo deposed that Mr Hagos did not pay attention when shown how to assemble the pipe work on the chassis of trucks that were being assembled. He said that during July, 2010 on at least eight separate occasions he saw many pipes that had been assembled by Mr Hagos that either had kinks or leaks in the pipes. The defects were caused because Mr Hagos had not cut the pipes to the required length. Mr Lo said that he was concerned about safety because the pipes and cables were part of the braking systems on the heavy trucks sold by Volvo.
Mr Lo says that on at least 20 occasions during July, 2010 he showed Mr Hagos the correct procedure for cutting and fitting cables or piping. He describes the procedure in his affidavit. Whilst Mr Lo denies that he gave “negative feedback” about Mr Hagos to Mr Thomson until mid-July, 2010, he seems to accept that from that point on, he gave “negative feedback” about Mr Hagos to Mr Thomson.
Mr Lo deposes that on 11 August, 2010 he said to Mr Hagos words to the effect “why did you work overtime last Saturday?” Mr Lo says that he asked Mr Hagos this question because he did not think Mr Hagos “was working at a level that he could be unsupervised”, such as during an overtime shift on a weekend. According to Mr Lo, Mr Hagos responded by saying words to the effect “Terry Sheppard asked me to work on Saturday”. There was further conversation during which Mr Lo said to Mr Hagos, “If you’re not sure about something when you are doing overtime ask Terry as I may not be around [on the weekends].”
Although Mr Hagos alleged that Mr Lo raised his voice, spoke “very loudly” or stood very closely to Mr Hagos during the relevant conversation, Mr Lo denies that in his written evidence. His denials are credible because in cross-examination Mr Hagos said:
Mr Saunders: Yes. And during that conversation that you had with Mr Lo on 11 August 2010, he didn’t raise his voice at you, did he?‑‑‑He – it was not the raising voice, actually. It was confrontational, I had to throw the spanner and leave his presence.
So you had to throw a spanner?‑‑‑Yes, I just have to throw the spanner on the – on the ..... and left him there, so it was – it was not this – the – the matter that you ..... are trying to create is simple disapproval by him to my overtime, it’s more than that. That is ‑ ‑
Although I had no opportunity to observe Mr Lo be cross-examined, his evidence was far more particular than that of Mr Hagos. I prefer Mr Lo’s evidence to that of Mr Hagos. Mr Hagos’ evidence was more problematical. He had poor recollection of matters, except of those upon which he wished to place particular emphasis. In cross-examination, Mr Hagos admitted that Mr Lo said some of the words I have set out above. He could not remember much else except to say that he “had to throw a spanner” and Mr Lo was “confrontational”.
Moreover, in Mr Hagos’ affidavit filed on 31 July, 2012 there is no reference to any concern that Mr Hagos had about the manner in which Mr Lo had spoken to him about the overtime issue. There is certainly concern expressed in that evidence that Mr Lo spoke to him about that issue, but it does not go to the manner in which Mr Lo spoke to him.
Following the exchange with Mr Lo on 11 August, 2010, Mr Hagos says that he immediately brought the matter to the attention of his team leader Mr Terry Sheppard. His evidence about this is set out in his affidavit filed on 31 July, 2012. I set it out in full:
8. Following the confrontation with Mr Lo I brought the matter to the attention of team leader Mr Sheppard immediately. I told Mr. Sheppard that I did not like Mr. Lo’s attitude towards me where he is questioning my right to do overtime that I had elected to accept when it was offered to me by the respondent. I also told Mr. Sheppard that I found Mr. Lo’s behavior in this regard to be unacceptable as he does not have any right to question my choice to do over time when requested.
I have an affidavit deposed by Mr Sheppard and filed on 2 August, 2012. Mr Sheppard was not cross-examined by Mr Hagos. Mr Sheppard says that he thought that Mr Hagos came to see him about Mr Lo on 12 August, 2010 and not 11 August, 2010. However, nothing turns upon this discrepancy.
Mr Sheppard’s evidence is that Mr Hagos approached him and was complaining about Mr Lo. He appeared to be upset at something Mr Lo had said to him. According to Mr Sheppard, Mr Hagos wasn’t clear about what had happened or what the issue was but Mr Sheppard understood there had been a disagreement between him and Mr Lo, his mentor. Mr Sheppard reports the following conversation:
Mr Hagos:I’m not happy.
Mr Sheppard: Why? What’s wrong?
Mr Hagos:Steve [Stephen Lo] has questioned why I am doing overtime.
Mr Sheppard: That’s not for Steve to question. I asked you to do it.
As Mr Hagos appeared to Mr Sheppard to be upset about his conversation with Mr Lo, Mr Sheppard approached Mr Lo to investigate the matter. He spoke with Mr Lo and they had a conversation to the following effect:
Mr Sheppard: Berhane is upset about a conversation he had with you. What happened and what’s this all about?
Mr Lo:I don’t know what it’s all about. I just asked Berhane why he had worked overtime because l didn’t think his work standard was at a good enough level to work overtime where there is less training and supervision available.
Mr Sheppard says that he assessed what Mr Hagos and Mr Lo had told him and determined that “there was not much in it and perhaps it was just a misunderstanding or a minor workplace disagreement which happens from time to time”. Mr Sheppard, however, decided that because Mr Hagos had an issue with his mentor, Mr Lo, that the issue could be resolved by assigning a new mentor to Mr Hagos. Mr Sheppard assigned a new mentor to Mr Hagos.
According to Mr Hagos, Mr Sheppard brought the two gentlemen together in an attempt to resolve the difficulty that Mr Hagos perceived there was between them. Mr Hagos claims that the meeting got out of hand as both he and Mr Lo started shouting at each other. Mr Hagos further claims that Mr Sheppard then decided to split the team into two as a way of stopping direct contact between Mr Lo and him.
Although Mr Hagos suggests that Mr Shepherd did not take any steps except the splitting of the team into two in order to stop direct contact between the two of them, Mr Sheppard does not suggest that he took that action. The point is a minor one and of little consequence to the outcome of these proceedings. There is no reason not to accept Mr Sheppard’s evidence that in response to Mr Hagos’ complaint he organised for another mentor to be assigned to Mr Hagos. As will be seen, that in fact occurred.
I do not accept that Mr Sheppard did not address Mr Hagos’ complaint about Mr Lo’s behaviour. Having regard to Mr Hagos’ evidence and that of Mr Lo and Mr Sheppard, there is every reason to think that Mr Sheppard’s response whereby he assigned another mentor to Mr Hagos was entirely proportional to the difficulty that he perceived existed between Mr Hagos and Mr Lo. He responded to Mr Hagos’ concerns.
In his affidavit Mr Sheppard also swears:
6. I monitored Mr Hagos’ work performance and practices fairly closely during this time because he had been in the job for a few weeks but was not meeting the basic level of learning that other new employees in his position had and were expected to achieve.
7. I always keep an eye on all new employees who don’t seem to be progressing at the right rate of progression.
8. During those first few weeks I observed Mr Hagos’ errors myself and I also had Mr Hagos’ assigned mentors Reinaldo Pina and Stephen Lo. Those mentors said to me words to the effect “Berhane is making a number of mistakes and he will not follow my instructions”.
9. In or about July to early August 2010, Mr Hagos often made the same mistakes that were inconsistent with his training. For example: He cut cables too short, he left kinks in the cables, he ignored routing procedures and instead did the tasks his own way.
10. During about July to early August 2010, Mr Hagos was spoken to by me or one of his mentors at least once on most days about incorrect cable lengths, kinks in cables, routing mistakes, not listening to trainers/mentors (Reinaldo and Steve). At this time I also had Volvo’s Quality Rectifier, Geoff Bray, report to me that these types of errors were occurring from Mr Hagos’ work.
11. On 9 August 2010 I needed to discuss with Mr Hagos a work performance issue in that he had been cutting cables in an incorrect manner, either too short or when fitted the cables had a kink in them. Part of my role as team leader, is to provide feedback to employees on work performance issues and to assist them in improving where possible.
12. Mr Hagos had been trained in the correct process for cutting pipe and so on 9 August 2010 I had to talk to him about the process, as he was still making errors and apart from the quality and safety aspects there is also a wastage problem and costs.
13. During our conversation on 9 August 2010 l said words to the following effect to Mr Hagos:
“As you are new, it can take some time to learn all of the tasks, but it is important that you learn the processes we show to you before you start to change things.”
14. However, even after this date, Berhane continued to cut pipes without following the procedure he had been taught for doing so in his training.
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25. On 18 August 2010, I reported to my Supervisor, Stuart Thomson that I was concerned about Berhane’s attitude, ability to observe instructions and poor quality of work compared to other employees. This assessment came from my general observations of Mr Hagos’ work, and also from feedback from other employees responsible for training and mentoring Berhane.
26. I regularly provide feedback and recommendation to my Supervisor regarding employees work performance particularly new employees during their probationary period.
Mr Sheppard gave a statement to an investigator on 4 November, 2010. Mr Hagos relies upon that in his own evidence. In that statement Mr Sheppard says that following the incident with Mr Lo, Mr Hagos settled into his work for a few days but then approached him about transferring to another work area.
According to Mr Hagos, he was dissatisfied with Mr Sheppard’s attempt to address his concerns. Mr Hagos says that he took his concerns to Ms Jenny Horsey, Volvo’s Senior HR Business Partner in accordance with Volvo’s “Harassment, Bullying and Discrimination Policy”, on 23 August, 2010. He says that he told Ms Horsey about the inconsistency that he perceived in Mr Sheppard’s actions of, on the one hand “escalating” an incident of Mr Hagos cutting a cable short to Mr Thomson, but doing nothing when Mr Hagos reported a “bullying incident” to him. He requested that Ms Horsey organise a transfer to another section of Volvo for him.
I have an affidavit from Jennifer Serafini. Ms Serafini’s maiden name was Horsey. Ms Serafini gave evidence about a meeting she had with Mr Hagos on or about 23 August, 2010. Mr Hagos came to her office and they had a conversation to the following effect:
Mr Hagos:What do I need to do to move to another section?
Ms Serafini: You need to fill out a transfer application form and speak with your supervisor. Why do you want to transfer to another section?
Mr Hagos:I’m not getting along with a team member because of overtime. Can you help me move?
Ms Serafini: Well, you need to speak with your supervisor first.
Mr Hagos:I don’t want to speak with my supervisor.
Ms Serafini: Would you like me to help you fill out the form and see what I can do for you?
Mr Hagos:Yes.
Ms Serafini swears that during her meeting with Mr Hagos he did not make a complaint to her about any improper conduct of any of his team members. Nor did he complain to her about or suggest that he had been bullied, intimidated or threatened. Further, I accept Ms Serafini’s evidence that she did not say to Mr Hagos that it was “not acceptable” and that she would take the matter up with Stuart Thompson. I accept Ms Serafini’s evidence that had Mr Hagos complained to her of conduct that she thought was “not acceptable” she would have immediately escalated the matter and conducted an investigation in accordance with Volvo’s Anti-Harassment and Bullying Policy, Grievance Resolution Policy and the Volvo Truck Production Australia Certified Agreement 2005.
Moreover, Ms Serafini swears that at no time during her meeting with Mr Hagos did he complain about any inaction on the part of Mr Sheppard. That is not surprising because in a letter written by Mr Hagos to Mr Jim Georgiades on 13 September, 2010 (to which I will refer in a little more detail later in these reasons) Mr Hagos states quite clearly that Mr Sheppard “tried to do something” about Mr Hagos’ concerns about Mr Lo. His statement in that letter is inconsistent with his claim that he told Ms Serafini that Mr Sheppard had done nothing about his complaints concerning Mr Lo.
Ms Serafini assisted Mr Hagos with the necessary transfer form. She spoke to Mr Hagos’ supervisor Stuart Thompson to determine if he had another area to which Mr Hagos could be transferred. A position within the brakes section of the Volvo assembly plant was soon identified.
Mr Hagos was offered the opportunity to transfer into the brakes section of the production line, which he accepted. He commenced working there on either 23 or 24 August, 2010. His new team leader was Mr Shane Hall.
Mr Hagos suggests that Ms Horsey acted immediately on his request to transfer, but he says that he is not aware that she took any further action in relation to his “complaint” about Mr Sheppard’s inaction in relation to the complaint that Mr Hagos had made to him about Mr Lo and the incident on 11 August, 2010. It is not clear what action Mr Hagos expected either Ms Horsey or Mr Sheppard to take.
A move to another area of the production line operated by Volvo required Mr Hagos to be retrained. He was trained and supervised in the brakes section of the production line by Mr Clinton Neibling. Mr Hagos was not happy about that because, according to Mr Hagos, Mr Neibling had only been with the company for about six to eight weeks. He did not believe that Mr Neibling was competent to train or supervise him because he was new to the company. The evidence led on behalf of Volvo, however, was to the effect that whilst Mr Neibling had only been working for Volvo for a short time, he was an extremely competent and skilled worker, more than capable of training Mr Hagos.
In any event, Mr Neibling left Volvo’s employment by the end of August, 2010. His supervisor was sad to see him go.
At this point, it is necessary to understand something of Volvo’s assembly process and quality assurance regime employed at its production facility at Wacol, Brisbane.
Mr Peter Mathewson is a Quality Assurance Supervisor employed by Volvo at its premises at Wacol. He has been in that position for a number of years. I have an affidavit from Mr Mathewson that was filed on 23 July, 2012. Mr Mathewson explains the quality assurance systems that are in place at Volvo. He makes the point that the procedures and systems followed by Volvo employees at Wacol are the same as those followed by Volvo employees around the world. The systems and procedures are globally consistent.
In his affidavit, Mr Mathewson says:
Quality Improvement Investigation Report
9. Volvo’s internal procedures require it to observe a high standard of quality in the work it undertakes.
10. Each Volvo truck is reviewed from a quality assurance point of view during the manufacturing process. As part of such a review, faults identified on a truck are given a points rating (consequence for the customer within the first 12 months use or warranty period). Two specific fault levels require specific action:
(a) a 25 point fault on a truck is severe and will demand actions before the next planned service after mission, this means the customer is able to complete his/her job, but the fault is serious enough that it will cause an unplanned stop in the future, if not rectified at next service
(b) a 100 point fault on a truck is very severe and is likely to cause any one or more of the following:
(i) unplanned stop or breakdown;
(ii) mission abort, means the customer is unable to complete his mission.
(iii) safety risk;
(iv) inability to start;
(v) a deviation against a legal requirement, a potential safety and product liability risk in connection with drive operational functions.
11. If a truck has a 25 point fault or a 100 point fault, these fault levels are recorded in the top right corner of a Quality Improvement Investigation Report (“Improvement Report”) under the heading “Consequence Score”.
12. When an Improvement Report is issued with a 100 point Consequence Score it is standard procedure for the employee who caused the fault to be referred to training. The referral for further training is not disciplinary action for a mistake but rather to ensure the worker is properly trained and to ensure quality work and safety in the future.
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15. When a 100 point Consequence Score is recorded I am notified in accordance with Volvo’s standard procedure.
16. When an Improvement Report is issued with a 100 point Consequence Score, a 10/10 check is conducted. This procedure is where the ten trucks before and the ten trucks after the truck with the fault are checked for the same fault.
17. If the 10/10 check reveals another fault then it is standard Volvo procedure to conduct an internal campaign. An internal campaign is where we check every truck on the premises to see if the same fault that was detected causing the initial 100 point Consequence Score exists in any other vehicle on site.
18. Internal campaigns are common. I believe we have conducted approximately twenty internal campaigns/Despatch stops in the past 12 months.
19. The issue of Improvement Reports are relatively common also. Volvo issues approximately 350 Improvement Reports per year to ensure proper and adequate quality control.
The evidence of Mr Hagos and others, including Mr Georgiades was that all trucks produced by Volvo at its production facility in Brisbane are subject to quality assurance checks before they leave the facility. The evidence shows that there is a dedicated team of employees assigned to conduct the quality assurance checks.
However, each employee who has a role to play in the assembly of the vehicles also performs quality checks as the work is completed. Volvo has a computer system that is used to track the production process and as each step of the process is completed, the person performing the work must go to a computer terminal near the production line and enter into the computer the fact that the particular task has been undertaken and checked by that employee. The system, however, is not secure in the sense that there is no authentication process in place to ensure that a person must sign off on their own work in their own name. For reasons that will become apparent shortly, that is an issue in this case.
Once a defect in a vehicle is identified, the computer system is accessed to identify the work station and employee who signed off on the quality checks done when the defective work was performed on the vehicle concerned. In that way, the identity of the employee responsible for the defective work can be found. Depending upon the nature and extent of the defect, a number of options are available. One of them, if the defect is serious enough, is to have a number of trucks in the production line before and after the vehicle in which the defect was found inspected for the same defect. Mr Mathewson explained that in his evidence I have extracted above.
Upon the discovery of a fault, a Quality Assurance Inspection Report form is generated and given to the team leader of the team working in the particular production area related to the defect. The team leader then allocates the task of carrying out the inspections. The inspections are preferably carried out by the employee who signed off on the original quality check of the defective work. The inspections are supervised by the relevant team leader. Corrective action, if necessary, is taken.
Mr Alan Jones is a Quality Rectifier employed by the respondent at its Wacol facility. Mr Jones works in a different section to the brakes section where Mr Hagos was working. His section is at the end of the process in the final section of the main vehicle production line. Mr Jones inspects the vehicles and makes sure all sections of the assembly have done their job properly. On Friday 27 August, 2010 Mr Jones inspected a truck leaving the assembly line and he found a defect within the braking systems of the vehicle. He issued Quality Improvement Investigation Report number 86 regarding the defect he had detected. It carried a 100 point consequence score.
Quality Improvement Investigation Report number 86 appears at a few different places in the evidence. It is a two page document. Only one page appears at annexure BH-4 to Mr Hagos’ affidavit. Another copy of the report appears at annexure BH-32 to Mr Hagos’ affidavit. It has two pages to the annexure, but it is not clear that those two pages are the two pages which would otherwise comprise Inspection Report 86.
In any event, on Monday 30 August, 2010 Mr Jones spoke to Mr Hall about the defects that he had found and the Quality Improvement Investigation Report that he had caused to be issued. I have an affidavit from Mr Stephen Hall filed on 1 August, 2012. Mr Hall was Mr Hagos’ team leader in the brakes section. Mr Jones showed Mr Hall the vehicle in which the defects had been found. He gave the Quality Improvement Investigation Report to Mr Hall. It was Mr Hall’s responsibility to deal with it because it involved work done in the section for which he was the team leader.
An inquiry of the relevant computer system by Mr Hall revealed that the defective work was purportedly carried out by “Clinton and Berharn”. Mr Hall concluded from that and his knowledge as team leader for the Volvo brakes section that Mr Hagos was responsible for the work and so it should be he who carried out the necessary inspections.
Inspection Report 86 contained a brief description of the defect to which it related, in the following terms:
2 X TEST NIPPLES LOOSE LH & RH REAR
BRAKE BOOSTERS. Q. CHECK SIGNED OFF
In the middle of the form is a section which directs the type of investigation to be undertaken and contains a space for a name, signature and “date completed”. Thereafter follows a table wherein details of the trucks inspected (identified by chassis numbers) and the results of the inspection are completed. The bottom of the form has a section for completion by a “Quality Supervisor/Delegate”. A notation at the bottom of the form indicates that it consists of two pages.
On 31 August, 2010 Mr Hall spoke with Mr Hagos about the Inspection Report 86. He gave him the report. Mr Hall swears, and I accept, that he and Mr Hagos had the following conversation:
Mr Hall:Berhane, this a Quality Improvement Investigation Report. This report is used to ensure quality and safety of our products and work out what went wrong so we can prevent faults happening in the future.
Mr Hagos:Ok (nodding)
Mr Hall:A fault has been found in some of the work you did. Alan found two loose test nipples that you checked off. You had marked the nipples off as “ok” but they hadn’t been properly torqued. You need to understand that we need to check our work so we can contain any faults. We must make sure that we capture any faults before [the faulty vehicle] can get to a customer. It’s a simple but important process.
Mr Hall:You’re new to this section but we all need to be careful to ensure quality work. The brakes section is very important because a fault in our section can be dangerous to our customers. This fault is very serious as it could cause the brakes to lock. It’s a 100 point fault because it’s so serious. This will be placed on your record.
Mr Hall swears that Mr Hagos said the defects were not his, but Mr Hall physically showed him the test nipples. They bore pen marks that Mr Hagos would use to mark parts that he had installed or assembled and had completed. Mr Hall was able to show Mr Hagos that the nipples had been marked by Mr Hagos and that they were loose.
Mr Hall says that he explained the process of defect identification and rectification to Mr Hagos. He explained the 10/10 approach to checking for defects of the same description in other vehicles. Mr Hall asked Mr Hagos to complete the required inspections of 20 nominated vehicles and the return to Mr Hall.
According to Mr Hall, Mr Hagos read the Inspection Report 86 and appeared to understand it. He did not ask Mr Hall any questions about it. Mr Hagos signed the Inspection Report.
Mr Hagos tells a different story about this encounter. According to Mr Hagos, he was asked to undertake a 10/10 inspection for the type of defect that was the subject of Inspection Report 86. He says that he completed the inspections asked of him, but does not know why he was asked to do them. He says that when he completed the inspections, he signed the form in the presence of Mr Peter Mathewson. Mr Hagos says that he also remembers that Mr Lo was standing about few meters away and observing what was happening from a distance. Mr Mathewson says in his evidence that he has never met Mr Hagos. However, I do not think anything turns on the inconsistency in the evidence of Mr Hagos and Mr Mathewson about that matter.
Mr Hagos says that he does not know why he was asked to sign the Inspection Report 86 other than to say that he signed the form believing his signature was required to prove the correctness of the checks that he performed. And, according to the evidence of Mr James Georgiades, so it was. That was the purpose of the form – to be a record of the quality checks carried out in response to the discovery of a defect in any particular vehicle.
Mr Hagos says that he and Mr Hall did not discuss the form or its purpose at that time.
Mr Hall was cross-examined by Mr Hagos. The cross-examination was confused and confusing. Ultimately, it was ineffective. Whilst Mr Hagos challenged Mr Hall on his evidence about what occurred on 31 August, 2010, Mr Hall’s evidence remained intact. I accept his evidence about the conversations that he had with Mr Hagos. I accept that he explained to Mr Hagos the purpose of the inspections that he was asked to carry out, why it was he who was being asked to carry them out and the significance of the Inspection Report 86.
Further, I reject Mr Hagos’ suggestion to Mr Hall that the computer system did not refer to Mr Hagos because it referred to “Berharn” instead of “Berhane”. Mr Hall confirmed that there were no other employees of Volvo in the Volvo brake section that had a name similar to Mr Hagos’ name. I am satisfied that the entry in the computer was a misspelling of Mr Hagos’ Christian name and that the entry referred to him in that respect.
Moreover, Mr Hall’s evidence is entirely consistent with the evidence of Mr Mathewson and Mr Georgiades about the quality assurance system employed by Volvo and the procedures implemented when a defect is detected. I accept Mr Hall’s evidence that he would not give an employee a 100 point Inspection Report without explanation. The reasons for that are obvious. As Mr Hall said in evidence, there is no point in giving any employee an Improvement Report without explaining the report because Volvo needs to ensure that faults do not occur.
After Mr Hagos’ first trainer in the brakes section, Mr Neibling, departed Mr Carlos Campos took over training Mr Hagos for a few days. I have an affidavit from Mr Campos that was filed on 23 July, 2013. Mr Campos was cross-examined but there was no challenge of any substance to Mr Campos’ evidence.
Mr Hagos says that after Mr Neibling left, his work was unsupervised and he received no further training. But I reject his evidence about that. I prefer the evidence of Mr Campos on that issue. He gave evidence that in or about early September, 2010 he trained Mr Hagos for a role within the brakes section of Volvo’s assembly operation. That included brake installation, fitting brake hoses and fitting test nipples. I accept Mr Campos’s evidence that he trained Mr Hagos on the operation of an air gun and fitting items referred to in the evidence as “L-shaped fittings” with an air gun.
Mr Campos trained Mr Hagos by teaching him and showing him the correct procedure and allowing him to conduct the brake installation under his supervision. Mr Campos says that he trained Mr Hagos for four days on over seven trucks per day. In this period of time, Mr Hagos observed Mr Campos and undertook his own brake fitting under Mr Campos’s supervision many times.
Mr Campos gave evidence that when training Mr Hagos, he gave Mr Hagos instructions but Mr Hagos would not follow them. When he was supervising Mr Hagos in September, 2010 he noticed that Mr Hagos would not keep a constant rate of work and he would gradually slow down to the point that another team member would need to jump in to help and get their stage of the vehicle assembly finished.
Further, I accept Mr Hall’s evidence that he continued to supervise Mr Hagos’ work after Mr Campos completed Mr Hagos’ training. Mr Hall describes the work that Mr Hagos was performing in the brakes section as the easiest of the tasks performed by that section, or the Mack Piping section where Mr Hagos was originally working. It required minimal training and once an employee was trained (which took about one week), the employee did not usually require ongoing direct supervision. In any event, Mr Hall says that he and Mr Campos were always available to assist Mr Hagos. Mr Campos worked only a short distance away. Mr Hall gave evidence that he, Mr Campos, Mr Neibling and Mr Larry Burrow all provided training to Mr Hagos in one form or another whilst he was working in the brakes section. I accept that evidence.
On 6 September, 2010 Mr Hagos injured his left thumb at work whilst operating an air gun. He was absent from work on 7 September, 2010 as a result of the injury to his thumb. He returned to work on 8 September, 2010. He had received medical advice on the day of the injury that he should wear a splint on his hand or thumb and only perform light duties until the next review date on 13 September, 2010.
Mr Hagos wished to make a workers’ compensation claim in respect of the injury to his left thumb. However, he alleges that Volvo personnel gave incorrect and incomplete information to WorkCover Queensland about the claim and the incident when it submitted two forms to WorkCover for the purposes of the claim.
The first form, which Mr Hagos alleges had incorrect or incomplete information, was an Employer Report and Application for Compensation. I am satisfied that the employer report contained four inaccuracies, namely:
a)Mr Hagos’ occupation was incorrectly described as a “Metal Fabricator”;
b)the time of Mr Hagos’ injury was stated to be 12:00am on 6 September, 2010 when in fact it was 9:00am on 6 September, 2010;
c)point 19 of the form was not completed and Mr Hagos’ identifying reference number or payroll number was not inserted in the form; and
d)at point 22 of the Employer Report it is suggested that Mr Hagos did not return to work. He says that the statement is not true because after attending the hospital he went back to work at about midday and finished his shift at the usual time. It is unclear when the form was completed, but what is clear from Mr Hagos’ evidence is that he did not go to work on 7 September.
Mr Hagos identifies a number of other respects in which he says the form was inaccurate or incomplete. The first is at point 15 of the form where the nature of Mr Hagos’ injury is recorded as: “Contusion, bruising, superficial crush Thumb.” However, Mr Hagos says that the description is not true because according to the medical certificate he obtained from the doctor he saw on the day of the injury, it is described as “crush injury-left thumb at that stage”. However, in my view, there is no misdescription of Mr Hagos’ injury in the form. He sustained a crush injury to his thumb and that is what is stated in both the medical certificate and the form. The addition of the words “contusion”, “bruising” and “superficial” does not make the description of his injury inaccurate when compared to the description in the medical certificate.
The second matter is at point 16 of the Employer Report where the mechanism of the injury is described in the following way: “Accidently crushed thumb between two metal members”. Mr Hagos claims that the description is not true. He claims an accurate description is: “I injured my left thumb when I was operating an air gun with my right hand while supporting L-shaped bolt on my left hand for the purpose of fastening it injured. In the process of fastening the bolt my thumb was twisted and crushed between the L-shaped bolt and chassis”. I see little difference between the two descriptions except that Mr Hagos’ description is more fulsome. The essential mechanism is the same. His thumb was crushed between two pieces of metal, one being the L-shaped bolt and the other being the chassis of the vehicle to which it was being fitted.
Mr Hagos complains that at point 18 of the Employer Report the claim is identified as a claim for medical expenses only because that box in the list of available options is ticked. However, if that option is selected, the person completing the form is directed in the following terms: “Do not complete 20 – 32”. Those questions relate to claims for time off work. All but five of those questions have been completed.
Mr Hagos also complains that at point 20 of the same form “Ms Morgan falsely stated that I had given her an Application for Compensation on 6 September 2010. This is not true. I did not give Ms Morgan any forms at all I did not even see her after coming back from the hospital”. Mr Hagos has assumed that Ms Kaye Morgan completed the form because her details appear in item 6 of the form – “Details of Employer contact”. But there is no evidence that she in fact completed the form. In any event, even if she did, and Mr Hagos did not give the Application for Compensation to her, he does not allege that he did not make such a claim or that he did not want his employer to process his claim for workers compensation arising from his injured thumb.
Mr Hagos points out that the form was incomplete because points 21, 25, 26, 29 and 32 of the form were left blank.
Mr Hagos claims that in addition to the form that was entitled Employer Report, Ms Morgan also completed an Application for Compensation form on his behalf without his knowledge and authorisation. However, in my view that assertion is speculation by Mr Hagos. On his own evidence he was asked to sign a form when he attended a doctor to which he was directed by his employer on the day of his injury. He did not read it. On the next day he attended his own doctor and again was asked to sign a form which, this time he saw was a Claim for WorkCover. He signed that form. I think it likely that on the day of his accident Mr Hagos signed an Application for Compensation when he attended the doctor to receive treatment for his injury, just as occurred on the following day. I reject his assertion that he did not make an Application for Compensation on 6 September, 2010. Indeed, Mr Hagos’ evidence seems to accept the proposition that he signed a Claim for WorkCover on the day of his injury before he left the hospital at which he was treated.
Further, there is no material difference between the Application for Compensation (exhibit BH5 to Mr Hagos’ affidavit filed on 31 July, 2012), the Claim for WorkCover (exhibit BH6 to Mr Hagos’ affidavit filed on 31 July, 2012) and the Application for Compensation completed by Mr Hagos on 7 September, 2010 (exhibit BH7 to Mr Hagos’ affidavit filed on 31 July, 2012). Indeed, Mr Hagos’ own form (BH7) contains errors of the same nature as those in the forms he claims are inaccurate. For example, the time of injury is stated to be 10.00am. His sworn evidence, however, is that it was 9:00am.
To the extent that the relevant WorkCover forms contained inaccuracies or were not fully completed, I am not satisfied that the inaccuracies or the incomplete answers were material to Mr Hagos’ claim. The evidence shows that the claim was accepted. I am certainly not satisfied that Ms Morgan deliberately or negligently provided false, inaccurate or misleading information to WorkCover about Mr Hagos’ claim for the injury to his thumb.
On 7 September, 2010 another Quality Rectifier, Mr Larry Burrow issued Quality Improvement Investigation Report numbered 91 in relation to a failure to tighten certain nuts on the vehicle’s front brakes with a torque spanner. The nuts had been marked with pen to indicate that they had been tightened to the correct torque. The nuts were not tightened but they had been marked by Mr Hagos so as to suggest that they had been correctly tightened. The defect was a 100 point defect.
On 8 September, 2010 Mr Hagos met with Mr Hall. I accept Mr Hall’s evidence that Mr Hall told Mr Hagos about Investigation Report 91. I accept that Mr Hall told Mr Hagos about the nature of the defect and why it was serious. I reject Mr Hagos’ allegations that Mr Hall gave him the Investigation Report without explanation and did not give him an opportunity to respond to it or discuss it. It is inherently improbable that Mr Hall would not have impressed upon Mr Hagos the significance of the defects that had been discovered.
Mr Hall gave the Investigation Report to Mr Hagos and explained what he needed to do. Mr Hagos went and checked the 20 trucks that Mr Hall directed him to check. He reported back to Mr Hall. Mr Hall asked him to sign the Investigation Report to show that he had completed the check. Mr Hagos refused to sign.
According to Mr Hall’s evidence, the Investigation Report needed to be signed off. However, it could only be signed off by a person who had carried out the relevant checks. Because Mr Hagos refused to sign the form and thereby signify that he had conducted the relevant inspections, Mr Hall rechecked the vehicles himself. He was then able to sign the form in accordance with Volvo’s procedures.
During Mr Hall’s cross-examination Mr Hagos queried why there were two copies of Investigation Report 91. His assertion appeared to be that the Investigation Report had been amended or altered in some way, perhaps to his detriment. However, as Mr Hall explained, Mr Hagos took away with him from the second meeting on 8 September, 2010 a copy of the investigation report. Mr Hall kept a copy of the Investigation Report so that he could complete his own checks and sign off on the inspections. There were indeed two versions of the form – one without Mr Hall’s inspections marked on it and one with them marked on it and his signature.
Mr Hall’s inspections revealed more defects. Accordingly, an “internal campaign” was initiated so that all of the vehicles on the Wacol premises were inspected. That internal campaign took place on 9 September, 2010.
I have an affidavit from Mr David Stevenson, a production assembler, which was filed on 23 July, 2012. Mr Stevenson was assigned to work on the internal campaign with Mr Hagos that was initiated by Investigation Report 91. According to Mr Stevenson, he and Mr Hagos were given a blank sheet of paper by Mr Hall and asked to record the chassis number of each truck that they checked. According to Mr Stevenson, Mr Hall told him to check the trucks with Mr Hagos and “show him the ropes”.
Mr Stevenson recalled that some of the trucks that he and Mr Hagos had to check were in the yard in the sun. Mr Stevenson recalled that Mr Hall offered Mr Hagos a sun hat because he did not have one. Mr Hagos alleges as part of his case that he was subject to bullying, that Mr Hall asked Mr Hagos if he had a helmet and gestured at Mr Hagos’ injured thumb. Mr Hagos was wearing some type of brace on his thumb or hand because of the injury from the air gun. Contrary to Mr Hagos’ assertions, Mr Stevenson gave evidence that Mr Hall did not say anything about a helmet or refer to Mr Hagos’ thumb brace. Mr Stevenson’s evidence was not challenged. I accept Mr Stevenson’s evidence about that. Mr Hall gave evidence that was consistent with the evidence of Mr Stevenson on this issue. There was no bullying of Mr Hagos by Mr Hall as Mr Hagos alleges. Mr Hall simply offered Mr Hagos a hat because he would be working in the sun.
Mr Stevenson and Mr Hagos checked about 50 trucks and according to Mr Stevenson they found several more faults of the same type as that which led to the campaign.
Following the issue of Inspection Report 91, Mr Hall requested that Mr Peter Reade, an internal Volvo Production System Consultant conduct additional training with Mr Hagos because Mr Hagos had received the 100 point defect notice.
I have an affidavit of evidence in chief from Mr Reade filed on 2 August, 2012. Mr Reade was not cross-examined.
Mr Reade spoke to Mr Hagos at about 9:00am on 10 September, 2010. Mr Hagos recalls that Mr Reade said words to the effect: “There are two 100 point defects notice against your name”. Mr Reade’s evidence was that to the best of his recollection he only told Mr Hagos about one 100 point defect notice for Mr Hagos. It is possible that one of the gentlemen is mistaken, but it does not matter which one.
According to Mr Reade’s evidence, additional training is mandatory for any employee who has caused a 100 point defect notice. Mr Reade has conducted training in those circumstances many times for Volvo employees. His evidence is consistent with the evidence of Mr Mathewson about the process that is followed when defects are detected in the vehicles produced by Volvo at the Wacol premises.
On 10 September, 2010 Mr Reade says that he approached Mr Hagos and advised him that he would be required to undertake quality check training to be conducted at his workstation. Mr Reade says, and I accept, that the following conversation ensued:
Mr Hagos:Why?
Mr Reade:When an employee has caused a 100 point fault I give them further training. Shane [Hall] made the request to me as you received a 100 point fault notice.
Mr Hagos:But why have I got two of these 100 point defect notices?
Mr Reade:I can’t answer that. You need to speak with your supervisor about it. My role is to give you the training. We sometimes need to give further training to ensure the highest quality of the finished product.”
Mr Reade gave Mr Hagos training as he was required to do. Following the training, Mr Hagos passed a training assessment that was administered by Mr Reade.
According to Mr Reade many employees have had a 100 point defect notice and the procedure he followed on 10 September, 2010 with Mr Hagos was the normal process he has previously followed for other employees in the same circumstances. Further, he says, and I accept, that the type of training Mr Hagos received was very common. Training occurs almost daily at Volvo and at least twice a week.
At about the same time as Mr Hagos was with Mr Reade, Mr Hall spoke with Ms Angela Lautaimi, a member of the human resources department of Volvo at Wacol. He told her that Mr Hagos had refused to sign off on an Inspection Report and he sought advice from her about what to do about that. He told her that Mr Hagos may come to see her.
Following his training with Mr Reade, Mr Hagos went back to see Mr Hall. Mr Hagos was very upset. Both Mr Hall and Mr Hagos give differing versions of the conversation that passed between them at this point. The differences are not particularly important and there are some common themes in each version.
I am satisfied that Mr Hagos was concerned that Mr Hall was recording defects against him. He claimed to know nothing of the Investigation Reports that had been issued against him. Mr Hall showed him the reports and Mr Hagos denied that he was responsible for the defects that were the subject of the reports. They argued about who was responsible for the defects. Mr Hall showed Mr Hagos the computer information that showed that Mr Hagos was responsible. Mr Hagos did not accept it. He remained concerned that defects were being recorded against him.
Mr Hagos told Mr Hall that he wanted to go to see the human resources department. Mr Hall facilitated that for Mr Hagos.
Mr Hagos went to see Volvo’s human resources department about the fact that he had been requested to attend training “in relation to defect notices that were improperly issued against me”.
Ms Angela Lautaimi spoke to Mr Hagos. I have an affidavit from Ms Lautaimi filed on 1 August, 2012. Ms Lautaimi says that she had conversation to the following effect with Mr Hagos:
Mr Hagos:I need to speak with someone about a complaint.
Ms Lautaimi: Ok. You can talk to me about it. What is your complaint about?”
Mr Hagos:I received two l00 point defects and was sent to training. I don’t understand why I got these. Someone from Quality came to me to give me training because of defects I didn’t know about. I shouldn’t have been sent to training.
Ms Lautaimi: Volvo Employees often undergo training as part of Volvo’s quality assurance system. What do you know about our quality assurance system?
Mr Hagos:I know a little. I am supposed to sign off on my work. There’s a point system for faults in your work. Volvo’s quality system is a practical joke. People shouldn’t get defects willy nilly.
Ms Lautaimi: What do you mean by ‘practical joke’?
Mr Hagos:The system is a practical joke because I shouldn’t get defects without my knowledge.
Ms Lautaimi: These procedures are from Volvo’s Global policy and procedures. I need some more information. Please explain what has happened and how you got these defects notices without your knowledge.
Mr Hagos:I found out about the defects when someone from the Training Department came and saw me and gave me more training. I had the training but I shouldn’t have been sent there.
Ms Lautaimi: Have you received any information about the defects on paper?
Mr Hagos then produced two Quality Improvement Investigation Reports from his pocket and showed them to Ms Lautaimi. The reports showed the defects for which Mr Hagos was responsible.
Mr Hagos and Ms Lautaimi continued their conversation:
Ms Lautaimi: So, you had received these documents regarding the defects?
Mr Hagos:Yes but I don’t understand the first one. I just signed it. It [the Quality Improvement Investigation Report] is not clear enough on defects. I will not sign these defect notices.
Ms Lautaimi: Have you received any training on the Quality processes?
Mr Hagos:Yes, well that’s another thing. Some guy just came to train me. That’s rubbish.
Ms Lautaimi: I’m sorry Berhane, I don’t understand that statement.
Mr Hagos:It wasn’t even explained why that guy was there he just turned up.
While she was asking Mr Hagos to clarify his complaint, Mr Hagos appeared to Ms Lautaimi to become increasingly flustered and frustrated by her attempt to obtain all the details of his complaint. Ms Lautaimi and Mr Hagos, I find, then had further conversation to the following effect:
Ms Lautaimi: I’d like to understand your complaint so I can talk to the appropriate supervisors and team leaders. The normal escalation process is through your team leader or supervisor so I’m not going to be able to solve the matter for you immediately. In order to address your concern I will need to speak with a number of parties, including your team leader and Supervisor and people from the Quality Department and Training School. However, we won’t be able to solve the matter without further information from you. Please explain your complaint in detail so we can investigate it.
Mr Hagos:I have already!
Ms Lautaimi: Ok then. What can we do to fix the situation? What is the outcome that you would like?
Mr Hagos:I don’t know. You tell me.
Ms Lautaimi: If you could tell me what you think would resolve the matter I can see if we can do that.
Mr Hagos:You should tell me what the outcome will be.
Ms Lautaimi: If we knew what solution you’d like we may be able to resolve the problem quickly.
Mr Hagos:No. You tell me the outcome.
Ms Lautaimi: It’s still a little unclear what the exact nature of your complaint is. I’d like to get all the detail from you so we can investigate it for you. It would be good if I had an idea of what result you wanted so we…
Mr Hagos:I’m sick of this place! I’m going home!
Ms Lautaimi: If you are going to leave the site you need to get an exit pass from your supervisor.
As Mr Hagos went to leave, Ms Kaye Morgan another employee in the human resources department intercepted Mr Hagos so that she could talk to him about his finger injury and his light duties. They had a short conversation and then Mr Hagos left. Soon afterwards, Ms Lautaimi made a record of Mr Hagos’ complaint in the centralised “HR Diary”.
Ms Lautaimi was cross-examined by Mr Hagos. He took issue with the conversation that was recorded in her affidavit, but his cross-examination strengthened her evidence about those matters. I accept her evidence about the conversations that I have recorded above.
When cross-examining Ms Lautaimi Mr Hagos was concerned to establish that Ms Lautaimi knew that he was coming to see her. He was equally concerned to establish that she had not been told why he was refusing to sign the Investigation Report. He suggested to Ms Lautaimi that she had not advised him of his options given that as far as Mr Hagos was concerned there was a dispute on foot between he and Mr Hall and perhaps others. Ms Lautaimi’s evidence was that she told Mr Hagos more than once that she was trying to ascertain information from Mr Hagos about the nature of his complaint and then she would speak with his team leaders and supervisors. Moreover, she said she was unable to give Mr Hagos proper advice because he abruptly left half way through their conversation. I accept Ms Lautaimi’s evidence about those matters.
Rachel Gannon was employed by Volvo as a “HR Business Partner” on 10 September, 2010. She was in Volvo’s Human Resources department area on l0 September, 20l0 when Mr Hagos came into the room to speak with Ms Lautaimi. I have an affidavit that was filed on 25 July, 2012 from Ms Gannon.
Ms Gannon observed and heard the conversation between Mr Hagos and Ms Lautaimi. She was about one and a half meters away from where Mr Hagos was standing. Prior to Mr Hagos entering the Human Resources Department, Ms Gannon was in discussion with Ms Lautaimi and Ms Morgan. Mr Hagos interrupted their discussion.
According to Ms Gannon when Mr Hagos arrived he said words to the effect “I want to talk about a problem” and Ms Lautaimi responded straight away by saying words to the effect “I will help you”. Mr Hagos said words to the effect “I have a complaint”. Ms Lautaimi said words to the effect “what is your complaint and how can I help you?”
According to Ms Gannon, Mr Hagos was very vague. He mentioned “quality systems” but she could not quite work out what Mr Hagos’ actual complaint was about because he was unspecific and did not say exactly what the problem was. To Ms Gannon’s observation, Mr Hagos seemed frustrated and was talking in circles. Ms Gannon’s evidence was that she observed Mr Hagos become increasingly frustrated, but Ms Lautaimi did not – she remained calm.
During Mr Hagos’ conversation with Ms Lautaimi on 10 September 2010, Ms Gannon did not hear Mr Hagos say words to the effect of “bullying”, “threatened” or “intimidated”, nor did he identify any improper conduct by any Volvo employee. According to Ms Gannon, after a while Mr Hagos said words to the effect “I’m leaving” and Ms Lautaimi said to him words to the effect “you will need an exit pass to leave”.
Ms Gannon was cross-examined by Mr Hagos. The main focus of his questions of her were upon whether Ms Lautaimi told Mr Hagos about any dispute resolution procedure and offered that to him. The following passage illustrates the main focus of Mr Hagos’ cross-examination of Ms Gannon:
MR HAGOS: During that meeting with Angela, did she at any stage offer to me that there is a dispute resolution? ‑‑‑ She offered to assist you. She – she wanted to clarify what your problem was because you were not very clear with your – what your problem was, so she was asking you questions to understand what you required.
But she did not make the option that within the organisation if there is a dispute, there is a process of resolving such disputes. She did not make such offer, did she? ‑‑‑ I don’t remember her saying that specifically. What I do remember is she was asking you, and I don’t believe that you gave her the opportunity to get to that point. In my recollection, she was asking you what she could do to help and you were not forthcoming with the information.
Okay. So you do accept that I have given proper notification to her. You was also aware that I am leaving the site for the day when I left the building, so Volvo does know that I was leaving for the day. It was not a mystery that I left that building?‑‑‑ You said you were leaving ‑ ‑ ‑
Kaye Morgan was employed by Volvo as a “HR Business Partner” on 10 September, 2010. She was in Volvo’s Human Resources department on l0 September, 20l0 when Mr Hagos came into the room. I have an affidavit from Ms Morgan filed on 25 July, 2012. Ms Morgan also witnessed the conversation between Mr Hagos and Ms Lautaimi. Her evidence about that conversation accords generally with the evidence given by Ms Lautaimi and Ms Gannon.
After speaking with Ms Lautaimi, on 10 September, 2010 Mr Hagos left for the day without completing his shift, never to return to work at Volvo again.
I am satisfied that having received Mr Hagos’ “complaint”, Ms Lautaimi set about talking to the people involved in his complaint in accordance with Volvo’s grievance policy. She spoke to Mr Georgiades about her conversation with Mr Hagos.
On Friday 10 September, 2010 Ms Lautaimi attempted to investigate what she gathered from her conversation with Mr Hagos were his concerns. She attempted to speak with Mr Hall about Mr Hagos’ complaint. She had spoken to Mr Hall earlier in the day before Mr Hagos had arrived in the Human Resources department but she could not see him again on that day.
She spoke with Mr Peter Mathewson, the Quality Assurance Supervisor that had signed the defect notices given to Mr Hagos. Mr Mathewson was a very experienced Volvo employee. Ms Lautaimi checked the quality assurances processes with Mr Mathewson so as to satisfy herself that the process that had been followed with Mr Hagos was that universally used by Volvo. Mr Mathewson confirmed that it was. He also confirmed that it was common practice for employees to receive retraining when defects were identified.
Ms Lautaimi spoke to Terry Sheppard. Mr Sheppard told Ms Lautaimi that Mr Hagos has requested a transfer from his section when he had some difficulty with Mr Lo. He made comments about his and others’ observations of Mr Hagos’ general unwillingness to learn and disinterest generally in his training.
Ms Lautaimi also spoke to Stuart Thomson.
Ms Lautaimi spoke to Steven Hall on 13 September, 2010. Mr Hall confirmed that a safety check had revealed a defect in work that Mr Hagos had signed off. However, he had refused to sign the relevant defect notices or accept them. Mr Hall told her that after one of the defects had been found, a 10/10 truck check had been undertaken and Mr Hagos had participated in that check. Mr Hall confirmed to Ms Lautaimi that Mr Hagos had been informed of all of the defects found in his work, when they were found. Mr Hall explained that he had organised further training for Mr Hagos.
Mr Hagos argues that his complaint to Ms Lautaimi, such as it was, was not investigated by her properly or at all. But the evidence I have just recounted demonstrates, in my view, that Ms Lautaimi did attempt to investigate and understand Mr Hagos’ complaint. Indeed, Mr Hagos seems to acknowledge as much in his affidavit filed on 31 July, 2012 where, at paragraph 42, he says that he believes that Ms Lautaimi “mishandled” his complaint for various reasons. I do not accept the proposition that Ms Lautaimi mishandled Mr Hagos’ compliant.
Meanwhile, on Monday 13 September, 2010 Mr Hagos did not present for work at his appointed starting time of 6:00am. Instead, he saw his general practitioner, who referred him to a psychiatrist. Mr Hagos made no contact with his supervisor so as to inform him that he would not be at work. Volvo had in place, I am satisfied, a leave management policy about which Mr Hagos had been informed at the commencement of his employment. That policy required Mr Hagos to notify his supervisor as soon as possible upon him becoming aware that he would not be at work.
At about 1:00pm on 13 September, 2010 Mr Hagos telephoned Mr Georgiades to get a facsimile number to which Mr Hagos could send a written complaint. Mr Georgiades asked Mr Hagos to come and talk to him about his complaint but Mr Hagos refused.
On 13 September, 2010 Mr Hagos sent a letter by facsimile to Volvo’s HR Manager James (Jim) Georgiades. At Mr Georgiades request, Ms Serafini telephoned Mr Hagos soon after receiving his letter and, I am satisfied, they had a conversation to the following effect:
Ms Serafini: Hi Berhane. It’s Jenny from Volvo HR. I just got your fax and wanted to discuss it with you. As you have made a complaint we will conduct an investigation. Can we discuss what your complaint is about?
Mr Hagos: No. My priority is not Volvo.
Ms Serafini: Ok. When a complaint is made it’s part of our process to investigate what it’s all about so we really need to talk to you about it. Would you be able to come in and see me so we can talk about it?
Mr Hagos:No. My health is more important than Volvo.
Ms Serafini: That’s fine. We’d like to investigate your complaint so we need to fully understand what’s happened in order for us to investigate it. If we can’t speak with you then we’ll have to investigate the matters you have raised without getting your full story from you. When do you think you would be able to come in to discuss it?
Mr Hagos:I’m not coming in. Volvo’s not my priority. You do what you gotta do!
The letter from Mr Hagos is not worded as a complaint, but rather as a narrative of events from Mr Hagos’ point of view. In it, amongst other things, he asserts that he explained to Ms Serafini “what is happening” when he met with her to request a transfer. Ms Serafini denied that assertion. I have set out above my findings about the meeting of 23 August, 2010. I accept Ms Serafini’s evidence that she was unable to get Mr Hagos to properly explain his concerns to her.
By 15 September, 2010 Mr Hagos, I find, had:
a)failed to attend work on 13 September, 2010;
b)failed to attend work on 14 September, 2010;
c)failed to attend work on 15 September, 2010;
d)failed to give any notice of his intention not to attend for work;
e)failed to provide any medical certificates for his unexplained absences on 13, 14 and 15 September, 2010;
f)made a vague and unspecific complaint to Ms Lautaimi on 10 September, 2010;
g)refused to discuss his verbal complaint and his written complaint with both Mr Georgiades and Jenny Horsey;
h)refused to inform Volvo staff as to when he intended to return to his employment; and
i)refused to inform Volvo staff as to when he may be available to provide further information needed to clarify his complaints and assist with the investigation of his complaints.
For those reasons, Mr Georgiades felt compelled to write to Mr Hagos. On 15 September, 2010 he delivered a letter by hand to Mr Hagos’ home address because he wanted to get it to Mr Hagos quickly so that he could deal with Mr Hagos’ concerns quickly and resolve whatever it was that was troubling him. I accept Mr Georgiades’ evidence about that. The letter said:
I am writing to you in response to your fax received 13th September 2010 and also to discuss some matters relating to your employment with Volvo Truck Production.
In order to further investigate this matter, we request your assistance to identify the exact nature of your concerns. We will need to speak with you further regarding your fax, in order to outline the issues you would like resolved.
In your fax, you discuss attending HR on Friday 10th September 2010 in order to discuss the quality systems at Volvo. During your discussions with Angela Lautaimi (HR Business Partner), you claimed that you did not agree with the quality systems at Volvo regarding the quality checks. During your discussions with Angela, you were asked what your specific complaint was and what outcome you would like to see as a result of your discussion. You were unable to specify exactly what your concern was other than to state that Volvo’s quality system was a ‘practical joke’. You indicated that you did not wish to sign the quality defect sheets. You also stated to Angela that you did not know what outcome you were seeking. During this discussion you were quite abrupt with Angela, and unable to answer her requests regarding the exact issues nor the resolution that you were seeking. At this stage, you left the site without informing your Supervisor or Manager and you also failed to clock off as is a requirement for all-employees leaving the site. Your section leader later came to HR to inform us that you had not returned to your work station and that you had left the site. That same afternoon, Angela had begun investigating the quality processes in order to gain an understanding as to what your concerns may have been. As you have not returned to work, we have been unable to get back to you regarding the quality processes that you raised on Friday 10th September.
On Monday 13th September 2010, you failed to attend for work at 6:00am and failed to notify anyone at Volvo of your intended absence from work. It is a requirement of all employees to notify their supervisor of their intended absence from work as soon as possible and within 1 hour of your normal shift commencement time. This information was outlined during your induction and is included in the employee induction manual that you received upon commencement of employment.
On 13th September you contacted me (Jim Georgiades – HR Manager) via telephone at approximately 2:30pm. You asked for the company’s fax number. I enquired as to the need for the fax number and you stated that you wanted to fax through a complaint. I then asked you about the matter, and you refused to discuss the matter with me on the telephone. I enquired several times as to what the issue was, and how I could address the issue, but you simply stated that you were faxing through a fax and you would wait for my response.
I received your fax on 13th September at approximately 2:45pm. After reading the information, I determined that I would need to discuss these issues with you further as part of the investigation into the matter. We need to be able to clarify the exact issues you are concerned about and also the resolution you are seeking in order to complete our investigations in line with the company procedure.
As a result, I asked Jenny Horsey (Senior HR Business Partner) to contact you and arrange for you to come in to work tomorrow at a time suitable for you to discuss the issues. In accordance with our grievance procedure, we need to respond promptly and thoroughly in relation to any concerns raised and we require your assistance to complete this process. You stated to Jenny that you would not be coming in to work to discuss the matters. Jenny explained that as part of the resolution process, I would need to talk to you further regarding these matters. You again refused to come in to work. You were quite abrupt on the telephone and unwilling to assist us with the investigation. As we need to be able to plan our production activities, Jenny asked. when you would likely be able to attend work to discuss these matters further and you stated that you could not tell us when you would be able to discuss these matters with us.
You have again not arrived for work on Tuesday 14th September or Wednesday 15th September and have failed to notify your supervisor of your absence from work.
We again request a meeting in order to complete our investigation regarding your complaint, and in order to gain further information from you. Without your cooperation, we will need to make a decision regarding the outcome of our investigation in your absence.
Separately, as indicated above, we also have concerns regarding your leaving the site without authorisation on Friday 10th September without informing your supervisor. and of you failure to adequately notify of your absence from work on Monday 13th, Tuesday 14th and Wednesday 15th September. If you are unable to confirm your availability to discuss these matters further· we will still need to progress with making a decision regarding the above matters.
I request that you contact me on [telephone number] within 48 hours in order to arrange a time for us to discuss these issues further.
Yours Sincerely
I have set this letter out in full because it is central to Mr Hagos’ case.
Before proceeding further, I should record that Mr Georgiades (who was cross-examined by Mr Hagos) accepted that the letter was inaccurate insofar as it suggested that Mr Hagos left the Volvo site on 10 September, 2010 without authorisation or without clocking off as he was required to do. At the time he wrote the letter, Mr Georgiades was unaware that Mr Hagos had the relevant authority and had clocked off when he left.
I reject Mr Hagos’ claim that Mr Georgiades wrote the letter in an effort to have Mr Hagos withdraw the complaint he made on 10 September and followed up in writing on 13 September, 2010. Mr Georgiades letter was, I am satisfied, an appropriate response to the events that had unfolded to that point in time. I accept Mr Georgiades evidence that his letter was an attempt to encourage Mr Hagos to clarify his complaint so it could be resolved with him. The letter was plainly a plea for Mr Hagos to engage with Mr Georgiades so that his concerns could be properly investigated. The letter also makes clear that Mr Georgiades had firmly in mind the relevant policies and procedures that were in place for dealing with concerns such as those raised by Mr Hagos. Mr Georgiades was demonstrably trying to follow those policies and procedures.
On or about 31 March, 2011 Mr Georgiades received Verifact’s report.
On about 28 April, 2011 Mr Georgiades received a letter from Q-COMP enclosing a Notice of Appeal in respect of Q_COMP’s decision to reject Mr Hagos’ workers’ compensation claim in respect of “stress”.
On 24 May, 2011 Volvo received a facsimile from the Queensland Industrial Relations Commission advising that Mr Hagos had been granted leave to withdraw his application.
On 29 July, 2011 WorkCover Queensland wrote to Mr Hagos notifying him that it had decided not to accept his application to reopen his claim for compensation in respect of his injury to his left thumb.
On 10 November, 2011 the Fair Work Ombudsman advised Mr Georgiades that he had not found a relevant contravention of the Fair Work Act 2009 as alleged by Mr Hagos or at all.
However, on 15 December, 2011 Mr Georgiades received a letter from the Fair Work Ombudsman advising that Mr Hagos was dissatisfied with the Ombudsman’s findings and that he had requested a review of the determinations made as a result of the original investigation.
On 4 January, 2012 Mr Georgiades received a letter from the Fair Work Ombudsman enclosing a transcript of his interview undertaken with the Fair Work Ombudsman in relation to Mr Hagos’ application on 21 June, 2011. The letter made it clear that the Fair Work Ombudsman had received a freedom of information request and he was seeking Mr Georgiades’ comments on whether any or all of the information should be withheld from disclosure.
On 18 January, 2012 Mr Georgiades wrote to the Fair Work Ombudsman requesting that certain parts of the transcript containing personal information and other material be redacted from the released version of the transcript.
On 27 January, 2012 Mr Georgiades received a letter from the Fair Work Ombudsman confirming that certain portions of the transcript of the interview had been redacted and not released.
On 2 April, 2012 Craig Dangerfield of the Fair Work Ombudsman emailed Angela Lautaimi of Volvo advising that the review has been finalised and that the matter was to be closed. The initial determinations remained undisturbed.
Mr Hagos’ Claims
Mr Hagos argues that Volvo breached s.340 of the Fair Work Act because it took adverse action against him in response to him exercising his workplace rights. Mr Hagos’ claim is based upon the proposition that he exercised a workplace right by making complaints and/or enquiries in relation to his employment.
Mr Hagos identifies eight different communications that he had with various officers or employees of Volvo which he says were the relevant complaints and enquiries, namely:
a)on 11 August, 2010 when he made a verbal complaint “about a bullying incident to the team leader Mr Terry Shepherd”;
b)on 23 August, 2010 when he “reiterated the bullying incident when speaking to Ms Jenny Horsey Senior HR partner”;
c)on 10 September, 2010 when he “made a verbal complaint and/or enquiry to Ms Angela Lautaimi Senior HR partner in relation to the defect notices that were improperly issued against him following his verbal complaints on 11 August, 2010 and 23 August, 2010”;
d)on 13 September, 2010 when he “submitted a written complaint by fax to the HR manager Mr Jim Georgiades in relation to the bullying incident and the defect notices that were improperly issued against me”;
e)on 21 October, 2010 when he submitted a written complaint to WorkCover in relation to the bullying incident with the respondents;
f)on 3 November, 2010 when he “faxed a complaint and/or enquiry to Mr Georgiades in relation to his decision dated 21 September, 2010 and requesting about the outcome of the investigation to my complaint that was faxed 13 September, 2010”;
g)on 15 November, 2010 when he “faxed an enquiry in relation to my leave entitlement”; and
h)on 23 November, 2010 when he “made an enquiry in relation to the outcome of the investigation into his complaint dated 13 September, 2010 and his request dated 15 November, 2010 for leave”.
Mr Hagos bears the onus of proving that:
a)he made the complaints alleged by him;
b)the complaints were complaints in relation to his employment within the meaning of s.341(1)(c)(ii) of the Fair Work Act;
c)Volvo or its officers took the action against him that he alleges was adverse action for the purposes of the Act; and
d)the action or actions alleged by Mr Hagos either injured him in his employment or altered his position to his prejudice.
Once Mr Hagos establishes those matters, the onus is upon Volvo to prove that that it did not take any of the adverse action found to have been taken against Mr Hagos for a reason that included the fact that Mr Hagos had made one or more of the complaints made by him: s.361(1) of the Fair Work Act.
The complaints and inquiries
Volvo concedes, properly in my view, that Mr Hagos made a complaint on 11 August, 2010 to his team leader, Mr Sheppard, to the effect that he did not like Mr Lo’s attitude towards him in relation to overtime. That is consistent with the findings I have made above about the relevant conversation between Mr Hagos and Mr Sheppard.
Whilst Volvo disputes that Mr Hagos made a complaint on 23 August, 2010 to Ms Serafini, what Mr Hagos did do was to make an inquiry about his employment. As I have found above, on that day Mr Hagos requested of Ms Serafini, that she assist him to transfer from the Mack Piping section of the business to another section. That was the exercise by him of a workplace right: s.341(1)(c)(ii) of the Fair Work Act.
Volvo also concedes that:
a)on 10 September, 2010 Mr Hagos complained to Volvo’s human resources department about the fact that he had been requested to attend training “in relation to defect notices that were improperly issued against me”;
b)on 13 September, 2010 Mr Hagos faxed a letter of complaint to Ms Serafini and Mr Georgiades.
Further, on 21 October, 2010 when Mr Hagos submitted a written complaint to WorkCover Queensland in relation to the bullying incident alleged by him, Mr Hagos was exercising a workplace right because he was participating in a process or proceedings under a workplace law, namely the Workers’ Compensation and Rehabilitation Act 2003: s.341(1)(b) of the Fair Work Act.
Each of the other communications identified by Mr Hagos were also, in my view, inquiries about his employment for the purposes of s.341(1)(c)(ii) of the Fair Work Act. Those communications were:
a)the facsimile sent on 3 November, 2010 from Mr Hagos to Mr Georgiades in relation to his decision dated 21 September, 2010 and requesting about the outcome of the investigation to Mr Hagos’ complaint made by facsimile letter on 13 September, 2010;
b)the facsimile sent on 15 November, 2010 in relation to Mr Hagos’ leave entitlement; and
c)the facsimile sent on 23 November, 2010 in relation to the outcome of the investigation into Mr Hagos’ complaint dated 13 September, 2010 and his request dated 15 November, 2010 for leave.
Mr Hagos submits that the respondent took adverse action against him on six occasions because he acted by making one or more of the complaints and inquiries I have just set out.
Defect Notices
Mr Hagos argues that the respondent issued improper defect notices against him because he had exercised a workplace right to make complaints about his employment on 11 August and 23 August, 2010. He claims that he was injured in his employment as a result of the respondent’s adverse actions.
I accept Mr Hagos’ proposition that the issue of defect notices in respect of work for which he was responsible was adverse action taken by Volvo against him. It was Mr Hall’s evidence that the fact that an inspection report had been issued in respect of work for which Mr Hagos was responsible would be placed on his record. I infer from that that there is the potential for that to have an impact upon Mr Hagos’ employment, to his detriment. That is to say, he would be in a worse position after that action was taken, than he was before it was taken against him.
Further, Mr Hagos claims that the internal campaign that he was required to undertake and document on 9 September, 2010 in company with Mr Stevenson was also adverse action taken against him and should be placed in the same category as the issue of the defect reports. However, I find that requiring Mr Hagos to undertake that task with Mr Stevenson was not adverse action within the meaning of the phrase as used in the Act. I reach that conclusion because the task that Mr Hagos was asked to undertake was part of the quality assurance process that Volvo implemented at its Wacol premises. Mr Hagos’ employment was not prejudiced by him undertaking that work. His employment record was not affected by his participation in the internal campaign. The detriment to his employment record came from the defect notices and their notation upon his employment record.
The inspection of trucks as part of an internal campaign was part of Mr Hagos’ duties, according to the evidence, in circumstances where a defect notice had been issued and a 10/10 campaign had revealed more defects. Being required to participate in the internal campaign was no more adverse action against Mr Hagos than it was against Mr Stevenson, who had to participate in the inspection process even though, on the evidence, he had nothing to do with the defective work.
I do not consider that requiring Mr Hagos to meet the obligations of his employment and in particular the quality assurance processes implemented by Volvo, to be adverse action in the sense that phrase is used in the Act.
Unfounded Allegations
The second category of adverse action upon which Mr Hagos relies occurred on 15 September, 2010. He argues that the respondent “required me to answer unfounded allegations that were made against me because I have exercised workplace rights by making a written complaint on 13 September, 2010”. Mr Hagos claims that he was injured in his employment as a result of that action by the respondent.
Mr Hagos had left his employers premises on 10 September, 2010 and he had not returned by 15 September, 2010. The only evidence of any contact between someone acting on behalf of Volvo and Mr Hagos on 15 September, 2010 is the telephone call from Ms Serafini to Mr Hagos asking him to come in to discuss his complaints and the letter from Mr Georgiades to Mr Hagos that was written by Mr Georgiades in response to Mr Hagos’ letter of 13 September, 2010.
I have set out the text of the letter out above. On a fair reading of it, it does not require Mr Hagos to do anything. It is a request for him to contact Mr Georgiades to arrange a time to meet to discuss the issues raised in Mr Hagos’ letter. It was, one might think, an appropriate response to Mr Hagos’ letter.
To the extent Mr Hagos suggests that the letter of 15 September, 2010 represents a request by Volvo that Mr Hagos answer “its unfounded allegations against me set out at paragraphs 49 and 50 of my affidavit dated 31 July 2012” it represents no such thing. Certainly it is the case that the letter written by Mr Georgiades is based on a misapprehension by him – that Mr Hagos absented himself from the workplace on 10 September, 2010 without authority, but that matter was dealt with once it became clear that Mr Hagos had indeed received the necessary authorisation.
In my view Mr Georgiades letter cannot reasonably be construed as a requirement directed to Mr Hagos to answer “unfounded allegations”. Mr Hagos sets out in paragraph [49] of his affidavit filed on 31 July, 2012 what it was he understands Mr Georgiades’ letter required him to answer. However, on any reasonable reading of the letter, it did not suggest that Mr Hagos needed to provide answers to allegations. The letter raised concerns and in particular Mr Hagos’ absence from work without notice. In his affidavit filed 31 July 2012 (at [49]) Mr Hagos points out that he provided Volvo with a medical certificate in respect of his absence from work on 13, 14 and 15 September, 2010, but on his own case, that medical certificate was not provided to Volvo until at least after 1:00pm on 15 September, 2010. Thus, to the extent that Mr Georgiades’ letter suggests that Mr Hagos had not arrived for work on 13, 14 or 15 September, 2010 and he had given no notice that he would not be attending on those days, the letter is entirely correct.
In my view, the letter from Mr Georgiades to Mr Hagos of 15 September, 2010 was not adverse action within the meaning of that phrase as used in the Fair Work Act.
Failure to take action
The third category of adverse action claimed by Mr Hagos are what he claims to be a failure by Volvo to “take appropriate action and/or investigate my workplace complaints properly”. This aspect of Mr Hagos’ claim is seemingly confined by his own submissions to the complaint he made on 13 September, 2010. Although Mr Hagos does not refer to his complaints made on 11 August, 2010 and 23 August, 2010, it is as well to deal with them too.
To the extent that Mr Hagos might suggest that Volvo, or Mr Shepherd did not act on his complaint in respect of Mr Lo, I am satisfied by the evidence of Mr Shepherd that what he did in response to Mr Hagos’ complaint was entirely reasonable and appropriate. There was nothing that Mr Shepherd did, or failed to do, which negatively impacted upon Mr Hagos’ employment. Mr Sheppard took action in respect of Mr Hagos’ complaint. There is no evidence that anything that Mr Sheppard did prejudiced Mr Hagos in any way.
I have already determined that Mr Hagos’ interaction with Ms Serafini on 23 August, 2010 was an inquiry by Mr Hagos to Ms Serafini about the prospects of transfer. Ms Serafini acted upon Mr Hagos’ request. He was transferred as he requested. To the extent that Ms Serafini acted upon Mr Hagos’ request, her actions do not, in my view, constitute adverse action.
Mr Hagos bases this claim most substantially upon an allegation that Volvo failed to take his complaints set out in his letter of 13 September, 2010 seriously and did not, or did not properly investigate them. But in my view, the evidence is against that proposition. I have found above that Mr Georgiades acted upon Mr Hagos’ complaint by inviting him to meet with Mr Georgiades so that more details of Mr Hagos’ complaints could be obtained. It was Mr Hagos who refused to meet with Mr Georgiades. When a meeting did finally occur on 11 October, 2010, Mr Hagos would not give details of the conduct that he alleged constituted the “marginalisation” alleged to have been carried out against him.
Mr Georgiades commenced investigating Mr Hagos’ complaints and made his own enquiries of staff members of Volvo. He then resolved to have the complaints investigated by a third party organisation. That external investigation cost Volvo $15,000.
To the extent that Mr Hagos claims that he was the victim of adverse action because Volvo and its relevant employees did not investigate his claims and others failed to take action on them, I reject his claims. In my view the evidence establishes the opposite – Volvo, through its relevant employees, took relevant and appropriate actions to investigate Mr Hagos’ complaints.
Providing incorrect and/or incomplete information to WorkCover Queensland
The next category of adverse action upon which Mr Hagos relies is based upon information given by Volvo’s employees to WorkCover Queensland for the purposes of Mr Hagos’ stress related claim that he made in September, 2010. The gravamen of this claim is that Volvo’s employees misled WorkCover in relation to Mr Hagos’ claim that he had made following his exit from the workplace on 10 September, 2010. He suggests that the false information given by Volvo to WorkCover was:
a)the information “outlined at paragraphs 26-30, 56, 57, 60, 61, 69, 73, 76 and 82 of his affidavit filed on 31 July 2012”;
b)“false information regarding my employment”; and
c)“incorrect investigation report about my workplace complaint”.
However, I am not satisfied that any information that was given by Volvo’s employees to WorkCover for the purposes of Mr Hagos’ workers’ compensation claim was false.
By its letter of 5 January, 2011 WorkCover Queensland rejected Mr Hagos’ stress-related workers’ compensation claim. It did so on the basis of the report undertaken by iHR Australia and a document entitled “Volvo’s response to WorkCover application by Mr Berhane Hagos”. Mr Hagos, however, says that the provision of those documents to WorkCover Queensland was the provision of incorrect and/or incomplete information.
Conceivably information provided by an employer to a compensation authority like WorkCover Queensland might amount to adverse action against the employee if that information causes a change in the employee’s position to his detriment. The point is not without difficulty and arguably it might be said that an employer providing information to a compensation authority which leads to the rejection of the employees claim might be the taking of adverse action. But, for reasons that follow later, in my view, it is unnecessary to decide this point.
Nonetheless, the factual premise upon which Mr Hagos advances this ground is not made out in the evidence. He does not suggest that the provision of the documents to which I have referred would amount to adverse action for the purposes of the Act if those documents were complete and correct. His case on this point relies on the proposition that the information provided by Volvo to WorkCover Queensland was neither complete nor correct.
I am, however, satisfied having regard to the findings that I have made and set out above that the information provided by Volvo to WorkCover Queensland, was not false. To the extent that the information was inaccurate, the inaccuracies were immaterial. To the extent that the forms provided by Volvo to WorkCover were incomplete, that did not impact upon Mr Hagos because there is no evidence that WorkCover denied his claim on the basis of the missing information, or the proven inaccuracies in the forms. The first claim concerning his thumb was accepted. The second was rejected and the rejection the subject of review.
In my view, this claim that Volvo took adverse action against Mr Hagos has not been made out.
Incomplete and/or Incorrect Information to Fair Work Australia
The next category of adverse action upon which Mr Hagos relies is the alleged provision by Volvo to Fair Work Australia of incorrect and/or incomplete information.
The gravamen of this allegation is that in an interview that occurred between investigators from Fair Work Australia and Mr Georgiades on 21 June, 2011 Mr Georgiades provided incorrect or incomplete information when he:
a)said the defect notices that were issued against Mr Hagos were issued in accordance with standard protocol;
b)said that Mr Hagos’ position has never been altered;
c)denied that Mr Hagos had ever sought any assistance in relation to “workplace bullying”;
d)falsely alleged to Fair Work Australia that Mr Hagos was working for his wife in the period 21 September, 2010 to 11 October, 2010; and
e)falsely said that Volvo had investigated Mr Hagos’ workplace complaints properly because it engaged iHR Australia as an independent investigator.
Mr Hagos submits that when the Fair Work Ombudsman completed his investigation into his complaints and could not identify any contravention of s.340 of the Fair Work Act regarding his workplace rights the Fair Work Ombudsman was in error. He argues that the Fair Work Ombudsman was in error because he was misled and “therefore drew the wrong conclusions” because Volvo had provided incorrect and incomplete information. Mr Hagos claims that because of Volvo’s provision of incomplete or incorrect information as I have described above, to the Fair Work Ombudsman he was injured in his “employment”.
Mr Hagos’ submissions about this matter depend upon the conclusion that the information given by Mr Georgiades to the Fair Work Ombudsman was incorrect. I am not satisfied that it was. Having regard to the findings of fact that I have set out above, the information was indeed correct.
Moreover, Mr Hagos claims that he was injured in his “employment” as a result of Volvo’s misleading acts. Mr Hagos did not engage with the Fair Work Ombudsman to investigate his complaints until after his employment had come to an end. The relevant acts about which Mr Hagos complains were all committed by Mr Georgiades well after Mr Hagos’ employment had come to an end. The decision reached by the Fair Work Ombudsmen was reached almost 12 months after Mr Hagos’ employment had come to an end.
Leaving aside the lack of any factual basis for Mr Hagos’ claims in respect of this aspect of the matter, the action taken by Volvo did not injure Mr Hagos in his employment. In my view, this instance of adverse action is not made out by Mr Hagos.
Failure to re-engage
The final instance of adverse action relied upon by Mr Hagos is that the respondent terminated his position on 25 November, 2010.
To understand this ground it is necessary to understand that Mr Hagos was employed on a fixed term contract. The term of his contract was set to expire on 24 December, 2010. Volvo, through Mr Georgiades, determined not to renew Mr Hagos’ contract. Volvo did not terminate Mr Hagos’ employment as he alleges. It refused to reemploy him upon the expiry, by the effluxion of time, of his employment contract.
A refusal to renew a contract of service can be adverse action for the purpose of item 2(a) of the table in s.342 of the Fair Work Act. Mr Hagos could be regarded as a prospective employee for the purposes of any period after his current contract had come to an end and Volvo a prospective employer. A prospective employer takes adverse action against a prospective employee if the prospective employer refuses to employ the prospective employee.
In my view, Mr Hagos establishes that Volvo’s failure to re-engage him after the expiry of his employment contract was adverse action for the purposes of the Act.
Summary – adverse action
In my view, Mr Hagos has proved that Volvo took adverse action against him by causing the issue of two defect notices in respect of work performed by him. He has also proved that Volvo took adverse action against him when it refused to renew his employment contract.
The reasons for the adverse action
I must presume that Volvo took the adverse action I have identified against Mr Hagos because he made the complaints and inquiries I have found above, unless Volvo proves that it did not take that action against Mr Hagos for the reasons alleged by him. In my view, Volvo discharges that onus.
I am satisfied that Volvo did not take action against Mr Hagos by issuing defect notices numbered 86 and 91 because Mr Hagos had made the complaint to Mr Sheppard on 11 August, 2010 or requesting a transfer to another section in his conversation with Ms Serafini on 23 August, 2010.
I have set out above the circumstances in which the two quality investigation inspection reports (86 and 91) were issued. The first was issued by Mr Jones. The second was issued by Mr Burrow. There is no evidence, indeed no suggestion in the evidence, that either Mr Jones or Mr Burrow knew that Mr Hagos had made the complaint to Mr Shepherd on 11 August, 2010. They may have been aware that Mr Hagos had spoken with Ms Serafini about a transfer out of the Mack Piping section, although even that is not clear from the evidence.
The evidence, I am satisfied, clearly establishes that the defect notices were issued in respect of Mr Hagos’ work because his work was defective. There was no other reason for the issue of the notices. There was no other reason for the requirement imposed upon Mr Hagos to undertake a 10/10 review following the first and second defect notices, or the internal campaign following the issue of the second defect notice. The requirement that Mr Hagos undergo further training because he had received two 100 point defect notices was not imposed upon him for any reason other than that was the quality assurance protocol that applied to all employees whose work was the subject of such notices. I am satisfied that it had nothing to do with Mr Hagos’ complaint of 11 August, 2010 or his inquiry of 23 August, 2010.
Moreover, I am not satisfied that Mr Georgiades’ resolution to extend Mr Hagos’ probation and ultimately not to renew his employment contract had anything to do with any of Mr Hagos’ complaints or inquiries. Rather, Mr Hagos had shown himself to be an unreliable employee who did not accept responsibility for his work, was not interested in proper training and showed a demonstrated unwillingness to accept and comply with Volvo’s policies and procedures and in particular those policies relating to defective work, training and absences on leave.
I accept Mr Georgiades’ evidence about the reasons why he extended Mr Hagos’ probation period under his contract and why his contract of employment was not renewed.
Conclusion
In light of the above findings, I conclude that whilst Mr Hagos made complaints and inquiries about his employment with Volvo, Volvo did not take any adverse action against him because he had exercised his workplace rights by making those complaints and inquiries. The actions taken against Mr Hagos were taken for reasons not proscribed by the Fair Work Act.
Mr Hagos’ application must be dismissed.
I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 April, 2016
Date: 1 April 2016