Hammond v Boutique Kitchens and Joinery Pty Ltd - [2010] FMCA 622

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMMOND v BOUTIQUE KITCHENS & JOINERY PTY LTD

[2010] FMCA 622

INDUSTRIAL LAW – General protection claim involving dismissal – application for compensation and pecuniary penalty for contravention of the Fair Work Act 2009 (Cth) – whether breach by employer of s 340(1) Fair Work Act 2009 (Cth) – onus of proof.

Fair Work Act 2009, ss.352, 361, 539(2), 545, 546

Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770

Applicant:

LYNETTE HAMMOND

Respondent:

BOUTIQUE KITCHENS AND JOINERY PTY LIMITED

File Number:

BRG 437 of 2010

Judgment of:

Jarrett FM

Hearing date:

29 July, 2010

Date of Last Submission:

29 July, 2010

Delivered at:

Brisbane

Delivered on:

16 August 2010

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr Evans

Solicitors for the Respondent:

McInnes Wilson Lawyers

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 437 of 2010

LYNETTE HAMMOND

Applicant

And

BOUTIQUE KITCHENS AND JOINERY PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Lynette Hammond had a secure job that she enjoyed. She was well regarded by her employer. In the spring of 2009 the opportunity for advancement within that employment was materialising. At the same, a friend of Ms Hammond’s – Mr John Reido approached her and offered her the opportunity to work for the respondent. She must have impressed Mr Reido for him to approach her in that way.
After considerable hesitation Ms Hammond took up employment with the respondent and commenced working there in October, 2009. Unfortunately for all concerned, Ms Hammond’s employment with the respondent was not successful and after about four months her employment was terminated by the respondent.
These proceedings result from that termination. Ms Hammond alleges a breach of the general protection provisions of the Fair Work Act 2009. In particular, she asserts that she was the subject of adverse action, namely dismissal, in breach of her workplace rights. The workplace right that she says was breached is embodied in s.352 of the Act. She was very clear about that at trial. She seeks compensation and reinstatement.
Section 352 of the Act is in the following terms:
SECTION 352 TEMPORARY ABSENCE – ILLNESS OR INJURY
352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4 – 1)
The issue in this case is whether Ms Hammond was dismissed by the respondent because she was temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009. The issue is the reason for her dismissal.

The factual background

Ms Hammond was employed by the respondent from 26 October, 2009 as an assistant to the Production Manager of the respondent. There are some conflicts in the evidence about the precise job description for Ms Hammond, but it is unnecessary to examine or resolve those conflicts.
Ms Hammond claims that from the commencement of her employment with the respondent there were other employees who resented her presence including the Production Manager whom she was to assist. According to her case, several of the employees embarked upon a course of action designed to force her to leave the respondent’s employ.
Much of the evidence in this case focussed on the events that took place between the commencement of Ms Hammond’s employment and the respondent’s Christmas shut down period commencing on 21 December, 2009. Again there is conflict between Ms Hammond’s evidence and that of the respondent’s witnesses about what occurred during this period, but it is unnecessary to resolve those conflicts.
On 15 February, 2010 the respondent engaged a new Production Manager, Mr Matthew Kreis. Mr Kreis gave evidence in the proceedings – indeed he was the respondent’s central witness.
Mr Kreis’ evidence in this case was far from satisfactory. His affidavit evidence was of a very general nature and was, in a great number of respects, wanting in specificity or particularity where, given the allegations that he made, one would have expected particularity. His answers in cross-examination were not much better. There was demonstrated inconsistency between his trial affidavit, his answers in cross-examination and a statutory declaration made by him for other purposes (see exhibit “R” to Ms Hammond’s affidavit filed on 5 May, 2010). Where there are conflicts between Ms Hammond’s evidence and that of Mr Kreis, I prefer the evidence of Ms Hammond.
Be that as it may, it is clear from the evidence that on 3 March, 2010 Mr Kreis asked Ms Hammond to participate in a meeting with him. He did not tell her the purpose of the meeting. The meeting commenced about 10 minutes early and Mr Kreis had arranged for an independent witness, one Jane Walker, to attend the meeting. Mr Kreis intended to give to Ms Hammond a written warning concerning her workplace performance. She did not know that.
I accept the following account of the meeting as recounted by Ms Hammond in her trial affidavit:
94. …I sat down and he placed a sheet of paper in front of me and said, "According to the Industrial Relations Act I have a neutral witness," and gestured towards Jane (the other owners niece and daughter). I'm thinking aha and then I saw 1st Warning up the top and couldn't believe I was seeing it. I then read the next two lines and went into shock. I said Matt if you think I am going to allow you to tarnish my good reputation like this you're wrong. I then read the next few lines and said umm if people are discussing me and you are going to act accordingly in this fashion on those discussions I have a right to defend myself. I then asked who was in this management meeting he said himself, Paul Dent, Dominic and John Reido (He smirked as he said John Reido in a different tone). At this point I was in such a state that all I could say was "Matt I can't deal with this right now, I'm going home on stress leave and I will phone after I've seen my doctor." I didn't read the rest of the warning letter.
(faithfully reproduced)
The written warning he intended to give her is exhibit “H” to Ms Hammond’s first affidavit in these proceedings. It recites that Ms Hammond’s behaviour and communication had been unacceptable, and that she was unnecessarily rude and aggressive. Ironically, the spelling and grammatical errors in the notice serve to confuse the message – a message about communication style and attitude.
On the evidence, the written warning was completely without foundation. Of the three occasions of “unacceptable and confrontational” behaviour recited in the notice, Ms Hammond has provided clear logical and acceptable explanations for her exchanges with Mr Kreis. Mr Kreis has given his own versions of those matters but I reject each one and prefer the evidence of Ms Hammond. These findings are unnecessary to determine the result in this case, but in deference to the significance attached to these issues by the parties’, it is appropriate to express my findings.
Ms Hammond left the meeting, and whilst doing so, said to Mr Kreis words to the effect that he needed to change his attitude. The respondent, through its witnesses, also allege that Ms Hammond swore at Mr Kreis by saying, “You’re a freaking fool,” (some witnesses), or, “You’re a fucking fool,” (some other witnesses). It is not necessary to resolve this conflict in the evidence.
Ms Hammond does not recall saying those things, but if her state of mind was such as she had described in her evidence, then it is not surprising that she may not remember of all the interaction between she and Mr Kreis as she left the premises.
As she left the work premises she was escorted some of the way by Mr Kreis. There is a factual dispute between the parties about some things that Mr Kreis says that he said to Ms Hammond as she left. He asserts that he said to her that she was going to be terminated as she left the work premises. Ms Hammond specifically denied that was said to her. She left her work premises at about 11.05am in, she says, a “shaken” state. Later that day at 1.20pm she went to her doctor, who agreed that she was very stressed and gave her a medical certificate, excusing her attendance from work for a week.
At about 3.00pm on 3 March, 2010, one of the directors of the company, Mr Dominic Ackland-Snow. She told him that she had been to the doctor and that: “I am on stress leave until I see him again on the 9^th March and workers’ compensation forms have been submitted”. The call ended soon after.
About 20 minutes later Mr Ackland-Snow called again. Ms Hammond records her recollection of the conversation as follows:
99. Twenty minutes later Dominic rang again, I said hi Dominic, I’m not even sure what else he said now, but I just said to him I was unable to discuss anything right now and that I couldn’t even think straight. He then said well letting you know you’re fired and that I back Matt 100%. I said, “you can’t sack me because I said I was on stress leave”. He said, “yes I can,” I lost it then and said it leaves a lot to be desired as to what you are all up to and hung up on him. I rang him back 5 minutes later and I said, “can you please put it in writing?” He said yes he would. I went back to my doctor a little while after this.
(faithfully reproduced)
Mr Ackland-Snow gave evidence and was cross-examined over the telephone. His version of the above conversation is not much different to that recounted by Ms Hammond although he suggested in his affidavit that the reason her employment was being terminated was her behaviour. I prefer Ms Hammond’s recollection of the conversation because Mr Ackland-Snow’s affidavit does not descend to quite the particularity of Ms Hammond’s. Further, I was unable to assess his evidence properly because he was cross-examined by telephone (at his request).

Consideration

By her application filed on 5 May, 2010, Ms Hammond seeks an order for compensation, reinstatement, the imposition of a pecuniary penalty upon the respondent and an “injunction restraining the respondent from committing further breaches if re-instated”.
At the same time she filed a document entitled “Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment” wherein she sought compensation and reinstatement.
At the commencement of the hearing of the application, Ms Hammond sought and was granted leave to file a document entitled “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”. Her application for leave was not opposed on the basis that the protection that was relied upon was s.352 of the Act (as was set out in the original application).
Sub-section 539(2) of the Act authorises Ms Hammond’s application and the orders she seeks are available under the Act: ss.539(2), 545, 546.
The lynchpin of Ms Hammond’s case is the reason for her dismissal. At the conclusion of the trial before me, it was clearly Ms Hammond’s case that s.352 of the Act had been breached because her employment had been terminated when she was on sick leave, not because she was on sick leave. As I understood her case, she did not allege that she was dismissed because she was temporarily absent from work. Rather, she alleged that s.352 was breached because she was terminated when she was temporarily absent from work on sick leave.
There is no dispute in this case that Ms Hammond had an injury or illness as prescribed by the relevant regulations: there was a medical certificate to that effect.
On a plain reading of s.352 of the Act, Ms Hammond could only succeed if she could establish that her employment was terminated because of her temporary absence. At trial she did not do that. Indeed her case was built around the proposition that from very early on in her employment with the respondent her life was made difficult. She had to keep notes of her day-to-day dealings with other staff members so that she had some “back-up” if she was challenged by others in management. Her case had little to do with the reason for her termination, but rather focussed upon the timing of it and her absence on “sick leave”.
Given the focus of Ms Hammond’s case, it is not surprising then that neither party addressed me on s.361 of the Act. Section 361(1) of the Act provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Logan J explained the onus cast upon applicants in applications such as the one now before me in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:
13. Subject to the operation of s 360 and s 361 of the Fair Work Act, [the applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
The operation of s.361 of the Act was remarked upon by Tracey J in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 [18]-[35] where his Honour outlined the history of s.361 and its predecessors.
Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 summarised the effect of s.361 as follows:
10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
Such an approach is consistent with the approach outlined by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490. After tracing the history of provisions similar to s.361 and the approach by Courts to those provisions, his Honour summarised the approach thus:
34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
a) The applicant proving the fact of employment and its termination;
b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
d) In discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.
I called for further submissions from the parties about the applicability and effect of s.361 in these proceedings. Ms Hammond made her submissions in writing. She submitted that:
2. I submit that had I been able to read the warning letter and not suffered a breakdown of my faculties at the point that I read 1st warning I would still be working there and wouldn't have gone home sick;
3. The only reason my employment was terminated was because I was on sick leave for work related stress;
4. Boutique kitchens did not prove or provide evidence that my employment was terminated because of poor work performance or communication issues. Not only was my work not deficient but in fact according to Dominic Ackland-Snow he was happy with my work and references I supplied support the high standard of work ethic that I do possess. (Affidavit of Dominic Acldand-Snow filed the 11th June 2010 paragraph 5 and Affidavit of Lynette Hammond filed the 5th May 2010 Annexure "E" page 10 of 55, Annexure "T" page 43 and 44 of 55);
5. I provided evidence that the communication issues Boutique Kitchens based their evidence around were normal communications that occurred in the everyday running of the business and that some of these issues were simply my clarifying the job that was being requested of me;
6. I have established on the balance of probabilities that my employment was tem1inated because I was temporarily absent from work because of illness and included the following evidence. John Fletcher confirms that Boutique Kitchens has a habit of sacking people because of illness or injury. (Affidavit of John Fletcher filed the 1st July paragraphs 4 and 6). My doctor confirms that I saw him twice on the 3rd March 2010, before and after I was sacked and that my demeanour had changed significantly at the second visit after being sacked. (Affidavit of Dr Muhammad Dadibbai filed the 1st July 2010 paragraph 2) James Hammond also noted that I became visibly more upset when Dominic Ackland-Snow sacked me. (Affidavit of Jarnes Har11lnond filed the 1st July 2010 paragraph 5);
7. I maintain that all that occurred during the first phone call with Dominic Ackland -Snow was that I told him I had been to my doctor and I was on stress leave till the following week and that I have submitted forms to Workcover he then said "so you're on Workcover" and hung up. James Hammond and Patricia Hammond both support the probability of this being said. (Affidavit of James Hammond filed the 1st July 2010 paragraph 4 and Affidavit of Lynette Hammond filed the 5th May 2010 Annexure "P" page 34 of 55 Statutory Declaration Patricia Hammond paragraph 2);
8. I maintain that during the second phone call Dominic Ackland-Snow made to me on the 3rd March 2010 at around 3.20pm that he sacked me and I said to him "you can't sack me because I told you I was on stress leave", he then said "Yes I can". James Hammond and Patricia Hammond both support the probability of this being said. (Affidavit of James Hammond filed the 1st July 2010 paragraph 5 and Affidavit of Lynette Hammond filed the 5th May 2010 Annexure "P" page 34 of 55 Statutory Declaration Patricia Hammond paragraph 3);

Mr Kreis and Mr Ackland-Snow were not cross-examined about the reasons for Ms Hammond’s dismissal. The contest centred on the timing of the termination. That is consistent with Ms Hammond’s case at trial that she could not be terminated when on “sick leave”.
I accept that in her second telephone conversation with Mr Ackland-Snow on 3 March, 2010 Ms Hammond said to him: “You can't sack me because I told you I was on stress leave”. I also accept that he said: “Yes I can”. But I find that Ms Hammond’s statement did not mean that she could not be terminated because she was on sick leave. Given her understanding at the time, and the case that she presented at trial, I am satisfied that she meant that she could not be terminated when she was on sick leave. Her statement was underpinned by her understanding at the time that the respondent could not lawfully terminate any worker while they were on sick leave.
Whilst Ms Hammond now argues that the reason for her dismissal was that she was on sick leave, the change in focus of her case appears to have come about because of my request for submissions about the effect of s.361 of the Act. It is a fundamentally different case to that pursued by her at trial.
Ms Hammond’s case at trial did not raise or seek to prove that she was dismissed because or for the particular reason that she was on sick leave. The objective facts proved by her do not raise for consideration a case that she was dismissed because she was on sick leave. At best, the facts only permit of a finding that she was terminated when she was on sick leave.

Conclusion

In my view, Ms Hammond has not proved sufficient facts to engage the operation of s.361 (1) of the Fair Work Act. Nor has she otherwise proved that the respondent’s termination of her employment was in contravention of s.352 of the Act.
The application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 16 August 2010