Heriot v Sayfa Systems Pty Limited
[2014] FCCA 1622
•21 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HERIOT v SAYFA SYSTEMS PTY LIMITED | [2014] FCCA 1622 |
| Catchwords: INDUSTRIAL LAW – General protections court application under Fair Work Act 2009 – application to have applicant’s claim dismissed on basis of no case to answer – application refused. |
| Legislation: Disability Discrimination Act1992 |
| Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490 |
| Applicant: | DAVID HERIOT |
| Respondent: | SAYFA SYSTEMS PTY LIMITED (ACN 631 210 199) |
| File Number: | MLG 1236 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 July 2014 |
| Date of Last Submission: | 21 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Addision |
| Solicitors for the Applicant: | Maddison & Associates |
| Counsel for the Respondent: | Mr McNabb |
| Solicitors for the Respondent: | Wotton & Kearney Insurance Lawyers |
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1236 of 2013
| DAVID HERIOT |
Applicant
And
| SAYFA SYSTEMS PTY LIMITED (ACN 631 210 199) |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application by the respondent to have the applicant’s claim dismissed on the basis that the respondent has no case to answer.
When I returned to court after the morning tea break, the respondent foreshadowed the application, but was uncertain whether the respondent would proceed with the application in circumstances where it did not know whether I would put the respondent to its election if it made the application. The election is the election to either make the no case submission and not lead further evidence in the proceedings, or to not make the no case submission and to conduct its case in the usual manner.
I indicated that I would require an election. There was no attempt to persuade me to the contrary. At that point, there was a short adjournment, after which the respondent informed me that it pressed the application that it has no case to answer notwithstanding it was required to elect not to go into evidence.
The respondent’s position is this: it says, first of all, the applicant cannot establish that there was adverse action taken against him because, in truth, there was a mutual termination of the applicant’s employment with the respondent, a resignation, if you will, rather than the type of action contemplated by s.342 of the Fair Work Act2009. The respondent argues that exhibit 3, the letter in which the termination agreement is contained, is consistent with that, and that being unable to establish that the respondent took any adverse action against him the applicant’s claim must fail.
Secondly, the respondent argues that in any event, even if adverse action was taken against the applicant, it was not for the reason relied upon by the applicant and which is proscribed by the Fair Work Act, because the applicant was encouraged to take sick leave, rather than punished because he took it.
The application has been conducted on pleadings. There is a statement of claim filed on 27 March, 2014 by the applicant and a defence filed on 23 April, 2014 by the respondent. There appears to be no subsequent pleadings.
The applicant’s claim, as revealed by the statement of claim, is that whilst at work on 18 June, 2013 he fell unwell and received medical treatment for his illness. That saw him absent from his employment until on or about 27 June, 2013. On 28 June, 2013 there was a meeting between he and two of the managers at the respondent’s office, at which time his employment was brought to an end.
The respondent alleges that the employment, as I have already recorded, was brought to an end by the mutual agreement of the parties. I reject that submission. It is clear to me from the evidence of the applicant that the termination of his employment was seen by him as a fait accompli. He had no choice. He was presented with a letter in the course of the meeting which he was asked to sign. It is certainly the case that he may have refused to sign the letter, but his evidence was that if he did so, he thought he would get nothing.
The applicant, in the course of his submissions on the no case submission, attempted to assert that to the extent that the letter of 28 June, 2013 was an agreement; it was entered into by him by mistake, or alternatively, under duress. I reject those arguments, principally because they are not the subject of pleading by him in this case and they are the very types of matters which ought to have been pleaded. He has never sought to set up a case that the agreement was liable to be set aside.
It is said by the respondent that the letter of 28 June, 2013 represents an agreement between the parties.
The letter, is in the following terms:
We have given careful consideration to your recent heart condition symptoms and feel that now is the time for you to stop and reprogram your life so that this condition does not re-occur nor have any detrimental effect on your family or future physical performance.
Due to the fact that your job with us involves strenuous climbing and often high risk work, we are unable to let you continue this function for OH&S reasons and feel that it would be in our mutual interest for you to get work that is less strenuous and not likely to cause a repeat of the problem. With this in mind, and having no immediate alternative to offer you, we would reluctantly ask you to look for alternative employment.
In appreciation of your services to us Dave, we offer you the following:
·2 months salary on full pay
·Annual leave owing (approximately 24 days)
·$2,000 Car allowance
Making a Total severance package of approximately $25,000-00
This is conditional on you not working for another Height Safety Company for 2 years to prevent conflict of interest, and that this termination is by Mutual Agreement.
Kindly indicate your acceptance of these conditions by signing below.
According to the respondent, it is an agreement which, for all intents and purposes, is in writing. It ought to be construed, then, according to its terms.
In the course of submissions, I foreshadowed to Counsel for the respondent (so that he had an opportunity to consider the position), that the letter, in fact, did two things. The first is that it gives notice of termination of the applicant’s employment, and secondly, it records an agreement about the recompense for the applicant consequent upon his termination.
On an objective view of the first two paragraphs of the letter, it seems to me that quite clearly the respondent had formed the view that the applicant should no longer work for it. He was a liability to both himself and to the respondent.
For reasons that are not entirely apparent, the respondent has taken it upon itself to from a view about the applicant’s medical condition, notwithstanding that, according to the applicant’s own evidence, there was no certainty about it. He was yet to have his appointment with his specialist, at which time he would have been provided with more information about what it was that had happened to him and how it might affect him in the future. Notwithstanding that lack of information, the respondent seems to have decided that the applicant’s position with the respondent, in any form, was untenable.
That is not to suggest that the respondent’s position was entirely unreasonable. The evidence describes that the applicant in this case carried out hazardous work. He worked at heights, in circumstances where sometimes he was without assistance and in circumstances where, if there was a repeat of the episode that he sustained on 18 June, 2013 there may be significant consequences for both him and the respondent. But, having said those things, the letter is clear in its purport and the evidence of the applicant confirms that his understanding of the meeting of 28 June and the letter was that he was no longer to work for the respondent.
The second part of the letter deals with what the applicant is to receive upon the termination of his employment. It is said that he was to receive something beyond that which he would otherwise have received if the applicant’s employment was simply terminated. He accepted, in the course of his evidence, that he could be terminated on four weeks’ notice.
Instead of receiving four weeks’ pay in lieu of notice and the annual leave that was otherwise owing to him, he received two months’ salary on full pay, plus the annual leave that was owed, plus a $2000 car allowance. The evidence does not reveal whether the car allowance is something he would have received in any event, but, for the purposes of this argument, I will assume that it is not.
Accordingly, the respondent made an offer to the applicant of $25,000. That was conditional on him not working for another height safety company for two years to prevent “conflict of interest”, and that “the termination is by mutual agreement”.
It is to that last phrase, “termination is by mutual agreement”, that the respondent draws attention and says that by use of that phrase, the agreement was essentially a termination of this employment which was mutual. The applicant agreed to resign, and the respondent agreed to accept the resignation.
It is, in my view, the other way around. The respondent chose to terminate the applicant’s employment, and the applicant chose to accept that termination on the conditions set out in the letter.
Terminating an employee’s employment, whether it be by mutual agreement or not, is the taking of adverse action against the employee. So says s.342 of the Fair Work Act. Section 342(1) of the Fair Work Act sets out a table. Item 1 of the table provides that adverse action is taken by an employer against an employee if the employer dismisses the employee or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.
The cases show that to succeed on a case of adverse action under item 1 in the table to s.342(1) there indeed needs to be a dismissal. The case here is that the termination was a dismissal. It could be nothing else.
I am satisfied that the events of 28 June, 2013 and in particular, the letter of 28 June, 2013 constitute a dismissal for the purposes of item 1, table of s.342(1) of the Act. Whether one calls it a constructive dismissal or something else is not to the point. What is to the point is that the evidence reveals that what has occurred is, in fact, a dismissal. For the reasons I have outlined, in my view, the applicant’s termination in this case was a dismissal.
It is not in contravention of the Fair Work Act to take adverse action against employees. It is only in certain circumstances that adverse action will attract consequences. In this case, according to the pleadings, the applicant says that by reason of ss.351 and 352 of the Fair Work Act the adverse action taken against him in this case should attract consequences.
However, his case with respect to s.352 must fail. He was not dismissed by his employer because he was temporarily absent from work because of illness or injury. He was in fact granted as much time to recover from his injury or illness as he required. His own evidence was not that his employer was anxious about him taking sick leave or the fact that he was absent from work because of the health event that occurred on 18 June, 2013. On the applicant’s own evidence, he cannot make out, it seems to me, a claim that the adverse action taken against him was in breach of s.352 of the Act.
However, s.351(1) provides as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The applicant here says that the adverse action was taken against him by reason of physical disability. Section 351(2) provides that subsection 351(1):
... does not apply to action that is:
(a) not unlawful under any anti- discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed taken
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
The relevant anti‑discrimination laws are set out in ss. 351(3). The relevant Act here is the Disability Discrimination Act1992, although I have not been taken to those parts of the Act which might be relevant to this case.
The evidence raises a case that the reason that the applicant’s employment was terminated was because of his physical disability, namely, the condition that saw him cease work and go to hospital on 18 June, 2013. There was at the time of 28 June, 2013 when the termination took place, no final information about the nature or extent of that condition, but the letter of 28 June, 2013 makes it entirely clear that that was the reason that the applicant was no longer to be working for the respondent.
In those circumstances, and having regard to the analysis of the way in which s.361 of the Fair Work Act operates in cases like Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490, and subsequently considered in any number of cases, it seems that s.361(1) is engaged here. That is to say, I must presume that in these proceedings, the action that was taken by the respondent, that is, the bringing to an end of the employment of the applicant by the respondent, was taken for the reason that he alleges, namely because of his physical disability. I must presume that, unless the respondent proves otherwise. That is a matter, of course, for evidence, and having made an election not to call evidence, it seems that the respondent can no longer discharge that onus.
I rule accordingly.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 24 July 2014
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