Hosking v MJ Mahon Holdings (Qld) Pty Ltd
[2021] FedCFamC2G 66
•21 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Hosking v MJ Mahon Holdings (QLD) Pty Ltd [2021] FedCFamC2G 66
File number(s): BRG 612 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 21 September 2021 Catchwords: INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – adverse action – termination. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 341(1)(c), 341(1)(c)(i), 341(1)(c)(ii), 342, 342(1)(a) Cases cited: Kubat v Northern Health [2015] FCCA 3050 Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 13 July 2021 Date of hearing: 13 July 2021 Place: Brisbane Counsel for the Applicant: Mr Watters Solicitor for the Applicant: My Work Rights Pty Ltd Counsel for the Respondent: Mr See Solicitor for the Respondent: Queensland Trucking Association ORDERS
BRG 612 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IAN HOSKING
Applicant
AND: MJ MAHON HOLDINGS (QLD) PTY LTD
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
21 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 26 November, 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
Ian Hosking is a truck driver by occupation. Apart from two periods – one of 18 months and the other of five years – he has been a truck driver ever since he joined the Australian Army as a young man in 1984. He takes his occupation seriously.
Mr Hosking commenced his employment with the respondent, MJ Mahon Holdings (QLD) Pty Ltd, in January, 2006 as a truck driver. After two years, he was promoted to operations manager. In that role he was responsible for managing some major accounts for the respondent. Two in particular are mentioned in the evidence: Martin Brower – Cold Storage at Rocklea and ALDI Supermarkets.
In April, 2020 Mr Hosking decided to return to his former position as a driver because of what he says was “adverse action being taken against him by the management team”. He remained in his role as a driver until 28 August, 2020 when his employment was terminated for alleged “serious misconduct”.
In these proceedings he alleges that some treatment that he perceives was meted out to him by some of the respondent’s employees and the respondent’s managing director, Mr Michael Mahon, constitutes adverse action for the purposes of s.342 of the Fair Work Act 2009 (Cth). He says that the termination of this employment was also adverse action. He claims that the adverse action was taken against him because he exercised a workplace right for the purposes of the Act.
For the reasons that follow, Mr Hosking’s application cannot succeed and must be dismissed.
THE STATUTORY FRAMEWORK
According to his form 2 filed on 26 November, 2020 Mr Hosking seeks $55,000 by way of compensation for adverse action taken by the respondent against him. One of the remarkable features of the evidence in this case is that Mr Hosking gave no evidence of his loss in this case, so that even if he was to succeed, the assessment of his compensation would necessarily be a speculative exercise.
By s.340 of the Fair Work Act a person must not take adverse action against another person for the reasons set out in that section.
Section 342 of the Act defines the circumstances in which a person will be seen to have taken adverse action against another person. As between an employer and an employee the employer will have taken adverse action against the employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees of the employer.
The Fair Work Act does not proscribe the taking of any adverse action against employees, only adverse action which is taken for a reason proscribed by s.340 of the Act.
To succeed on an application that alleges a contravention of s.340 of the Fair Work Act, an applicant must establish:
(a)the existence of an employee/employer relationship between the applicant and the respondent;
(b)that the employee had a particular workplace right or rights as defined by s.341 of the Fair Work Act;
(c)that the employee either had, had not, proposed to, or proposed not to exercise the workplace right as the case might be;
(d)facts leading to the conclusion that the employer took adverse action against the employee as defined by s.342 of the Fair Work Act; and
(e)a causal link between the acts comprising the adverse action and the employee’s election to exercise or not to exercise that workplace right.
By the definition in s.341(1) of the Fair Work Act, a person has a workplace right if they are:
(a)entitled to the benefit of, or have a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
(b)able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
In the present case, the employment relationship between Mr Hosking and the respondent is not in dispute.
Mr Hosking claims that he exercised his workplace rights pursuant to s.341(1)(c) (i) & (ii) of the Act. That is to say, he made a relevant complaint or inquiry about workplace health and safety issues which were concerning to him to a person having the capacity under a workplace law to seek compliance with that law. In particular he claims that:
(a)during the middle of 2019, a newly appointed employee, Mr Adam McDonald, appointed his close friend, Mr John Pavlovic as the respondent’s night manager. Mr Pavlovic was not the holder of a current heavy transport vehicle licence which, Mr Hosking says, created a workplace health and safety issue for all staff, especially the night crew and night drivers. Mr Hosking says that he exercised his workplace right pursuant to s.341(1)(c)(i) of the Act to complain about what he perceived to be a safety risk to Mr Mahon; and
(b)in October, 2019 a section leader from one of the respondent’s customers, ALDI, had bullied, ridiculed and engaged in inappropriate behaviour toward one of the respondent’s drivers, who at that time was under the charge and care of Mr Hosking. Mr Hosking exercised his workplace right to complain to ALDI about the alleged misconduct pursuant to s.341(1)(c)(i) of the Act.
Mr Hosking contends that as a direct result of raising those two complaints, “the new management team” consisting of a Mr McDonald, a Mr Todd Nolan and a Mr John Pavlovic took adverse action against him:
(a)during the respondent’s 2019 Christmas Party held in February, 2020; and
(b)in April, 2020;
by defaming him and spreading rumours around the workplace about his “imminent demotion” “contrary to s.342(1)(b)” of the Act.
Further, Mr Hosking alleges that in March, 2019 Mr Hosking met with Mr Mahon. During that meeting, Mr Hosking complained to Mr Mahon, “pursuant to his workplace rights under Sec 341(1)(c)(ii) of the Act” that ongoing bullying, mistreatment and passive-aggressive behaviour directed toward him by Mr McDonald, Mr Nolan and Mr Pavlovic had forced him to seek alternative employment. Mr Hosking claims this complaint resulted in the respondent, through Mr Mahon, taking immediate adverse action against him by limiting his access, role and functions concerning company information and databases. He claims these actions altered his position to his prejudice, “contrary to Sec 342(1)(c)” of the Act.
Further, Mr Hosking alleges that on 7 August, 2020 he was required to deliver a truck for maintenance/repairs to the respondent’s depot at Brendale which would have involved a safety breach by Mr Hosking having regard to the driving and rest times recorded in his log book. Mr Hosking says that he made a complaint pursuant to his workplace rights under “Sec 341(1)(c)(i)” to the respondent’s maintenance manager. He says that he informed the maintenance manager that the requirement to deliver the truck to Brendale would result in “a fatigue management issue”, after which the maintenance crew agreed to attend Mr Hosking’s home address to carry out the relevant work.
Mr Hosking says this complaint resulted in adverse action by the respondent, whereby the respondent belatedly inspected and reviewed Mr Hosking’s travel records and driver’s log book. Mr Hosking claims that the respondent terminated his employment for “alleged log book breaches” contrary to s.342(1)(a) of the Act.
The respondent denies Mr Hosking’s claims. It says that the termination of Mr Hosking’s employment was because he was dishonest and made false and incorrect entries into his driving logbooks to disguise his non-compliant driving activities.
THE EVIDENCE
Mr Hosking gave evidence. I found him to be a witness that tended to exaggerate his evidence. He was short on particularity in respect of many of his claims and in many respects his oral evidence was inconsistent with his written testimony. He called evidence from Mr Crandon Street who, whilst I found him generally reliable, gave no particularly relevant evidence. The respondent gave evidence by its managing director. He too was not particularly reliable. His evidence was demonstrated to be misleading in a number of respects. Mr McDonald also gave evidence, as did Mr Nolan. Both seemed to me to be particularly defensive witnesses.
Mr Hosking commenced his employment with the respondent in 2005. During 2007, he began assisting Mr Mahon with the management of the business as an operations manager. According to Mr Mahon’s evidence, which I accept, as operations manager, Mr Hosking was responsible for the day-to-day planning of equipment allocation. His main duties involved ensuring driver’s equipment and loads were operating at the required level, including managing load sizes and despatch times. As operations manager, Mr Hosking was involved in confidential conversations about the operation of the respondent’s business, including discussions about other employees. Mr Hosking was expected to maintain the confidentiality of these discussions.
Mr Hosking reported directly to Mr Mahon. In 2013, Mr Mahon arranged for Mr Hosking to obtain further training in basic fatigue management and organised for him to undertake a Diploma of Management so that he could assist further in his role as operations manager. As a result of his training Mr Hosking was designated as an “accredited Basic Fatigue Management Allocator”. In that role he was responsible for ensuring that the respondent met its fatigue management obligations under the Heavy Vehicle National Law. Mr Hosking had a role in the identification of breaches of the Heavy Vehicle National Law by the respondent’s employees, recommending disciplinary action against them for any detected breaches and the implementation of that action. In his evidence-in-chief, Mr Mahon gave evidence about three employees who had been disciplined on Mr Hosking’s recommendations (two of whom were summarily dismissed).
It is uncontentious that in February, 2019 the respondent appointed a Business Development Manager named Adam McDonald. Mr Hosking says that Mr McDonald took over the conduct of certain “accounts” that were usually attended to by him. Mr Hosking swore that from the time Mr McDonald arrived, he was never included in any of Mr McDonald’s meetings with representatives from one of those accounts, Martin Brower – Cold Storage. When Mr McDonald came along, he took over handling that account to the exclusion of Mr Hosking. The other account Mr Hosking had handled for the respondent was with ALDI supermarkets. That had initially been handled by another of the respondent’s employees who had passed away. From that point, Mr Hosking and Mr Mahon dealt with the ALDI supermarkets account together. What was meant by the term “account” or how an “account” was handled, was not explained in the evidence.
Mr Hosking’s evidence is that in the middle of 2019, a new night manager, Mr John Pavlovic was employed by the respondent. Mr Hosking thought that Mr Pavlovic was a close friend of Mr McDonald. But it turns out he was mistaken about that. It was not until he was cross-examined about the issue that he conceded that point. That Mr Pavlovic and Mr McDonald were close friends was still part of his case when he filed his case outline shortly prior to the trial. Mr Hosking never set out in his evidence why he concluded that Mr Pavlovic and Mr McDonald were close friends. He accepted in cross-examination that there was no basis for him to make that suggestion in the first place. I mention this matter because it is a good example of the way in which Mr Hosking chose to present his case. There are great many expression of belief by him in his written evidence, but little if anything to demonstrate that those beliefs are anything other than speculation or conjecture on his part.
Mr Pavlovic did not have a heavy vehicle driver’s licence. That caused Mr Hosking concern and he says that he “complained” about Mr Pavlovic’s appointment. He thought that the appointment gave rise to certain workplace health and safety issues. The terms of Mr Hosking’s complaint are not in his evidence. Nor did he give evidence-in-chief of what it was about Mr Pavlovic’s appointment that concerned him or to whom he made this complaint. However, in cross-examination he said that he made a verbal complaint to Mr Mahon. He put nothing in writing.
In cross-examination Mr Hosking said that:
(a)Mr Pavlovic was to be the night manager and the respondent did not have on-call drivers to fill in at night so if a driver was to call in sick, Mr Pavlovic would then have to wake up another driver who had possibly already worked that day, and maybe only had two hours sleep, to come in and work a full shift. He later conceded that an employee who was in that position could legitimately refuse to accept further work until there were no fatigue management issues present;
(b)the difficulty he perceived was not with Mr Pavlovic, but with employing someone in that role who did not have a heavy vehicle licence who would have to wake up a driver to come in and do a shift, when necessary, rather than drive the shift themselves;
(c)he agreed that having discussed that with Mr Mahon he was aware that Mr Mahon did not want that person in the role of night manager to be driving vehicles; and
(d)he believed that after he raised these concerns with Mr Mahon, certain people took “adverse action” against him.
Mr Hosking says that in response to his concerns, he was told that Mr Pavlovic’s appointment was “going to happen anyway”.
In cross-examination, Mr Mahon agreed that Mr Hosking came to him with concerns after Mr Pavlovic’s appointment. He agreed that Mr Hosking told him that he had concerns because Mr Pavlovic did not have an appropriate truck driving licence. Mr Mahon’s evidence was that he told Mr Hosking that the position was a management position and he did not think that the manager was required to have a truck licence. It was put to Mr Mahon in cross-examination that an example of the difficulties that might be caused by Mr Pavlovic not having an appropriate truck driving licence appeared in Mr Hosking’s affidavit. However, there is no such example in Mr Hosking’s affidavit. Mr Hosking gave evidence in re-examination of having been contacted by Mr Pavlovic on one occasion and asked to drive a truck because a night driver could not fulfil the shift. But that example was not put to Mr Mahon. I do not accept Mr Hosking’s evidence that there was an occasion where he was asked by Mr Pavlovic to fill in for a driver that had not been able to fulfil his shift. The issue is significant and this evidence is completely absent from Mr Hosking’s affidavit of evidence-in-chief.
Nor were the terms of any “complaint” that Mr Hosking alleged he made to Mr Mahon about this issue put to Mr Mahon in cross-examination. Whilst I am satisfied that Mr Hosking raised this issue with Mr Mahon, I can make no finding about the terms that were used to raise it with him and whether it was in fact a complaint, or something else such as an observation made by Mr Mahon in his role as operations manager.
It is this point in time that Mr Hosking identifies as being the point from which he was increasingly “ignored, disregarded and/or rebuked by management”. He says that towards the second half of the 2019 year, he noticed his control over the drivers being taken away from him. He gave evidence that on one occasion he heard Mr McDonald telling someone that he or she should report only to him as he was “the boss” and he answered to Mr Michael Mahon, the managing director of the respondent. Mr Hosking did not identify to whom it was that Mr McDonald was giving that instruction. In cross-examination Mr McDonald denied that he had instructed any drivers to report to him apart from those that drove for the Martin Brower account – the account attended to exclusively by Mr McDonald. Thus it is entirely likely and I find it was the case, that the person to whom Mr Hosking heard Mr McDonald give such an instruction, was a driver working on the account under Mr McDonald’s exclusive attention. There is nothing in the evidence to suggest that such an instruction was, in the circumstances, inappropriate or undermining of Mr Hosking’s role.
In any event, Mr Hosking gave no evidence that as part of his role as the operations manager for the respondent, he had any control over any of the drivers that worked for the respondent. If he did have “control” over the drivers, he did not describe either the nature nor the extent of that control. He gave no evidence that ordinarily drivers would report to him for any particular purpose.
In October, 2019 Mr Hosking says that he made a complaint about the way a section leader at ALDI was treating one of the respondent’s drivers. He does not say to whom he made the complaint other than that is was a person from ALDI in some type of supervisory role. Mr Hosking says that he had a heated phone conservation with a representative from ALDI in the presence of Mr McDonald in the office where Mr Hosking was then working. The termsof the complaint are not in the evidence. Nor is there any evidence upon which I could find that, even if tere was a complaint, that complaint was made to a person who had the capacity under a workplace law to seek compliance with that law or a workplace instrument.
Mr Hosking’s complaint about the way in which the respondent’s driver was treated by ALDI, he says, was ignored and dismissed, presumably by the person to whom he made the complaint at ALDI. There is nothing in Mr Hosking’s case to suggest that the respondent or anyone employed by it ought to have done something about his complaint to ALDI.
Mr Hosking says that around the same time he was actively recruiting an ALDI employee, Mr Todd Nolan, to come to work for the respondent’s business as a driver. However, without his knowledge the respondent “seized on this opportunity” and appointed Mr Nolan. He does not say who it was that seized on that opportunity on behalf of the respondent. Apart from suggesting that the appointment took place without his knowledge, he does not give any evidence about how it was that he expected to be consulted about the employment of another person. It is not suggested that as part of his role as the operations manager for the respondent, he was responsible for the employment of others.
Mr Hosking believes that the appointment of Mr Nolan happened in the way that it did because of the way he handled the situation with the section leader at ALDI. However, he gives no evidence as to the basis upon which he formed the belief. It is impossible for me to determine whether that belief was reasonable or not.
Mr Hosking was cross-examined about this matter. He explained that he had been on holidays in September, 2019. When he returned from holidays he found out that Mr Nolan was looking for work. Mr Hosking says that he needed more ALDI drivers and so he telephoned Mr Nolan to see if he would like to work for the respondent. Mr Nolan declined the offer. In the following weeks, however, Mr Hosking says that he became aware that Mr McDonald, he believes, “was talking to Mr Nolan at the same time that Mr Hosking was talking to him, about “bringing him on as a manager”. Mr Hosking seems to assume that “all those conversations would have been happening at the same time” he was talking to Mr Nolan. The basis for his assumption is not made clear in his evidence.
It was put to Mr Hosking that his approach to Mr Nolan to work for the respondent as a driver was made after Mr Nolan had been speaking to Mr McDonald about another employment opportunity with the respondent. Mr Hosking accepted that might have been possible but Mr Nolan did not make him aware of that. He also accepted that if Mr Mahon was looking at engaging someone, he did not have to discuss that matter with Mr Hosking. Mr Hosking gave evidence that he “would have thought that, out of professional courtesy”, Mr Nolan’s employment would have been discussed with him. No basis for that thinking, however, was explained or set out in his evidence.
Mr McDonald was not cross-examined about his role in the employment of Mr Nolan. Mr Nolan was cross-examined. His evidence, which I accept, was that contrary to Mr Hosking’s expressed belief, Mr Nolan was employed elsewhere in early September, 2019 but was looking for alternative employment when he accepted a position with the respondent. He was not unemployed as Mr Hosking suggested in his evidence. He confirmed in his evidence that the position was offered to him by Mr McDonald. Mr Nolan confirmed that about the same time Mr Hosking had been contacting him in respect of the driving position, although Mr Nolan’s evidence was that Mr McDonald contacted him before Mr Hosking had contacted him about the driving position. He accepted that he did not tell Mr Hosking that Mr McDonald had been talking to him about a role as a transport manager with the respondent.
Mr Hosking says that as a result of Mr Nolan’s employment, he was effectively “sidelined” as arrangements were being made for Mr Nolan to take over the ALDI account. According to Mr Nolan’s evidence, he was appointed to take on the “hourly contract” with ALDI which to that point in time had been dealt with by Mr Hosking, but was only part of Mr Hosking’s engagement with ALDI.
None of the appointments of Mr McDonald, Mr Pavlovic or Mr Nolan were discussed or communicated to Mr Hosking until the appointments had been made. Whilst Mr Hosking gave evidence that he expected that he would have been consulted about them, he does not set out the basis for that expectation. He does not suggest, for example, that in his role as operations manager for the respondent he would have or should have been consulted about those appointments.
Mr Hosking says that by Christmas, 2019 there were rumours actively being spread that Mr Nolan would be appointed to Mr Hosking’s role and would take his job within six (6) months. However, his basis for that assertion seems to be confined to what he heard at the 2019 Christmas party. In that respect, Mr Hosking’s evidence-in-chief was that:
34. During the Christmas Party, the rumours about Amanda and my employment security were brought to our attention by another driver, Ms Kerry Rhodes, who was speaking to Mr Pavlovic and his wife. They stated both Amanda and I would not have our jobs for much longer and I could not be trusted.
Amanda is Mr Hosking’s wife. She too, worked for the respondent. The Christmas party referred to in this evidence was held in February, 2020.
As to this conversation, in cross-examination Mr Hosking said that Ms Rhodes said to him at a point he could not specify, “but on a certain occasion”, “Beware. Todd has told me – Todd Nolan has told me that he will have your job within six months.” Later in his cross-examination, Mr Hosking said this occurred within an hour of Ms Rhodes arriving at the Christmas party. He denied she was drunk when she was speaking to him, but he accepted that later during the party that might be an apt description of her. Mr Hosking says that Ms Rhodes did not elaborate on the rumour any further. This evidence is inconsistent with the evidence given by Mr Hosking in his affidavit. The differences are obvious (the omission of any reference to his wife Amanda is but one example). Mr Hosking did not all Ms Rhodes to give evidence. Although there was some attempt to suggest that he did not know where she was or how he could contact her, there was no evidence of any attempt to locate her. I do not accept that this conversation occurred in the way in which Mr Hosking has reported although I accept that Ms Rhodes said something to Mr Hosking about his employment.
Sometime in early February, 2020, but before 2 March, 2020 Mr Hosking applied for a job with another transport company. He says he did so because of the “adverse action being taken against him by the new managers”. However, apart from the evidence concerning the rumour at the Christmas party, there is no other evidence of adverse action being taken against Mr Hosking by the new managers (Mr McDonald, Mr Nolan or Mr Pavlovic).
Mr Mahon found out that someone had applied for a position at a rival transport company and according to Mr Hosking’s evidence he was not happy about it. Mr Hosking does not describe what happened in his evidence-in-chief, but in cross-examination he said that he was working downstairs in the respondent’s office and his wife was working upstairs. His wife telephoned him and said that Mr Mahon was “going off his brain. He has just found out somebody has applied for a job with Lindsay Brothers.” Mr Hosking said that when Mr Mahon came downstairs Mr Hocking spoke to him and told him that he was the person that applied for the job. Mr Mahon allegedly then said that because of the knowledge that Mr Hocking had of the respondent’s business, Mr Mahon would have to restrict his access to the respondent’s computer database. Mr Hosking told Mr Mahon that he had been offered the position, but that he had turned it down.
Mr Mahon’s evidence about this is not dissimilar to that of Mr Hosking’s although it is far more detailed. I prefer the evidence of Mr Mahon to that of Mr Hosking given its particularity. I have concluded it is more reliable than the general statements made by Mr Hosking concerning this matter. Mr Mahon’s evidence was that:
(a)on 2 March, 2020 Mr Hosking informed him of his job hunt and that he had interviewed with another transport business. He said that although he had been offered a role, he had declined to accept it;
(b)he (Mr Mahon) was concerned about Mr Hosking’s intent to leave the respondent’s employ and move into another transport business. His concerns surrounded Mr Hosking’s access to sensitive commercial information such as client contacts and rates, which Mr Mahon described as logical concerns where intellectual property and confidential information form a significant part of the business and its operations;
(c)his concerns were heightened due to an incident involving Mr Hosking and his wife moving and deleting computer folders within the respondent’s cloud-based server in February, 2020 at around the same time Mr Hosking was looking for other employment;
(d)the changes to the computer folders made by Mr Hosking and his wife resulted in information disappearing and Mr Hosking contacted the respondent’s external IT support business directly to fix the issues;
(e)neither Mr Hosking nor his wife told Mr Mahon (or anyone else) that the issue had happened or that it had been resolved;
(f)the only way that Mr Mahon became aware of the incident with the computer folders was when an invoice for the IT support was received from the respondent’s IT support provider a few days after the incident; and
(g)he was suspicious about the timing of Mr Hosking looking for a new job and the perceived difficulties with the respondent’s data files.
The next day, 3 March, 2020 Mr Hosking was called into Mr Mahon’s office to discuss his performance. Mr Hosking seems to accept that his performance was slipping because he says that he told Mr Mahon that the reason for his performance slipping were the rumours being spread about him by the “management team” and the “adverse action being taken against him for making complaints”. What he actually said to Mr Mahon is not in Mr Hosking’s evidence. He says that he told Mr Mahon about the rumours that had been circulating about him but that “Mr Mahon made no enquiry into these matters” although later in his evidence-in-chief Mr Hocking swears that Mr Mahon told him that Mr McDonald had spoken to Mr Nolan and Mr Pavlovic about Mr Hosking’s concerns about those rumours.
I accept that Mr Hosking raised with Mr Mahon during this meeting that rumours had been circulating about the security of his employment. It is probably the case that Mr Hosking told Mr Mahon that he had been told that at the Christmas party Mr Pavolvic had said that within six months both Mr Hosking and his wife would be gone from the respondent’s employment.
I also accept that there had been some rumours perhaps started at the Christmas party in February, 2020 about Mr Hosking’s employment. Mr Nolan gave evidence that another employee, Michael Shipley, told him that there were rumours circulating from the Christmas party that Ms Hosking’s job would be made redundant within six months and Mr Hosking would be “driving”. Mr Nolan gave evidence, which I accept, that he reported these rumours to Mr Mahon.
Mr Mahon’s evidence about this meeting, which I accept, was that he discussed with Mr Hosking the following matters:
(a)his concerns about Mr Hosking accessing sensitive business information; and
(b)his concerns regarding his performance as operations manager, giving Mr Hosking examples from his recent observations.
Despite his evidence-in-chief that no investigations into the alleged rumours were carried out, in cross-examination Mr Hosking accepted that during the 3 March meeting with Mr Mahon, Mr Mahon gave him an undertaking that he would look into the rumours raised by Mr Hosking and get to the bottom of them. He said that he would report the outcome of his enquiries to Mr Hosking. None of that, appears in Mr Hosking’s evidence-in-chief.
Mr Hosking said in cross-examination that he believed that Mr Mahon asked Mr McDonald to do an investigation into the rumours that concerned Mr Hosking. In cross-examination he said that Mr Mahon came back to him and said that there was no evidence that any rumours had been spread about Mr Hosking. This evidence is inconsistent with Mr Hosking’s evidence-in-chief to the effect that Mr Mahon made no enquiry into the matters about which he complained.
In cross-examination, Mr Hosking said that he did not think the investigation was done properly. He denied that Mr McDonald had spoken to him and told him expressly that Mr Nolan did not want his job. Mr Mahon gave evidence that he had spoken to Mr Pavlovic about the rumours before he asked Mr McDonald to investigate them because he had heard them from his wife Megan. He asked Mr Pavlovic directly whether he had been spreading them and he said that Mr Pavlovic denied spreading the rumours. Mr Mahon gave evidence that he accepted what Mr Pavlovic told him.
Mr Hosking’s evidence is that after this episode he had another meeting with Mr Mahon, although he does not say when precisely that occurred. During this meeting he says that he asked if he could be put back on the road as a driver as he had enough of the “mistreatment” by Mr McDonald, Mr Nolan and Mr Pavlovic. He does not specify what the mistreatment was. Mr Hosking’s evidence-in-chief, however, does not elaborate on the reasons why he decided to return to a driving role rather than continue as the operations manager. He does not elaborate upon the “mistreatment” that he says he has endured at the hands of Mr McDonald, Mr Nolan and Mr Pavlovic apart from that which appears in his evidence-in-chief. At best, that appears to be the rumour started at the Christmas party by someone that is not identified in the evidence.
Mr Mahon gave evidence of this second meeting which is far more detail than that given by Mr Hosking. According to Mr Mahon’s evidence the meeting occurred on 13 March, 2020. I accept Mr Mahon’s evidence about this meeting unreservedly. At the meeting, Mr Mahon told Mr Hosking:
(a)that despite the confidential nature of the previous meeting, he was concerned Mr Hosking had not kept the details of that meeting confidential but had discussed them with other employees of the respondent. Mr Hosking’s response to that assertion gave Mr Mahon no confidence that Mr Hosking respected the confidentiality of the meeting;
(b)he intended to take some action to address his concerns surrounding Mr Hosking’s access to confidential information which principally involved reviewing Mr Hosking’s access to the respondent’s cloud-based computing systems;
(c)that he had investigated the allegations about the rumours that circulated at the Christmas party. He said that that Mr McDonald had spoken to Mr Nolan and Mr Pavlovic about the rumours. He said that he had spoken to Mr Pavlovic as well. Mr Mahon was satisfied that there were no rumours started by Mr Pavlovic and the matter had been dealt with; and
(d)he should exercise caution when listening to or relying upon anything that another employee, Ms Kerry Rhodes, might say to him, she being apparently the source of the rumours emanating from the Christmas party.
Mr Mahon gave evidence that Mr Hosking told him that he had been thinking of stepping down from the role as operations manager and that should the opportunity arise, he would take the opportunity to relinquish the role and to return to a driving position.
After the meeting, Mr Mahon says that he contacted the respondent’s IT support service to obtain information about Mr Hosking’s activity within the respondent’s IT system. Mr Mahon said that the investigation demonstrated that Mr Hosking had not acted in any untoward fashion in relation to the respondent’s IT system and accordingly Mr Mahon made no changes to Mr Hosking’s computer access. I accept this evidence. I reject Mr Hosking’s evidence that there was some ongoing interference with his ability to access the respondent’s computer systems or its accounting software, Xero.
There was a further meeting between Mr Mahon and Mr Hosking on 26 March, 2020 in which Mr Mahon raised with Mr Hosking further concerns about his failure to adhere to his obligation of confidentiality.
In accordance with his request, Mr Hosking was returned to a driver’s position. Mr Hosking had made it known to Mr Mahon that he was interested in driving a run between an ALDI store in Rockhampton and the ALDI Supermarkets Brendale distribution centre.
On 15 April, 2020 after a management meeting, Mr Mahon says that he raised with Mr Hosking that the ALDI Rockhampton run was available and that it was his to take, if he wanted it. The change needed to be implemented immediately as the run was due to start the next day. After taking the opportunity to discuss the matter with his wife, Mr Hosking accepted the offer and agreed to start the following day. In his role as a driver, Mr Hosking reported to Mr Nolan.
Mr Hosking says that when the transition to him back to driving occurred, he was in the office with Mr Mahon, Mr McDonald, and Mr Nolan. He swears that while Mr Mahon and he were “working out the finer details”, Mr Nolan walked out of the office and down to the truck parking area. He says that within half an hour he was approach by Ms Rhodes to ask if he was leaving. He told her he was not leaving. Ms Rhodes told him that Mr Nolan had approached her and said, “I told you I would have his job!”. This is another example of what Mr Hosking claims is adverse action taken against him by the respondent. However, I do not accept that it occurred. Ms Rhodes was not called to give evidence and without corroboration, I do not accept Mr Hosking’s evidence about this alleged incident. Mr Hosking purported to rely upon a text message annexed to his affidavit from Ms Rhodes about this issue, but given the cross-examination about this text message, I decline to give it any probative weight.
On 7 August, 2020 Mr Hosking received a text message from an employee of the respondent named Michael Shipley. Mr Shipley looked after the maintenance of the respondent’s trucks. Mr Shipley told Mr Hosking that he had spoken to Mr Nolan and Mr Hosking’s truck was to get some work done on it the following morning at the ALDI distribution centre at Brendale, in accordance with his approved trip plan. He wanted to advise Mr Hocking of that just in case Mr Hosking was intending to take the truck home that evening.
Mr Hosking complained to Mr Shipley that due to fatigue management requirements, he needed to sleep and that perhaps the work on the truck could be done at his home while Mr Hosking slept. Mr Shipley agreed and organised for a mechanic, William Beverage, to perform the planned work at Mr Hosking’s residence.
Mr Hosking did not seek approval from Mr Nolan to make this alteration to his trip plan. According to Mr Mahon’s evidence, which I accept, he did not raise any concerns with any of the respondent’s managers about his inability to follow the trip plan.
On 8 August, 2020 Mr Beverage performed the required work on the truck at Mr Hosking’s residence. While Mr Beverage was there, Mr Hosking received an email from Mr Nolan. The email asserted that there was unauthorised work being performed by Mr Beverage at Mr Hosking’s residence on his truck. The email suggested that Mr Hosking would have to reimburse the respondent for the cost of that work.
Mr Hosking responded to Mr Nolan’s email and explained that fatigue management was the reason for Mr Beverage coming to his house for the repair. He asserted that by doing the work required at the Brendale depot, he would be required to sleep in the truck to be able to complete his next shift safely.
Mr Mahon was copied into the email correspondence between Mr Hosking and Mr Nolan and he became alarmed at the prospect that there may be some fatigue issues within the respondent’s fatigue and trip planning. He immediately requested an investigation be conducted into what he perceived as Mr Hosking’s claims that the trip had fatigue related issues.
Mr Mahon received a response directly from Mr Hosking concerning these perceived fatigue management issues, but he was unsatisfied with Mr Hosking’s response.
Accordingly, between 8 August, 2020 and 24 August, 2020 Mr McDonald directed Mr Nolan to investigate Mr Hosking’s fatigue management claims. The investigation involved cross-referencing Mr Hosking’s National Driver Work Diary Sheets against the respondent’s GPS records.
There is no dispute that the investigation uncovered that Mr Hosking had incorrectly recorded trips on nine occasions. On each occasion he would record in his work diary that he was finishing his driving shift at ALDI Brendale as required by the authorised trip plan for that run, whereas in fact he was taking the vehicle to his home address at Caboolture. He would then drive the vehicle to ALDI Brendale from his home without recording that time. That is to say, there was an additional 34 km that was not recorded in his driving logs. By doing that, Mr Hosking was in contravention of the Heavy Vehicle National Law.
As part of the national system of monitoring heavy vehicle movement, clients of transport companies, such as ALDI in the present case, are required to monitor the movement of their transport supplier’s vehicles. Thus, ALDI had a role in monitoring and auditing the movement of the respondent’s vehicles that were moving ALDI’s goods. So much is uncontested.
I accept that through his past role as operations manager Mr Hosking new that ALDI had a monitoring and auditing function in relation to the movement of the respondent’s heavy vehicles for the purposes of ALDI’s business. I accept Mr Mahon’s evidence that Mr Hosking’s conduct had the potential to put the contractual arrangements between the respondent and ALDI in jeopardy and if they had been terminated, that would have significantly affected the profitability and reputation of the respondent. I accept Mr Mahon’s evidence that he viewed Mr Hosking’s conduct very seriously. I accept his evidence that he considered that Mr Hosking’s acts were in clear breach of the respondent’s compliance obligations to ALDI and the National Heavy Vehicle Law
On 17 August, 2020 Mr Hosking says that he sent an email to Mr McDonald asking if Mr Hosking would get paid for working on the Brisbane Show Day for the Moreton Shire. Mr Hosking received a reply from Mr Mahon to the effect, “No, Ian the business is based in Rocklea.” I am not sure of the significance of this evidence. Perhaps the suggestion is that because Mr Mahon sent another email to Mr Nolan, approximately 5 minutes later, requesting an update on Mr Mahon’s request for Mr Hosking’s trip records, which was acknowledged by Mr Nolan, the request for records or the follow-up was adverse action taken by Mr Mahon against Mr Hosking for asking to be paid for the Show Day holiday. If that is the suggestion, I reject it.
On 27 August, 2020 Mr Hosking received an email from Mr Nolan requesting that he attend a meeting on the following day at 1:00pm about the breaches of his trip records. Mr Hosking considered this to be more adverse action taken as a direct result of his having complained about fatigue management. Mr Hosking was notified that he could bring a witness or support person to the meeting. In response, Mr Hosking requested to be supplied with the page numbers of the work diary recording the breaches and particulars of the breaches that were being alleged against him.
Mr Mahon gave evidence, which I accept, that he thought that subject to Mr Hosking’s explanations and the meeting generally, Mr Hosking’s conduct was sufficient to warrant dismissal for serious misconduct. He considered that one outcome might be that Mr Hosking would be removed from both the ALDI Rockhampton run and the respondent’s Basic Fatigue System which would remove any fatigue management requirement. Instead, he would be placed on a roster that did not require him to comply with Basic Fatigue Management strategies. Mr Mahon thought that a trip involving Gympie and Maryborough that was also 4-days-on-4-days-off would have been appropriate. I accept Mr Mahon’s evidence that he had in mind that termination of Mr Hosking’s employment may not be appropriate but deployment to some other area would be a suitable option, given Mr Hosking’s long service with the respondent. However, that would depend upon him demonstrating some appreciation of the seriousness of his conduct, expressing some contrition and demonstrating that he could be trusted to return to his duties without breaching the respondent’s policies and the obligations cast upon it by the Heavy Vehicle National Law.
The meeting occurred on 28 August, 2020. Mr Hosking attended with his support person. The meeting was conducted by Mr McDonald and Mr Nolan. Mr Mahon was present. The meeting was recorded; the transcript appears as an annexure to Mr McDonald’s affidavit of evidence-in-chief.
During the course of the meeting, Mr Hosking accepted that there were incorrect entries in his work diary. He contended that he was aware of other drivers within the company that had done similar things in their work diaries who were not warned about the conduct or their employment terminated. No evidence was produced in these proceedings to make out that assertion. Mr Hosking did not assert in these proceedings that what he had said in that meeting about that matter was true. I accept Mr Mahon’s evidence that he did not share Mr Hosking’s view that it was common practice for drivers employed by the respondent to submit driving records that were not correct.
The transcript of the meeting demonstrates that Mr Hosking clearly understood that his actions were wrong. He understood the seriousness of his conduct. He was not apologetic for his actions. Mr Mahon says he formed the view that Mr Hosking lacked integrity and could not be trusted to return to perform his duties in the future.
It was the evidence of Mr Mahon, Mr McDonald and Mr Nolan that the person who decided to terminate Mr Hosking’s employment was Mr Mahon. I accept that evidence. Further, I accept Mr Mahon’s evidence that after the meeting adjourned for a short while to consider Mr Hosking’s responses, he determined that Mr Hosking’s employment with the respondent should be terminated.
When the meeting resumed, Mr Hosking suggested that as a solution to the problem he would destroy the evidence of his false work diary records, further breaching Heavy Vehicle National Law as it related to recordkeeping. According to Mr Mahon, what Mr Hosking’s response made clear to him was that he was unapologetic and not remorseful for what had transpired.
At the conclusion of the meeting Mr Nolan notified Mr Hosking of Mr Mahon’s decision to terminate Mr Hosking’s employment.
CONSIDERATION
The starting point is to identify which acts that, in these proceedings, Mr Hosking asserts constitute adverse action. That is because, for present purposes, it is only adverse action, taken for a proscribed reason that is actionable. Leaving aside the termination of his employment, the conduct identified by Mr Hosking as the relevant adverse action is:
(a)that which he says was taken against him as a direct result of his complaint about Mr Pavlovic’s appointment and his remonstrations with ALDI. He points to the rumours that circulated at the Christmas party and in what occurred when he returned to driving in April, 2020 as the adverse action taken against him; and
(b)the moves to stop his access to the respondent’s computer system.
There are several difficulties with Mr Hosking’s case.
First, as to the April, 2020 incident, I am not satisfied that it occurred as claimed by Mr Hosking. Mr Hosking does not discharge the onus of proof upon him in relation to this factual issue.
Second, Mr Hosking seeks to fix the respondent with liability for these rumours without establishing that the respondent is bound by the conduct of the relevant employees. What was said at the Christmas party was conduct constituted by rumour and innuendo. There is no evidence that it was sanctioned by the respondent. It could not be suggested that it was within the ordinary authority of Mr McDonald, Mr Pavlovic or Mr Nolan as employees to spread rumour, innuendo or make defamatory statements of Mr Hosking.
Third, when it was brought to the attention of the respondent, by its managing director, it was investigated and dealt with. That is to say, the respondent’s actions were not adverse to Mr Hosking but assisted him to deal with the issue about which he complained.
Fourth, the allegations of rumour at the Christmas party are made against Mr Pavlovic only. It is not suggested that Mr McDonald or Mr Nolan engaged in the rumourmongering. Nor is there any suggestion that Mr Nolan was acting on behalf of the respondent when the rumours were spread. Whilst I have accepted that there may have been some rumours, the evidence does not permit of a finding about who started them or who spread them.
Fifth, no argument was presented to me to demonstrate how what was said about Mr Hosking at the Christmas party injured him in his employment or altered his position to his prejudice. There is no suggestion that he was discriminated against as that term is used in the Fair Work Act. The evidence does not permit of a finding that the respondent injured Mr Hosking in his employment or altered his position to his prejudice.
As a respondent points out, this aspect of Mr Hosking’s claim is analogous to an aspect of the decision in Kubat v Northern Health [2015] FCCA 3050. In that case Judge Riley dealt with a similar scenario as follows:
44. Belittling a person is adverse action in normal parlance. However, the Act provides an exhaustive definition of adverse action. It is only the actions specified in s.342 of the Act that are prohibited adverse actions and that give rise to a remedy.
45. Counsel for the applicant submitted that the applicant’s position was altered to her prejudice by:
a) Ms Vye telling her she was no longer an asset to the respondent because the applicant was lowered in the esteem of the respondent; and
b) Ms Hart challenging her medical certificate because the applicant ceased to be a trusted employee.
46. The applicant relied upon Hodkinson v Commonwealth (2011) 248 FLR 409, (2011) 207 IR 129, [2011] FMCA 171 at [175] where Cameron FM (as his Honour then was) said:
In order to determine whether the respondent altered the applicant’s position to her detriment, it is necessary to identify and compare her “position” before and after the decision to not extend the [Work Improvement Plan] and then to determine whether it was altered to her detriment as a result of that decision. On 7 December 2009, when Ms Blyth and the applicant discussed the possibility of an extension of the latter’s WIP, the WIP had concluded and the applicant’s position was that of a probationary employee who was entitled to be considered for an extension of a WIP. After Ms Blyth’s decision to not extend the WIP, the applciant was a probationary employee who had been denied an extension of her WIP and who was subject to the alternative recommendation that her employment be terminated. Ms Blyth’s making of that decision did amount to an alteration of the applciant’s position to her prejudice because it resulted in her position after the decision being less advantageous than her position had been before it.
47. The applicant argued that her case was analogous to Hodkinson. I do not accept that submission. In the case of Hodkinson, the decision not to extend the applicant’s work improvement plan had a tangible impact on her position. The comments complained of in the present case did not actually alter the applicant’s position at all, even assuming that the comments were made.
48. To say that an employee is no longer an asset to her employer is simply an observation. It implies that there was another action taken previously by someone, probably the employee, that has resulted in the employee ceasing to be an asset. Making the observation does not in itself alter the employee’s position to her prejudice and is not adverse action as defined.
49. Similarly, the words spoken in challenging the validity of a medical certificate do not cause a person to cease to be a trusted employee or otherwise alter the person’s position to her prejudice. Issues of trust would be based on the previous actions or inactions of the people involved. The applicant did not identify any actions or inactions on the part of the respondent that could have constituted adverse action connected with the challenge to the applicant’s medical certificate.
The comments here that are complained about by Mr Hosking fall into the same category. Mr Hosking gives no evidence that his position in his employment was in any way adversely affected by the Christmas party rumours. Nor is it easy to see how those rumours could affect Mr Hosking in his employment.
To the extent that Mr Hosking’s case relies upon the proposition that the Christmas party rumours should be seen as adverse action for the purposes of the Act, his application cannot succeed.
As to the computer access, I have found above that Mr Mahon did not take action to limit Mr Hosking’s access to the respondent’s computers. His case fails on the facts. The review that Mr Mahon carried out was not adverse action against Mr Hosking because it did not alter his position in his employment or discriminate against him in a way proscribed by the Act. Even on Mr Hosking’s case he could still make payments using company funds (credit card). All he could not do was enter the receipt into the system. I do not accept his evidence about that in any evet.
Further, if those determinations are wrong, Mr Hosking’s application cannot in any event succeed. There must be some causal relationship between the adverse action alleged and the workplace right said to have been exercised. That is to say, I am not satisfied that the conduct that Mr Hosking complains about occurred because of the “complaints” that Mr Hosking says he made.
I do not accept that Mr Hosking’s comments to Mr Mahon about Mr Pavlovic’s lack of a heavy vehicle driving licence was a complaint for the purposes of s.341(1)(c) of the Act. Similarly, I am not satisfied that the “complaint” to the person from ALDI was a complaint at all – I do not know from the evidence what was said or to whom it was said. The evidence does not permit of a finding that the person to whom Mr Hosking spoke was a person having the capacity under a workplace law to seek compliance with that law or a workplace instrument for the purposes of s.341(1)(c)(i) of the Act.
Moreover, there is a considerable temporal disconnect between the offending behaviour (the Christmas party rumours and the April, 2020 statements) and the “complaints” made by Mr Hosking. There is nothing in the evidence, apart from Mr Hosking’s speculation, that suggests that they are connected. Section 361 of the Act is not engaged in those circumstances.
I turn to Mr Hosking’s termination. I accept that the termination of Mr Hosking’s employment is adverse action for the purposes of the Act.
However, I find that the termination of Mr Hosking’s employment occurred because of his misconduct and his response to the investigation about that misconduct. His employment was not terminated, I am satisfied, because of the matters he raised about Mr Pavlovic, or because of his remonstrations with people from ALDI, or because he had applied for another job, or because he had work carried out on his truck at home. His employment was terminated because of his failure to adhere to good practice, the deliberate falsification of his driver’s work sheets and his willingness to engage in further illegal conduct by having the records disappear.
Mr Hosking does not establish any basis for relief as he claims. His application must be dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered 21 September, 2021. Associate:
Dated: 21 September 2021
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