Jeater v Mondiale VGL Pty Ltd

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Jeater v Mondiale VGL Pty Ltd [2022] FedCFamC2G 758

File number(s): PEG 226 of 2020
Judgment of: JUDGE LUCEV
Date of judgment: 14 September 2022
Catchwords: INDUSTRIAL LAW – Termination of employment – alleged adverse action – whether alleged adverse action taken for a prohibited reason – whether reverse onus fulfilled
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 570
Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647

Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 AR 201; (2003) 38 MVR 1

General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605

Jones v Dunkel [1959] HCA 8; 101 CLR 298; 32 ALJR 395; 76 WN (NSW) 278; [1959] ALR 367

Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914

Rowland v Alfred Health [2014] FCA 2

Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (219) 290 IR 414

Division: Division 2 General Federal Law
Number of paragraphs: 118
Date of last submission/s: 23 August 2021
Date of hearing: 23 August 2021
Place: Perth
Counsel for the Applicant: Mr J Raftos
Solicitor for the Applicant: MKI Legal
Counsel for the Respondent: Ms H Millar
Solicitor for the Respondent: Kingston Reid

ORDERS

PEG 226 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DANIEL JEATER

Applicant
AND:

MONDIALE INTERNATIONAL PTY LTD (ACN 002 433 267)

Respondent

order made by:

JUDGE LUCEV

DATE OF ORDER:

14 September 2022

THE COURT:

1.Declares that the termination of the applicant’s employment by the respondent contravened…

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Details
Case
[2022] FedCFamC2G 758
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Jeater v Mondiale VGL Pty Ltd involved an employment dispute where Mr Jeater, a former truck driver for Mondiale, alleged that his termination was due to his exercise of workplace rights protected under the Fair Work Act 2009 (Cth). The core issue was whether Mondiale terminated Mr Jeater's employment due to his exercise of these rights, specifically his complaints about workplace issues and his questioning of warnings issued to him. Mondiale argued that the termination was due to a legitimate restructure resulting from business downturns caused by the COVID-19 pandemic, and that Mr Jeater's position was selected for redundancy based on performance, behaviour, and attitude criteria.

The Court examined whether Mondiale had discharged the burden of proving that the termination was not due to the exercise of workplace rights by Mr Jeater. It considered the timeline of events, including Mr Jeater's complaints and the timing of the decision to terminate his employment. The Court also scrutinised the evidence provided by Mondiale, particularly from Mr Punter, the National Transport Manager, regarding the decision-making process and the criteria used for redundancy selections. The Court found that Mondiale failed to convincingly demonstrate that the termination was not influenced by Mr Jeater's exercise of workplace rights, especially considering the timing and nature of his complaints.

Ultimately, the Court concluded that Mondiale had not successfully rebutted the presumption that Mr Jeater's termination was due to his exercise of workplace rights. Consequently, the Court ruled in favour of Mr Jeater, finding that Mondiale had contravened the Fair Work Act by terminating his employment for reasons related to his exercising workplace rights. The Court ordered that Mondiale pay costs, if any, and adjourned the matter for a further directions hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is convenient at the outset to set out the names and the positions of the primary persons involved in the events the subject of these proceedings, as follows:(a)Mr Jeater, who is the applicant and who was a truck driver for Mondiale;(b)Mr Punter, who was the then National Transport Manager for Mondiale based in Brisbane;(c)Mr Tom Mu Sung (“Mr Mu Sung”) who was the Western Australia State Manager for Mondiale;(d)Mr Leigh Kesby (“Mr Kesby”), the Western Australia Transport Supervisor for Mondiale;(e)Mr Steve McLaughlin (Mr McLaughlin”), the Western Australia Transport Manager for Mondiale;(f)Mr Laurence Pilgrim (Mr Pilgrim”), the Queensland Transport Manager for Mondiale;(g)Ms Tanya Coleman, the National Human Resources Manager for Mondiale; (h)Mr Garth Harris, partner at Mondiale; and(i)Mr Simon Hardwidge, partner at Mondiale.General Background Facts Mr Jeater commenced employment with Mondiale on or around 13 August 2018. During the period of his employment with Mondiale, Mr Jeater worked as a Day Shift Driver: Jeater Affidavit 1 at [2] and Annexure DJ-1, p 20. On 6 December 2018 Mr Jeater left work early in order to attend a scheduled dental appointment, and that same day a public complaint was received by the Mondiale head office, located in Sydney, regarding Mr Jeater’s driving. On 10 December 2018 there was a significant and serious fire at Mr Jeater’s home, and as a result, he was on a period of leave between on or around 11 December 2018 and 28 December 2018. On 17 to 21 December 2018, Mr Jeater completed the relevant training and was appointed as safety representative at Mondiale. On 10 January 2019 Mr Jeater was issued a written warning with respect to the public complaint made on or around 6 December 2018 (“January 2019 Warning”). Mr Jeater says that the January 2019 Warning was issued to Mr Jeater, in front of his colleagues, by Mr Kesby. Mr Jeater says he questioned the validity of this warning given no investigation had been carried out, and in so doing exercised a workplace right by making a complaint or inquiry pursuant to s 341(1)(c)(ii) of the FW Act (“s 341(1)(c)(ii) Right”). Mondiale says that the January 2019 Warning was not issued in respect of the public complaint made against Mr Jeter on 6 December 2019, but rather for a number of performance issues, including reporting failures, failing to record breaks taken, unauthorised rest/sleep breaks at client premises (including at the start of a shift when no break should be required) and failing to respond to radio calls while on duty. The January 2019 Warning, dated 6 December 2018, is as follows (without alteration): Dear Daniel I refer to our discussions today with regards the complaint we received from a member of the public around your erratic driving behaviours on the roads including tail gating, which could have attributed to an incident that could not only have harmed yourself but members of the public. By this letter, I advise that based on your level of experience as a transport driver of heavy duty vehicles and who is representing [Mondiale] not only in our fleet but in uniform, that your driving performance is to be corrected without further consultation.Should any further discussions or communications be advised around your driving behaviours either within our site or on the open roads, the company may take further disciplinary action which may result in the termination of your employment.Your sincerely Leigh Kesby WA Transport Supervisor

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court is thus satisfied that adverse action was taken against Mr Jeater by Mondiale by terminating his employment because of the exercise of the workplace rights asserted, and summarised at [80] above. Conclusion The Court finds that Mondiale has not discharged the reverse onus under s 361 of the FW Act with respect to the termination of Mr Jeater’s employment. It follows that there must be a conclusion that adverse action under s 342(1), Item 1(a) was taken against Mr Jeater by Mondiale by terminating his employment in contravention of s 340(1) of the FW Act by reason of his having or exercising the workplace rights asserted at [80] above. There will be a declaration accordingly. Otherwise, there will be orders that(a)the matter be adjourned to a further directions hearing; and(b)costs, if any, be reserved: FW Act, s 570(2).

Ratio Decidendi

Legal Principle Established

Mondiale also contended the decision to terminate Mr Jeater’s employment on the ground of redundancy had been made on 2 April 2020, and therefore the alleged exercise of a workplace right on 3 April 2020 (see [75(p)] above) could not possibly have been a reason for the decision to terminate Mr Jeater’s employment. Consideration Mr Jeater submits that the exercising of s 341(1)(a) and 341(1)(c)(ii) Rights was the true reason for his termination. In summary, Mr Jeater claims that Mondiale’s decision to select his position for redundancy, and to consequently terminate his employment was because he had:(a)challenged a written warning in January 2019;(b)challenged a written warning in January 2019 and May 2019;(c)raised safety and bullying issues and complained in May 2019, June 2019, August 2019, March 2020 and April 2020;(d)made a flexible working arrangement request in February 2020;(e)complained about the employer’s no mobile phone use policy in March and April 2020;(f)refused to take a pay cut in March and April 2020;(g)made a complaint including in relation to being the subject of threats of violence in the workplace; and(h)made complaints about being selected for redundancy and questioned the process,and that this constituted adverse action based upon the exercise of workplace rights. Mr Jeater’s evidence is sufficient to establish the necessary objective facts as to the matters underlying Mr Jeater having the benefit of a workplace law, or having made complaints and inquiries in relation to the alleged workplace rights under s 341(1)(a) and (c)(ii) of the FW Act, and that the matters at [80] above were workplace rights under those provisions of the FW Act: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J. Indeed, in its oral submissions to the court, Mondiale does not appear to have suggested otherwise. Mondiale also did not positively deny all of the matters referred to in the summary at [80] above. Put generally, Mondiale’s case reduces itself to the alleged decision-maker, Mr Punter, not knowing of many of these matters, and that they did not constitute reasons for Mr Jeater’s termination of employment: Mr Punter’s Affidavit at [37]–[89]. Significantly, Mondiale relies on the evidence of Mr Punter alone. Mondiale claims that as a consequence of a reduction in work and an anticipated continued downturn in business, as a consequence of the Covid-19 pandemic, it was necessary to restructure its business, ultimately through a nation-wide series of redundancies: Mr Punter’s Affidavit at [12]-[19]. Mr Punter says that Mr Jeater’s position was identified for redundancy by the use of criteria that was grounded in performance, behaviour and attitude: Mr Punter’s Affidavit at [21]-[25]. What is clearly in dispute between the parties is: (a)who participated in the decision to terminate Mr Jeater’s employment and in particular who selected his position for redundancy; and(b)why Mr Jeater’s employment was terminated by Mondiale. This includes what were the operative reasons that lead to the decision.