Jeater v Mondiale VGL Pty Ltd
[2022] FedCFamC2G 758
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 s 340(1) of the Fair Work Act 2009 (Cth).
2.Orders that:
(a)the proceedings are adjourned to 12.00pm on 4 November 2022 for further directions; and
(b)costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LUCEV
Introduction
Before the Court is a claim under by the applicant, Mr Daniel Jeater (“Mr Jeater”) under s 340 of the Fair Work Act 2009 (Cth) (“FW Act”) alleging termination of his employment with the respondent, Mondiale International Pty Ltd (ACN 002 433 267), previously trading as Visa Global Logistics Pty Ltd (ACN 002 433 267) (“Mondiale”), in contravention of the general protections provisions of the FW Act. At this stage the Court is only required to determine whether or not there has been a contravention.
Mondiale is a logistics and international freight forwarding business that operates across Australia. Mr Jeater was employed by Mondiale as a truck driver in their Perth depot.
The Court has had regard to the following evidence:
(a)the affidavits filed for Mr Jeater, being:
(i)Mr Jeater’s affidavit affirmed 22 April 2021 (“First Jeater Affidavit”); and
(ii)Mr Jeater’s affidavit affirmed 16 June 2021 (“Second Jeater Affidavit”);
(b)the affidavit filed for Mondiale, that being the affidavit of Mr Michael Punter (“Mr Punter”) affirmed 20 May 2021 (“Mr Punter’s Affidavit); and
(c)the oral evidence of Mr Jeater and Mr Punter as it appears in the transcript of the proceedings (“Transcript”).
Objections to the First and Second Jeater affidavits and to Mr Punter’s Affidavit were dealt with at hearing.
The Court has read, and re-read prior to finalising these Reasons for Judgment, the Transcript.
Mr Jeater and Mondiale each filed an Outline of Submissions and the Court has had regard to those submissions, and the oral submissions at hearing.
Persons involved
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
Given that Mr Jeater was the only person who attended the meeting on 10 January 2019 who gave evidence, the Court finds that:
(a)the warning was issued at the meeting in front of Mr Jeater’s colleagues; and
(b)the terms of the January 2019 Warning make it plain that it was a warning concerning his driving performance, but only as it related to public complaint, and not to any other matters as alleged by Mondiale.
In May 2019 Mr Jeater received a written warning from Mondiale in respect of his conduct at work and failure to comply with safety obligations in the workplace: First Jeater Affidavit, Annexure DJ-3. In particular, Mr Jeater was warned about his failure to report the rest and other work breaks he took during his shifts. Mr Jeater disputed the basis for the disciplinary letter.
On 23 May 2019 scheduling issues resulted in Mr Jeater being allocated a delivery without, he says, sufficient time to reach his destination, and at a time when Mr Jeater says he was due a fatigue break. Mr Jeater expressed concern to Mr Mu Sung and Mr Bancroft about the feasibility of making this delivery in the time required by the customer. Mr Jeater says that in so doing he exercised a s 341(1)(c)(ii) Right.
On 27 May 2019 Mr Jeater met with Mr Kesby and Mr Mu Sung who told him that they were intending to issue him with a written warning with respect to making a late delivery on or around 23 May 2019 (“Intended May 2019 Warning”). Mr Jeater noted that the issue was one of scheduling, and that there had been no investigation into circumstances surrounding the delivery. Mr Jeater says that in so doing he exercised a s 341(1)(c)(ii) Right.
On 28 May 2019 Mr Jeater, and a support person, met with Mr Kesby, Mr Mu Sung, and Ms Coleman with respect to the issuing of the Intended May 2019 Warning regarding events on 16 May 2019. During this meeting, Mr Jeater raised a number of concerns including:
(a)a disproportionate reduction in Mr Jeater’s work hours over the previous two weeks in comparison to colleagues;
(b)inequitable access to night shift and weekend work;
(c)mistakes made by allocators which, when raised, resulted in verbal threats to drivers; and
(d)safety issues such as fatigue management and safe loading of trailers,
and by raising concerns including rostering, allocating and safety concerns Mr Jeater says he exercised a s 341(1)(c)(ii) Right.
On 19 June 2019 Mr Jeater made a verbal complaint to Mr Mu Sung regarding the bullying conduct of Mr Kesby, the ongoing threatening behaviour of Mr Jeater’s colleague Mr Awhitu, reduction in Mr Jeater’s work hours compared to the rest of work group extending over a period of months, and Mr Jeater’s access to available weekend and side loader work (and applicable pay loadings), and says that by making a verbal complaint regarding the conduct of colleagues, and allocation of work, Mr Jeater says he exercised a s 341(1)(c)(ii) Right.
On 9 August 2019 Mr Jeater made a further verbal complaint to Mr Mu Sung regarding the bullying conduct of Mr Kesby, the ongoing threatening behaviour of Mr Awhitu, and the cancellation of annual leave by Mr Kesby that had already been approved in circumstances where Mr Kesby had asked Mr Jeater to move a previously booked period of leave to better manage staffing levels, and that by making a verbal complaint regarding the conduct of colleagues, and allocation of work, Mr Jeater says he exercised a s341(1)(c)(ii) Right.
On 28 August 2019 Mr Jeater informed Mr Mu Sung of a multiple alleged work practice safety breaches, and, in response to these alleged breaches, Mr Jeater, as a health and safety representative, issued a direction to cease work, and in so doing Mr Jeater says he exercised a workplace right pursuant to s 341(1)(a) of the FW Act (“s 341(1)(a) Right”), and a s341(1)(c)(ii) Right.
On 25 September 2019 Mr Jeater resigned as health and safety representative role due to his concerns regarding safety in the workplace not being taken seriously, and the stress Mr Jeater says he was experiencing as a result.
On 4 February 2020 Mr Jeater emailed Mr McLaughlin and Mr Pilgrim requesting flexibility in his roster to accommodate alternate weeks when his children where in his care, and limitations in the availability of out of school care beyond certain hours, and in so doing Mr Jeater says that he exercised a s341(1)(a) Right.
Between about 11 and 28 February 2020, Mr Jeater and Mondiale engaged in discussions regarding Mr Jeater’s flexibility request, and in so doing Mr Jeater says he exercised a s341(1)(c)(ii) Right. Mondiale says that on reasonable business grounds it was unable to accommodate Mr Jeater’s request for a flexible work arrangement due, but that it proposed an alternative arrangement in an attempt to reach a compromise to mutually accommodate both parties’ needs. Mr Jeater declined Mondiale’s proposal for an alternative flexible working arrangement.
From March 2020 the COVID-19 pandemic severely affected parts of Mondiale’s overseas operations, and in Australia there was not enough work available to maintain the number of employees Mondiale employed. Mondiale experienced a significant decrease in import and export volumes. This impacted the business financially, and as a result, the Board of Directors decided to restructure Mondiale. Mondiale implemented numerous measures to mitigate the negative impact of COVID-19 on the business and its employees prior to deciding to restructure: Mr Punter’s Affidavit at [12], [15] and [16].
In March 2020, as part of these measures, Mr Punter was advised of a restructure which would result in 47 positions becoming redundant across Australia and New Zealand, and Mr Harris advised Mr Punter that the decision had been made to restructure Mondiale because there was not enough work available to maintain the number of employees that had been required prior to the significant downturn in work: Mr Punter’s Affidavit at [16].
In March 2020 there were 15 drivers in Mondiale’s Perth operations which reduced to 12 drivers, due to the two positions being made redundant and natural attrition: Mr Punter’s Affidavit at [19].
On 20 March 2020 Mr Jeater raised concerns with Mr Mu Sung regarding the unsafe use of the side loader, and the inequitable rostering of duties on the side loader and the impact this had on access to the applicable pay loading, and in so doing Mr Jeater says that he exercised a s341(1)(c)(ii) Right. Also on 20 March 2020 Mr Jeater had a discussion with Mr Mu Sung, by way of text message and verbally, regarding reduced hours and sharing roles and about Mr Armando lacking experience to operate the side loader, and in so doing Mr Jeater says he exercised a s341(1)(c)(ii) Right. In this discussion, Mr Jeater says that Mr Mu Sung alleged Mr Jeater had, overall, made less deliveries than other drivers, sped in the Mondiale yard and had damaged equipment: First Jeater Affidavit at [50]-[54].
On 20 March 2020 at 05.50 Mr Jeater sent Mr Punter a text message: First Jeater Affidavit at [49] and Annexure DJ-6, which (reproduced without amendment) stated as follows:
Morning Michael, sorry to trouble you, I had spoken with Lawrence previously regarding issues, things here in Perth have not changed much and I am standing my ground on this issue in particular. I have mentioned that side loader work does not get shared around at all. There has been two new employees over the last 3-6months that do the role either on a permanent or regular basis. I have raised my concerns over two weeks ago and it has not changed. The only time I have been on the side loader is because both these employees were off over the two days. I have asked Ryan to swap one of the boys off today, I was told no, and I would like this issue addressed as soon as practicable today. I sorry to have to bring this to your attention, I have only operated under 10 times in the last 18months and with over 10years experience with crane and rigging tickets, I hope you understand my frustration. I have also raised safety concerns to steve before leaving, of the poor practices by one driver who doesn’t prestart machine, and has almost flipped the loader on two occasions (BP canning vale lifting tri axle off ground etc) safety is becoming exceptionally complacent amongst the work group on a regular basis as well. Feel free to contact me any time for more information.
Thanks Danny Jeater
On 24 March 2020 Mr Jeater raised concerns with Mr Mu Sung regarding the unsafe use of forklifts in the warehouse, and that inappropriate and insufficient cleaning products were being provided by Mondiale to manage the COVID-19 risk: First Jeater Affidavit at [58]-[60], and in so doing Mr Jeater says he exercised a s 341(1)(c)(ii) Right.
On 24 March 2020 Mr Mu Sung raised concerns regarding Mr Jeater’s use of earbuds in the yard at work: First Jeater Affidavit at [55]. Mr Mu Sung also spoke to Mr Jeater about his failure to comply with the speed limit in the yard and about Mr Jeater not making as many deliveries as others in the fleet: First Jeater Affidavit at [53].
On 25 March 2020 Mr Jeater raised a concern with Mr Mu Sung regarding the use of the reach stacker by a colleague without the relevant license, and in so doing Mr Jeater says he exercised a s 341(1)(c)(ii) Right.
On 28 March 2020 Mr Jeater received a letter from directors of Mondiale regarding a pay reduction in response to COVID-19, and seeking consent for this change: First Jeater Affidavit at [63].
On 30 March 2020 Mr Jeater sent a text message to Mr Mu Sung informing Mondiale that he did not consent to the proposed pay reduction subject to seeking further details from Ms Coleman, and later the same day, Mr Jeater emailed Ms Coleman requesting further details on the proposal, and noting that his attendance at work did not equate to his consent to the proposal: First Jeater Affidavit at [64], and in so doing Mr Jeater says that he exercised a s 341(1)(c)(ii) Right.
Mondiale says that Ms Coleman did not receive the email allegedly sent by Mr Jeater.
The email Mr Jeater says he sent to Ms Coleman on 30 March 2020 was as follows (reproduced unaltered):
Dear Tanya
Thank you for your email over the weekend.
I do have some questions in regards to the letter addressed to ‘all colleagues’.
It states effective Monday 30 March 2020 you would like to implement a cost reduction measure and reduce drivers and warehouse staff to the award rate.
Can you please provide further information and clarification as in which award and pay rate.
I respect the urgency in a response to the email, thought I would like to note that company has not given sufficient notice (being a single business day) to clarify information and seek financial and industrial advice. Visa also stated as of Tuesday attending work will be implied as consent to the change, I wish to make clear I do not give consent to the changes proposed until I understand my financial options, rights andobligations.
Can you please provide information regarding my position and pay in regards to working from 30 March onwards by not accepting.
Kind regards
Danny Jeater
Mondiale’s assertion that Ms Coleman did not receive Mr Jeater’s 30 March 2020 email is not supported by any evidence. In circumstances where Mr Jeater’s evidence concerning sending the email was unchallenged, and Ms Coleman did not give evidence, the Court accepts that Mr Jeater sent the email to Ms Coleman, and that in the ordinary course that it would have been received by her.
On 31 March 2020 Mr Jeater was called to a meeting with Mr Mu Sung at which Mr Jeater was handed a written warning regarding the use of ear buds. Mr Jeater says he expressed concern that he was being sanctioned in this manner whilst safety concerns Mr Jeater had raised were being ignored, including:
(a)hot seating of forklifts without seatbelts being used; and
(b)safety issues raised by him on or around 28 August 2019,
and that in so doing Mr Jeater says he exercised a s 341(1)(c)(ii) Right.
Mondiale says that the 31 March 2020 warning was issued to Mr Jeater because of dangerous work practices that created a health and safety risk to him and his work colleagues and not because of the exercise of a workplace right by Mr Jeater within the meaning of s 341(1)(c)(ii) of the FW Act.
In early April 2020 Mr Punter met with Mr Mu Sung and Mr McLaughlin. In this meeting they discussed that Mr Jeater took longer than other drivers to make deliveries, made less deliveries than other drivers, and spent excessive time in Mondiale’s yard compared to other drivers rather than making deliveries: Mr Punter’s Affidavit at [23] (admitted as to narrative not truth of allegations).
Mr Punter also says that over the period of Mr Jeater’s employment with Mondiale, Mr Jeater was issued several written warnings with respect to failures to follow procedures, damages at customer sites, damage to company property, and at times he refused to follow directions of his allocator. Mr Punter recalls additional feedback provided over the phone to him by Mr Kesby and Mr McLaughlin that Mr Jeater had a negative attitude at work and took a longer period of time to complete allocations than other staff. Mr Punter personally found Mr Jeater difficult to deal with as he had a negative attitude: Mr Punter’s Affidavit at [25] (admitted as to narrative not truth of allegations).
On 1 April 2020 Mr Jeater says: First Jeater Affidavit at [75]-[76] that:
(a)
he tagged out a reach stacker with a defective seatbelt by placing a tag stating ‘out-of-service’ on the stacker, and reported the defective reach stacker to a
Mr Nutall;
(b)he recalls having reported the defective reached stacker eight days prior, on 23 March 2020 as part of his online pre-start checklist;
(c)later on 1 April 2020 he found the tag on the reach stacker floor, and expressed concern to Mr Mu Sung that the reach stacker was being used before it had been repaired, and in so doing Mr Jeater says he exercised a s 341(1)(c)(ii) Right;
(d)Mr Mu Sung asked the allocators if the reach stacker had been repaired, and although the allocators insisted it had been, no paperwork could be found; and
(e)one of his colleagues, Mr Armando, present during this discussion became verbally and physically abusive to him on the basis that he was persistently raising this and other safety concerns: First Jeater Affidavit at [85]-[86].
Mr Jeater says he was that concerned and distressed about the incident with his colleague (referred to at [43(d)] above), he reported the matter to the police and attended his doctor: First Jeater Affidavit at [87].
Mondiale says that Mr Jeater did not advise Mondiale of the reason for his absence nor that he reported any matter to the police, but that on 2 April 2020, Mr Jeater sought and was granted personal/carer’s leave.
On 3 April 2020 Mr Jeater emailed Ms Coleman lodging a complaint about the manner in which he was issued with the March 2020 Written Warning, the events of on or around 1 April 2020, and the bullying culture in the Perth depot: First Jeater Affidavit at [88], and in so doing Mr Jeater says that he exercised a s 341(1)(c)(ii) Right.
Mondiale submits that the decision had been made on 2 April 2020 to terminate Mr Jeater’s employment, and therefore the alleged exercise of a workplace right on 3 April 2020 could not possibly have been considered as part of the reason for termination of his employment.
On 3 April 2020 Mr Jeater sent a follow up email to Ms Coleman and a text message to Mr Mu Sung regarding his request for further details of the pay reduction proposal and in so doing Mr Jeater says he exercised a s341(1)(c)(ii) Right.
On 6 April 2020 Mr Jeater sent an email to Ms Coleman seeking confirmation that she had received his emails regarding the proposed pay reduction and his complaint of 3 April 2020, to which Mr Jeater received no reply. Mr Jeater says that by making enquiries, including with respect to his correspondence of 3 April 2020, he exercised a s 341(1)(c)(ii) Right.
By April 2020 Mondiale says it was in financial distress and it was necessary to accelerate the planned restructure. As a result of the restructure in April 2020 47 persons were made redundant with 21 drivers being made redundant, with the remaining positions being office-based roles: Mr Punter’s Affidavit at [17]-[18].
Together with local management in Brisbane and Perth, including Mr Mu Sung,
Mr McLaughlin, Mr Harris, Mr Hardwidge and Ms Coleman, Mr Punter was involved in the selection of employees whose employment would be terminated for redundancy in Western Australia: Mr Punter’s Affidavit at [20].
On a date not supplied, Mr Punter, together with Mr Mu Sung and Mr McLaughlin identified Mr Jeater’s position for redundancy along with one other driver in Fremantle: Mr Punter’s Affidavit at [22].
On or around 6 April 2020 Mr Punter received an email from Ms Coleman which set out the steps that Mr Punter was required to take to give effect to the redundancies, including hs the redundancy of Mr Jeater’s position: Mr Punter’s Affidavit at [25]-[26].
On 7 April 2020 Mr Mu Sung was to arrange for he and Mr Punter to meet with Mr Jeater for the purpose of informing Mr Jeater of the decision to terminate his employment due to redundancy and to consult with Mr Jeater about that decision. Mr Mu Sung and Mr Jeater were to attend the meeting together from Mr Mu Sung’s office at the Mondiale Fremantle depot and Mr Punter was scheduled to join via Microsoft Teams: Mr Punter’s Affidavit at [27].
On 7 April 2020 Mr Mu Sung sent Mr Jeater a text message requesting attendance at a meeting that same day. Mr Jeater was unable to attend this meeting as he was unaware of the text message request until he was finishing his shift at which time he needed to collect his children from out of school care. The meeting was re-scheduled for 8 April 2020, and Mr Jeater emailed Mr Mu Sung requesting details of the meeting’s purpose, and in particular if he was being dismissed. Mr Mu Sung replied that the meeting was regarding COVID-19: First Jeater Affidavit at [90]-[92].
Mr Mu Sung was asked by Mr Punter to sign the draft termination letter on Mr Punter’s behalf after Mr Punter reviewed its contents: Mr Punter’s Affidavit at [28].
The meeting was rescheduled to 8 April 2020: Mr Punter’s Affidavit at [29], and on 8 April 2020 Mr Jeater met briefly with Mr Mu Sung and Mr Punter, but given Mr Jeater was unable to arrange for a support person to be present, it was agreed to reschedule the meeting to 9 April 2020, and later that day, Mr Punter notified Mr Jeater that the meeting was regarding Mr Jeater’s redundancy: First Jeater Affidavit at [95]; Mr Punter’s Affidavit at [32].
On 9 April 2020 Mr Jeater attended a meeting with Mr Mu Sung, Mr Punter (by Microsoft Teams) and a support person, during which Mr Jeater was told he was being made redundant. Mr Jeater asked how he was selected for redundancy given there were colleagues still on probation, but neither Mr Punter not Mr Mu Sung would explain the selection process to Mr Jeater: First Jeater Affidavit at [98]-[101]; Mr Punter’s Affidavit at [33]. At the Meeting Mr Mu Sung gave Mr Jeater a letter of termination (“Termination Letter”): First Jeater Affidavit at [98]-[101].
The Termination Letter relevantly provided that:
As discussed with you, due to a reduction in our operational staffing requirements, caused directly by the effects of the Coronavirus (COVID-19) on our business, unfortunately we have no choice but to confirm that your position with VISA will become redundant with effect 23 April 2020.
Mr Jeater says on 9 April 2020, at the time he was told of his dismissal from employment, Mr Punter told Mr Jeater that Mondiale only told Mr Punter of the decision to dismiss Mr Jeater from employment on the evening of 3 April 2020.
Further facts, and a more detailed analysis of the facts, particularly with respect to the decision-making process in respect of Mr Jeater’s termination of employment, are set out below: see [81]-[117] below.
Law
It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
The FW Act states at s 340, as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
…
And at s 341 the FW Act states as follows:
(1)A person has a workplace right if the person:
…
(c) is 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 context of adverse action proceedings it is for an applicant to assert and establish that:
(a)they exercised the workplace rights pleaded in their statement of claim;
(b)the conduct complained about in fact occurred; and
(c)that conduct constitutes adverse action under s 342(1) of the FW Act.
If Mr Jeater proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for Mondiale to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s 361(1); 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 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 at [221] per RD Nicholson J (“Geraldton Port Authority”).
In Barclay the High Court said:
(a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J (and see also State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 (“Grant”) at [32] per Tracey and Buchanan JJ);
(b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
(c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
(d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”). In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
(a)French CJ and Crennan J in Barclay said:
(i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
(ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
(iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s 361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Under s 360 of the FW Act a prohibited reason need only be one of the reasons for the adverse action for a contravention of the general protections provisions to arise. However, a prohibited reason must be a “substantial or operative factor” in influencing the adverse action or “an operative or immediate reason for acting”: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J.
A decision-maker’s reasons are to be determined from all of the facts and circumstances and inferences properly drawn from them. This ordinarily includes positive evidence from the decision-maker that the action was not taken for a prohibited reason. It also includes evidence of the actual reason or reasons why the adverse action was taken: Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (219) 290 IR 414 at [117] per O’Callagahn and Thawley JJ.
If the decision-maker’s evidence is accepted as being reliable, the onus under s 361 of the FW Act will be discharged. This involves an assessment of the evidence given by the decision-maker: 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 (“Dawson Services”) at [28] per Jessup J. The Court is not, however, bound to accept the decision-maker’s evidence. It may be unreliable if there is contradictory evidence or other objective facts that undermine it. Where a decision-maker is believed it is difficult to undermine that evidence: Grant at [49] and Barclay at [45] per French CJ and Crennan J.
It follows then, and it is important to observe that, the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
Contentions
Mr Jeater submits that the exercising of s 341(1)(a) and 341(1)(c)(ii) Rights was the true reason for the termination of his employment. Mr Jeater asserts that Mondiale has breached s 340 of FW Act by dismissing Mr Jeater for exercising the following workplace rights pursuant to s 341(1)(a) and 341(1)(c)(ii) of the FW Act including:
(a)in or around 10 January 2019, questioning the validity of the written warning issued;
(b)in or around 23 May 2019, expressing concern about the feasibility of making a delivery in the time required by the customer;
(c)on or around 27 and 28 May 2019, expressing concern about the grounds on which a written warning was being issued;
(d)on or around 28 May 2019, expressing concern about allocation of working hours, the threatening behaviour of allocators, and safety concerns;
(e)on or around 19 June 2019, and 19 August 2019, expressing concern about the conduct of Mr Kesby and Mr Awhitu;
(f)on or around 19 June 2019, expressing concern about the allocation of work hours;
(g)on or around 19 August 2019, expressing concern about the circumstances of a cancellation of annual leave;
(h)on or around 28 August 2019, informing Mr Mu Sung of safety breaches, and issuing a direction to cease work;
(i)on or around 4 February 2020, and between on or around 11 February 2020 and 28 February 2020, requesting a flexible work arrangement to manage his parental responsibilities;
(j)on or around 20 March 2020, expressing safety concerns and concerns regarding allocation of work hours and duties;
(k)on or around 24 March 2020, expressing safety concerns and concerns regarding the managing of COVID-19 risk;
(l)on or around 25 March 2020, expressing a safety concern regarding the unlicensed use of the reach stacker;
(m)on or around 30 March 2020, seeking details on the proposed pay reduction;
(n)on or around 31 March 2020, expressing concern about a written warning issued in the context of safety issued being raised and ignored;
(o)on or around 1 April 2020, expressing concern about a tagged-out reach loader being used before being repaired; and
(p)on or around 3 April 2020, lodging a complaint about the written warning issued on or around 31 March 2020, and the bullying culture in the Perth depot, and seeking further details on the proposed pay reduction.
Mondiale submits that:
(a)in or about mid to late March 2020, due to a significant downturn in business resulting from the COVID-19 pandemic, Mondiale identified that it no longer required 22 Driver positions across its operations nationally, including one Day Driver position and one Night Driver position from its operations in Perth;
(b)Mr Punter was responsible nationally for deciding which positions were to be made redundant;
(c)Mr Punter considered all Day Shift Driver positions in the Mondiale’s Perth operations;
(d)Mr Jeater’s position was selected for redundancy due to Mr Jeater’s relatively lower level of efficiency when compared to other Drivers, particularly when considering Mr Jeater generally:
(i)took longer than other Drivers to make deliveries;
(ii)made less deliveries than other Drivers; and
(iii)spent excessive time in the Mondiale yard compared to other Drivers rather than making deliveries;
(e)Mr Punter made the decision to select Mr Jeater’s position for redundancy on 2 April 2020;
(f)
on 9 April 2020, Mr Jeater and his support person met with Mr Punter and
Mr Mu Sung who notified Mr Jeater of the decision to terminate his employment due to the redundancy of his position;
(g)Mr Jester’s employment was terminated because his position was made redundant not because he exercised any workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act; and
(h)Mr Jeater’s role ultimately became one of 47 roles that were made redundant by Mondiale as a result of the COVID-19 pandemic in 2020.
Mondiale says that Mr Punter:
(a)was responsible nationally for deciding to terminate Mr Jeater’s employment by way of redundancy;
(b)did not know of many of the matters asserted by Mr Jeater to have been the exercise of workplace rights pursuant to s 341(1)(a) and 341(1)(c)(ii) of the FW Act and did not take them into consideration when deciding to terminate Mr Jeater’s employment, and that Mondiale therefore did not take adverse action against Mr Jeater pursuant to s 342 of the FW Act, because of the exercise of a workplace right by Mr Jeater.
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.
Once an applicant proves the existence of the objective facts which are said to provide a basis for the alleged adverse action, then pursuant to section 361 the onus of proof then shifts to the respondent in respect of the prohibited reason(s). In other words, an evidentiary burden is placed on a respondent to disprove the allegations or the evidence (the so called reverse onus): Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241 (“Jones”) at [10] per Collier J.
Accordingly, in these proceedings, it is for Mondiale to disprove Mr Jeater’s allegation that his employment was terminated because of or for operative reasons which included Mr Jeater having exercised at least one of the workplace rights referred to at [80] above.
Whether the onus arising under s 361 of the FW Act has been discharged depends upon the assessment of all of the facts by the Court, including, most importantly in the conventional case, its assessment of the evidence given by the decision-maker acting on behalf of the employer: Dawson Services at [27] and [28] per Jessup J.
Mondiale accepted that during 2019 and 2020 Mr Jeater made inquiries and complaints to his managers at Mondiale about the amount of hours allocated to him, the possibility of flexible working arrangements being put in place for him and the kind of work allocated to him. Mr Jeater also raised complaints about the written warnings which were issued to him in respect of his conduct in the workplace and non-compliance with safety policies. In addition, Mr Jeater raised a number of safety concerns with Mondiale, including as part of his role as workplace safety representative.
Mondiale says that there is nothing remarkable about Mr Jeater having had questions about his hours or raising safety issues with his managers, and that it was in fact an aspect of his job: First Jeater Affidavit at [5]. Mondiale responded to those inquiries and complaints as they arose, and where it was able to do so, accommodated Mr Jeaters’s requests: citing, for example, its offer to partially accommodate Mr Jeater’s flexible working request by allowing him to start earlier to allow him to take his children to daycare: First Jeater Affidavit at [22], an offer Mr Jeater ultimately declined.
Mondiale says that Mr Jeater was selected for redundancy because of his documented poor disciplinary history, and, relatively speaking, poor performance at work in relation to delivery times: Mr Punter’s Affidavit at [22]-[25], and was therefore terminated for reasons other than the fact that Mr Jeater had raised complaints or inquiries during his employment with them.
Mr Punter’s affidavit evidence was to the following effect:
(a)the decision to restructure Mondiale in March 2020 came from Mondiale’s Board of Directors, but the selection of which employees would be made redundant as part of the restructuring was determined separately in Western Australia: Mr Punter’s Affidavit at [16]-[17] and [20];
(b)in Perth in early April 2020, Mr Mu Sung, Mr McLaughlin and Mr Punter selected which employees would be made redundant: Mr Punter’s Affidavit at [20];
(c)the redundancy selection criteria which the managers considered were:
(i)each employee’s performance, including time taken to complete allocations;
(ii)each employee’s adherence to workplace values and the code of conduct, general responsiveness to directions, and general interaction with other employees and management; and
(iii)reliability and approach to work including customer feedback received (both negative and positive): Mr Punter’s Affidavit at [21];
(d)if no employee could be selected based on their above criteria, then employees were selected based on their length of service with those having served the shortest period of time being selected first: Mr Punter’s Affidavit at [21];
(e)Mr Jeater was selected for redundancy by Mondiale based on the following factors:
(i)his performance including his ability to complete allocations efficiently;
(ii)his conduct at work including how he interacts with colleagues and managers and how he follows management directions; and
(iii)the written warnings he had received about his conduct: Mr Punter’s Affidavit at [23]-[25];
(f)in terms of on the job performance, Mr Jeater’s performance was not as efficient as his colleagues in terms of how long he took to make deliveries, the number of deliveries he made and the amount of time he spent in Mondiale yards: Mr Punter’s Affidavit at [23], and an example document setting out Mr Jeater’s container movement rates between October 2019 and March 2020 and the container movement rates of another employee over the same period show Mr Jeater to have moved less than half the number of containers that the other employee moved: Mr Punter’s Affidavit at [24] and Annexure MP-1;
(g)in terms of Mr Jeater’s conduct at work, throughout his two years of employment with Mondiale there had been issues with the way he had interacted with managers and colleagues. There were also occasions on which Mr Jeater had not followed Mondiale safety procedures and where he had been involved in damage to Mondiale property: Mr Punter’s Affidavit at [25];
(h)Mr Jeater’s conduct had been the subject of a number of written warnings regarding his conduct at work; and
(i)having considered all of these factors in relation to each of the relevant employees, “Mr Mu Sung and Mr McLaughlin” and Mr Punter “identified” Mr Jeater’s position, and that of one other driver in Western Australia would be selected for redundancy: Mr Punter’s Affidavit at [22].
Over the hour and ten minutes or so that Mr Punter was cross-examined by Counsel, Mr Punter answered that he could not recall or was unsure about answers (or words to that effect) to the issues raised by Counsel approximately sixty times: Transcript pp 26-52. Mr Punter equivocated on answers to other questions which appear to the Court to be fairly straightforward, such as whether Mr Jeater was a fully qualified truck driver with a number of licences, answering in neither the affirmative nor the negative: Transcript p 47, and his recollection of text messages that Mr Jeater had sent to Mr Punter directly: Transcript p 50. On the whole, Mr Punter’s credibility as a witness was damaged by his inability to recall and his seeming lack of knowledge of matters that were pertinent to the reasons alleged by Mondiale to be the reasons, or justification for the reasons, for Mr Jeater’s termination of employment on the ground of redundancy. Mr Punter’s answers in cross-examination, in particular, have seen the Court form the view that he had little recollection or certainty about the events concerning the termination of Mr Jeater’s employment. To the extent of any conflict between the evidence of Mr Punter and Mr Jeater’s evidence is to be preferred.
Mr Punter was cross-examined about an “initial” meeting (the precise date of which was never identified) involving himself, Mr Mu Sung, Mr McLaughlin, Mr Harris, Mr Hardwidge and Ms Coleman: Transcript, p 28; Mr Punter’s Affidavit at [20], and said at Transcript p 29 that:
(a)he could not recall if names were being put forward at a meeting;
(b)“we did not” make any notes or memos about the meeting;
(c)he could not recall whether there were any emails about this “very serious” meeting;
(d)he did not recall whether or not names were mentioned;
(e)he did not recall whether Mr Jeater’s name was brought up at this meeting;
(f)he did not recall if Mr Mu Sung contributed to this meeting, and was unsure and could not recall if Mr Mu Sung was silent at the meeting;
(g)he did not recall if Mr McLaughlin sat at this meeting silently;
(h)he did not recall if Ms Coleman sat at this meeting silently;
(i)he did not recall who was talking at this meeting, but then said that he recalled all meeting attendees would have spoken, but he did not recall the “contents of those discussions”; and
(j)he did “[n]ot exactly” recall when the meeting took place, but supposed it was “late March” [2020], but then – at Transcript p 30 - proffered that it was “[e]arly April” [2020].
Mr Punter was then cross-examined about the “early April 2020” meeting (the precise date of which was never identified) involving himself, Mr Mu Sung, Mr McLaughlin, and Mr Harris,: Transcript, p 30; Mr Punter’s Affidavit at [21], and said that:
(a)he did not recall if he nominated Mr Jeater for redundancy at this meeting, though he then said he “may have”, and went on to say that it could have been Mr Mu Sung or Mr McLaughlin: Transcript p 30;
(b)he did not recall how long this meeting took, but he did not think it was all day: Transcript p 30;
(c)that he “believe[d]” the factors for selection of redundant employees being discussed at this meeting would have been formulated at the initial meeting, but he did not have “a great memory” of that initial meeting: Transcript p 30-31;
(d)that nothing in relation to the formulation or meaning of the factors considered was attached to Mr Punter’s Affidavit: Transcript p 31; and
(e)this was a very serious process, but there were no documents to evidence it, and he did not recall that there were any emails going back and forth regarding this meeting or the redundancy process: Transcript p 32.
Mr Punter was then cross-examined about the subsequent “early April 2020” meeting (the precise date of which was never identified) at which Mr Jeater was identified for termination due to redundancy, and which involved himself, Mr Mu Sung and Mr McLaughlin,: Transcript p 33; Mr Punter’s Affidavit at [22]-]23], and said at Transcript p 33 that he did not recall what:
(a)what Mr Mu Sung said at this meeting:;
(b)what Mr McLaughlin said at this meeting: Transcript p 33; and
(c)what he said at this meeting, or even the gist of what he said: Transcript p 33.
Cross- examined in relation to the factors involved in selecting Mr Jeater for redundancy Mr Punter said that:
(a)he relied upon Mr Mu Sung and Mr McLaughlin to provide the information relied on as to why Mr Jeater had been selected: Transcript p 34;
(b)that he did not recall what explanation Mr Mu Sung and Mr McLaughlin gave as to Mr Jeater’s “attitude”: Transcript p 34;
(c)he could not recall “exactly” how “other duties” were factored into the selection process: Transcript p 35;
(d)he could not recall if it was mentioned at this meeting what Mr Jeater’s other duties were: Transcript p 35;
(e)he was in the yard (which Mr Jeater worked out of) “[m]aybe every month”: Transcript p 35; and
(f)he could not recall if Mr Jeater’s timesheets were produced at this meeting, and he had to rely on time summary information provided by Mr Mu Sung and Mr McLaughlin, and he did not know if that information was accurate: Transcript p 36.
Mr Punter conceded in cross-examination that Mr Jeater may spend more time in the yard because of the nature of his tasking allocation and his operation of the reach stacker and that Mondiale’s time and task tracking system may not have been accurate as to the duties he performed: Transcript pp 36-37, and drivers have different deliveries with different timeframes: Transcript p 38.
In relation to Annexure MP-1 to Mr Punter’s Affidavit it was annexed as if it were a document produced at the time of the March-April 2020 discussions concerning redundancy within Mondiale, or at best no indication that that was not so. In cross-examination Mr Punter proffered that MP-1 was produced after 11 September 2020, that being the date he left Mondiale’s business: Transcript p 39; Mr Punter’s Affidavit at [8]. In relation to the content of MP-1 Mr Punter in cross-examination said:
(a)it had no date as to when it was produced: Transcript p 38;
(b)there were months to which it related, but no year: Transcript p 38;
(c)it was not used at the second early April 2020 meeting, but “live” data from the system which was not saved had been used: Transcript p 39;
(d)he does not know who produced it, and had not had an opportunity to verify the information in it, and did not know if the information in it was accurate: Transcript p 39;
(e)he could not recall if, and it did appear as if, leave taken by Mr Jeater was factored into the information produced; Transcript p 41; and
(f)he did not know why the other driver with whom Mr Jeater was compared in the information was selected for the purposes of the comparison, and did not know who had selected him: Transcript p 41.
Mr Punter was cross-examined about telephone calls with Mr Kesby, and said that:
(a)he could not recall how many telephone conversations he had with Mr Kesby about Mr Jeater, but that there were “several”: Transcript p 42;
(b)that the telephone conversations were about incidents involving Mr Jeater and Mr Jeater’s attitude, but apart from one incident of damage to a “customs site” the “…other incidences I can’t quite recall” and although they discussed Mr Jeater’s attitude he could not recall discussing “any significant incidents”: Transcript p 42.
In relation to the early April 2020 meetings under cross-examination Mr Punter said that in discussions with Mr Mu Sung and Mr McLaughlin they discussed Mr Jeater’s attitude, and although he could not recall what was discussed it was to the effect that Mr Jeater had a negative attitude: Transcript p 43. When asked whether Mr Mu Sung and Mr McLaughlin indicated how they came to that conclusion Mr Punter said it was “[j]ust due to various incidents within the Perth operation” and when asked “what sort of incidences” he said “I don’t recall what the conversations were”: Transcript p 43. Significantly, Mr Punter went on to agree that someone might have a negative attitude when they make complaints: Transcript p 43.
Cross-examined in relation to Mr Mu Sung, Mr Punter said that Mr Mu Sung had said that Mr Jeater had a negative attitude, but he could not “remember the exact conversation”, and he could not rule out that Mr Mu Sung had formed the view that Mr Jeater had a negative attitude because Mr Jeater had made complaints to Mr Mu Sung about things, including safety issues: Transcript p 44. Mr Punter agreed that this also applied with respect to Mr McLaughlin, and that Mr Punter did not know what either Mr Mu Sung or Mr McLaughlin were thinking about Mr Jeater at the time the redundancy decision was made: Transcript p 44.
Cross-examined in relation to the 9 April 2020 meeting to advise Mr Jeater of his redundancy, Mr Punter said:
(a)he could not recall exactly what he said to Mr Jeater in that meeting: Transcript p 44;
(b)he did not recall saying to Mr Jeater that Mondiale refused to discuss the process they used to arrive at selecting Mr Jeater for redundancy: Transcript p 45;
(c)he could not recall telling Mr Jeater that the redundancy selection process was long and thought out and that he had not been involved in the process: Transcript p 45;
(d)he did not recall saying to Mr Jeater that he had only been informed of who was being made redundant on the evening of 3 April 2020: Transcript p 45;
(e)he took no notes of the meeting: Transcript p 45;
(f)
he could not recall if there were any emails to or from
Mr Mu Sung about this meeting: Transcript p 45; and
(g)that Mr Jeater was not told that a “negative attitude’ was a reason for his being selected for redundancy: Transcript p 46.
In relation to who made the decision to select Mr Jeater for redundancy (and hence termination of employment with Mondiale) the following exchange occurred in cross-examination at Transcript p 46:
… So just to make it clear, you, and Mr Mu Sung and Mr McLoughlin made the decision to select Mr Jeater, in effect, to be made redundant? --- Correct.
And nowhere in the affidavit do you say, “I, and I alone, made that decision,” do you? --- No.
Mr Punter also conceded in cross-examination that he could not speak for Mr Mu Sung or Mr McLaughlin as to what motivated their thinking concerning the redundancy decision: Transcript p 46.
Mr Punter was also unable to recall in cross-examination:
(a)whether he had any input on the decision from Mr Harris, with Mr Punter initially saying he could not recall and then saying Mr Harris had “not any input into the decision, no”: Transcript p 46;
(b)whether Ms Coleman was involved in the redundancy selection process: Transcript p 46;
(c)whether he ever talked to Ms Coleman for advice: Transcript p 46;
(d)whether Mondiale selected drivers who were on probation over Mr Jeater to stay on with the business, eventually acknowledging that it was the case and that he was not sure how long those drivers had been with the business: Transcript p 48;
(e)whether Mr Jeater had texted Mr Punter about matters involving a side loader which had been flagged by Mr Jeater as a workplace safety issue: Transcript p 50;
(f)whether Mr Punter recalled responding to Mr Jeater’s text messages: Transcript p 50;
(g)whether he recalled other issues which Mr Jeater had reported as safety issues: Transcript p 51;
(h)whether he recalled the phrase “arcing up” used to refer to Mr Jeater: Transcript p 52; and
(i)whether he recalled investigating a heated argument between Mr Jeater and Mr Armado, to which Mr Punter said he could not recall exactly what happened but that there was no investigation done: Transcript p 52.
Mr Punter was not re-examined: Transcript, p 52.
The information referred to by the decision maker in coming to a decision is often of critical importance. In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 a manager relied upon notes and emails to establish an adverse performance review and the Federal Court found that the notes and oral evidence did not exclude complaints made by the employee that were within s 341(1) of the FW Act.
In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914 the Federal Court at [20] per Gray J stated that:
…Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.
It is also crucial that as part of a redundancy selection process that assessment only takes into account matters related to an employee’s performance of their role and not matters associated with their exercise of workplace rights: Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 (“Clermont Coal”).
There is no explanation or evidence provided by Mondiale as to how Mr Jeater’s performance and conduct were measured or compared to other employees save that contained in ‘MP-1’: Affidavit of Mr Michael Punter Affidavit at [24]. MP-1 purports to be an independent measure of Mr Jeater’s performance. Mr Punter states MP-1 “is a copy of the container movement rates between Mr Jeater and the other day driver in Perth”: Mr Punter’s Affidavit at [24]. Mr Punter fails to state how Mondiale or who produced MP-1, or whether he has verified its accuracy. He even fails to state whether it was considered or used in the decisions in question. Further, it:
(a)is incomplete. There are no names, there are no dates and there is no indication as to how the figures were measured, ascertained or how the figures were collected;
(b)purports to show Mr Jeater’s performance against another driver. No explanation is provided why the performance of other drivers are not included; or
(c)does not show how other matters (such as authorised absences from the workplace) are factored into the assessment of performance: see [98] above.
There is no evidence capable of sustaining the assertion originally made by Mondiale that Mr Punter was the sole decision-maker with respect to Mr Jeater’s redundancy.
Mondiale’s own evidence (that of Mr Punter) establishes that Mr Punter did not make the decision to terminate Mr Jeater on his own, but was one of at least three decision-makers together with Mr Mu Sung and Mr McLaughlin: see, in particular, [103] above. There may have been other co-decision-makers, but it is unnecessary to make findings as to any others who might have been co-decision-makers.
Where there is more than one decision-maker, the Court must consider the reasons of each decision-maker or persons who influenced the final decision: Clermont Coal at [103]-[104] per Reeves J; Rowland v Alfred Health [2014] FCA 2. In a situation of cooperative decision making, each person who contributed to the state of mind of the single decision-maker should be called as a witness. It may also be necessary to call a recommender or an endorser of a decision: Clermont Coal at [54]-[55] per Reeves J.
The Court assesses the evidence of each of the witnesses in light of the objectively known facts, the consistency or inconsistency between the accounts and the plausibility of the accounts given, and considers whether:
(a)there is nothing inherently incredible in the evidence given by any of the decision-makers; and
(b)the reasons given by each of the decision-makers in their affidavits is internally consistent, plausible, corroborated by contemporaneous correspondence and substantiated by any concessions: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 AR 201; (2003) 38 MVR 1 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
The evidence of Mr Punter was most unsatisfactory. As will be evident from the passages referred to and set out at [93]-[105] above his evidence was unreliable in a general sense, and his frequent lack of recall made it more so in respect of specific matters, such that the Court cannot conclude that his was the – or even an – operative mind behind the decision made. Further, Mr Punter’s evidence did not establish with any certainty what were the actual reasons for selecting Mr Jeater for redundancy, and hence for terminating his employment, or even when a final decision was actually made. Mr Punter conceded that there were other co-decision-makers, and he did not know what they were thinking when making the decision to make Mr Jeater redundant. Those co-decision-makers were not called to give evidence as to the reasons for Mr Jeater being made redundant (as they ought to have been: Clermont Coal at [103]-[104] per Reeves J).
There is no evidence before the Court that Mr Punter’s co-decision-makers excluded the matters summarised at [80] above in selecting Mr Jeater’s employment for termination. There was therefore no opportunity for the state of mind or mental processes of Mr Mu Sung or Mr McLaughlin to be exposed to or considered by the Court. The Court is, however, on the otherwise available evidence, prepared to infer that it may have been difficult for Mr Punter’s co-decision-makers to have excluded at least some of the matters summarised at [80] given the proximity between the discussions Mr Punter and the others from Mondiale were having concerning Mr Jeater’s potential redundancy in late March and early April 2020 and the various matters raised by and being discussed with Mr Jeater by, amongst others, Mr Mu Sung and Mr McLaughlin, in the period from 11 to 28 February 2020 and 20 March 2020 to 6 April 2020: see [25]-[53] above. Otherwise the Court can also infer that Mr Mu Sung and Mr McLaughlin were not called because their evidence may not have assisted Mondiale’s case: Jones v Dunkel [1959] HCA 8; 101 CLR 298; 32 ALJR 395; 76 WN (NSW) 278; [1959] ALR 367, CLR 298 at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J. The Court is thus left with little or no explanation or evidence capable of discharging the reverse onus imposed on Mondiale under s 361 of the FW Act.
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).
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 September 2022
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