Jess v Cooloola Milk Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75  

Appeal from: Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526
File number: QUD 254 of 2021
Judgment of: RANGIAH, DOWNES AND MCELWAINE JJ
Date of judgment: 10 May 2022
Catchwords: INDUSTRIAL LAW – appeal from a decision of the Federal Circuit Court of Australia – where primary judge held that the first and second respondents contravened s 535 of the Fair Work Act 2009 (Cth) and otherwise dismissed the application with no order imposing pecuniary penalties – whether the primary judge erred by not providing procedural fairness – whether the primary judge erred in concluding that applicant was a casual employee – whether the primary judge erred in finding that s 15A Fair Work Act 2009 (Cth) did not apply – where primary judge accepted evidence of witness but failed to address material evidence and arguments which, if accepted, could have led to rejection of that evidence – appeal allowed
Legislation:

Fair Work Act 2009 (Cth) ss 12, 15A, 86, 95, 106, 340, 341(1), 342, 345, 361, 386, 535, 545A(4), 546, 550, 570, Sch 1 cl 46

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth)

Federal Court of Australia Act 1976 (Cth) s 28(1)

Fair Work Regulations 2009 (Cth) reg 3.33(2)

Road Transport and Distribution Award 2010 cl 27

Revised Explanatory Memorandum, Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020

Second Reading Speech, Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020
Cases cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Alam v National Australia Bank Limited (2021) 393 ALR 629; [2021] FCAFC 178

Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 398 ALR 404; [2022] HCA 1

Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560; [2014] FCA 462

Continental Liqueurs Proprietary Limited v G F Heublein and Bro Incorporated [1960] HCA 37; (1960) 103 CLR 422

Day v SAS Trustee Corporation [2021] NSWCA 71

Dietrich v Dare (1980) 54 ALJR 388

DL v R (2018) 266 CLR 1; [2018] HCA 26

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189

Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; (1992) 37 FCR 216

Goodwin v Commissioner of Police [2010] NSWCA 239

Hamzy v Tricon…

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Details
Case
[2022] FCAFC 75
Decision Date

CaseChat Overview and Summary

The appeal in Jess v Cooloola Milk Pty Ltd concerned the dismissal of the appellant from his employment by the second respondent. The appellant claimed that he was underpaid during his employment, that the respondents had taken adverse action against him, and that the respondents had made false and misleading representations to him about his employment and entitlements. The respondents denied the claims and the case was heard in the Federal Circuit Court of Australia, where the primary judge dismissed the appellant's application. The appellant appealed to the Federal Court of Australia.

The central legal issues in the appeal were whether the primary judge erred in not providing procedural fairness to the appellant, whether the primary judge erred in concluding that the appellant was a casual employee, and whether the primary judge erred in finding that section 15A of the Fair Work Act 2009 (Cth) did not apply. The appellant argued that the primary judge failed to consider material evidence and arguments that, if accepted, could have led to a different conclusion on the reasons for his dismissal. The respondents argued that the primary judge's findings were correct and that the appeal should be dismissed.

The Federal Court of Australia held that the appeal should be allowed and the decision of the primary judge set aside. The Court found that the primary judge had failed to consider the appellant's submissions concerning the matters set out at para 23(e)–(i) of the appellant's written submissions, which concerned the credibility of the second respondent's evidence regarding the reasons for the dismissal. The Court held that the compelling inference that arose from those facts alone was that the complaint was of great concern to the second respondent and a substantial and operative reason for the dismissal. The Court also held that the primary judge had erred in concluding that the appellant was a casual employee and that section 15A of the Fair Work Act 2009 (Cth) did not apply. The Court found that the matter should be remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing and determination.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 2 and 3 of the Federal Circuit Court of Australia of 7 July 2021 be set aside.

3. The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing and determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 4 August 2021, the appellant appealed to this Court and the appeal was heard remotely on 17 February 2022. THE FCCA DECISION Before the FCCA, the appellant claimed that he was chronically underpaid during the time of his employment; that the respondents had taken adverse action against him; and that the respondents had made false and misleading representations to him about his employment and entitlements. He sought compensation as well as the imposition of pecuniary penalties. Both the appellant and the second respondent gave oral evidence. The primary judge observed there was little agreement between the appellant and the second respondent on the evidence and issues in dispute. His Honour considered his assessment of credit as dispositive of many of those issues. His Honour did not consider the appellant to be a truthful witness. Although his Honour found the second respondent to be a truthful witness, he noted some issues with his reliability characterised as confusion when answering certain questions. The findings of the primary judge relevant to this appeal are as follows:(1)A term of the contract of employment was that, as long as the appellant had completed his allotted work, he would be paid for 76 hours each fortnight, regardless of how many hours he actually worked. Payment was for all aspects of employment: PJ [85].(2)The second respondent stated that he expressly employed the appellant as a casual employee: PJ [103]–[105]. Notably, the primary judge based this finding on a number of circumstances set out at [102], and not s 15A of the FWA: PJ [89]–[90]. (3)The proper award for determining the claim made by the appellant was the Road Transport and Distribution Award 2010 (Short Haul Award) (PJ [111]) and the appellant was performing grade 6 classification work for each day of his employment: PJ [115].(4)To determine whether the appellant was “better off overall”, the primary judge expressed difficulty in determining the hours that the appellant actually worked: PJ [112]–[121]. He did not accept as accurate the appellant’s work diary of hours worked and it was given very little weight: PJ [122]–[139]. Then, after splitting the appellant’s claim into two parts – (1) his employment from 2 May 2014 to 15 September 2017 (PJ [146]–[152]); and (2) his employment from 16 September 2017 until 18 January 2019 (PJ [153]–[177]) – the primary judge determined that each failed and dismissed the whole claim for underpayment: PJ [152] and [177].(5)The primary judge found that what transpired on 23 December 2018 and 4 January 2019 did not amount to adverse action: PJ [192]. He accepted evidence from a non-party witness, Mr Mullins, in full as to the conversation that took place between the appellant and the second respondent on 23 December 2018, including that the second respondent did not tell the appellant that he would be working a Brisbane run on 26 December 2018. The primary judge found there had been no withdrawal of work, the appellant had not been injured in his employment and his position was not altered to his prejudice: PJ [184]–[192]. (6)Specifically, on the issue of whether the dismissal of the appellant amounted to adverse action, the primary judge concluded that the cessation of casual employment as a matter of law cannot amount to adverse action, and therefore the exclusion pursuant to s 342(3) of the FWA applied: PJ [195]. The primary judge rejected the appellant’s claim that he had exercised a workplace right and determined that the appellant’s statement “I will if you pay me” was not an inquiry or a complaint in relation to his employment, but simply a request that he perform some extra duties: PJ [197]–[199]. The primary judge noted that even if he was wrong and that dismissal from casual employment was in fact adverse action, or that the appellant had established that he had exercised a workplace right, the first respondent had discharged its onus in establishing that the dismissal was not for a prohibited reason: PJ [208].(7)On the basis of the finding that the appellant was a casual worker, the primary judge dismissed the claim that the first respondent had breached s 345 of the FWA: PJ [210]–[211].(8)The first respondent breached s 535 of the FWA by failing to keep employee records: PJ [217]. While noting that in this case, there was “absolutely no intention on the part of the employer, in any way, to interfere with or diminish the rights and privileges of the employee” (PJ [219]), the primary judge concluded that a declaration must be made because provisions of the FWA had been contravened: PJ [220]. The primary judge also held that the second respondent was liable as an accessory for this contravention: PJ [224].(9)The parties each indicated that they wished to make submissions on pecuniary penalties if there was a finding of contravention of the FWA (PJ [226]). However, the primary judge concluded that he did not need the assistance of counsel in making a decision on that issue: PJ [227]. He reasoned that he had taken into account the whole of the matters outlined in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 (Mason v Harrington). The primary judge concluded that, although the Court must express its condemnation in the strongest possible terms, the respondents had been “very generous”, had been put through the expense and frustration of a trial and had spent a huge amount of time, money and energy to mount a defence: PJ [232]–[234]. He determined that this equated to extra-curial punishment and that, having regard to all of the circumstances, he declined to impose any pecuniary penalty: PJ [235].THE APPEAL

Ratio Decidendi

Legal Principle Established

In the appeal, the appellant’s written submissions included the following:23.The Appellant does not rely on his own evidence in support of this ground of appeal. Rather, it is submitted that the evidence of the Second Respondent reveals that the Complaint was a reason for the Dismissal. Further, the findings of the primary judge on this issue were at odds with, glaringly improbable in light of, and contrary to compelling inference which arise from, a combination of the following evidence of the Second Respondent:a. In response to the Complaint the Second Respondent withdrew the offer to undertake manure runs and said “don’t worry about it then” [188].b. The Second Respondent felt the Complaint was disrespectful and uncalled for (T51.35-45).c. The Second Respondent considered the Appellant was being remunerated fairly and understood the Complaint as a request for more money (T51.45).d. The Second Respondent wasn’t prepared to pay the Appellant for extra hours (T49.15).e. After the Conversation, the Second Respondent had a think about the Appellant’s “efficiency” (T51.15). The Second Respondent then probably undertook a “review” in early January 2019 (T52.20).f. When asked if the Dismissal would have occurred if not for the Conversation, the Second Respondent conceded “probably not” (T53.10).g. Following the Complaint, the Second Respondent thought that if the Appellant considered he was worth more money he should work elsewhere (T50.35-40).h. The Second Respondent describes the Complaint as evidence of “rot” setting in which required that he “bite the bullet” to avoid rot spreading through the company (T55.20-30).i. The Second Respondent explained that by “spreads through the company” he was concerned that if other employees were to hear of the Appellant asking for more money, they might do the same (T55.20-30).24.The primary judge erred in giving no consideration to matters (e) to (i) above. The compelling inference that arises from those facts alone is that the Complaint was of great concern to the Second Respondent and a substantial and operative reason for the Dismissal.(emphasis added.) In the course of argument, counsel for the appellant confirmed that an aspect of his argument was that it was an error of law for the primary judge to have failed to consider the appellant’s submissions concerning the matters set out at para 23(e)–(i) (the credibility arguments). The second respondent’s evidence was that he had made the decision to dismiss the appellant only because of his lack of efficiency. The appellant’s case was that at least one reason for his dismissal was that he had made the inquiry about payment for overtime. The primary judge considered the credibility of the second respondent’s evidence concerning the reasons for the dismissal in the following passages:203The evidence of the Second Respondent must be scrutinised. The Second Respondent said that he thought that the Applicant was disrespectful during the conversation of 23 December 2018. The Second Respondent said that respect between employer and employee is essential. It was put to the Second Respondent that he was concerned that the Applicant would keep asking him about pay, and so that was the reason that he dismissed the Applicant. The Second Respondent denied this.204The Second Respondent said, in evidence before me, that there was no work left for the Applicant. He said that a driver needed to be young and fit to do the milk run and that the Applicant did not fit that bill anymore. He said that his plan was to use the Applicant to do farm work. He said that he was looking for efficiencies, and he told the Applicant that he was terminating the employment because of a lack of efficiency.205The Second Respondent said that he had been considering the efficiency of his business for some time. He said that the Applicant was not doing the same number of runs and rarely did the milk collection by January 2019. The Second Respondent became more reliant upon a contractor to be delivering manure. 206The Second Respondent conceded that he had written in the “separation certificate” that the reason for the cessation of employment was “unfortunately position became annulled due to company restructure”. The Second Respondent said that he believed that this reason and “efficiencies” meant the same thing.207The Second Respondent said that the matters about pay did not cross his mind when he decided to dismiss the Applicant.208I accept that evidence. This means that even if dismissal from casual employment was adverse action, and even if the Applicant had established that he had exercised a workplace right, the First Respondent has discharged their onus and proven, to my satisfaction, that the dismissal was not because of a prohibited reason.