Kape v The Golden Mile Loopline Railway Society Inc

[2019] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPE v THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC [2019] FCCA 1690

Catchwords:
INDUSTRIAL LAW – Whether the applicant’s redundancy was a genuine redundancy under s 389 of the Act – no contraventions under Part 3-1 of the Act are made out – application dismissed.

COSTS – Application for costs under s.570 of the Act – whether the applicant engaged in any unreasonable act or omissions – application for costs under s.570 of the Act dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.3, 336, 340, 341, 342, 343, 344, 345, 361, 389, 566, 570

Applicant: STEVEN JAMES KAPE

Respondent: THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC

File Number: PEG 252 of 2016

Judgment of: Judge Street

Hearing date: 19 June 2019

Date of Last Submission: 19 June 2019

Delivered at: Perth

Delivered on: 19 June 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms H Millar

Solicitors for the Respondent: SRB Legal

ORDERS

1. The application in a case filed by the respondent is dismissed.

2. The proceedings are dismissed.

3. The oral application for costs is dismissed.

DATE OF ORDER: 19 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 252 of 2016

STEVEN JAMES KAPE

Applicant

And

THE GOLDEN MILE LOOPLINE RAILWAY SOCIETY INC

Respondent

REASONS FOR JUDGMENT

1. These are proceedings within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of alleged general work protection contraventions by the respondent. The applicant was employed as a ‘Works Manager’ for The Golden Mile Loopline Railway Society Inc. (“GMLRS”), and his role included management in occupational, health and safety implementation and supervision of ‘Work for the Dole’ job seekers and other GMLRS staff and volunteers. The GMLRS is located in the city of Kalgoorlie-Boulder and its primary objective was the restoration of trains and carriages and rebuild of a historic railway line. The objective was to promote tourism, trade and industry in the city of Kalgoorlie-Boulder and Goldfields area. The applicant has experience and qualifications in relation to occupational, health and safety.

2. In November 2015, the applicant had a meeting with Mr Lucas, the general manager of GMLRS, and raised occupational health and safety concerns. The applicant was concerned as to the method as to how it was intended to remove and dispose of redundant rail at GMLRS and was of the view this was unsafe. The applicant was concerned that the intention of GMLRS was to use unqualified job seekers for the labour. The applicant identified that he was concerned about his responsibility to supervise the activity requested by Mr Lucas. Mr Lucas identified that he considered the course identified was appropriate and that the requirements of the occupational, health and safety would be met.

3. The applicant contended that in the meeting he took issue with lack of consideration of occupational, health and safety and risk assessments and that he was not comfortable with it and it was unsafe. It is apparent that Mr Lucas took a different view in relation to whether it was safe and in relation to the ability to remove the redundant rail. Mr Lucas showed the applicant an email in that regard in relation to those matters. It appears the applicant was of the view that a risk assessment should be carried out and Mr Lucas took a different view, identifying that he was aware of the occupational health and safety issues.

4. The applicant refers to the meeting becoming heated and Mr Lucas telling him he needed to take his direct order and referring to the possibility of the applicant being fired. There was an alleged response by the applicant saying that if Mr Lucas was going to fire him for not taking a direct order that it should be put in an email. The applicant believed that raising his occupational health and safety concerns in respect of the unsupervised and unqualified job seekers had caused tension in the working relationship.

5. The applicant referred to a meeting with the chairman of GMLRS, Mr Crook, which took place on 25 November 2015 where the applicant raised with Mr Crook his occupational, health and safety concerns regarding Mr Lucas’ direction and the method of removing the redundant rail. The applicant raised that he was uncomfortable to proceed and alleged that Mr Crook assured him that his role as works manager was secure.

6. The applicant asserted that he was the subject of numerous verbal and email threats of dismissal. The emails do not support that proposition. It is apparent on the email communications there are disagreements in relation to the tasks that the applicant had to perform including the obtaining of data and that it was necessary for Mr Lucas to give a clear direction for the applicant to obtain the same. The Court does not accept that there were threats or bullying revealed by the emails, nor does the Court accept that the applicant was the subject of what he described as a conspiracy to get rid of him because of raising occupational health and safety issues.

7. The applicant’s affidavit evidence includes communications that were sent to Mr Lucas prior to his redundancy on 11 December 2015, on 18 November 2015 as well as an email sent on 19 November 2015. In the email of 19 November 2015, marked annexure “D” in the affidavit of Steve Kape affirmed 28 May 2019, the applicant referred to a new job description and again asserted that he had been the subject of persistent verbal and email threats regarding termination. The Court does not accept the characterisation of the communications as reflecting such a state of affairs. It was clearly open to Mr Lucas to give directions to the applicant and it was open for Mr Lucas to refer to the same being one that should be followed or could give rise to another official warning.

8. The applicant believes that he was not made redundant due to reasons proffered in the redundancy letter and contends that it was not a genuine redundancy. It is apparent that the applicant did raise a ‘workplace right’ in relation to occupational, health and safety issues, and he also has referred to the issue of his job description. The applicant has the benefit of the presumption under s 361 of the Act and the Court takes into account the objects under s 3 and s 336 of the Act.

9. The applicant contended that after he left others undertook his role and that it was distributed amongst other employees. The submission that activities undertaken by the applicant may have been in part undertaken by other employees after his departure does not identify any proper basis upon which the Court should reject the evidence of Mr Lucas and Mr Crook that the redundancy was one for financial reasons in respect of the viability of the project and was a genuine redundancy under s 389 of the Act and was not for reasons of the applicant raising complaints or for any other adverse action reason.

10. The applicant contended that because the company had made a substantial profit that it must have had funds whereby it could have paid his salary and accordingly, it was profitable and that the redundancy was not genuine.

11. It is apparent on the evidence that was given by Mr Crook that further employees were made redundant and that the viability of the project is one which has at this stage come to an end. The fact that the applicant may have been the first in a number of redundancies does not identify a basis upon which the Court should find that it was not a genuine redundancy. The fact that there was a profit made equally does not identify a basis upon which the Court should reject the evidence of Mr Lucas and Mr Crook in respect of the financial concerns that gave rise to the termination of the applicant and that the termination was not for any adverse reason. The respondent has discharged the onus and the Court finds that the termination was not because of any safety issue raised by the applicant or any job description issue.

12. The applicant’s other ground for contending that he must have been the subject of a non-genuine redundancy was to the effect that he had raised workplace occupational, health and safety issues and that to his mind they had not been addressed. It is apparent that there was a disagreement as to whether they had to be addressed. This is not a case where Mr Lucas accepted, on the applicant’s own evidence, that there was a problem that had to be further addressed. Whilst the Court accepts that the applicant was not the subject of any serious challenge to his credit and the Court has accepted his evidence as to his beliefs, but does not accept that the respondent terminated the applicant on the grounds alleged by the applicant or that the applicant was bullied. The supporting documents do not support the applicant’s case. There was no serious credit attack either on the evidence of Mr Crook and Mr Lucas and the Court accepts the evidence of the respondents as to the termination being a genuine redundancy for financial reasons only.

13. The Court accepts that the respondent has discharged its onus under s 361 of the Act. In the taking of the action dismissing the applicant and making him redundant this was not by the respondents for a reason falling within the general protections provisions of Part 3-1 of the Act. The provisions on which the applicant relied, being ss 340, 341, 342, 343, 344 and 345 of the Act were not the subject of contravention by the respondents because the Court has accepted the respondent’s evidence. No contravention of those provisions as alleged by the applicant is made out.

14. The Court finds that the redundancy was a genuine redundancy within the meaning of s 389 of the Act.

15. Accordingly, the proceedings are dismissed.

Application for costs

1. The respondent has asked for an order under s 570 of the Act for costs against the applicant. These are proceedings in respect of which it was clear that they were arguable. The application in a case that was filed for summary judgment was not an appropriate application and should not have been filed as the applicant had the benefit of statutory presumption. The respondent has submitted that the Court should make an adverse costs order because of an alleged unreasonable act or omission in rejecting the settlement offers in around the amount of $50,000.

2. Had the applicant succeeded, the applicant may well have recovered more than $50,000. It is not appropriate in the circumstances of the present case to make any costs order. The Court is not persuaded that the circumstances justify departure from the general rule identified in s 570 of the Act that each party should pay their own costs.

3. The Court is not satisfied that the applicant has engaged in any unreasonable act or omission that has caused the respondent to incur costs.

4. Accordingly, the application for costs under s 570 of the Act is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  24 July 2019