Kelly v Quick Pick Movers Pty Ltd (No.2)

[2015] FCCA 3481

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY v QUICK PICK MOVERS PTY LTD (No.2) [2015] FCCA 3481

Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protections as set out in pt.3-1 of the Fair Work Act 2009 (Cth) – claimed adverse action – termination of employment – alleged assault – application and cross-claim dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1), 341, 342, 360, 361

Applicant: MATTHEW KELLY

Respondent: QUICK PICK MOVERS PTY LTD
(ABN 80 574 061 136)

File Number: MLG 2018 of 2013

Judgment of: Judge Hartnett

Hearing date: 11 September 2015

Delivered at: Melbourne

Delivered on: 24 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Minucci

Solicitors for the Applicant: Hymans Solicitors

The Respondent: Mr Theodoropoulos
(director of the Respondent)

ORDERS

1. The Application filed on 22 November 2013 is dismissed.

2. The Notice of Cross-Claim filed on 19 June 2014 is dismissed.

3. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2018 of 2013

MATTHEW KELLY

Applicant

And

QUICK PICK MOVERS PTY LTD
(ABN 80 574 061 136)

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application filed under the Fair Work Act 2009 (Cth) (‘the Act’) alleging contravention of general protections as set out in pt.3-1 of the Act. The grounds of the Application are contained in a Statement of Claim filed 23 April 2014. The Application relevantly alleges breaches of the Applicant’s workplace rights as set out in paragraph 6 and 7 of the Statement of Claim.

2. Paragraph 6 and 7 of the Statement of Claim are as follows:-

   “6. On or about 9 September 2013 the Applicant had identified discrepancies going to his rate of pay between the period 26 August 2013 and 8 September 2013 and sought to bring this to the attention of the Respondent.

   PARTICULARS

   The Applicant said words to the following effect to INSERT NAME of the Respondent: (sic) “I have worked on Sunday the 8^th of September 2013 and you have paid me $75.00 for 6.5 hours.  Not only that you are paying $19.00 per hour for my overtime when my hourly rate is $21.00 this is just outrageous”. The Applicant said further words to the effect: “I’m not coming into work if I am not going to make any money”.

   The Adverse Action

   7. Upon the Applicant bringing the said discrepancies to the Respondent terminated the Applicant’s employment contract (“the Dismissal”).

   PARTICULARS

   Mr Nicholas Theodoropoulos said words to the falling (sic) effect: “If you don’t like it you can go.  Not only that I will be deducting $280.00 for your uniform costs” at which stage the Applicant responded: “All right ill go you scum bag.”

3. Thereafter, the Statement of Claim alleges a serious assault perpetrated upon the Applicant by Mr Theodoropoulos.  The Applicant does not particularise his claim in relation to the injuries allegedly sustained by him in the Statement of Claim.  The Applicant claims:-

   “A. Damages:

   B. Compensation under section 545(2)(b) of the Act;

   C. The imposition of a penalty on the Respondent under section 546 of the Act;[1]

   D. An order that the penalty be paid to the Applicant under section 546(3) of the Act;

   E. Damages pursuant to section 236 of the Australian Consumer Law (Cth) and/or the Australian Consumer Law (Victoria).

   [1] Note: The Act is the Fair Work Act 2009 (Cth).

   F. An order that any penalty be paid to the Applicant;

   G. An order that any unpaid amount due to the Applicant be paid to the Applicant by the Respondent under the FW Act;

   H. Such further or other orders as the Court seems appropriate.”[2]

   [2] Statement of Claim filed by the Applicant on 23 April 2014.

4. The Applicant relied upon evidence as contained in an Affidavit sworn by him on 10 July 2014. He was cross-examined in the proceedings. The Respondent relied upon two affidavits sworn by Mr Theodoropoulos on 23 January 2014 and 11 August 2014. The Respondent also relied upon evidence as contained in an Affidavit sworn by Mr Aristidis Thouas on 11 August 2014 and evidence as contained in an Affidavit sworn by Ms Amber Nancarrow on 15 August 2014. Neither of those persons were required for cross-examination by the Applicant and their evidence, as to those parts not struck out, was unchallenged. Both were employees, at the relevant time, of the Respondent.

5. The Respondent also relies upon a Defence filed 19 May 2014 and a Notice of Cross-Claim filed 19 June 2014.  In that Notice of Cross-Claim, the Respondent alleges that the Applicant’s conduct, which amounted to an assault upon him, was not job related, nor was it tolerated or sanctioned by the first and second cross-claimants, being Mr Theodoropoulos and Quick Pick Movers Pty Ltd. The Respondent claimed that the assault perpetrated upon Mr Theodoropoulos by the Applicant caused him loss and damage. Neither particulars of special damage as to medical and like expenses nor any particulars as to loss of income and economic loss were provided. Further, no particulars of damages suffered by the first and second cross-claimants including, but not limited to, loss of reputation, brand and goodwill of the business (given the damages claimed) were provided to the Court prior to the trial of the action, nor at any time during the proceedings.

6. There is insufficient evidence before the Court going to the establishment of the cross-claim, which indeed appeared to be abandoned. The cross- claim thus cannot succeed.

History

1. Mr Nick Theodoropoulos is the managing director of the Respondent.  The Respondent company provides domestic moving services.  The Applicant was employed by the Respondent as an assistant furniture removalist on 26 August 2013.  He was employed casually. 

2. As a removalist, the Applicant’s role was to move furniture into and out of a truck provided by the Respondent for customers moving the contents of their house.  Mr Theodoropoulos would call the Applicant the day before any work was available, and the Applicant would perform the work as required.  His working hours were variable based on the Respondent’s requirements.

3. The Applicant was paid for his casual employment a flat salary of $21 per hour. 

4. On 8 September 2013, the Applicant was on a job in the Respondent’s six-tonne truck with a Mr Timothy Conroy.  The job was for a customer named Michelle and it was to move furniture from 6 Martingale Place, Pakenham, to unit 1, 104 Dublin Road, Ringwood.  The customer was happy with the service provided and the job lasted, including a travel period, for some three hours.  As it was a Sunday and the office of the Respondent was closed, the customer paid cash in the sum of $387. 

5. On Monday 9 September, when Mr Theodoropoulos was in his office in Rowville speaking with one of his employees, Mr Matthew Emmerson, and closing for the day at around 6.30 pm, the Applicant walked into the office; walked up to Mr Theodoropoulos; and threw the money for the day’s taking at him before walking off.  It was not clear, on the evidence, whether that money was for the work done the day before, or for work done on that day, or both. In any event, nothing turns on it.

6. The Applicant then returned to the office of the Respondent some 10 to 15 minutes later, yelling and becoming abusive.  He allegedly complained about his rate of pay. His evidence was to the effect of that set out in his Statement of Claim in paragraph 2 herein. The Applicant’s evidence in his statement to Victoria Police given shortly after this incident (and on 9 September 2013) differed in some respects from the evidence as put before the Court by the Applicant.  The Applicant said that he went to speak to Mr Theodoropoulos at work because he had short-changed him on his pay.  He said Mr Theodoropoulos went off and started yelling, and that the parties then commenced to yell at each other.  He claimed, Mr Theodoropoulos squared up to the Applicant, came right in his face, and kept saying, “I didn’t have to pay you.”  The Applicant claims he then said in response, “Take your best shot.”  He claimed Mr Theodoropoulos took a swing at him and missed; that the Applicant then hit Mr Theodoropoulos; and that they started to fight each other and fell to the ground. Mr Theodoropoulos’ statement to Victoria Police, which likewise was given by him shortly after the incident occurred, was one which was evidence of far greater consistency in its factual content with the other evidence before the Court. Mr Theodoropoulos’ evidence is that he told the Applicant to get out of his office and come back when he had cooled down. He did not know of the origins of the Applicant’s agitation.

7. Mr Theodoropoulos claimed that around 15 minutes later the Applicant returned to the office and seemed very angry; that he then proceeded to leave the office whereupon Mr Theodoropoulos followed him and said “get off my property”.  Mr Theodoropoulos says that the Applicant then came right up in his face, continued to yell, pushed him and that they got into a fight. 

8. Mr Theodoropoulos says that the Applicant, without provocation, punched him in the face, to the left side of his face and with the Applicant’s right hand.  This initiating provocation led to a fight between the parties as Mr Theodoropoulos attempted to protect himself. Mr Theodoropoulos claimed to at one point be on his back, being kicked to the side of his face by the Applicant.  The fight was broken up by employees who were present. 

9. Both parties agree that their fight proceeded near the exit of the building and outside the building and that there were two distinct parts. In the second part, the Applicant claims that Mr Theodoropoulos approached him from behind and sought to grapple with him, placing him in a head lock position.  The Applicant was then struck by a pool cue across his back by another staff member whose name was Mr Thouas. 

10. Mr Theodoropoulos claims the second part involved the Applicant returning to his office with a large stick, about one metre long, in his hand.  Mr Theodoropoulos thought the Applicant was going to damage his motor vehicle with the stick and so he proceeded outside to stop the Applicant and remove the stick from his hand. The parties grappled for a while and then another employee yelled at the Applicant to drop the stick, which he did, and then left.  During cross-examination, Mr Theodoropoulos conceded that another employee might have hit the Applicant with a pool cue.

11. Mr Theodoropoulos gave evidence in his Affidavit material that some two hours after these two physical altercations, and around 8.30 pm, Mr Theodoropoulos telephoned the Applicant to see why he had been so upset.  His evidence is that the Applicant told him he was sorry.  His further evidence is that the following morning the Applicant text him to say that he had broken his hand and was going to see a lawyer to submit a WorkSafe claim.  Mr Theodoropoulos believes the Applicant broke his hand whilst punching Mr Theodoropoulos to the head.

12. Not surprisingly, the Applicant no longer works for the Respondent.  Both parties proceeded to Victoria Police where they each provided sworn statements as to the events of 9 September 2013.  Whilst each then subsequently alleged in the proceedings that assault charges were being laid by Victoria Police against the other, no such charges were laid.

13. The Applicant did suffer injury in the altercation between the parties, as I am satisfied, also did Mr Theodoropoulos.  Before the Court was evidence from Dr Hamimi, who examined the Applicant on 17 September 2013 and concluded that he had “right-hand pain post-punch/involved in fighting”, and “right transverse fracture of distal shaft fifth metacarpal”. 

14. No such medical evidence was before the Court in respect of injuries sustained by Mr Theodoropoulos.  I note it is not in dispute that he sustained some injury, but he determined not to seek medical treatment in respect of same.  He took five days off work and felt depressed.  He did not want anyone to see his injuries. However, Ms Nancarrow spoke to him over Skype regarding work issues during that time and could visibly see his injuries to his face which included bruising. The Applicant also, and on 24 September 2013, lodged a WorkCover claim with CGU claiming he injured his right hand as a result of an assault on him.  On 17 October 2013, QBE rejected the Applicant’s claim for compensation. 

15. Amongst the Applicant’s payslips is a payslip from 2.9.13 to 8.9.13.  It is dated 11.9.13.  It deducts a uniform cost of $283.50.  I note that this was a cost legitimately deducted because the Applicant ceased employment within a six month period and had agreed, by document dated 27 August 2013 and signed by the Applicant, that the employer was entitled to deduct the provision of uniform at a cost of $283.50. From the Respondent’s perspective the Applicant abandoned his job, and quit, on 9 September 2013. 

16. In evidence and relied upon by the Respondent is an Affidavit from Mr Aristidis Thouas of 11 August 2014.  He is also an employee of the Respondent.  His evidence was relevantly as follows:-

    “1. … On the 9th September about 6:30 or 7:00 evening I came close up to the factory and I saw Matthew Kelly walking from the truck into the owner’s office yelling and screaming that he gets all the shit jobs and everyone else gets good jobs.  I saw him throw the money from the day’s work in my bosses face and just walked off without saying anything.  My boss then called him to come back a few times so he can explain what was going on, but he wouldn’t return.  My impression of this was that he quit.

    2. Then he come back after 15 minutes still very angry and stormed into the office yelling and screaming again.  My boss asked him to get out from the office because he was so angry and they would discuss the issues another day.  He didn’t really leave.  He just stayed outside yelling etc. until my boss went out to see what the issue was and at this point was when I saw Matthew Kelly hit my boss in the face.

    3. The two to three guys we had here tried to separate the two and Nick my boss slipped over on the floor and Matthew came and kicked him in the face.  He then went down the road and Nick went inside the office.  I stayed with my boss inside then I could see Matthew coming back with a branch in his hand.  I thought and said to my boss he’s coming again maybe to hit your car.  The other workers who were outside screamed to Matthew Kelly to leave the stick,  Matthew put down the stick and at the same time my boss approached him to try and sort things out again, then another fight started, after about 10 minutes that was over.”

17. Mr Thouas omits, in the above description which was unchallenged evidence, that he hit the Applicant in the back with a pool cue which ended the second physical alteration.

Relevant legislation

1. The Applicant claims, in response to his allegedly querying his pay with his employer, that three actions, taken by Mr Theodoropoulos against him, are adverse actions, which are prohibited under the Act. Those actions were the dismissal of the Applicant; the taking of $280 out of his pay; and the assault perpetrated upon him.

2. Section 340(1) of the Act relevantly states:-

   “(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; or

   (b) to prevent the exercise of a workplace right by the other person.

   Note: This subsection is a civil remedy provision (see Part 4-1).”

3. Section 341 of the Act relevantly states:-

   “(1) A person has a workplace right if the person:

   (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (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.

   Meaning of process or proceedings under a workplace law or workplace instrument

   (2) Each of the following is a process or proceedings under a workplace law or workplace instrument :

   (a) a conference conducted or hearing held by the FWC;

   (b) Court proceedings under a workplace law or workplace instrument;

   (c) protected industrial action;

   (d) a protected action ballot;

   (e) making, varying or terminating an enterprise agreement;

   (f) appointing, or terminating the appointment of, a bargaining representative;

   (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

   (h) agreeing to cash out paid annual leave or paid personal/carer's leave;

   (i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

   (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

   (k) any other process or proceedings under a workplace law or workplace instrument.

   Prospective employees taken to have workplace rights

   (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

   Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

   Exceptions relating to prospective employees

   (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

   (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).”

4. Section 342 of the Act relevantly states:-

   “(1) The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer.
2	a prospective employer against a prospective employee	the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3	a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c) alters the position of the independent contractor to the independent contractor's prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e) refuses to supply, or agree to supply, goods or services to the independent contractor.
4	a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or (c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5	an employee against his or her employer	the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer.
6	an independent contractor against a person who has entered into a contract for services with the independent contractor	the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person.
7	an industrial association, or an officer or member of an industrial association, against a person	the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or (c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

(2) Adverse action includes:

(a) threatening to take action covered by the table in subsection (1); and

(b) organising such action.

(3) Adverse action does not include action that is authorised by or under:

(a) this Act or any other law of the Commonwealth; or

(b) a law of a State or Territory prescribed by the regulations.

(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

(a) engaged in protected industrial action; and

(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.”

1. Section 360 of the Act relevantly states:-

   “For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”

2. Section 361 of the Act relevantly states:-

   “(1) If:

   (a) in an Application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b) taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

   (2) Subsection (1) does not apply in relation to orders for an interim injunction.”

3. The Applicant bears the onus of proof in establishing he was exercising a work place right at the time and that adverse action was taken. If established, the Respondent then bears the onus of proof that adverse action was not taken for a prohibited reason.

4. The Court is not satisfied on the evidence that the Applicant was exercising a work place right at the time and was as a consequence dismissed by the Respondent; that the taking of money from his pay was an adverse action in the circumstances of that occurring; nor that the Respondent assaulted the Applicant for him exercising a work place right.

5. The Court prefers the evidence of the Respondent that the Applicant quit his job after some two weeks of casual employment and within the six month period provided for as to reimbursement of the uniform costs. The Court finds that a heated verbal exchange occurred between the parties, initiated by the Applicant, which was not the exercise of a work place right, but rather an abusive expression of general dissatisfaction, which then lead to a physical altercation between the parties wherein the Applicant was probably the initial aggressor. No adverse action was taken by the Respondent against the Applicant as provided for in s.340 of the Act. The Respondent did not terminate the employment of the Applicant. Accordingly, the Application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 24 December 2015