King v Direct Freight (Aust) Pty Ltd
[2014] FCCA 524
•24 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KING v DIRECT FREIGHT (AUST) PTY LTD | [2014] FCCA 524 |
| Catchwords: INDUSTRIAL LAW – General protections application – alleged contravention of ss.340, 343, 344, 345 and 351 of the Fair Work Act 2009 – respondent’s burden of proof - application dismissed. |
| Legislation: Fair Work Act 2009, ss.340, 351, 343, 344, 345, 360, 361, 640, 341, 342, Federal Circuit Court of Australia Act 1999, s.64(6) |
| Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 George v Northern Health (No.3) [2011] FMCA 894 at [76] Ramos v Good Samaritan Industries [2013] FCA 30 |
| Applicant: | ANTHONY DIMITRI KING |
| Respondent: | DIRECT FREIGHT (AUST) PTY LTD |
| File Number: | MLG 1004 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 17 & 18 February 2014 |
| Date of Last Submission: | 18 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2014 |
REPRESENTATION
| Applicant Appearing In Person |
| Counsel for the Respondent: | Mr Gisonda |
| Solicitors for the Respondent: | Mike Eden Corporate Solicitor |
ORDERS
The application filed on 5 July 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1004 of 2013
| ANTHONY DIMITRI KING |
Applicant
And
| DIRECT FREIGHT (AUST) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 July 2013, Anthony Dimitri King (“the applicant”) filed a claim under the Fair Work Act 2009 (“the Act”) alleging dismissal in contravention of a general protection. In summary the applicant alleges that Direct Freight (Aust) Pty Ltd (“the respondent”) engaged in the following contraventions of the Act:[1]
a)Contravention of s.340 of the Act because he exercised a workplace right; namely, a complaint or inquiry;
b)The respondent discriminated against him on the basis of his political opinion in contravention of s.351 of the Act;
c)The respondent contravened s.340 of the Act by breaching health and safety requirements;
d)The respondent took action against him with intent to coerce in contravention of s.343 of the Act;
e)The respondent exerted undue influence or undue pressure on him in contravention of s.344 of the Act;.
f)The respondent made a false or misleading representation in contravention of s.345 of the Act;
g)The respondent improperly withheld his entitlement to two weeks payment in lieu of notice; and
h)The respondent engaged in or allowed work place bullying.
[1] Applicant’s outline of case. The applicant confirmed in proceedings on 17 February 2014 that he no longer pursued an alleged breach of s.357 – Sham Arrangements.
At the hearing on 17 February 2014 the applicant confirmed he relied on:
·His affidavit filed 26 September 2013; and
·His outline of case filed 26 September 2014.
In the respondents written closing submissions, the respondent stated it relied on:
“…
(a) its Outline of Case (filed on 10 February 2014);
(b) the written and oral evidence of Michael Alkan;
(c) the written and oral evidence of Matt Evans;
(d) the written evidence of Mark Moretto; and
(e) these closing submissions.”
As the applicant was self-represented, I enquired whether he wished to give any further evidence in addition to his affidavit. He declined to do so. Likewise, following cross-examination by Mr Gisando of Counsel, who appeared for the respondent, I advised the applicant that he could give evidence in reply in relation to any matters arising out of cross-examination. The applicant gave evidence in reply in relation to one matter. I also outlined to the applicant the operation and effect of s.340 and given, that in this matter the employer had conceded that the applicant had exercised a workplace right and that his dismissal by the respondent on 11 April 2013 constituted adverse action, the particular focus of the Court’s inquiry; namely, s.360 and s.361 of the Act. In the course of proceedings, because of the nature of the evidence given by the applicant and his cross-examination of the respondent’s witnesses, I also explained to the Applicant that the Court’s function in proceedings such as these is not to determine whether his dismissal was unfair, not to decide whether the reasons for his dismissal were valid reasons nor whether the practices and procedures adopted by the respondent in the workplace were reasonable and applied in consistent and fair manner.[2]
[2] Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at [38] and Khiani v Australia Bureau of Statistics [2010] FCA 1059 at [39]
Given the breadth of the general protection sections the applicant alleged the respondent had contravened, I sought to focus the applicant’s mind on the actual provisions of those sections. For example, I provided the applicant with a copy of s.351 and drew his attention to the fact that, to fall within s.351, his allegation that he was discriminated against in the allocation of overtime required that he identify one of the attributes specified in s.351 which was the basis upon which he alleged the respondent had taken adverse action against him. The applicant identified “political opinion” meaning, he said, “internal politics” at the workplace.
The respondent’s witnesses, Mr Alkan and Mr Evans were cross-examined. Mr Moretto was not available for cross-examination. Pursuant to s.64(6) of the Federal Circuit Court of Australia Act 1999 leave was given to Mr Gisonda to read Mr Moretto’s affidavit such weight to be given to this affidavit as I see fit in the circumstances.
Evidence
The alleged contraventions centre primarily around the events of 10 April 2013 and the next day. Before turning to the evidence of the parties, it is appropriate to make observations about the presentation and credibility of the witnesses.
The applicant presented as a somewhat defensive witness, unable to respond to questions asked of him in a direct manner, preferring to refer to matters which he believed supported his case. Part of the difficulty was that the applicant’s grievance, as it turns out having heard all the evidence, is in the manner he was treated on 10 April 2014 when he said he simply questioned how he was to logistically complete a scheduled truck run, together with the punishment that was meted out to him; namely, summary dismissal. He had grievances about the practices and procedures of the respondent and the way in which the respondent treated employees and he clearly wished to ventilate this during the course of the proceedings. His desire to cast the respondent in the worst light made him, in my opinion, a somewhat unreliable witness. For some reason not apparent at the time, when presented with a document, being an employment agreement between the applicant and the respondent, the applicant was very reluctant to acknowledge that the signature on the document was his signature. He prevaricated and only responded directly that it was his signature upon questions from the Court.[3] Later, when making submissions, the applicant made a serious allegation, completely unsubstantiated by his evidence, that the respondent effectively told its employees, sign employment agreement or there was no job. I formed the view that the applicant was an argumentative character single-mindedly focused on the correctness of his view point.
[3] Transcript of Proceedings, 17 February 2014, p.37 at [5] to [30]
Mr Alkan, the National Human Resources Advisor of the respondent, gave his evidence in a direct and consistent manner. Overall I found him to be a convincing and credible witness. Mr Evan, a bulk driver Supervisor of the respondent and who was at all relevant times the applicant’s direct supervisor, presented as a somewhat reserved and shy person. However, he gave direct answers, conceded points appropriately and readily stated that he could not recall certain matters, given the time lapse since that date.
Overall, therefore, where there are inconsistences as to the evidence I have generally preferred the evidence of Mr Alkan and Mr Evans over that given by the applicant.
The applicant was employed by the respondent as a full time driver at its distribution depot in Campbellfield, Victoria. The respondent provides a freight delivery service. Mr Alkan gave evidence, which was not disputed, that the respondent operates in a highly competitive environment and relies heavily on its on time and intact delivery rate of
98.6 per cent. It has accounts with major clients and a failure to achieve the delivery rate potentially results in a loss of clients and damage to its reputation.
There is no dispute that the applicant had been regularly rostered to drive the same truck and service the same location/area for around six months prior to 10 April 2013. On that morning the applicant approached Mr Evans and queried the load he was scheduled to deliver that day. The applicant says that he asked Mr Evans, “how do you want me to logistically complete the following workload?” to which Mr Evans responded, “if you don’t like it, you know where the gate is” and did this in an aggressive manner.[4] Mr Evans says that the applicant approached him and informed him, that “he believed there were too many ‘hand unloads’ for delivery and that the delivery schedule for that day was not an achievable run.”[5] Mr Evans says that he said to the applicant that he believed that the delivery schedule was reasonable and achievable (based on his experience in settling and checking delivery schedules) and, “instructed him to attempt to complete the schedule.”[6] Mr Evans says that the applicant responded in a manner that was adamant, aggressive and rude and that he refused to carry out his instructions. Mr Evans says that he told the applicant that, “if he was not willing to accept my instructions and proceed with the delivery of the freight, he could leave and that this was totally up to him to decide.”[7] Both the applicant and Mr Evans were unmoved in cross examination as to the sequence of the conversation between the two of them. The applicant denies that Mr Evans instructed him to attempt to make the delivery and alleges that Mr Evans simply responded to his question by telling him that, in effect, if he didn’t like it you know where the gate is. In cross examination the applicant conceded that, even on his own version of events, it was obvious to him that Mr Evans expected him to make or at least attempt the delivery.[8]
[4] Applicant’s affidavit at [2]
[5] Affidavit of Matt Evans at [3]
[6] Affidavit of Matt Evans at [5]
[7] Affidavit of Matt Evans at [6]
[8] Transcript of Proceedings, 17 February 2014, p.34 and p.35 at [25]
There is no dispute that the applicant then proceeded to the gatehouse area, the applicant says he did this in order to go to, “higher knowledge.” When asked what he meant by this phrase, he said to go to another supervisor like Mr Mark Moretto, who would have more of an understanding of the transport industry, to have someone deal with his enquiry. He said he did not accept Mr Evans had properly done his job as supervisor by settling a delivery schedule which was reasonable and achievable. The applicant maintained that Mr Evans was too interested in clearing the floor of delivery items than ensuring a reasonable and achievable load. The applicant stated in cross examination:[9]
“No, I said, as I was walking back with the paperwork to be scanned out, yeah, a forklift driver noticed extra items on the floor belonging to Narre Warren area and indicated to Matthew, hey, there’s a couple extra over here, I will put them on the truck, and he was going to get them and I indicated to Matthew that, look, before you continuously top load the truck, can you please logistically tell me or show me what you want me to do with the cargo that’s already on there.”
[9] Transcript of Proceeding, 17 February 2014, p.28 at [45]
Mr Evans says that after the applicant refused to attempt the delivery he, “left the truck and depot area without even notifying me.”[10] Mr Evans said that at this point he informed Mark Moretto, Senior Operational Supervisor of the incident.
[10] Affidavit of Matt Evans at [6]
In his affidavit sworn 30 October 2013, Mark Moretto deposes:
“4.I began to walk towards the Gatehouse as this is where Anthony King would need to go to exit the site. I asked the gatehouse personnel if Anthony King had left the site. At this point I saw that Anthony King was about to leave the site. I approached Anthony King and requested his version of events. Anthony King explained that he believed the delivery schedule to be unachievable as the load had several hand unloads.”
Mr Moretto was not available for cross examination and the applicant’s evidence is that he was not proceeding to leave the respondent’s premises and certainly not abandoning his employment but rather seeking out the views of Mr Moretto.
Mr Moretto deposed that he was aware that Mr Alkan was present on the premises that day and decided to refer the matter to him. Sometime mid-morning the applicant met with Mr Alkan.
Mr Alkan says that prior to this meeting he interviewed Mr Evans in relation to the incident. He stated that he confirmed with Mr Evans that he had, “completed his job in ensuring that the ‘delivery schedule/run’ was achievable.”[11] He stated that he trusted Mr Evans judgment on this matter. Mr Alkan stated that Mr Evans told him that the applicant had become aggressive and agitated with him, that he had instructed the applicant to attempt the delivery schedule and that if he was not going to comply then he could leave and that this was his choice. Mr Evans also told Mr Alkan that the applicant left the area and did not notify him.
[11] Affidavit of Michael Alkan [6]
Mr Alkan stated in oral evidence that he was the decision maker in that he alone decided to terminate the applicant’s employment summarily on the grounds that he engaged in serious misconduct. He stated that the reasons he dismissed the applicant were because he had formed the view that the applicant had refused a reasonable and lawful instruction; namely, to attempt the delivery run and had abandoned his post. A further reason was the conduct of the applicant during the course of the interview. Mr Alkan described the applicant as becoming, “very agitated, aggressive and raised his voice stating that he would not deliver a load that was unachievable.”[12]
[12] Affidavit of Michael Alkan at [10]
With respect to his interview with the applicant, Mr Alkan deposes as follows:[13]
“7.At this point I invited Anthony King into my office. I began to question Anthony King, requesting his version of events. Anthony King explained that he came into work at 9am, noticed his delivery schedule and thought that it was excessive, and said this to Matt Evans. According to Anthony King, Matt Evans responded firmly that he was aware of the delivery schedule and believed it to be achievable. Anthony King stated that he responded to Matt Evans asking how he came to this conclusion and further requesting direction on how to deliver the schedule/run. According to Anthony King, Matt Evans stated he was not willing to address these questions and rather directed Anthony King to attempt to complete the delivery schedule. Anthony King then stated, how, to which Matt Evans responded if you are not willing to accept my instruction to attempt to deliver the load you can leave and this is your call. Anthony King stated he decided to leave and was in the process of doing so when Mark Moretto approached him at the gatehouse.”
[13] Affidavit of Michael Alkan at [7]
The applicant denies that he told Mr Alkan that he was directed by Mr Evans to attempt to complete the delivery schedule nor that he had decided to leave and was in the process of doing so when approached by Mark Moretto at the gatehouse. The applicant agreed that Mr Alkan asked him if he was aware of the supervisor’s responsibility in ensuring the delivery schedule is achievable prior to the Bulk drivers commencing their shift and that his response was that he was. The applicant agreed that Mr Alkan told him that based on the information provided by Mr Evans, Mr Moretto and himself, it appeared to Mr Alkan that the applicant had refused a reasonable instruction and also abandoned his post and that this was considered to be grounds for instant dismissal. The applicant agreed that he probably did become agitated and raised his voice at that point. The applicant agreed that Mr Alkan stated that if a supervisor requests that you attempt to deliver the load that this was reasonable and it is an expectation that a driver would do so as employee of the respondent. The applicant agreed that at the conclusion of the interview Mr Alkan suspended the applicant’s employment with pay pending further investigation and that the purpose of this was to determine if the replacement driver put in the applicant’s truck to complete the delivery schedule was able to do so.[14]
[14] Transcript of Proceedings, p.30 - 31
Mr Alkan stated that prior to the 10 April 2013 he had not met and did not know the applicant.
Both Mr Evans and Mr Alkan stated the replacement driver, Evan Yusuf (driver number 490), who had been employed for a short period of time, had completed the full delivery schedule on that day. Mr Evans deposed that he arranged for the replacement driver to deliver the applicant’s load and that the delivery was completed by the driver. Mr Evans conceded that he had explained to the replacement driver how to do the delivery. This was because the driver had only been on the job for two weeks. He said he did not think that the applicant needed an explanation as he had been doing the same suburbs and same delivery every day for the last six months. Mr Evans also stated that he did not know when the replacement driver completed his delivery that day.
Mr Alkan stated that he had produced from the respondent’s server Key Performance Indicators (“KPI”) for the respondent’s Melbourne Bulk Fleet drivers on an excel sheet (respondent’s exhibit R3). He explained that the drivers complete their day sheet at the end of the shift and that this information is entered into the server, with the excel sheet being a summary of this data. Mr Alkan said that the spread sheet of the Melbourne Bulk Fleet drivers KPI showed that the replacement driver had made 11 out of 11 deliveries and collected three loads of freight. The applicant maintained that the run by the replacement driver was not completed because the delivery schedule excluded pick-ups. He stated he knew this because he went to the Respondent’s Christmas function and the driver had told him this. The applicant disputed the accuracy of exhibit R3. It appears that the applicant believed that the replacement driver’s delivery schedule was a modified version of the load that he was given to deliver that morning. He believed that the delivery he was scheduled to make had been dispersed amongst other drivers. It became apparent that this belief was formed based on a misunderstanding of Mr Evans’ evidence that:[15]
“This caused operation delay. I was forced to obtain another driver to complete the delivery schedule and to redistribute that driver’s delivery amongst other schedules/runs.”
[15] Affidavit of Mathew Evans at [7]
The applicant deposed that:[16]
“5.On the 10th of April there were untoward coercion and undue influence and pressure as well as misrepresented by Michael Alcan (sic) by:
A:trying to persuade myself that Direct Freight Express was a ‘bit like the army’. You get your order and you don’t ask questions and do what you have been told.
B:that swearing, aggressive and sometime bad behaviour should be tolerated due to the nature of the transport industry and the way truck drivers are.
C:that should I choose to resign from my position a favourable reference would be supplied as well as an extra payment couple of weeks wold be offered, but should I not resign then a bad reference would be given and that it would be difficult to get alternative employment as well as no entitlement would be given.”
[16] Applicant’s affidavit at [5]
Mr Alkan agreed that he did use a military analogy. He says he told the applicant that the operations of the respondent need to operate like a military based culture so what needs to be done has to be done. He denied that he stated that, you get your order and you don’t ask questions. Mr Alkan agreed that the applicant had raised the issue of swearing, aggressiveness and bad behaviour amongst truck drivers but denied that he said it had to be tolerated. He said that he told the applicant he was putting in place steps to deal with this but it would take some time.
Mr Alkan denied that he said to the applicant that should he choose to resign he would give him a favourable reference but otherwise a bad reference. Mr Alkan states that the next day (11 April 2013), having confirmed that the delivery schedule in question was completed and deemed reasonable, he telephoned the applicant and informed him that he was proceeding with the termination because of serious misconduct. Mr Alkan stated that the applicant responded that he would be putting in an application in Fair Work Australia for unfair dismissal. Mr Alkan stated that having heard this response he wanted to avoid the inconvenience and costs of dealing with an unfair dismissal claim and hence asked the applicant, “if he would consider accepting his notice period subject to the acceptance of a deed of release.”[17] Mr Alkan stated that the applicant refused this offer and said he wanted a $50,000.00 settlement. He said he told the applicant that this would not happen and that he would leave the original offer open for few days. The applicant agreed in cross examination that he did inform Mr Alkan that he would be putting in an application for unfair dismissal, that Mr Alkan had then offered resignation and his notice period, that he refused this and said he wanted $50,000.00. The applicant stated that he made this demand for $50,000.00 in jest. He agreed that Mr Alkan said that he would leave the original offer open for a few days.[18]
[17] Affidavit of Michael Alkan at [22]
[18] Transcript of Proceedings, 17 February 2014, p.32
The applicant raises three further incidents which form part of the factual material upon which he makes his claims. Firstly, he deposed that:[19]
“1.In early march (sic) it was reported verbally to the afternoon shift supervisor (George) with regards to the intimidating, aggressive and foul mouth language (bullying behaviour) carried out by the then Incompatibles supervisor know (sic) to me as (Henni?).”
[19] Applicant’s affidavit at [1]
No further evidence was adduced by the applicant regarding this report of bullying and the applicant did not cross examine the witnesses regarding this alleged incident.
Secondly the applicant deposes that:[20]
“3.On the 10th of April discrimination took place by (Direct Freight express management) by allocating the main driver run (Booked in Freight) and the overtime to back up driver of that run. When asked why this was so? No answer was offered or given.”
[20] Applicant’s affidavit at [3]
The complaint of the applicant regarding discrimination appears to be that on the morning of 10 April 2013 the applicant arrived at work expecting that, as the main driver, he would take out all bookings. Instead he says the back up driver was allocated the bookings. In cross examination he stated that when he saw Mr Moretto at the gatehouse he said to him:[21]
“I said, “When I came in this morning, Mark, the backup driver had already come in an hour before me. When I asked Matthew about that situation, he just disregarded that.” I said, “May I ask you why the backup driver was given all the bookings and asked to come in an hour early?” He said, “Look, I don’t know these things. I will ask and I will inquire.” And he said, “Wait here, or come and wait at the office and we will try to sort this thing out.””
[21] Transcript of Proceedings, 17 February 2014, p. 21 at [15] to [20]
Later the applicant stated in cross examination regarding his allegation that the respondent had contravened s.351:[22]
“You’re making up the allegation that Direct Freight is discriminating ‑ ‑ ‑?‑‑‑When you ask – when you ask somebody ‑ ‑ ‑
Let me ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ why is my overtime taken away this morning, why has the backup driver who usually comes in half an hour after me, came in an hour earlier than me, taken all the bookings that, you know – I’m saying, why are these not – you know, a month ago, you told us this and now you’re – is someone changing their story constantly? I’m saying this is – and when you’re not answering, I’m saying obviously I feel discriminated against.
Let me ask the question again. You’re making up the allegation that Direct Freight discriminated against you because of your political opinion, aren’t you?‑‑‑Because of my political opinion?
Yes?‑‑‑What’s my political opinion?
You tell the court, Mr King?‑‑‑I’m saying you’re obviously – what opinion do you think I have? I think it’s Direct’s political opinion that’s causing the – the breach.
You’re aware that discriminating against someone is a horrible thing to do, aren’t you?‑‑‑Well, I agree that everyone should be treated fairly and equally.
And:[23]
[22] Transcript of Proceedings, 17 February 2014, p.23 at [25] to [40]
[23] Transcript of Proceedings, 17 February 2014, p.24 at [5] to [10]
“Well, here’s your opportunity to tell the court?‑‑‑Tell the court what?
Answer that question for the court?‑‑‑Why was I discriminated again? I don’t know. I don’t know. I’m saying, you know, I expect, you know, or, you know, fairness you know, in a workplace like Direct, not to be discriminated against or not to be, you know, hoodwinked.”
Mr Evans stated that he did not recall who the applicant’s back up driver was on the morning of 10 April 2013. He also stated that he was not responsible for allocating bookings:[24]
[24] Transcript of Proceedings, 17 February 2014, p.85, at [15] to [40]
“All right. You don’t know who allocated the workload for that morning?‑‑‑It would’ve been me.
Okay. What was my backup driver doing that day?‑‑‑I can’t recall. You’re trying to tell me that he did a booking or an early time slot which I cannot recall.
And yet you did them, you’re saying?‑‑‑Sorry?
And yet you did them. You allocated them?‑‑‑I don’t allocate bookings.
Okay. I’m saying who allocates the drivers to take the bookings away?‑‑‑It would’ve been Tyrone at the time which is a booking officer which is out of my department.
Okay. Who would ring a backup driver too?‑‑‑Tyrone.
Tyrone?‑‑‑Tyrone .....
And who would instruct him to which driver takes out the bookings or whether it’s the main driver ‑ ‑ ‑?‑‑‑The backup drivers are allocated to do bookings. The main drivers do not get bookings. It’s the way it always works because the main driver has more of a workload than a backup driver, so the main driver obviously has to be in on time, has to leave on time to complete his deliveries. A backup driver will then take on less of a load which is able for them to take out time slots.”
Thirdly, the applicant deposes that:[25]
[25] Applicant’s affidavit at [4]
“4.Health and safety and duties of care was breached by removing the entitlement to a complaint or query.
Example of this is: I informed my supervisor (Matt Evans) that I was pulled over by VIC Roads (R.T.A) and that they had advised me and asked to pass on the information to my supervisor that the ropes allocated were not legal or compliant and should be addressed immediately.
Reply: If you mention VIC Roads or R.T.A anymore, you will be at the gate looking for another job.”
Mr Evans stated that he did not recall whether he was informed by the applicant about an issue regarding the ropes on the trucks. He also denied that he would say, if a driver passed on information regarding an issue raised by VicRoads or RTA, that they should go to the gate and look for another job.
Mr Alkan stated that he was not aware of any verbal report made in March 2013 by the applicant to the afternoon shift supervisor regarding bullying behaviour or the issue involving VicRoads nor was he aware of the applicant’s political opinions.[26]
[26] Transcript of Proceedings, 17 February 2014, p.49
Applicable Law
Section 340 of the Act provides relevantly:
“(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).
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part
4-1).”Section 341 of the Act provides relevantly:
“(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.”
The meaning of adverse action is set out in s.342(1) and for the purposes of these proceedings relevantly provides that adverse action is taken by an employer against an employee if the employer:
a)Dismisses the employee; or
b)Injurers the employee in his or her employment; or
c)Alters the position of the employee to the employees prejudice; or
d)Discriminates between the employee and the other employees of the employer.
Section 343 of the Act provides relevantly:
“(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.”
Section 344 of the Act provides:
“An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c)agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.”
Section 345 of the Act provides:
“(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 351 of the Act provides:
“(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti‑Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
(g)the Discrimination Act 1991 of the Australian Capital Territory;
(h)the Anti‑Discrimination Act of the Northern Territory.”
Section 360 of the Act provides:
“For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361 of the Act provides:
“(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.”
In relation to each of the contraventions alleged by the applicant, it is for applicant to establish the objective facts which are said to provide the basis for the alleged contraventions. For example, it is for the applicant to establish that he had a workplace right and was the subject of adverse action: s.340. Similarly, in relation to his allegation as to “discrimination” it is for the applicant to establish that he has an attribute specified in s.351(1) and that he was subject to adverse action.[27] Once proved the onus shifts to the respondent to prove that the adverse action was not taken for a reason that constitutes a contravention of Part 3.1.
[27] Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32 (“Barclay”), the High Court considered the meaning of the phrase “because of” in relation to s.346 of the FW Act, but the Court’s reasoning is directly applicable here.
At [41], French CJ and Crennan J said:
“The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act.”
At [44] to [45], French CJ and Crennan J continued:
“[44]There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean 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?”.
[45]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.”
Gummow and Hayne JJ said, at [101]:
“The use in s 346(b) of the term “because” in the expression “because the other person engages … in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, while there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.”
At [104], Gummow and Hayne JJ continued:
“In light of the legislative history of s 346 and the intention of parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
Having discussed argument about the issue of objective or subjective intention, their Honours went on to say at [126] to [128]:
“[126]The relevant frame of reference in this case is a statutory provision in which neither of the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this court, to provide such a basis. Indeed no direct challenge was made to what had been said by Mason J in Bowling.
[127]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 among 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.
[128]While it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.”
Finally for these purposes I would refer to the judgment of Heydon J where his Honour said at [141]:
“… Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant’s burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations.”
Workplace Right – s.340
In these proceedings the respondent concedes that the applicant purported to exercise a work place right when on 10 April 2013 he approached his direct supervisor, Mr Evans and questioned him in relation to the delivery of a workload he was scheduled to make that day. The respondent also concedes that adverse action was taken against the applicant when he was dismissed on 11 April 2013.
The onus therefore shifts to the respondent for it to demonstrate that the adverse action taken against the applicant was not for a reason or reasons which constitutes a contravention of Part 3.1 of the Act. The respondent submits that its reasons for dismissing the applicant did not include a prohibited reason under the Act. The respondent submits that the applicant was dismissed on ground only of serious misconduct.
The respondent correctly submits in relation to the applicant’s complaint regarding the scheduled load he was to deliver the following:
a)The fact that there is a temporal connection between the adverse action and any inquiry or complaint does not, on its own, dictate a conclusion that there was a causal connection between both;[28]
b)The general protection provisions of the Act in Part 3.1 do not prevent the termination of an employee who has made an inquiry or complaint;[29]
c)The general protection provisions in Part 3.1 of the Act do not require an employer to deal with an inquiry or complaint in any particular way or even to deal with the inquiry or complaint at all.
[28] George v Northern Health (No.3) [2011] FMCA 894 at [76]; Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [36]
[29] George Ibid at [81]; Ramos v Good Samaritan Industries [2013] FCA 30 at [132]
As noted earlier, the applicant’s evidence focused almost entirely on the validity of the reasons given by Mr Alkan for the dismissal; in other words, disputing whether or not the instruction by Mr Evans was reasonable and whether or not he had abandoned his employment. He focused on the culture and environment and work practices at the respondent’s premises, the training undertaken by supervisors and the implementation of the respondent’s policies and procedures. It appears to the Court that the crux of the applicant’s complaints is his heart felt grievance about the way he was treated, in particular on the 10 April 2013. The nature of his grievance with the respondent was made apparent in the applicant’s closing submissions, the gist of which was that a reason for Mr Alkan’s decision to dismiss the applicant was to enable the respondent to enforce an environment in which the respondent could diminish or remove its employees’ workplace rights.[30]
[30] Transcript of proceedings, 18 February 2014, p.5 at [15] to [40]
The applicant’s submissions were:[31]
[31] Transcript of proceedings; 18 February 2014, p.4 - 6
“I put to your Honour that I never, ever said that the run was not doable, or that it was never – all I asked was, “Before you continuously load the truck,” which I don’t believe they continued to load the truck after the action – was not only the workplace right breached, but it’s used as a battering thing for the employees to be basically in a fear-driven environment, in a sense. You ask any questions, and this is what happens to you.
Direct seems to use the law only when it’s convenient for them, only when they don’t seem to be busy, or if they’re too busy, then they seem to do things half-hearted, as Mr Alkan and Mr Evans stated in their testimonies, during the busy periods. I believe this action is taken to enforce the political militant nature of Direct’s way of running its company, in order to basically reduce or take away all the workplace rights that people might believe they have, but are fearful of even, you know, contemplating the use of them due to the fact that their employment situation is on the line.
HER HONOUR: When you say “this action,” what do you mean by “this action?” You said you believe that they used this action to enforce ‑ ‑ ‑
MR KING: The dismissal of myself. The adverse action is an example to the other drivers. I believe if Mr Alkan was adamant that I abandoned my post, he would have instantly dismissed me on that day. As I asked him yesterday, “What constitutes misconduct?” and he said, “Theft, physical violence, your conduct.” I’m saying that I was never instantly dismissed, your Honour. I believe Direct Freight was waiting for the question to be answered, which was their own question that they implied and sort of like disregarded. You know, the question in itself was ‑ ‑ ‑
HER HONOUR: What question?
MR KING: How do I logistically do this run, before you continuously load – top load further products, in a sense.
HER HONOUR: So you say that a reason for Mr Alkan’s decision to dismiss you was for them to enforce an environment in which to, in your words, take away workplace rights people might believe they might have.
MR KING: That’s right. Yes.
HER HONOUR: Is that what you’re saying?
MR KING: Yes, I am, and basically to drive a fear environment, your Honour, of, “Do it our way, or it’s the highway.” I believe they’re using me as an example, as I said, for other drivers. It doesn’t matter, in the sense of how good you drive or how well you perform or whether you turn up every day and have no warnings. You’re not susceptible to any sort of, like, sense of security at this company. If you don’t do what you’re told, you have no security – or question any authority that Direct imposes upon its employees. I believe that even the evidence that was submitted in its exhibits – for example, the KPI sheets – are questionable, your Honour, and I don't know whether collusion has gone on, or computer error. This is based on my conversation with the actual driver of that truck on that day, and I’m saying I had, like, you know, a good 20 minute face-to-face conversation with that particular person, and the exhibits that have been indicated or presented to yourself are completely, you know, not with what I had ..... I was under the understanding. I believe Direct has avoided producing any sort of hard evidence to base or back up their story with regards to how that run was done…”
These wide ranging allegations made by the applicant against the respondent were not put to the respondent’s witnesses; in particular, Mr Alkan and are not substantiated by way of probative evidence produced by the applicant. They indicate to the Court a tendency by the applicant to exaggerate and embellish his complaints against the respondent to make good his deep felt grievances about the way in which he was treated by the respondent.
The respondent submits that as it is a corporation, it is necessary to identify the effective decision makers within the organisation, and their motivation.[32] The respondent submits that the relevant decision maker was Mr Alkan and that his direct testimony to the Court, which was credible and reliable, was that the main reason for his decision were that the applicant had abandoned his post and that the applicant refused to comply with a reasonable direction. Mr Alkan also referred to another reason being the applicant’s aggressiveness on the morning of 10 April 2013. The respondent submits that Mr Alkan gave clear evidence in chief that he did not dismiss the applicant because he had made a complaint or inquiry or that he had made a verbal report in early March 2013 about aggressive or offensive language or because of the applicant’s political opinion or because he had raised a matter about the legality of ropes used by the respondent or for any other reason(s). The respondent submits that Mr Alkan gave evidence that he had received complaints and inquiries before, and had not dismissed an employee because they had made a complaint or inquiry. The respondent submits that the applicant did not take issue with Mr Alkan evidence about his state of mind and reasons for dismissing the applicant. The respondent submits that the letter of termination to the applicant which Mr Alkan wrote on the day of his decision to dismiss the applicant (11 April 2013) is contemporaneous evidence in support of Mr Alkan’s subjective intentions.
[32] Jones Op.cit at [129]
I am satisfied that the applicant exercised a workplace right on 10 April 2013 when he questioned Mr Evans about how he could deliver the load scheduled for his delivery run that day. The applicant was an employee able to make a complaint or inquiry in relation to his employment and did so on that date: s.341(1)(c)(ii). I am further satisfied that on 11 April 2013 the respondent took adverse action against the applicant by summarily dismissing him. The focus of the Court’s inquiry, by reasons of ss.360 and 361, are the reasons for the dismissal and, in particular, the state of mind and reasoning of the decision maker. I am satisfied that the decision maker was Mr Alkan.
In his oral evidence, Mr Alkan set out his reasoning in deciding that the applicant should be dismissed summarily for serious misconduct. He referred to the competitive environment in which the respondent operates and the necessity for the respondent to deliver freight on time and intact at a 98.6 per-cent rate. He stated that he interviewed Mr Evans first in relation to the circumstances that morning as well as Mr Moretto. He then interviewed the applicant and formed the view that the applicant had abandoned his employment in the sense that but for the intervention of Mr Moretto and the direction that he attend a meeting with himself, the applicant would have left the premises of the respondent that morning. He further formed the view that Mr Evans had instructed the applicant to make the delivery or at least attempt to make the delivery and that the applicant had refused to do so. Mr Alkan stated that he was satisfied, on the basis of Mr Evans experience and trustworthiness, that the direction of Mr Evans was a reasonable one, in the sense that the delivery the applicant was scheduled to make was one that he could reasonable perform. He, therefore, formed the view that the applicant had disobeyed a reasonable and lawful order made by Mr Evans.
Mr Alkan also stated that the applicant’s conduct in the course of his meeting with him on 10 April 2013 was aggressive and rude and constituted behaviour in breach of the applicant’s contract of employment (respondent’s exhibit 2); specifically clause 12.5 as well as the obligations contained in the section, “Personal Conduct” of the respondent’s code of conduct which was attached as an Appendix to the contract of employment.
It is to be noted that the applicant, somewhat reluctantly, agreed that he had signed a document being a contract of employment between him and the respondent (dated 28 June 2012). Clause 12.5 of the contract of employment provides:
“Direct Freight may terminate your employment immediately without notice or any payment in lieu because of your serious or wilful misconduct or for any breach of code of conduct (see appendix A).”
Under the heading, Personal Conduct, the respondent’s Code of Conduct provides that the respondent expected employees to be courteous to fellow employees, that abusive behaviour is not tolerated and that employees are not to use in appropriate or offensive language at any time either in verbal or written form.
Mr Alkan said that he informed the applicant at the meeting on 10 April 2013 he had formed the view that the applicant had engaged in serious misconduct warranting instant dismissal because the applicant had abandoned his employment and disobeyed a lawful and reasonable order. However, before he made his final decision he wanted to ascertain whether the replacement driver, Evan Yusuf, was able to complete the delivery the applicant was scheduled to undertake on time. It is to be noted that the applicant agreed in cross examination that this is what Mr Alkan told him.
Mr Alkan stated that on 11 April 2013, having examined the KPI for Melbourne Bulk Freight drivers, he was satisfied that the replacement driver had been able to deliver the load on time. He was consequently satisfied that the instruction to make or at least attempt the delivery to the applicant by Mr Evans was a reasonable instruction and that the applicant’s refusal to do so constituted a refusal to obey a lawful and reasonable order. Together with his view that the applicant had abandoned his post and employment and taking into account the applicant’s aggressive and intimidating behaviour both in his interview with the applicant and to Mr Evans, Mr Alkan formed the view that the applicant had indeed engaged in serious misconduct on 10 April 2013 and that his employment should be summarily dismissed. Mr Alkan stated that he did not dismiss the applicant because he had made a complaint, he was not aware of the applicant’s complaint to his supervisor about bullying and aggressive behaviour nor was he aware of the applicant’s alleged complaint to Mr Evans regarding the ropes around his truck.
There is no dispute that on 11 April 2013 Mr Alkan rang the applicant and informed him that his employment had been dismissed summarily. Mr Alkan also wrote a letter of termination to the applicant, dated 11 April 2013, in which he stated:
“It was concluded that you were given a reasonable instruction to complete the relevant workload.
You contested the workload arguing that the workload was not achievable however in addition to this you also carried yourself in a manner not considered to be acceptable in accordance with your employment contract and further DF policies/procedures.
The Supervisor informed you attempt to carry out your workload as per normal and that the workload was considered appropriate and any other actions would be deemed serious misconduct.
DF notes that at this point in time of the incident you made the decision to walk offsite and refused to carry out the reasonable instruction …
DF takes these matters extremely seriously. DF notes that you have breached the company employment contract, code of conduct and policies/procedures surrounding serious misconduct.”
The applicant conceded that it was apparent to him that Mr Evans wanted him to make or attempt to make the delivery. The applicant vigorously denies that this was reasonable direction nor that he left his post or indeed his employment. The applicant maintains, based on his conversation with the replacement driver at the respondent’s Christmas function in December 2013, that the replacement driver was not required to deliver the full load that Mr Evans had expected him to do. Apart from the applicant’s evidence as to a conversation he had with the replacement driver which was only made in the course of cross examination, there is no probative evidence for the Court to suggest that the KPI excel sheet for Bulk freight drivers on 10 April 2013 is not reliable. It is not the Court’s function to determine whether there was a valid reasons for the applicant’s dismissal; that is, whether, on the one hand, the direction by Mr Evans was reasonable and, on the other hand, whether the applicant refused such direction or indeed whether the applicant left his post or employment or was merely searching for, “higher knowledge”. I find the submission by the applicant, that the respondent took the opportunity in circumstances on that day to dismiss the applicant so as to persuade its employees from exercising their workplace rights, completely unfounded and specious.
As I have stated earlier, I found Mr Alkan gave his evidence directly and it was credible and believable. I accept his evidence that the applicant was summarily dismissed because he had formed the view that the applicant had engaged in serious misconduct because he had disobeyed a lawful and reasonable instruction, had abandoned his post and employment and had engaged in conduct, during the interview on 10 April 2014, in breach of his obligations under his employment contract. This clear testimony of Mr Alkan is supported by the content of the letter of termination that he wrote on 11 April 2013, the day that he decided to dismiss the applicant. Consequently I find that a reason or reasons for the applicant’s dismissal on 11 April 2013 did not include the exercise of a workplace right; namely, the making of a complaint in relation to his employment.
The applicant also alleges the respondent contravened s.340 by breaching health and safety requirements. I assume that the applicant is referring to his allegation that when he informed Mr Evans that he was pulled over by the RTA and advised that the ropes allocated to his truck were not legal or compliant Mr Evans stated if you mention RTA or VicRoads anymore you will be at the gate looking for another job. No doubt the alleged response of Mr Evans is said to constitute a threat to injure the applicant in his employment. Mr Evans stated that he does not recall this conversation. The applicant made no submissions as to how his action in conveying information provided by VicRoads/RTA constituted a workplace right. In any event, Mr Alkan the decision maker stated, and I have accepted his evidence on this, that he was not aware of a complaint made by the applicant regarding his ropes or indeed the intervention of the RTA. I have accepted Mr Alkan’s evidence as to the reasons for dismissing the applicant and consequently I find that a reason or reasons for the applicant’s dismissal did not include the exercise of a workplace right alleged to arise from health and safety breaches.
Intent to coerce – s.343
The factual circumstances alleged by the applicant giving rise to contravention of s.343 are set out at [25] above.
The Federal Court of Australia dealt with the meaning of coercion and duress in some detail in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2013] FCCA 1881 at [44] to [57] with particular reference to the decision of Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243. The Court concluded at [55] to [57]:
“[55]What is evident in both Schanka and National Jet Systems is the necessity that the employer intend to apply the pressure that will remove from the employee real choice. Whereas Moore J states the requirement explicitly (as seen in the emphasised sentence above), Buchanan J is a little less direct and relies on the test for “intent to coerce” found in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union [2001] FCA 456; (2001) 109 FCR 378. According to this test intent attaches to the first limb of duress, and not to the illegitimacy of the compulsive conduct.
[56]I am fortified in this view by the judgment of Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 in which his Honour opined:
“The approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.
I am fortified to some degree in my view that this is the correct meaning to ascribe to the expression "intent to coerce" by the observations of Lord Romilly MR in Ellis v Barker (1871) 40 LJ Ch 603. His Lordship accepted that coercion may take an infinite number of forms. However, he noted that the moment that a person who influences another does so by threatening to take away something he then possesses, or by preventing him from obtaining an advantage he would otherwise have obtained, it then becomes coercion and ceases to be persuasion.”
[57]Thus, in my opinion, the court must enquire firstly, as to whether there exists conduct the effect of which is to leave an employee or future employee no real choice; secondly, that this negatory effect was intended by the employer; and thirdly that the conduct was illegitimate, whether unlawful, unconscionable or otherwise.”
As to the applicant’s allegation that in his interview with Mr Alkan on 10 April 2013 Mr Alkan stated, “you get your order and you don’t ask questions and do what you have been told”, I prefer the evidence of Mr Alkan that he told the applicant that the operations of the respondent need to operate like a military based culture so what needs to be done has to be done. I am not satisfied that this was conduct intended by the respondent to leave the applicant with no choice. In context, I find that this analogy was used by Mr Alkan to explain why the respondent’s employees must obey reasonable instructions made by their supervisors. Likewise, I accept Mr Alkan’s evidence that he told the applicant he was putting in place steps to deal with aggressive and abusive behaviour by employees of the respondent but it would take some time. Consequently I find that this conduct does not constitute an intent to coerce within the meaning of s.343 of the Act.
The applicant alleges that Mr Alkan took action with the intent to coerce him into resigning (and presumably not exercise his right to initiate proceedings under workplace laws) by threatening that if he did not resign he would give him a bad reference making it difficult for the applicant to obtain employment and that he would not receive his entitlements. I accept Mr Alkan’s evidence as to the sequence of events. This is, that he informed the applicant that his employment had been dismissed summarily, the applicant then said that he would make an unfair dismissal application, whereupon Mr Alkan made an offer to the applicant involving resignation, two weeks’ pay and a deed of release. This offer was refused by the applicant. I take judicial notice of the fact that the elements of this offer; namely, resignation, payment of a sum of money and deed of release, are not uncommon in termination cases. It is manifestly apparent that the offer was not intended to and did not negate the applicant’s choice, indeed he refused it. There is no doubt Mr Alkan intended to dissuade the applicant from pursuing a remedy under relevant laws but, in any event, it cannot be said that such conduct, the making of offers to settle or avoid litigation is illegitimate.
I find that the respondent did not engage in conduct in breach of s.343 of the Act.
Undue influence or pressure – s.344
The applicant also relies on the factual circumstances alleged by him set out at [25] above as giving rise to a contravention of s.344.
This alleged contravention is completely misconceived. There is nothing before the Court which is directed to the specified matters in subsections (a) to (e) of s.344.
I find that the respondent did not engage in conduct in breach of s.344 of the Act.
Misrepresentation – s.345
The applicant also relies on the factual circumstances alleged by him set out at [25] above as giving rise to a contravention of s.345.
I have accepted Mr Alkan’s evidence and consequently do not find that he knowingly or recklessly made a false or misleading representation about the applicant’s or the respondent employees’ workplace rights.
I find that the respondent did not engage in conduct in breach of s.345 of the Act.
Discrimination – s.351
It appears that the applicant alleges that the respondent took adverse action against him in denying him overtime bookings because of the respondent’s political opinion or in the applicant’s words its internal politics. The applicant did not explain what he meant by the respondent’s internal politics.
The basis upon which the applicant alleges the respondent breached s.351 is fatally flawed. Firstly, there is no probative evidence before the Court which discharges the applicant’s onus to establish on the balance of probabilities that he was not allocated overtime bookings as he alleges. Secondly, it is doubtful that the reference to political opinion embraces internal politics at a work place.
The ordinary meaning of the word “political” can be ascertained by reference to the English Oxford Dictionary (on-line edition 2014) which defines “political” as:
“a.Of, belonging to, or concerned with the form, organization, and administration of a state, and with the regulation of its relations with other states;
b.Of a person: belonging to or forming part of a civil administration, esp. as opposed to a military one; spec. designating a government official acting as a political adviser to the ruler of one of the princely states in pre-independence South Asia, as political agent, political officer. Now hist.
c.Involved, employed, or interested in politics; that takes a side, promotes, or follows a particular party line in political debate. Also (somewhat derogatory): having regard to or affected by the interests of a party or parties rather than principle; partisan, factious.”
The English Oxford Dictionary (on-line edition 2014) defines “opinion” as:
“...As a count noun: a view held about a particular issue; a judgement formed or a conclusion reached; a belief; a religious or political conviction. Formerly (also): a plan, an intention (...”
I am satisfied the ordinary meaning of “political opinion” does not include a workplace’s internal politics.
Thirdly, the political opinion must be held, under s.351, by the employee against whom adverse action is or was taken. The applicant alleges that the respondent held the political opinion.
Clearly, the respondent cannot be said to have contravened s.351 of the Act.
Applicant’s Entitlement
The applicant claims the employer improperly withheld his entitlement to notice in lieu. The claim before the Court in these proceedings relate only to contraventions of Part 3-1 of the Act. The applicant has not claimed breach of the Act because of his entitlement, for example, under a relevant Award: s.45.
I decline, therefore, to deal with this claim.
Conclusion
For the reasons set out above, I find that the respondent has not contravened ss.340, 343, 344, 345 and 351 of the Act. Consequently, the application filed by the applicant on 5 July 2013 is dismissed.
I certify that the preceding nighty-two (92) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 24 March 2014
10
3