Kruger v Watsons Marine Engineering Pty Ltd - [2024] FedCFamC2G 125

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kruger v Watsons Marine Engineering Pty Ltd [2024] FedCFamC2G 125

File number(s): BRG 311 of 2022

Judgment of: JUDGE EGAN

Date of judgment: 16 February 2024

Catchwords: INDUSTRIAL LAW – Whether presumption that adverse action was taken for a prohibited reason was rebutted – where the Court accepted the evidence of the witnesses for the respondent – where termination of employment was because of longstanding and ongoing poor work performance - application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss 13, 14, 340, 341, 342, 351, 360 and 361

Manufacturing and Associated Industries Award 2020

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Ermell v Duluxgroup (Aust) Pty Ltd (No. 2) [2015] FCA 17

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250

Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740

Division: Division 2 General Federal Law

Number of paragraphs: 81

Date of last submission/s: 7 December 2023

Date of hearing: 24 - 27 October 2023 and 7 December 2023

Applicant: Litigant in person

Counsel for the Respondent: Mr T Duhig of Counsel

Solicitor for the Respondent: Mr S Taylor, Simon Taylor Solicitor
ORDERS

BRG 311 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FREDERIK CHRISTIAAN KRUGER

Applicant

AND:
WATSONS MARINE ENGINEERING PTY LTD

Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

16 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Application filed on 26 July 2022 be dismissed.
2.As to the question of costs, the Respondent have leave to file and serve an affidavit as so advised on or before 4:00pm on 1 March 2024.
3.The Applicant have leave to file and serve affidavit material in response on or before 15 March 2024
4.The Respondent file and serve any written submissions on the question of costs (limited to no more than 5 pages) on or before 4:00pm on 29 March 2024.
5.The Applicant file and serve written submissions in reply (limited to no more than 5 pages) on or before 4:00pm on 12 April 2024.
6.The Court hand down its decision on costs on the papers.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION

The applicant commenced work on a full-time basis with the Respondent on 28 February 2017 in the role of a Fitter and Turner. He had emigrated to Australia from South Africa.
The applicant was a National System Employee within the meaning of s. 13 of the Fair Work Act 2009 (Cth) (‘FWA’).
The respondent was a National System Employer within the meaning of s. 14 of the FWA. It carried on the business of marine engineering from premises situated at Coomera in the State of Queensland.
The applicant was employed pursuant to the provisions of the Manufacturing and Associated Industries Award 2020.
By a Statement of Agreed Facts (‘SOAF’) [1] filed on 28 August 2023, the parties by paragraphs 3, 4 and 5 thereof agreed as follows:
[1]           Exhibit 6.
3.   Contact between the Applicant and the Respondent.
a.   The Applicant emailed his employer on the following dates:
i.          28 January 2022;
ii.        31 January 2022;
iii.       2 February 2022;
iv.       3 February 2022;
v.        6 March 2022; and
vi.       13 March 2022.
b.The 28 January 2022 email the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
i. concerns over his Annual Leave entitlement; and
ii. concerns over being bullied in the workplace.
iii. his continuing employment.
c.The 31 January 2022 email the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
concerns over the COVID-19 policy of the Employer; and
i.        concerns over his personal leave entitlement.
d.The 2 February 2022 email the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
i.concerns over his Annual Leave entitlement;
ii.concerns over his Personal Leave entitlement; and
iii.his continuing employment.
e.The first email sent on 3 February 2022 that the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
i.       concerns over his Annual Leave entitlement;
ii.        concerns over his Personal Leave entitlement; and
iii.      his continuing employment.
f.The second email sent on 3 February 2022 that the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
i.concerns over his Annual Leave entitlement;
ii.concerns over his Personal Leave entitlement; and
iii.his legal options.
g.The 6 March 2022 email the Applicant sent to his employer conveyed complaints, and/or grievances, or otherwise inquiries, that included:
i.     concerns over his Annual Leave entitlement;
By paragraph 6 of the said SOAF, the issue in dispute between the parties was identified as being:
Whether the Applicant was subjected to Adverse Action in breach of his General Protections, for the purposes of s. 341 of the FWA.
It was understood at trial that that narrow dispute was based upon the provisions of s. 340 of the FWA.
Though other claims under other sections of the FWA were made in the applicant’s Amended Statement of Claim filed on 21 October 2022, the applicant’s case at trial was confined to claims as set out in the SOAF, namely that the respondent had taken adverse action against the applicant for a prohibited purpose. Hence, the Court accepts the submissions made on behalf of the Respondent that the applicant was confined to claims made by him under s. 340 of the FWA as read in conjunction with s. 341 of the FWA. The Court will therefore not canvass in this judgment any claims relating to incorrect payment, discrimination, or such other claims as were addressed in [279] – [283] of the applicant’s written submissions filed on 19 November 2023 at 5:52pm, or those other claims in and after [288] of the applicant’s said written submissions, save for the claims for economic loss as set out in [296] (2) and (3) of such submissions.
As to the way in which courts ought to proceed in matters such as the present, it was held by Bromberg J in Ermell v Duluxgroup (Aust) Pty Ltd (No. 2) [2015] FCA 17 at [48] as follows:
“48. In general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.”
The applicant’s claims, therefore, were confined to his claims that adverse action was taken against him by the respondent for a prohibited purpose, as well as his claims for financial loss phrased in terms of “compensable economic damage” and “compensable non-financial damage”, the latter being a claim which was wholly unparticularised, and about which no relevant evidence was adduced.
As set out in [6] – [9] inclusive of the SOAF, the matters in contest between parties were as follows:
Matters contested between the parties
6.Whether the Applicant was subjected to Adverse Action in breach of his General Protections, for the purposes of s.341 of the FW Act.
7.Whether the Respondent terminated the role of the Applicant because, jointly or severally, he made Complaints on:
a.        28 January 2022;
b.        31 January 2022;
c.        3 February 2022;
d.        8 February 2022;
e.        6 March 2022; and
f.        13 March 2022.
8.Whether the Applicant suffered compensable economic damage as a consequence of the breach of his General Protections, and if so, the extent of that loss.
9.Whether the Applicant suffered compensable non-financial damage as a consequence of the breach of his General Protections, and if so, the extent of that loss.
Consistently with [6] – [9] of the SOAF, the issue for determination by the Court was whether the making of the complaints or inquires by the applicant, as set out therein, was the reason why the applicant’s employment was terminated.
Applicant’s Claims
The applicant’s sworn and oral evidence sought to justify his impugned conduct as being unfair and wrong except in at least two (2) stark respects which are later referred to. The impugned conduct of the applicant said to be the reason for the termination of his employment was recorded by the respondent as having occurred over some years. The applicant’s evidence went to the propositions as set out in [249] – [267] of the applicant’s written submissions filed on 19 November 2023, which propositions were as follows:
[249]I demonstrated that I had a valid reason and a right to make a complaint, because Miss Manttan relied on a lie up to the trial, regarding “me not having sufficient personal leave”, or that I made a “leave request” and then “changed my mind” when she sacrificed my annual leave entitlements.
[250]I had a valid reason and a right to raise my concerns and make a complaint because of ongoing unfair practices regarding bullying in different forms, in contravention of my general protections in the workplace of the respondent.
[251] I had a right to make a reasonable and fair request that all those practices be stopped and that my correct leave entitlements get returned.
[252]I did nothing wrong that can be verified, that justified an immediate dismissal before, or after I initiated my concerns or complaints on 28 January 2022.
[253]The respondent often referenced that I “failed taking directions”, which is simply not true. The respondent rather failed to realize or recognize that making misleading and unlawful allegations and making contradicting statements under oath, is failing to recognize and follow directions of the law themselves.
[254]The respondent ignored my invitation that should they consider my request for mutual respect as “asking too much”, that I am willing to negotiate my termination on 31 January 2022. This is the same time I initiated a complaint 6 weeks before my dismissal. They knew they needed me at the time and there was no valid reason to dismiss me either.
[255]In the email of 28/01/2022, I also asked the respondent if there were any other problems the respondent would like to address. The respondent never addressed, or referred to any of the alleged issues that were used to justify my immediate dismissal 6 weeks later.
[256]The respondent again ignored my invitation 3 days before I was dismissed, to explain to me what I am doing wrong when I offered a self-reflection trying to understand the ongoing unfair treatment and practice of isolation.
[257]The respondent also ignored my complaint 3 days before I was dismissed, about another incident of abuse.
[258]The respondent did not follow the fair dismissal code for small businesses to ensure procedural fairness and under the circumstances, my dismissal was unfair, harsh, and unreasonable.
[259]I could demonstrate through my ongoing successes with my survey tasks done, that I did not fail in my capacity as a Fitter and Turner. I never failed anywhere else in my capacity as a Fitter and Turner and still successfully perform the main machining duties at my new employer for more than 18 months already, with no issues relating to the claims of the respondent.
[260]I have more than 30 years of industry experience and have been employed with the respondent for 5 years and have no work history relating to any of their allegations. I have a clean record and smearing me to justify an unfair dismissal is unacceptable and is the reason why I stood my ground until now.
[261]False and misleading claims were made in the dismissal letter regarding tools and equipment and regarding maintenance issues with a particular lathe, which did not reflect the true issues.
[262]The witnesses representing the respondent made and relied upon several deliberate false and misleading affidavit statements to cover up the true extend of these issues.
[263]I regard the misleading and false accusations as slander, to damage my reputation as a Fitter and Turner tradesman and a personal attack to punish and humiliate me for taking a stand on the matters that repeatedly contravened my personal protections, rights, and entitlements in the workplace of the respondent.
[264]Being dismissed (unfairly) has harmed my image (and my employment record) and has put me at a disadvantage at my new employer, because I could not negotiate for the correct pay rate of another employee with the same qualifications, but less than half my years of industry experience when I started. This has caused me a significant loss up to this point and I am not sure if I even will be able to catch up in coming years.
[265]I was not in breach of the company policies and did not make myself guilty of any serious misconduct that justified my immediate dismissal.
[266]When the respondent found I would challenge my dismissal, they provided more misleading and false information regarding alleged “warnings” in the form of “7 x Employee File Notes”, which I have never seen before 24 August 2022, and which cannot be verified to have been made known to me on any occasion while employed with the respondent.
[267]To my best understanding, this prove that my immediate dismissal, was directly linked to my complaints made between 28 January 2022 and the day I got dismissed on 16 March 2022.
The general, and largely unparticularised, pleading of the applicant’s complaints/inquiries (as contained in six (6) emails sent by the applicant to the respondent between 28 January 2022 and 13 March 2022) were as set out in [3](t) – [3](qq) of the Amended Statement of Claim. Those broad allegations were more particularly expanded upon in the respective affidavits of the applicant filed on 2 June 2023 and 4 July 2023.
The way in which the applicant most sought to convince the Court that his employment had been terminated in contravention of the provisions of ss. 340 and 341 of the FWA was by his seeking to firstly justify his conduct concerning the respondent’s allegations of poor workmanship made against him, and thereafter his claiming that his employment was terminated because of the written email complaints/enquiries made by him to the respondent between 28 January 2022 and 13 March 2022. [2] In that latter regard, it is of note that prior to 28 January 2022, the date of the applicant’s first email, the applicant had been the subject of six (6) recorded allegations where the applicant had been accused of poor workmanship.
[2] See Annexures KM-02, KM-10 and KM-11 to the affidavit of Kelly Manttan filed on 22 June 2023.
Those allegations were as set out in each of the “Employee File Note” documents which had been discovered by the respondent, as documents relevant to the quality of the applicant’s workmanship, such file notes having been saved on the applicant’s personnel file. The way in which the applicant sought to justify his work performance at trial substantially increased the length of the trial, particularly because of the repetitive way in which the applicant conducted his own cross examination of the three witnesses called on behalf of the respondent.
The applicant’s letter of termination, [3] relevantly highlighted three areas of ongoing poor workmanship on the part of the applicant which were cited as being the reasons for termination, namely: ,
(a)Continued misuse of the Colchester Lathe resulting in thousands of dollars worth of repairs and excessive downtime.
(b)Destruction of approx. $3,000.00 worth of taper shank drills with no consultation with management.
(c)Destruction of approx. $500.00 worth of taps by regrinding and cutting at taper tap in half to make a plug tap.
[3] Exhibit 4.
The Court in its judgment will first confine itself to a consideration of those three issues for the purpose of determining whether the adverse action taken by the respondent against the applicant was so taken for a prohibited reason under s. 342(1) of the FWA. The letter of termination provided as follows: [4]
[4] Exhibit 4.
Dear Frederick,
Termination of your employment
I am writing to you about the termination of your employment with Watson Marine Engineering Pty Ltd.
On 5^th July 2021 you met with Greg Watson. In that meeting, you were spoken to regarding the continued misuse of the workshop tooling. Greg advised that there was not a single tip, boreing bar or tool post at the Colchester Lathe that was not broken or damaged. Greg advised he would rectify all tooling & advised more care & attention needed to be taken to ensure these breakages do not continue.
On 24^th November 2021 you had a second meeting with workshop foreman Brad Manttan & Gordon Harrigan our workshop machinery mechanic. You were advised that your misuse of equipment had not improved to the level required. Both Brad & Gordon discussed with you the excessive damage caused to you machine the Colchester Lathe. There has been almost $5000 woth of repairs performed on this machine in the past 2 years alone. This is more than has been required over the previous 10 years. Gordon explained damage like this would not occur if the machine was being operated in the correct manner.
You also attended a meeting with Greg Watson & Brad Manttan on 8^th February 2022. In that meeting you were again address with these issues. It was indicated that your employment may be terminated if your performance & conduct did not improve. It was explained that WME cannot keep absorbing the cost of excessive machinery repairs & the misuse must be rectified.
We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:
•Continued misuse of Colchester Lathe resulting in thousands of dollars worth of repairs & excessive downtime. Continued misuse of Colchester Lathe resulting in thousands of dollars worth of repairs & excessive downtime.
•Destruction of approx $3000 worth of taper shank drills with no consultation with management
•Destruction of approx $500 worth of taps by regrinding & cutting at taper tap in half to make a plug tap
Your employment will end immediately. Based on your length of service, your notice period is 3 weeks. In lieu of receiving that notice, you will be paid the sum of 3 weeks base pay.
Upon the return of your all work uniforms you will be paid the balance of your accrued entitlements.
Yours sincerely,
Greg Watson
Kelly Manttan
Todd Watson
WME Company Directors
Credibility Issues

In this case, the Court was required to weigh up and consider different versions of factual events. The versions of relevant events given by Ms Manttan, Mr Manttan and Mr Watson were at odds with the versions of events given by the applicant.
The principles governing how a court ought to assess a witness’s credibility were recently considered by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [307] – [309] where His Honour said:
“[307] Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness while giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest or unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence.
[308] Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. Other witnesses may be able to give evidence in an appropriately confident and direct manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see Fox v Percy (2003) 214 CLR 118 at [30]-[31] and the cases there cited.
[309] Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events. As Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152; cited in Fox v Percy at [30]:
… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”
The Court respectfully had regard to the content of Justice Wigney’s judgment in Rush when assessing the credibility of all witnesses who gave evidence at the hearing of this trial.
THE LAW AS TO THE ADVERSE ACTION CLAIMS AND FWA DISCRIMINATION CLAIM
The provisions of ss. 340, 341, 351 and 361 of the FWA are respectively as follows:
“Section 340 – Protection
(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 – Meaning of workplace right
(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 earning.
(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).
…
Section 351 – Discrimination
(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 361 – Reason for action to be presumed unless proved otherwise
(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.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted, and established, that:
·he exercised a workplace right or rights as pleaded in his Amended Statement of Claim;
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it was established by the applicant that the impugned conduct was conduct which contravened provisions of the FWA, it was for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, ss. 360 and 361 of the FWA provided as follows:
“Section 360 – Multiple reasons for action
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 – Reason for action to be presumed unless proved otherwise
(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.”
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.” – at [5] per French CJ and Crennan J
“[104] 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.” – at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” – at [129] per Gummow and Hayne JJ;
“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.” – at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” – at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
“[41] 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. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[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.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”

It will always be a question of fact as to whether the proscribed reasons, as pleaded in a statement of claim as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is factual and is to be considered objectively.
The respondent conceded that the termination of the applicant’s employment on 16 March 2022 constituted adverse action under s. 342 of the FWA.
Even accepting that the applicant exercised, or proposed to exercise, a workplace right as provided for under s. 341 of the FWA, the Court finds that no claimed exercise or proposed exercise of any such right was the reason for the adverse action which was taken.
The respondent submitted, and the Court accepts, that the reason for the termination of the applicant’s employment was that the applicant’s ongoing work performance was poor, and was not improving.
Analysis of Respondent’s Claims Concerning Applicant’s Poor Workmanship
The Colchester Lathe
As to the applicant’s alleged misuse of the Colchester Lathe, the applicant admitted that that was the lathe which he used most of the time, that he was the primary machinist, and that the Colchester Lathe was referred to by him as “my lathe”. [5] The applicant used the lathe about 90% - 95% of the time. [6] The applicant, at [73] – [80] of his first affidavit, [7] alleged that he was not responsible for excessive wear and tear to the lathe, or for damage to tools, claiming that it was unreasonable for him to be blamed for those things when the lathe was “decades old”, and where other complaints were not because of actions taken by him.
[5]           Transcript (T) p. 49.35 – 45.
[6]           T p. 52.7- .10.
[7]           Affidavit of applicant filed on 2 June 2023.
An example of the kind of inappropriate use of the Colchester Lathe as alleged by the respondent against the applicant was as set out in an employee file note dated 14 April 2020, that being Exhibit KM-05 to the affidavit of one Kelly Manttan filed on 22 June 2023. That 14 April 2020 file note referred to the cost of repairs to the lathe as being over $2,500, recorded that it was “an official warning” to the applicant, and provided as follows:
EMPLOYEE FILE NOTE
Frederik Kruger
14^th April 2020
Dear Frederick,
While you were absent from work (on sick leave) we took the opportunity to have Gordon service your Colchester machine. Upon inspection a great deal of damage was found to the gearing & brake system. This was mentioned to you via text message from Kelly Manttan on 7^th April 2020.
Over the past 3 days Gordon has pulled it down & rectified all issues found within the machine. This amounted to a total of over $2500 worth of repairs. Please take this as an official mention that this sort of damaged to the machine is well in excess of normal wear & tear. This is an official warning; Brad has now spoken to you verbally regarding this misuse & management sincerely hopes this does not continue. It has been explained to you how Watson Marine whish for you to correctly operate the machine therefore would appreciate you to follow the companies procedures in doing so.
Please let me know in the next 5 days if there is anything that can be done to assist your machining issues to eliminate any further damages to the Colchester Lathe.
Watson Marine management.
Ms Manttan was a director of the respondent, the wife of the witness Brad Manttan, and the daughter of the witness Greg Watson. Ms Manttan deposed that she was responsible for most of the administrative duties of the respondent, whilst her husband, Brad, managed most of the respondent’s marine engineering work.
Mr Manttan was a qualified fitter and turner with twenty-two (22) years of experience, the last ten (10) of which as the foreman at the respondent’s premises.
Ms Manttan gave evidence that if an issue arose with the applicant where a warning was given, then a file note was generally prepared and handed to the applicant by either Ms Manttan if the issue involved an administrative matter, or Mr Brad Manttan if the issue involved was either an HR issue or a workshop issue. [8] The Court accepts that Mr Manttan was a witness of truth, albeit that his memory of specific dates of events was impaired.
[8] T p. 167.16 - .36.
Exhibit 3 was the internal gear selector to the Colchester Lathe which had been fabricated by the applicant as a replacement to a failed earlier gear selector which was a part of the lathe when the applicant was its operator. As to Exhibit 3, the applicant admitted in cross-examination that the pole/upright of the gear selector fabricated by him was not perpendicular, as was required, such that it did not allow the gears on the Colchester Lathe to be engaged as and when required. The applicant’s evidence on point was evasive and most unsatisfactory, in that the applicant failed to accept sensible propositions put to him by Counsel. The relevant evidence was as follows: [9]
[9] T p. 57.35 – 64.10.
MR DUHIG: So this part – the part that you replicated - - -?---Yes. 35
And it’s a semicircular piece of metal?---That’s correct.
And at the – I suppose the top point - - -?---Yes.
- - - of that semicircle there is a silver bolt that sticks out of it?---That’s plainly, like – I mean, this one, it was not a bolt. It was part of – this was all one part.
One part of the – yes?---But for the one that I had to fabricate, I couldn’t do it the same way so I had to fit the bolt.
You had to fit the bolt - - -?---Like, yes, I had to - - -
- - - into the semicircle?--- - - - drill the hole, tap the hole, screw the bolt in and cut the bolt off to – to serve the same purpose.
This part – the part that was broken, was the silver – I’m sorry. Was the semicircular ring part – was that parallel to the – was that parallel to the bolt that came out the 5 bottom?---Yes.
Yes?---Yes.
HIS HONOUR: Sorry. I don’t follow that.
MR DUHIG: The question – perhaps I can start again. If the gear selector was to be looked at in profile view with the pin of the bolt at the bottom of it, would the semicircle on top of the bolt be perfectly parallel with the bolt?---Yes. It was.
So everything is perfectly vertical?---Yes.
And - - -?---What I – I - - -
- - - there is no angle on either part from each other. They don’t - - -?---Not – not when it was fitted, because when it was fitted - - -
HIS HONOUR: Not when it was what?---I’ve machined the new part and it was fitted in the machine. It was - - -
It was what - - -?---The – the machine was fitted or it was – this part was fitted to the machine - - -
The - - -?--- - - - and the machine was tested by the – the – the maintenance repair man. He – he – he tested the machine.
So it needed to be perfectly perpendicular.
MR DUHIG: Perfectly perpendicular?---Yes, yes.
Well, perfectly parallel to one another?---Yes.
Perpendicular to the ground?---So, like, initially the – the – the part did work well. What the problem was – because of – of – like, you couldn’t have – go to a smaller diameter bolt. Because there was not that much left – left on either side of the bolt, it – because – and – and there’s a lot of pressure – internal pressure applied this has started coming loose, and that’s why the machine failed the second time. And so that’s why if by inspection afterwards it was not perpendicular to the item that was the reason, because that failed. That came loose.
Okay. Mr Kruger, in fact, it’s the case that when you machined that part you machined the bolt in so that it wasn’t perpendicular to the semicircle?---So it – it was – it was working. It was all correct and the maintenance - - -
HIS HONOUR: It was what, sorry?---It was all correct. Like, it – it was – like, the part was, like – basically a replica except for it was not one solid part. The maintenance repairman, he said that the – the specialist in this, he should have – I mean, I didn’t know how much pressure would – would be applied on it.
MR DUHIG: Mr Kruger, you can’t speak about what Mr Harrigan might have said?---Okay, okay.
It is hearsay?---Okay. But what I’m saying is he fitted the – that – that part. If he thought – he was the – the – the experienced person. If he thought that that part was not good enough he should not have fitted it. He should have said, “No. We have to get the original part”.
Can I hand the witness a piece of evidence.
HIS HONOUR: Yes.
THE WITNESS: That’s it.
MR DUHIG: Mr Kruger, do you recognise that object?---Yes. I do.
That’s the gear selector you fabricated in-house?---The – yes. That’s correct.
Yes. And, Mr Kruger, can I ask you to just prop the gear selector up on the end of the - - -?---Yes.
- - - silver pin and look at it in profile view - - -?---I can see – yes.
- - - so that you’re looking down – yes. And, now, the brass part of that gear selector is not perfectly parallel with the silver pin; isn’t that correct?---That is when – I mean, it – it was not like – when this thing was machined, this part was – the thicker part, it was both sides exactly the same size, which means something must have gone wrong at the way it’s going off. I got – when I got dismissed - - -
HIS HONOUR: Could I have a look at that, please?---Okay. That’s about the same time that Mr Brad Manttan noted – told me that there was something wrong with these parts, but I haven’t seen this part since I left. So it seems something else must – might have gone wrong because I haven’t machined it like – like that.
Because was this disclosed?
MR DUHIG: It’s – the part itself, no.
HIS HONOUR: Was it listed?
MR DUHIG: Beg your pardon.
HIS HONOUR: Was it listed in the affidavit of documents?
MR DUHIG: No. It wasn’t.
THE WITNESS: My - - -
HIS HONOUR: Are you tendering that?
MR DUHIG: I was going to, your Honour.
HIS HONOUR: All right. Well, what should it be marked as?
MR DUHIG: It should be marked as an exhibit.
HIS HONOUR: I know, but describing it as - - -
MR DUHIG: A - - -
HIS HONOUR: Mr Kruger, do you admit that this is the part that you’ve - - -?---That’s correct.
- - - milled?---That’s correct.
And you put the bolt in?---That’s correct.
Okay. Well, exhibit - - -
MR DUHIG: It’s described as a gear selector in Mr Kruger’s affidavit.
HIS HONOUR: - - - 3 will be the gear selector manufactured by the applicant as replacement part in the lathe – in his lathe.
EXHIBIT #3 GEAR SELECTOR MANUFACTURED BY THE APPLICANT AS REPLACEMENT PART IN HIS LATHE
HIS HONOUR: All right.
MR DUHIG: Mr Kruger, if everything is perfectly flat and square in that gear selector, the part should be able to move the gears from forward to reverse?---I assume so.
And if everything is perfectly flat and square that gear selector should also hold the lathe in gear, shouldn’t it?---That’s correct.
And if everything is perfectly flat and square it should withstand the normal pressures that someone would apply to the lathe; isn’t that correct?---I’m not sure about that.
Okay. But conversely, if it was not perfectly flat and square there’s a chance of the machine falling out of gear whatever pressure someone applied?---I assume so.
And even if it was perfectly flat and square, there’s a chance of the machine falling out of gear if the pressures applied were too excessive for the machine?---I assume so.
Okay. Now, Mr Kruger, that gear selector that we’re talking about, do you accept that the bottom edge of the brass is not perfectly parallel to the silver gear?---That’s correct, but that’s the way it – when that selector was fitted, it was fitted – like, it was not – there was nothing wrong with it. It was perfect - - -
I understand. I understand?--- - - - and – and the machine tests right.
However, my question to you is this. If you were to apply excessive pressure to the lathe, there is the possibility of it bending the gear selector?---Like, I don’t know what’s excessive pressure because, like, you – you’ve – you’ve got the lathe and you’ve got, like, the forward and the back width and what we have is, like, about two weeks after that part was fitted the lathe was okay but then it started, like – like, getting worse and worse.
Two weeks afterwards?---So say about – I would say roughly about two weeks it started again and it went on for a couple of weeks until just before my dismissal when we had – we had the maintenance man to come in again. He had another look at it – at the – aat the lathe. I wasn’t there at that point and Mr Greg – Mr Brad Manttan told me that it – the selectors that I’ve made were failing and – and I – before I saw that I was not – I was dismissed so I haven’t seen that. He has just told me that, like, where they – like, where they bolt in that they, kind of, like, weren’t strong enough and it has failed, but I haven’t seen them. I haven’t seen them.
Mr Kruger, in fact, the gear selector was failing because you failed to mill the pin so that it’s perfectly parallel with the bronze centre; isn’t that correct?---Can I just have a look, like – may I just have a look at that again, because I’m – I’m not sure what you’re referring to.
HIS HONOUR: Could you get a box for that as well, please, Mr Duhig.
MR DUHIG: Yes. We will do that over the luncheon adjournment.
THE WITNESS: Because, like, looking at that, that – to my understanding, that’s what I’m, like – what I think you’re talking about, like, that – that square.
MR DUHIG: That’s exactly what I’m talking about?---Because when I look at that, that looks pretty square to me through the selector. I mean, if it’s off, like, two or half or less a degree, like, I mean, I wouldn’t dispute that, but I’m pretty sure that that’s – to my understanding - - -
That’s all I’m suggesting, is that it’s off by half a degree?---Like – yes.
And the effect of it being off by half a degree is that you need to apply more pressure than normal to keep the lathe in gear?---Like, I don’t know. I don’t know that – that internal working of that part or how much it will have an effect on – on it. I just do know that it – the machine did work fine for about two weeks and then it starts, like, becoming bad again.
And it started to become bad again because you – the machine – the gear selector – so there was half a degree off?---I don’t know if – if that’s the reason.
And because the gear selector that you had machined was half a degree off, you had to apply more pressure to the lathe to keep it in gear?---That’s – that’s, yes, like, possible.
And because you’re applying more pressure to the lathe to keep it in gear, that led to greater than normal wear and tear to the lathe, didn’t it?---It’s – it’s possible, but, like, we had to to keep up with the maintenance. Like, I mean, I told Brad, like, the moment it started getting bad again. I told him about it. I didn’t know at that time what was – why it was doing it again and I thought it was something else, but I had no choice than to go on and continue, like, doing my work to keep up with it, and it just went worse to the point where it was just really hard to – to do the job – get the job done. You had – literally had to keep your hand on the lever all the way down to keep it there just to get the job done.
But, Mr Kruger, that - - -
HIS HONOUR: Just excuse me for a minute. When you say, Mr – when you put, Mr Duhig, that more pressure had to be applied to the lathe, what does that mean, Mr Kruger?---It – it – it just means - - -
Well, what do you mean applying more pressure to the lathe?---I wouldn’t say applying more pressure. It’s just you have to keep the pressure because usually what takes place, you have a forward and you have a backward motion, so you have a lever. You have to go one way to go – make it go forward and you have to go the opposite way to go opposite, but - - -
But is that a lever that is - - -?---It’s – it’s the engagement lever.
- - - hand controlled?---It’s the hand controlled engagement lever.
Hand controlled and it means – does it mean that you have to apply more force - - -?---Like, usually it - - -
- - - to the cutting edge?---Usually what’s – what was happening - - -
No. Could you answer that question?---The - - -
Does it mean that you had to apply more pressure so that there is more pressure 10 between the cutting edge - - -?---To keep - - -
- - - of the lathe and the metal that it was cutting?---Yes. It’s – it’s like a – like a clutch of the car. It was the – the – well, what was happening, the machine was slipping and it didn’t want to engage the lever.
Yes. I was just asking about - - -?---Okay.
- - - the application of greater pressure - - -?---Like - - -
- - - to the lathe because it’s suggested by Mr Duhig that because of the application of greater pressure there was more wear and tear. He hasn’t said - - -?---I – I don’t know. I – I - - -
- - - more wear and tear in relation to what?---I can’t – I can’t really say.
But could you get to that - - -
THE WITNESS: Yes.
HIS HONOUR: - - - Mr Duhig?
THE WITNESS: I can’t – yes. I – I can’t give an honest or, like, an opinion answer on that, like, really.
MR DUHIG: And the effect of greater wear and tear to the internal machinery of the gearbox is that persons needed to service – there was a need for greater regularity in servicing of the lathe?---I would say it’s not – it – it’s not a greater regularity. All it means, that the – the parts were failing and, like, so whatever it had – whatever had failed had to be, like, established and it had to be fixed again. So the lathe had to be opened up again to find out what was going wrong and why did it fail and what – it may have been something else, but Mr Brad told me it was the parts that was failing.
And you say in your affidavit that it was that part that was failing that was used as - - -?---That’s what he told me.
- - - an excuse for dismissing you?---That’s what he told me and – and – and I believed him because, like, it did make sense to me because – what he told me is because, like, the parts were - - -
HIS HONOUR: Who’s “he”?---It’s – it’s breaking through the - - -
Who is “he”?---Mr Brad Manttan. Like, the – the part is breaking through this side, like – like, because the – the previous part before and that made this, kind of, weak. Like, I can feel it right now. Moving that, I can feel it move. And – and that’s what he told me. That’s why it failed, because this is not one solid part.
On 5 July 2021, a meeting occurred between the applicant, Mr Watson and Mr Manttan concerning damage caused to the lathe tooling used on the Colchester Lathe. The formal warning issued to the applicant on that date was as follows:
EMPLOYEE FILE NOTE
Frederick Kruger
5^th July 2021
On the above mentioned date Frederik was pulled aside by Greg Watson to discuss excess damage caused to lathe tooling. There was not a single tip, boring bar or tool post at Fred’s Colchester lathe that was not broken. Greg advised Fred he would repair, replace all broken tooling immediately (at a cost of approx. $1000-$1500) & advised Fred that he expected him to take more care & attention to ensure these excessive breakages don’t continue.
When responding to the applicant’s excuses about the existence of damage to the lathe and excessive wear and tear on tooling, Mr Manttan at [25] – [28] of his affidavit deposed as follows: [10]
[10]          Affidavit of Mr Manttan filed on 22 June 2023.
Discussion about tooling in July 2021
25.With respect to [67] and [68], I recall telling the applicant in the meeting with Greg and I that he was being given a formal warning and giving him the file note dated 5 July 2021.
Annexed and marked ‘BM-1’ is a copy of the file note I gave the applicant in this meeting.
26.I note that the applicant appears to link this discussion to the earlier discussion about a raise. I don’t generally have much to do with the process for employees requesting raises, but remember thinking that his request for a raise was not justified given that the applicant’s performance at work had not shown any signs of improvement. However, it is always difficult to find machinists like the applicant, and we wanted to keep the applicant on.
27.With respect to [73]-[76], it is important to distinguish between regular biannual maintenance and unusual damage. I had no difficulty with the lathe needing regular maintenance. What I did have problems with, and what I identified in the meeting with the applicant, was damage caused by the way he was operating the lathe. That damage included the applicant:
(a)       grinding the compound slide with a grinder which is used for accurate tapering, meaning that it would not be more difficult to get an accurate taper;
(b)       changing handles on forward & reverse which resulted in gearbox needing to be rebuilt with a new gear & new clutch;
(c)       punching the degree angle on the compound slide, leaving a mark which impacts the accuracy of the degree setting;
(d)       unnecessarily pulling the machine into reverse while operating it, leading to threading of the forward and reverse selector and the whole selector needing to be remade. I reprimanded the applicant numerous times about this throughout his employment, not just in this meeting;
(e)       breaking the lathe’s tool post locking device; and
(f)       crashing the compound slide.
28.I remember the applicant’s response to these issues, as identified in [76]. He made excuses for his conduct. That itself was frustrating because it meant that the applicant’s rough treatment of the lathe continued. He was the sole operator of that lathe, and since he left our employment the first year apprentice has been using that lathe without any incident.[11]
[11]          T. p. 237.30 – 238.7.

Mr Watson was a qualified marine engineer who had worked both in Brisbane and the Gold Coast since the 1990’s. Since 1999 Mr Watson had carried on the respondent’s business at the Gold Coast City Marina from premises situated at Coomera. He described the damage to the Colchester Lathe tooling referred to in the 5 July 2021 File Note as being quite ‘over the top’. At [15] – [19] of Mr Watson’s affidavit he deposed as follows: [12]
15.Because of my experience I took primary responsibility for repairing or replacing broken and damaged tooling. I had observed a significant increase in the amount of repairs or replacement parts the Colchester Lathe was needing. The damage, by comparison to my past experience in running the business, was simply over the top.
16.The applicant was not the only person to use that lathe, but he was the one who used it about 90% of the time. Everyone had access to every machine in the workshop, but because there was a specific set of tooling for each machine we could track who was causing the damage.
17.The tooling that makes up the Colchester Lathe includes a tungsten-carbide tip, boring tools, parting tools and various other things that can screw into the rotating head of the lathe.
18. I would have observed the applicant using the lathe at times, but Brad probably had far more visibility over what he was doing given that he ran the workshop. The applicant was the only person I've ever seen use an angle grinder on the compound slide on the lathe. That shocked me, it is a special part of the machine, and that is never done when using a lathe.
[12] Affidavit of Mr Watson filed on 22 June 2023.
A meeting was held on 5 July 2021 between the applicant and Mr Watson, at the direction of Mr Watson, to discuss the damage as set out in the file note.
Mr Watson gave evidence to the effect that he had become more and more frustrated over time, not only because of ongoing excessive wear and tear to the Colchester Lathe, but also in respect of multiple occasions on which the applicant’s standard of work was not acceptable. [13]
[13] See T. p. 135.22 – .31.
The Court found the evidence of each of Ms Manttan, Mr Watson and Mr Manttan to be clear, concise and consistent. The Court finds that at the 5 July 2021 meeting held between the applicant, Mr Watson and Mr Manttan, Mr Manttan handed the warning file note to the applicant at the time of the meeting. Mr Watson and Mr Manttan were bringing the question of excessive wear and tear of the lathe and damage to workshop tooling to a head, and warning the applicant that it must stop. [14]
[14] See [25] of the affidavit of Mr Man ttan.
To put the complaints of Mr Watson and Mr Manttan about the applicant’s standard of work into context, the Court has had regard to the applicant’s admission that in relation to the fabrication by the applicant of what was referred to in evidence as a “bump stop” (also referred to as a collar), the applicant’s standard of work was below par. The Court accepts the affidavit evidence of Mr Manttan on that point (supported as it was in cross-examination) as follows: [15]
[15]          See [6] – [16] of Mr Manttan’s affidavit.
30 March 2020 incident
6.This incident concerned a rudder collar (a bump stop is another name for a rudder collar). A rudder collar sits over the rudder shaft of a boat, and is designed to stop the rudder shaft of a boat, and is designed to stop the rudder from moving up and down on its shaft. The rudder collar is cylindrical with a hole in the middle for the shaft to sit in. If the rudder collar is not fitted properly, the rudder can fall out of the boat and leave a gaping hole for water to flow into.
7.        The process behind fabricating a rudder collar is as follows:
(a)       set the material in the lathe and get it running true;
(b)bore out the internal diameter of the rudder shaft. On this occasion we had the rudder shaft, so the internal diameter could be worked out from that:
(c)mark out where the holes are going to be drilled for appropriate wall thickness;
(d)put material in milling machine and counter-bore holes 10mm up from the centre height of the rotor;
(e)       tap the correct size right through the material;
(f)       set up the saw and split the collar in half; and
(g)fit the two halves together back around the rudder shaft and bolt it back together in the boat.
8.On this occasion the applicant was given a block of stainless steel to fabricate the rudder collar. This task should normally take two hours. The material itself is known as a 3 quarter inch PSS seal rotor, which is a 2 inch internal diameter and 5 inch outside diameter piece of stainless steel.
9.The applicant butchered the collar when he tapped the holes. He drilled those too close to the centre of the collar. That meant that the collar was unusable as it could not fit around the rudder shaft.
10.I inspected the collar and deemed it unusable. I decided to re-fabricate the collar from scratch. What is attributed to me at [21] is false. We had sufficient material to re-fabricate this item. The suggestion that this was a mere cosmetic inconvenience is simply wrong. The way in which the applicant had fabricated it meant that it was completely unusable and could lead to the boat sinking.
11.I don’t recall the applicant apologising to me, the vessel owner, or the surveyor. I recall Mr Black rejecting the item. He rejected it because it was unusable, which I agree with.
12. I also do not recall any verbal abuse from Mr Black at all. He had the final say and was entitled to reject our work if he did not think it was good enough. On this occasion I agreed with him. My recollection is that Mr Black simply told the applicant that it was unusable. I don’t recall Mr Black speaking for a few minutes, what he said was pretty sharp and to the point.
13.What I do remember is the applicant’s response. The applicant disagreed with me and Mr Black, and made his views known in front of Mr Black and the client, Mr Lack. I generally agree that he said the things in [27]. I should respond directly to the subparagraphs (a) and (b):
(a)with respect to (a), the whole point of the rudder collar is that is to sit above the seal, which the applicant had towork off. While this is not necessarily ideal, a competent tradesperson should have no difficulty fabricating a part from another part. I was able to fabricate it correctly myself; and
(b)I have already addressed (b). I said no such thing and the premise is false, we had material available to re-do the job and I in fact did re-do the job.
14.With respect to [28], there was no rant that continued for a few minutes after.
15. The applicant left the office shortly afterwards and returned to his duties while I had a conversation with the customer, Mr Black, and Kelly. I remember Kelly telling the customer and Mr Black that I would be fabricating a new rudder collar.
16.About ten minutes after I had inspected the applicant’s work I commenced re-fabricating the rudder collar with an identical block of stainless steel. It took me two hours to do that.
During his cross-examination of Mr Watson, the applicant admitted in clear terms that his workmanship was below standard in respect of the fabrication of the bump stop/collar [16], which Mr Manttan deposed could have caused the relevant vessel to sink.
[16] See T. p. 134.9 - .15.
The Court finds that the concerns expressed by Mr Manttan and Mr Watson about the applicant causing excessive wear and tear to the Colchester Lathe have been made out, and that those concerns were ongoing because of the applicant’s failure to modify his use of the machine in a way that caused less stress to it during its operation. [17] The Court accepts the evidence of Mr Manttan and Mr Watson that that misuse was an operational burden to the respondent both in terms of repair costs and down time.
[17] See file note of 24 November 2021 being Annexure KM-14 to the affidavit of Ms Manttan
Destruction of Taper Shank Drills
A file note dated 30 November 2021 was prepared in relation to the claimed damage to drill bits caused by the applicant. That file note provided as follows:
EMPLOYEE FILE NOTE
Frederick Kruger
30^th November 2021
Fred was given a formal warning today in regards to continued misuse of tooling. Fred has turned down the shanks of a number of large tapered shank drills deeming them unusable. Fred was advised this was completely unacceptable & there was no reason for him to do this. He claimed it was done to put them into the milling machine however this is not an acceptable excuse as these taper shank drills are purchased solely to be used in the drill press. Fred was advised he is to come to management in the future & order the correct parallel shank drill should he require any of the milling machine. These drills are now unsafe to be used in the workshop as they rely on the taper to drive & hold them safely & firmly in the drill press.
Mr Watson was not cross-examined by the applicant about the drill bits/shanks.
Mr Manttan was cross-examined by the applicant about the drill bits. [18] The applicant stated that his reason for turning down the shanks of a number of large tapered shank drill bits was so that they could be used in the milling machine. Mr Manttan gave clear evidence that such excuse was unacceptable, namely because the taper shank drill bits were never to be used in the milling machine, but rather that they were only ever designed to be used in a drill press, which was an entirely different machine.
[18] T. p. 240.22 – 244.25
The Court accepts the evidence of Mr Manttan on this question. The relevant evidence during Mr Manttan’s cross-examination was as follows: [19]
[19]          T. p. 240.26 – 241.10
Okay. Can you describe to us why do you say I destroyed them?   Because they’re a parallel shank which goes into a sleeve which taper locks into the tower stock so they don’t spin. You went and machined them parallel which now there is not enough taper on that shank to lock it into the taper lock.
HIS HONOUR:   I’m sorry?   They spin.
What are you talking about here?   The drills.
The drills.
MR DUHIG:   The drill, yes.
THE WITNESS:   Yes.
HIS HONOUR:   And what was the reason? Because?   Because they’re on a taper, so they are
They were on a taper?   Yes. They’re taper-sleeved. They’re called a taper drill, that sleeves go over the taper to lock into the tail stop of the lathe or any of the machines.
And?   And he has gone and turned them parallel for halfway up the taper which doesn’t allow the drills to lock into the sleeves properly which will cause them to spin and damage the inside tapers of the machines.
Which had damaged what?   Which can cause damage to the inside.
Well, it can or did?   It can. If they were used and slipped.
Which can? Which – not had caused damage but which can cause damage. Damage to the lathe; is that right?   Yes. Or drill press mill, whatever.
The applicant was unconvincing and evasive during his cross-examination. He claimed that he had never received any copies of any of the file notes which were placed upon his employee file. The Court accepts the evidence of Ms Manttan that in respect of each of the warnings the subject of the file notes, the applicant had been verbally warned before his being handed a copy of the relevant file note which had been earlier prepared by her after discussions with either Mr Manttan or Mr Watson. [20]
[20] T. p. 193.40 – .45
The evidence of Mr Manttan was consistent with other evidence accepted by the Court that the applicant’s general standard of work was below that expected of a reasonably competent fitter and turner. The Court further accepts the submission made by Counsel for the respondent that the applicant lacked insight as to the seriousness of the complaints made to him about the poor standard of his work. The applicant failed to accept that he was misusing the Colchester Lathe which caused ongoing costs to be incurred for its repair. The employee file note of 24 November 2021 [21] reflected what was referred to as “continued issues with excessive misuse by Frederick”, and was as follows:
[21] Annexure KM-14 to Kelly Manttan filed on 22 June 2023 at CB p. 302.
EMPLOYEE FILE NOTE
Frederick Kruger
24^th November 2021
There have been continued issues with excessive misuse by Frederik of his machine the Colchester lathe. Frederik was pulled aside by both workshop foreman Brad Manttan & workshop machinery mechanic Gordon Harrigan on Gordons visit to assess the damage. Gordon explained to Fred that WME cannot keep absorbing the cost of excessive machinery repairs & he needs to rectify his misuse.
Shortly before the termination of the applicant’s employment on 16 March 2022, an incident occurred on 7 March 2022. That incident was another example of the applicant failing to comprehend how his work was below standard. Details of the incident were as set out in the affidavit of Mr Watson where Mr Watson explained how the applicant tried to justify his machining a female point on the tip of a bolt when a male point to the tip of a bolt was required so as to ensure locking of the two. [22] At [31] – [39] of his affidavit Mr Watson deposed as follows:
[22] See T. p. 92.15 - .20.
7 March 2022 Incident
31.I note that at [216]-[227] the applicant makes reference to an incident involving me. My recollection of that incident is as follows.
32.The part that the applicant was machining was a clamp that attaches to a propeller shaft. The clamp has a bold that goes through the clamp into the shaft. On the shaft there is a small female point for the male point of the bold to go into, and that holds the bold secure and centred.
33.The customer had brought the clamp in, and the applicant thought it was not strong enough, so decided to remove the clamp and tap a bigger hole. That required tapping a bigger hole in the clamp and re-threading everything for a bigger diameter thread.
34.The applicant re-threaded everything correctly, but instead of machining of machining a male point he machined a female point on the tip of the bolt. That meant that at the shaft it was a female to female join, and there was nothing to hold the bold in.
35.I didn’t understand why he had done this, he had a template to work off. I said words to the effect of ‘What’s the story, you can’t even make it the same as the sample?
36. I remember his attempted explanations at [217]. Further to [217], I also remember him complaining specifically that I had not given him a plan for the part. None of his excuses made any sense to me, the task was to make the bold a slightly larger diameter. The applicant had the bolt itself, I was not sure what more a plan could have told him.
37.I would not deny saying firm words to him in this conversation. I was frustrated by his repeated excuses for his mistakes, and remember telling him ‘you will do it in our own time.’
38.He didn’t even fix it, Brad ended up fixing the part. The customer ultimately complained, which was why Brad ended up taking it on.
39.Part of my frustration arose from the attitude that the applicant had while working for the respondent. Brad and I would offer advice about technique, but it never seemed to be listened to. The applicant would always say something along the lines of ‘I’ll do it my way.’ I can’t remember any specific incident.
At no time during the trial did the applicant seem to appreciate that his poor workmanship – particularly in relation to the failed bump stop/collar - could have had dire consequences in a maritime safety context. Had a sinking occurred as a result of the applicant’s poor workmanship, serious reputational and economic damage would most likely have been suffered by the respondent. Its loss of standing in the marine engineering sector in the event of any such maritime safety context would have been substantial.
The series of self-serving emails sent by the applicant to the respondent between 28 January 2022 and 13 March 2022 (seven (7) in number) were responded to by the respondent’s management team in a considered and appropriate way, notwithstanding the fact that as late as 7 March 2022 the applicant had again exhibited ongoing poor work practice. [23] It was of note, though, that in his email of 13 March 2022, in an apparent reference to the 7 March 2022 incident, the applicant wrote:
“I do understand the frustration of the company owners involved towards me, but I do not see how abusive outbursts like the one on Monday morning (07/03/2022), from Greg towards me, are helpful in any way.”
[23] CB 198 – 210 being Annexure FK-09 to the affidavit of the applicant filed on 2 June 2023
The applicant recognised that he was the source of frustration by reason of his poor work performance. His excuse of a “misunderstanding” resulting in the female to female fabrication error was incredible.
Destruction of Taps By Re-grinding and Cutting at Taper Tap in Half
This issue was raised in the applicant’s cross-examination of Mr Manttan. The applicant tried to suggest that because Mr Manttan did not personally observe any claimed destruction of the taps by the applicant, then there was no proof that the applicant was the person responsible for any claimed damage. There was no merit to any such claim.
Mr Manttan gave plausible evidence that the applicant was the only employee who used the workshop taps which had been identified by him as having been damaged. Mr Manttan also pointed out that the applicant must have used a different type of tap (namely an intermediate tap and a taper tap) to “tap right through” when it was only a bottom tap which should have been used for such purpose. The relevant evidence was as follows: [24]
[24] T. pp. 244.27 – 245.15
MR KRUGER: Okay. I will stop it there. Okay. Then I just want to go in to the next paragraph in the dismissal letter. You also mentioned that I destroyed $500 worth of taps by cutting them up to make them bottom taps. Did you saw me do that or can you provide a witness who saw me doing that?‑‑‑I didn’t see you personally, but there’s no way in the world that I would do that so ‑ ‑ ‑
Why would I do that?‑‑‑You – all the boys had their own taps before.
No?‑‑‑Yes. That’s what’s in their tool bags. They’ve got utes with tools in there with taps, tab handles. Yes, that drawers that’s in the office is a common draw for anybody but nobody taps that I saw apart from you.
Okay. So you say you saw me do that?‑‑‑Well, obviously you’re the one that’s done it so
‑ ‑ ‑
So you say obviously but you didn’t saw me do that?‑‑‑You know I didn’t – I said I didn’t see you personally cut one.
Okay?‑‑‑But not – not that I can remember.
My next question: I did not need the bottom taps. I usually just tap – I usually use that for the cutting screws that lock the cuppings in. Those screws also ..... so when I tap them to clean up the place I tap all the way through. I did not need all taps. For what ‑ ‑ ‑?‑‑‑Well, the bottom in tap is for tapping right through. You shouldn’t be using the taper tap or an intermediate tap.
I didn’t say I’ve used it like ‑ ‑ ‑?‑‑‑Well, obviously using a taper tap and an intermediate tap ‑ ‑ ‑
No, I didn’t say nothing?‑‑‑ ‑ ‑ ‑ to tap right through.
You assuming something?‑‑‑No, I’m not. That’s how a tap set is bought.
You’re assuming?‑‑‑Taper, intermediate, plug.
The only time when the destruction of $500 worth of taps was raised by reference to Exhibit 4 during the cross-examination of Mr Watson was when the following short exchange occurred: [25]
And it also talked about, like, the destruction of four or five taps – five hundred dollars’ worth of taps?‑‑‑Yes.
Okay. My question would be, who made that statement about the taps? Because about – that statement is completely untrue. If there is any witness - - -
[25] See T. p. 125.6 - .10

The evidence given by Mr Manttan relating to the destruction of the taps was consistent with the weight of the evidence from the respondent’s witnesses to the effect that it was the ongoing poor workmanship of the applicant, together with the attendant costs incurred by reason of such deficiencies, which was the reason for the termination of his employment.
During his cross-examination, Mr Manttan said that at the 8 February 2022 meeting between himself, the applicant, and Mr Watson, the applicant was given a verbal warning about ongoing tool and lathe misuse by him. [26]
[26] T. p. 253.15; See also [45] – [61] of the affidavit of Mr Manttan filed on 22 June 2023.
Within a month of that meeting, there was an incident on 7 March 2022 when the applicant admitted that he had incorrectly fabricated a part which was not male to female as required, but rather was female to female. The part was to be installed on the propeller shaft of a vessel. As fabricated, it would not have performed the required function and the required propulsion of the vessel would have been compromised. The applicant was evasive when cross-examined about the incident. The relevant evidence was as follows: [27]
[27] T. pp. 91.20 – 93.45.
Could you turn your attention now to 7 March 2022?---So is the next – 7 March – seven?
7 March?---Which page would that be?
I’m just asking you to think back to 7 March 2022?---Yes. Okay.
You had a discussion with Greg Watson on this occasion?---That’s correct.
Yes. And this discussion concerned a clamp that was to be screwed into a propeller shaft with a bolt?---Yes. I – like, I’ve – I remember the part. But I can’t remember – I’ve seen the part and Mr – okay. I will just say – answer your question - - -
I’m just asking - - -?---Yes – yes – yes. Okay.
That’s what it recalled?---Okay. Yes.
We don’t - - -?---Yes.
And now - - -?---Because I – I – I wasn’t exactly sure what that part was for. What the purpose of it was.
Now, on the propeller shaft - - -
HIS HONOUR: What was the conversation about, Mr Duhig? What was the conversation about?
MR DUHIG: It was about the part that I’m going to ask Mr Kruger some questions about now.
So on the propeller shaft, there was a small female point - - -?---That’s correct.
- - - for the – a male point on a bolt to go into; correct?---Yes.
And you thought that the clamp that was previously on this particular propeller shaft was not strong enough?---No. That’s not how I recall it. Might I explain? May I explain?
HIS HONOUR: Well, you – no. Mr Duhig will put to you whatever he wants to put and you can answer.
MR DUHIG: You decided to machine a larger bolt?---I can’t remember the details about the bolt. I do remember that the – I can’t remember that there was a – a problem with the bolt at that time. There was nothing mentioned to me. What I can remember is that – because you’ve got – as you say, you’ve got a male and a female ..... and I misunderstood what he want because it was verbal instructions only. And I’ve done the – the taper wrong. Like, it’s either inverted or like male to female.
HIS HONOUR: I’m sorry. Slow down, Mr Kruger?---I had to machine a – a taper. Like a – like a little point. And you get like a female and a male. The male part go – like ..... to match. And I misunderstood his instruction because he – the part – when he had – showed me the part – he said, “Someone else did something to it and he did it the wrong way.” And he said like the – the way he explained it to me is that the – the – the part – the pointy part was supposed to go opposite. So, for instance, if – if it was a male it was supposed to be a female. That’s what I understood. So – and I’ve repeated – after Mr Watson – what he just said to me to make sure that, like, I understand him correct. Because like the part that he displayed to me had a male point on it. So I said, “Okay. So I have to go with a female point.” And I’ve ask him – I think, it was a – we call it the imperial ..... and I said, “Would a ..... drill, like, be big enough for that purpose?” And he said to me “yes”. So I did what I understood and he replied after me. So I did what I understood from what he asked me to do. And it was only a small thing to really fix, really. So when he came to me – okay. I will leave the rest to you. You can ask me the questions.
Well, it’s your evidence that you didn’t do this on your own endeavour. That you were told to do this by Greg?---No, I didn’t. I – I did what I understood his - - -
Yes?--- - - - instructions were.
Okay. And I’ve already suggested to you that, in fact, you did this on your own endeavour? That you had - - -?---No, I didn’t.
- - - decided to - - -?---No, I didn’t.
- - - machine a larger bolt?---No. I’ve asked him and I - - -
Okay?--- - - - repeated his question - - -
All right?--- - - - or his instruction.
Then in fact, it’s the case that to make that bolt functional for the purpose for which it’s designed, it needs to have a male point to go into the female point on the propeller shaft?---That is correct.
Correct. And in your experience as a machinist, have you ever seen a screw that has a female to female join?---As I explained before, I didn’t know the purpose of that part. I did not know if it had to be – have a female or have the – have a male. I didn’t – like, I’ve never seen that part like that before.
Okay?---So I wasn’t sure about the purpose. And that’s why – when he explained to me that it was – the taper on it was the wrong way – I understood that – okay, it had to be female. And I’ve asked him – said, “If I make it the female hole – so go like female – what’s the correct size for bit?” And I’m pretty sure it was like – like the – the size that I’ve mentioned to him was like a three-eight and – which is about – just short of 10 mil. And he said to me “yes”. So to my understanding it’s like what I understood that he told me – his instruction to me was that’s what he want. So that’s what I did.
In fact, your - - -?---So I didn’t do anything - - -
In fact, your task was simply to machine a bolt that was a slightly larger diameter?---I – as I – I can’t remember – like remember – I – I - - -
That’s - - -?---But – well – like - - -
I’m just suggesting to you - - -?---I can’t remember.
- - - your task was - - -?---I can’t remember.
- - - just to machine - - -?---I can’t remember the details - - -
- - - an identical - - -?--- - - - of the rest of that.
- - - bolt of a slightly larger diameter; yes or no?---I can’t remember.
Okay. And in fact, instead of machining a slightly larger bolt that is identical in all other respects apart from being a slightly larger diameter, you changed the male point to a female point?---That’s correct.
Mr Manttan expressed his frustration with the applicant concerning the 7 March 2022 incident at [31] – [38] of his affidavit as follows:
31.With respect to [89]-[93], there were no measures taken to isolate the applicant. I would regularly remind all staff that they needed to be productive and not chit chat. That was applied universally.
32.There were also no orders to not talk to the applicant specifically, as claimed in [95]. The order was for all staff not to chit chat. I can’t explain why the applicant thinks that this order was directed at him specifically, it was directed at whichever staff member was speaking at the time. The applicant did not stand out as talking unnecessarily either, it was a recurring issue with all staff.
33.With respect to [98], we would often discuss human resources matters in the office. Those maters were usually confidential between management and the employee in question, which is why we would stop talking or change the subject when someone else walked in,
34.I therefore remember telling the applicant to ‘get back behind the line’ on multiple occasions, but it is impossible for me to now pinpoint the precise reasons why the order was issued. Those orders do not stand out to me among the many similar orders I gave all our other staff.
35.With respect to [101], I do not agree with the way the applicant characterises this. The applicant, like every employee, fell behind on their work from time to time. This was never a big issue, and we never gave the applicant any formal warning for it. There was therefore no reason to treat the applicant differently as he suggests in [102], he fell behind at about the same regularity as every other staff member and we pulled him up on that at about the same regularity as every other staff member.
36.It was important to us that the business remained productive. That was why when the applicant walked into the office we would ask him something along the lines of ‘do you need another job?’ We were not asking him whether he was looking for other employment, we wanted to make sure he had a task to continue carrying on with.
37.So, with respect to [105] and [106], every employee who walked into the office when they should have been working was treated the same way. I would ask whether they needed something to do. That was my job as foreman.
38.I recall the applicant raising the issues about his personal leave entitlements in this meeting. Kelly is the person who could best address the circumstances behind his leave entitlements. My recollection is that the issues with the applicant’s daughter, and his consequent absence from work, were becoming disruptive to the workshop. I had no issues with the applicant taking compassionate leave to deal with these issues, but wanted to make sure there was a plan to get the work done.
The Court accepts the evidence of Mr Watson that damage to the lathe got worse after the 8 February 2022 meeting [28], and that the excessive operational wear and tear issues previously experienced with the Colchester Lathe ceased after the applicant’s employment was terminated. [29]
[28] [30] of Mr Watson’s affidavit.
[29] T. p. 146.5 - .8.
The employee file notes recorded the applicant’s deficiencies over a long period of time. [30] They were detailed both in terms of the date of an incident, as well as the nature of the incident. The Court finds that it was highly improbable, as was suggested by the applicant, that the various file notes were either inaccurate, or had fraudulently been concocted. Each of the respondent’s witnesses appeared to give evidence openly, honestly, and without hesitation or prompting.
[30] See Annexures to the Affidavit of Ms Manttan filed on 22 June 2023 being KM-03 dated 30 March 2020,
KM-04 dated 7 April 2020, KM-05 dated 14 April 2020, KM-13 dated 5 July 2021, KM-14 dated 24
November 2021, KM-15 dated 30 November 2021 and Exhibit 5.
The applicant’s evidence under cross-examination, and the matters raised by the applicant during his cross-examination of the respondent’s witnesses, on all issues, was lengthy, convoluted, contradictory and confusing. The transcript speaks for itself. The Court was careful to appreciate, and make allowance for the fact that, the applicant had a strong South African accent (which at times made it difficult to appreciate what was being said by him) and that he had a speech disability. [31] When difficulties were experienced in understanding what the applicant had said, the Court asked the applicant to repeat what he had said in order to fully understand his evidence and submissions. The length of the trial was doubled as a result of the applicant’s prolixity.
[31] T. p. 161.25
The Court’s Findings
The applicant was responsible for:
(a)Damage to the Colchester Lathe caused by misuse of it by the applicant.
(b)Destruction of taper shank drill bits.
(c)Destruction of taps caused by re-grinding and cutting of taper taps in half to make plug taps.
The damage last referred to resulted in substantial downtime, as well as the loss by the respondent of thousands of dollars for repairs to the lathe and replacement of affected tooling.
The applicant’s employment was terminated because his work performance continued to be below the required standard expected of a proficient fitter and turner. Each of Mr Watson and Mr Manttan had become increasingly frustrated with the applicant, and after the 7 March 2022 incident, the Court finds that they were at the end of their tether.
The Court notes that the emails sent by the applicant to the respondent regarding alleged complaints/enquiries were so sent after the applicant’s deficient work practices had been the subject of recorded warnings over a number of years.
There was no substance to the applicant’s claims that the damage to the lathe was caused because the respondent refused to order in new parts, thereby requiring the fabrication of less efficient parts on site within the workshop. Exhibit 5 demonstrated that the respondent spent money on the servicing of the Colchester Lathe, as well as the purchase of replacement parts for it, the service recorded in such exhibit having taken place on or about 6 February 2022.
There was also no substance to the assertion that the respondent had been seeking to replace the applicant when an advertisement was placed in a newspaper to the position of fitter and turner. The Court accepts the evidence of Mr Manttan and Mr Watson that such position was different to that formerly occupied by the applicant.
Mr Watson impressed the Court as a man who prided himself on his company’s reputation, which necessarily could only be assured if his machines were regularly serviced and looked after.
The respondent has discharged the onus of rebuttal placed upon it pursuant to the provisions of s. 361 of the FWA.
The applicant’s general protections claim has failed.
Consequently, the applicant’s other claims for financial loss have also failed.
The applicant’s claim is dismissed.

I certify that the preceding eighty - one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 16 February 2024

File number(s):	BRG 311 of 2022
Judgment of:	JUDGE EGAN
Date of judgment:	16 February 2024
Catchwords:	INDUSTRIAL LAW – Whether presumption that adverse action was taken for a prohibited reason was rebutted – where the Court accepted the evidence of the witnesses for the respondent – where termination of employment was because of longstanding and ongoing poor work performance - application dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 13, 14, 340, 341, 342, 351, 360 and 361 Manufacturing and Associated Industries Award 2020
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Ermell v Duluxgroup (Aust) Pty Ltd (No. 2) [2015] FCA 17 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Division:	Division 2 General Federal Law
Number of paragraphs:	81
Date of last submission/s:	7 December 2023
Date of hearing:	24 - 27 October 2023 and 7 December 2023
Applicant:	Litigant in person
Counsel for the Respondent:	Mr T Duhig of Counsel
Solicitor for the Respondent:	Mr S Taylor, Simon Taylor Solicitor

BRG 311 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FREDERIK CHRISTIAAN KRUGER Applicant
AND:	WATSONS MARINE ENGINEERING PTY LTD Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	16 FEBRUARY 2024