Li v Star Track Express Pty Limited

Case [2024] FedCFamC2G 430

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Li v Star Track Express Pty Limited [2024] FedCFamC2G 430

File number: MLG 3248 of 2021
Judgment of: JUDGE SYMONS
Date of judgment: 15 May 2024
Catchwords:  INDUSTRIAL LAW – general protections – where applicant alleges adverse action taken against him because he exercised workplace rights and had protected attributes – both dismissal and non-dismissal forms of adverse action alleged – finding that no non-dismissal adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) – where applicant absent from work for extended period without provision of medical certificates - identification of decision maker - whether employer’s stated reasons for dismissal determinative – whether presumption of prohibited reasons rebutted – reverse onus discharged by employer – application dismissed
Legislation:

 Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 352, 360, 361, 545, 546, 793

Fair Work Regulations 2009 (Cth) r 3.01(5).

Occupational Health and Safety Act 2004 (Vic) ss 23, 25

Cases cited:

Alam v National Australia Bank Limited (2021) 288 FCR 629; [2021] FCAFC 178.

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

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697.

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162.

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

Han v St Basil’s Homes (2023) 325 IR 190; [2023] FCA 1010.

Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442; [2020] FCA 452.

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754.

National Tertiary Education Industry Union v University of Sydney (2020) 302 IR 272; [2020] FCA 1709.

Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25.

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCAFC 167.

Whelan v Cigarette & Gift Warehouse Ltd (2017) 275 IR 285; [2017] FCA 1534.

Wong v National Australia Bank Limited (2022) 318 IR 14; [2022] FCAFC 155.

Division: Division 2 General Federal Law
Number of paragraphs: 233
Date of last submissions: 9 August 2023
Date of hearing: 7-9 August 2023
Place: Melbourne
The applicant: In person
Counsel for the respondent: Ms N Campbell
Solicitor for the respondent: Ashurst

ORDERS

MLG 3248 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

HANG LI
Applicant

AND:

STAR TRACK EXPRESS PTY LIMITED
Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

15 MAY 2024

THE COURT ORDERS THAT:

1.The applicant’s Originating Application filed on 15 December 2021 is dismissed.

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…

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AGLC
Li v Star Track Express Pty Limited [2024] FedCFamC2G 430
Case
[2024] FedCFamC2G 430
Decision Date

CaseChat Overview and Summary

Li v Star Track Express Pty Limited is a case in which Mr Li, the applicant, brought a claim before the court alleging that he was subjected to adverse actions by his employer, Star Track Express Pty Limited, due to the exercise of his workplace rights and possession of protected attributes. The nature of the dispute involves both dismissal and non-dismissal forms of adverse action, as well as the identification of the decision-maker and the employer's stated reasons for dismissal. The court was required to determine whether the non-dismissal adverse action was within the meaning of section 342 of the Fair Work Act 2009 (Cth), and if the employer's reasons for dismissal were determinative and whether the presumption of prohibited reasons was rebutted. Additionally, the court had to consider whether the reverse onus was discharged by the employer.

The court found that Mr Li had produced evidence that satisfied it that he had the pleaded disabilities at different points prior to his dismissal. The identification of the decision-maker was crucial in this case, as the court accepted that Mr Ellem, the State Operations Manager, was the relevant and ultimate decision-maker for the dismissal decision. The court found that the events unfolded in the manner described by Mr Pucci and that Mr Ellem was both authorised to and did, in fact, make the ultimate decision to terminate Mr Li’s employment. The court also found that the employer's stated reasons for dismissal were determinative and that the presumption of prohibited reasons was rebutted. Furthermore, the reverse onus was discharged by the employer, leading the court to dismiss the application.

The court's reasoning and outcome were based on the evidence presented by both parties, the identification of the decision-maker, and the statutory provisions of the Fair Work Act 2009 (Cth). The court found that the applicant did not satisfy the elements required to establish a general protections claim under the Act, and therefore dismissed the application. The court did not find that there was any non-dismissal adverse action within the meaning of section 342 of the Fair Work Act 2009 (Cth), and the employer's reasons for dismissal were deemed determinative and sufficient to rebut the presumption of prohibited reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Li produced evidence as follows that satisfies me that at different points prior to his dismissal, he had each of the pleaded disabilities:(a)Loss of right eyesight – the report of the Northern Health Emergency Department dated 12 January 2021;[44] the letter of Dr Daniel Chiu dated 3 March 2021;[45](b)The knee injury – the letter of Dr James Chiu dated 25 April 2021;[46] Certificate of Capacity signed by Dr Steven Qingwu Liu dated 23 March 2021; [47] (c)The neck injury – the letter of physiotherapist Mr Andrew Song dated 10 June 2021;[48](d)The insomnia and anxiety– the Centrelink Medical Certificate signed by Dr Judy Chen dated 3 August 2021[49]. [44] Annexure “HL-11” to the Li affidavit.[45] Annexure “HL-16” to the Li affidavit. [46] Annexure “HL-7” to the Li affidavit. [47] Annexure “HL-14” to the Li affidavit. [48] Annexure “HL-8” to the Li affidavit. [49] Annexure “HL-15” to the Li affidavit.Identification of the decision maker Both ss 341(1) and 351(1) require a causal link between the adverse action and the exercise of the workplace right and the adverse action and the possession of a protected attribute, respectively. A threshold matter that shapes this inquiry is the identification of the decision-maker or decision-makers. Bodies corporate, such as StarTrack, by their nature act only via the agency of their human officers. They have no conscience or mind within which a reason or reasons for acting might form. In some cases, corporate conduct is the product of collective decision-making – for example, decisions made at the level of the company’s board of directors or through some other committee of management, formal or otherwise. In others, corporate conduct arises from decisions of single officers exercising powers that are theirs alone to exercise. In this case, StarTrack submits that Mr Ellem, State Operations Manager, was the relevant (and ultimate) decision-maker for the dismissal decision. StarTrack does not go so far as to proclaim Mr Ellem as the sole decision maker however, insofar as it acknowledges that Mr Moulton provided human resources advice to Mr Ellem, especially in connection with the decision to proceed to a show-cause process. I did not understand Mr Li to dispute, as a matter of fact, that Mr Ellem made the decision to terminate his employment. Instead, it was his contention – disclosed through cross-examination of Mr Ellem – that he was not authorised to make the decision and/or that the decision was one that should have been made by human resource management. Mr Ellem however gave forthright, cogent, and plausible evidence that, in his senior role of State Operations Manager, he was the person (or officeholder) charged with responsibility to make the final decision concerning Mr Li’s employment. I accept the submission of StarTrack that he was both authorised to and did, in fact, make the ultimate decision to terminate Mr Li’s employment. As far as Mr Moulton is concerned, the unchallenged evidence before the Court is that, in around September 2021, Mr Ellem approached him for advice on whether it was appropriate to proceed with a show cause process in respect of Mr Li. Mr Moulton understood from previous discussions with Mr Li’s management team, that Mr Li had been absent from work for an extended period and that attempts to obtain further information from him about his capacity to perform the inherent requirements of his role had been unsuccessful.[50] [50] Moulton affidavit at [50].

Ratio Decidendi

Legal Principle Established

I find that the events unfolded in the manner described by Mr Pucci.October 2020 – complaint about co-worker’s operation of forklift – eighth employment complaint - eighth workplace right In his statement of claim, Mr Li alleged that he had made a verbal complaint to supervisor, Matthew Rees, regarding the unsafe use of the forklift by a colleague. However, Mr Li did not depose to any complaint in his affidavit. Instead, he annexed the following chain of emails beginning with his email sent on 29 October 2020 to Frank Castrucci (Safety Advisor VIC/TAS) raising concerns about an incident involving unsafe use of forklifts by a colleague the prior evening. The email read, as to the relevant part:[19]Hi, Frank,…Last night, when I was unloading several pallets, my colleague, who is a forklift driver, lost her patience and kept on honking the horn of her forklift to me, demanding I finish one pallet first. As a matter of fact, one contractor worker from Zoom was doing that pallet, because that pallet had a lot of heavy cartons, that contractor walked away from that pallet and left the pallet unfinished for quite a while. My forklift driver colleague should know I am not responsible for other people’s mistakes. Once she finds a contractor deliberately avoid doing hard work, she should report to the company directly rather than venting her anger to someone else. The reason she picked on me, I think, is due to the our different opions about the work safety regulations. And before that accident, my colleague and I raised our safety concerns with forklift drivers including her about the height of pallets and danger the falling carton can pose to our freight handlers. She might think our complaints made her work more difficult.As forklift driver and freight handlers, we have a common goal to achieve at Startrack; to finish our work as efficiently as possible and deliver the best customer services. However, the different opinions about how to work safely might separate us and erode the solidarity among our workers. If you can come and help us address the work safety and occupational health issue by giving a clear guidance, that would be great.Regards,Hang[19] Annexure “HL-9” to the Li affidavit. Mr Castrucci then responded to Mr Li with an email sent later the same day that read:[20] [20] Annexure “HL-9” to the Li affidavit.Hi Hang,Thank you for raising such concerns and issues.We are and have been in peak circumstances for a while and the business has a commitment to ensure that they are doing everything possible to remain safe which includes toolboxes, safety alerts etc.I will be able to come over Thursday 5/11 and meet with you and encourage you to do the following until our meeting:If there are issues such as you have outlined below, are you: •Reporting the incidents to the supervisor and ensure they are entered into onesafe•Trying to resolve the issues at ground level with HSR and supervisor•Discuss and offer any recommendations to increase the safety•I look forward to discuss the above next Thursday Cheers