FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lintvelt v QGC Pty Ltd [2022] FedCFamC2G 275
File number(s): ADG 214 of 2020 Judgment of: JUDGE BROWN Date of judgment: 20 April 2022 Catchwords: INDUSTRIAL LAW – allegation of breach of general protection provisions – adverse action – termination of employment – exercise of workplace rights – entitlement to complain about efficacy of health and safety protections in the workplace – whether respondents breached sections 340 of Fair Work Act 2009 (Cth) – applicant alleged adverse action taken because of exercise of workplace right – reverse onus – who in employer’s chain of management made decision to take adverse action – consideration of reasoning process leading to dismissal – multiple decision makers involved – consideration of whether adverse action taken for proscribed reason – whether any proscribed reason was a substantial and operative reason for adverse action – whether respondent has discharged onus arising under section 361 of the Fair Work Act 2009 (Cth) Legislation: Evidence Act (1995) (Cth) s 140
Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 346, 360, 361
Work Health and Safety Act 2011 (Qld) s 340
Cases cited: Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243
CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014
CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804
Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Fox v Percy (2003) 214 CLR 118
Gibbs v Palmerston Town Council [1987] FCA 477
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
NTEU v RMIT (2013) 234 IR 139
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244
Division: Division 2 General Federal Law Number of paragraphs: 330 Date of hearing: 21 & 22 October 2021 Place: Adelaide Solicitor for the Applicant: The Applicant appearing on his own behalf Counsel for the Respondents: Mr Ellery Solicitor for the Respondents: Corrs Chambers Westgarth ORDERS
ADG 214 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRETT LOUW LINTVELT
Applicant
AND: QGC PTY LTD
First Respondent
ANTHONY HARLAND
Second Respondent
STEVEN COOPER (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
20 APRIL 2022
THE COURT ORDERS THAT:
1.The application filed by the Applicant on 15 June 2020 is hereby 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…
Keep reading for free
Create a free CaseChat account to read Lintvelt v QGC Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2022] FedCFamC2G 275
- Decision Date
CaseChat Overview and Summary
In the case of Lintvelt v QGC Pty Ltd, the primary focus is on the identity of the decision maker who terminated Mr Lintvelt's employment, the information upon which that decision was based, and the substantive reasons for his dismissal. The central question revolves around the rationale behind Mr Lintvelt's termination, given his extensive experience and his role as a Gas Plant Operator for QGC at the Windibri Plant in Chinchilla, Queensland. Mr Lintvelt's employment was subject to a six-month qualifying period, during which either party could terminate the contract with one week's notice. The contract also outlined a rotating work schedule of 15 days on and 13 days off, with 12-hour workdays. Disputes arose regarding the precise timing of Mr Lintvelt's arrival for work, particularly after his travel arrangements from Adelaide to Chinchilla via Brisbane.
The legal issues before the court involved determining the actual reason or reasons that motivated the decision-maker regarding Mr Lintvelt's termination. The court needed to ascertain the reliability of the testimonies provided by the key witnesses, Mr Lintvelt and Mr Harland, and weigh their credibility in the context of the evidence presented. The court also had to consider whether Mr Lintvelt's dismissal was influenced by any proscribed reasons or if it was genuinely based on performance and workplace safety concerns. The burden of proof lay on QGC to provide a clear rationale for the termination, demonstrating that it was not influenced by any unlawful considerations.
The court's reasoning hinged on the reliability and coherence of the testimonies provided by the witnesses. While Mr Lintvelt was vocal about his grievances regarding isolation procedures and the manner in which QGC handled his termination, the court found Mr Harland's account to be more reliable and coherent. The court determined that the decision-making process at QGC was complex and involved multiple individuals across different management levels, making it difficult to pinpoint a single decision-maker. The court concluded that QGC was not obligated to provide a specific method for communicating the termination decision to Mr Lintvelt, as long as it adhered to the general protection legislation. The court also noted that the termination was not procedurally unreasonable and did not involve any proscribed reasons.
Ultimately, the court found that Mr Lintvelt had a right to agitate issues related to workplace safety and had indeed done so, but the causal connection between these actions and his termination needed to be established. The court determined that while QGC could have handled the termination process more transparently, this was not the focus of the proceedings. The court's final orders would reflect these findings, ensuring that the substantive reasons for Mr Lintvelt's dismissal were clearly articulated and that any procedural shortcomings were addressed in future employment practices.
The legal issues before the court involved determining the actual reason or reasons that motivated the decision-maker regarding Mr Lintvelt's termination. The court needed to ascertain the reliability of the testimonies provided by the key witnesses, Mr Lintvelt and Mr Harland, and weigh their credibility in the context of the evidence presented. The court also had to consider whether Mr Lintvelt's dismissal was influenced by any proscribed reasons or if it was genuinely based on performance and workplace safety concerns. The burden of proof lay on QGC to provide a clear rationale for the termination, demonstrating that it was not influenced by any unlawful considerations.
The court's reasoning hinged on the reliability and coherence of the testimonies provided by the witnesses. While Mr Lintvelt was vocal about his grievances regarding isolation procedures and the manner in which QGC handled his termination, the court found Mr Harland's account to be more reliable and coherent. The court determined that the decision-making process at QGC was complex and involved multiple individuals across different management levels, making it difficult to pinpoint a single decision-maker. The court concluded that QGC was not obligated to provide a specific method for communicating the termination decision to Mr Lintvelt, as long as it adhered to the general protection legislation. The court also noted that the termination was not procedurally unreasonable and did not involve any proscribed reasons.
Ultimately, the court found that Mr Lintvelt had a right to agitate issues related to workplace safety and had indeed done so, but the causal connection between these actions and his termination needed to be established. The court determined that while QGC could have handled the termination process more transparently, this was not the focus of the proceedings. The court's final orders would reflect these findings, ensuring that the substantive reasons for Mr Lintvelt's dismissal were clearly articulated and that any procedural shortcomings were addressed in future employment practices.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
These reasons for judgment focus on who was the constructive or effective decision maker in respect of Mr Lintvelt’s termination; what was the information on which that decision was based and whether that information was tainted by any erroneous or illegal considerations; and centrally, what was the substantive and operative reason for his dismissal? Essentially, the court must determine why was Mr Lintvelt really dismissed? BACKGROUND QGC is a subsidiary of the international energy company, Shell. It operates a gas field in the Surat Basin, proximate to Chinchilla, in Central Queensland, from which natural gas is extracted. On the gas field are approximately 1,100 gas wells, from which gas is compressed at 14 compression facilities. It is apparent to me, from the evidence led in the case, that the facility is complex and technical in nature and the process which it facilitates has the potential to be extremely dangerous due to the combustible nature of gas and the fact that it is being compressed. Necessarily, it is a highly regulated industry. Mr Lintvelt was employed as a Gas Plant Operator, by QGC, at its Chinchilla facility, which is known as the Windibri Plant. He executed a contract of employment, to this effect on 30 July 2019.[2] Mr Lintvelt has extensive experience in the oil and gas extraction industry. His immediate supervisor at the plant was Anthony Harland, who in turn reported to the field manager, Steven Cooper.[2] See Annexure KM-1 to the Affidavit of Kimberley Melrose filed 6 April 2021. The contract of employment was subject to a qualifying period of 6 months, during which period, Mr Lintvelt’s work performance was to be subject to review. During the qualifying period, either party was entitled to terminate the contract, by giving one week’s notice, in writing, or pay in lieu of notice. Mr Lintvelt lives in suburban Adelaide. His employment was on a fly in/fly out basis. The relevant schedule to his contract, which stipulates, inter alia, the commencement date of his employment, his level of remuneration and position designation, under the heading Rotating Cycle and Hours of Work, stipulates that Mr Lintvelt’s employment status was full time and his hours of work are 15 on/13 off 12 hours per day. A further clause of the employment contract provides a definition of the expression rotating cycle and hours of work. This definition does not provide a specific mechanism for calculating the exact time at which hours of work commenced. It provides as follows:Each on duty period commences at the commencement of work at the site. Each off duty period commences on the date of your departure from the site.[3] There is no controversy in the present matter that the relevant work site, in Mr Lintvelt’s case, was the Windibri Plant in the Surat Basin. Controversies arise as to issues related to whether or not Mr Lintvelt was at fault in respect of the time when he presented himself for work, after making arrangements to travel to Chinchilla via Brisbane, from Adelaide.[3] See Annexure KM1 to the Affidavit of Kimberley Sacha Melrose filed 6 April 2021.
Evidence
Evidence Before The Court
The applicable principles are summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant in which the relevant principles were summarised as follows:·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”·That question is to be answered having regard to all the facts established in the proceeding.·The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.·It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[41]THE EVIDENCE The two most important witnesses in the case are Mr Lintvelt and Mr Harland. Mr Harland was the person on the ground at the Windibri Plant and he reported his impressions of Mr Lintvelt to those above him in the QGC management chain, who, in turn, relied on what was told to them. For the reasons that follow, on balance, I have concluded that Mr Harland is the more reliable historian, apart from in respect of significant aspects to do with his involvement in how HR directed the offboarding of Mr Lintvelt was to be approached. These issues are significant and will be explored in further detail as these reasons are developed. In reaching this conclusion, I am aware that Mr Lintvelt is at a disadvantage in not being legally qualified and not being particularly adept at preparing his affidavit material. In contrast, Mr Harland and the other members of the QGC management chain were able to apply a coherent chronology of what happened vis-à-vis the company’s relationship with Mr Lintvelt and its concerns about him. In contrast, Mr Lintvelt’s case was reactive in nature. It lacked any independent corroboration. Without wishing to be disrespectful, he took the correlation of events to be the same as one event being causative of the other, namely the fact that he was vociferous in his complaint about isolation procedures that this was ipso facto the reason why he was dismissed. It is not sufficient for Mr Lintvelt to establish he had a workplace right and then point to being the subject of adverse action and therefore assert his cause of action is made out. He must establish a connection between the two events not merely their correlation. Mr Lintvelt views himself as being unfairly done by QGC, particularly in respect of what he regards as its failure to deal with him transparently and openly, including in respect of how it conveyed its decision to terminate his employment to him, which he characterises as being brutal and disrespectful. I consider it is more likely than not that QGC could have conducted its termination processes more openly but that issue is not the subject of these proceedings and therefore cannot be an operative factor in their determination.
Decision
Reasons for decision
In my view, in terms of the general protection legislation, QGC was under no obligation to convey this decision in any particular way to Mr Lintvelt or to give him an opportunity to comment upon it. What the legislation prescribes is the taking of adverse action on the basis of a protected attribute applicable to an employee. It is not directed to determining whether a termination is procedurally reasonable or whether the employer concerned is a corporate good citizen, either in terms of its human relations or industrial health and safety policies.CONCLUSIONS There can be no doubt that Mr Lintvelt was subject to adverse action in terms recognised by section 342(1) of the FWA. In addition, there can be doubt that Mr Lintvelt had a right, under relevant work, health and safety legislation to agitate issues to do with the industrial safety of his workplace and he did, from time to time, complain about the manner in which QGC went about several of its work processes, within the context of a highly regulated and inherently dangerous workplace, namely a natural gas compression plant. The evidentiary questions in this case turn on the degree of causal connection between these two actualities, which frame the court’s fundamental obligation, pursuant to the provisions of section 361, namely to determine why the decision to end Mr Lintvelt’s employment was made. The onus to provide this reason is on the person or persons who made the decision. Related to this question, in a case like the present, is the identity of the relevant decision-maker or makers. In cases involving complex corporations or organisations, this may be difficult, particularly as the court is not entitled to intuit the reason or delve into the mind of any individual concerned in an effort to determine whether some malign or subconscious factor was in play. QGC is a subsidiary of a large multi-national corporation. It employs many employees over many sites. Its executive administration is spread over at least two cities in Australia and its parent company, Shell provides at least some of its executive governance. Necessarily its decision making functions are both widely dispersed geographically and shared between many individuals, some of whom meet, for decision-making processes, collegiately. In my view, relevant decision-making, at QGC in employment terms, can be best described as being bottom-up, diffuse, hierarchical and disbursed. In practice, to effect HR decisions, information passed up from the floor of the industrial workplace, via immediate workplace supervisors, to middle and then upper management, which was removed from the immediate workplace and therefore reliant on those below to enable it to make appropriate decisions. In this sense, in my view, it is inaccurate to describe either Mr Lutton or Ms McGonigle as being the actual decision makers in this case. Many individuals, with varying degrees of agency, were involved in the process, which took time to be crystallised and occurred over several locales independent of one another. Indeed some of the relevant decision-makers, namely Mr Mooren and Mr Westgarth, and indeed other unidentified members of the People Decide committee, have not given evidence in this case because of the peripheral nature of their involvement.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.