Maan v Swift Australia (Southern) Pty Ltd - [2010] FMCA 136

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAAN v SWIFT AUSTRALIA (SOUTHERN) PTY LTD

[2010] FMCA 136

INDUSTRIAL LAW – Application alleging dismissal for prohibited reason – major disputes as to facts – consideration of evidence – reverse onus on employer considered.

Workplace Relations Act 1996, s.659

Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32
Sallehpour v Frontier Software Pty Ltd (2005) FCA 247
Fox v Percy (2003) 214 CLR 118
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Applicant:

MAAN MAAN

Respondent:

SWIFT AUSTRALIA (SOUTHERN) PTY LTD (A.C.N. 005 062 082)

File Number:

MLG 1041 of 2009

Judgment of:

Burchardt FM

Hearing dates:

4 & 5 February 2010

Date of Last Submission:

5 February 2010

Delivered at:

Melbourne

Delivered on:

9 March 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr S. Button-Parsonage

Solicitors for the Respondent:

Mr S. Button-Parsonage

ORDERS

That the Application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1041 of 2009

MAAN MAAN

Applicant

And

SWIFT AUSTRALIA (SOUTHERN) PTY LTD (A.C.N. 005 062 082)

Respondent

REASONS FOR JUDGMENT

Mr Maan seeks remedies, including the imposition of a civil penalty, arising out of what he says was his unlawful termination of employment in contravention of s.659 of the Workplace Relations Act 1996 (“WR Act”). He seeks reinstatement and other remedies.
It is Mr Maan’s case that he was dismissed for a prohibited reason, namely a temporary absence from work because of illness or injury within the meaning of the Regulations.
The respondent, Swift Australia (Southern) Pty Ltd (“Swift Australia”), says that Mr Maan abandoned his employment and that he was not dismissed or, alternatively, that he was dismissed because he abandoned his employment, and that in any event he was not dismissed for a prohibited reason.
For the reasons that follow, I accept that Mr Maan was not dismissed or, if he was dismissed, he was dismissed for his abandonment of employment. It follows that the application must be dismissed.

Introductory facts

Mr Maan worked for Swift Australia for two periods of time as a slaughterman. On both occasions he worked on the beef kill floor. He was employed from September 2007 until October 2008, at which time Mr Maan went back to Uganda for personal reasons.
On his return, he applied for and obtained further employment with Swift Australia which commenced on 16 February 2009 and ended amidst circumstances of controversy but no later than 25 February 2009.
The events in dispute fell within a narrow timeframe.
It is Mr Maan’s case that he worked his normal week ending on Friday 20 February 2009 and finishing at about 2.30 pm. According to

Mr Maan, there was some discussion about him working on the afternoon shift as well, but he did not do so in the event. He was collected by his girlfriend according to him and taken home.
Mr Maan’s case was that he became unwell with diarrhoea on Sunday 22 February 2009, such that he was unable to work on the Monday. It is common cause that he phoned in on Monday saying that he was unable to work.
Mr Maan says he got a medical certificate on 23 February 2009 which certified him unfit to work until 25 February 2009.
It is common cause that Mr Maan again telephoned in on Tuesday

24 February 2009 saying he was unable to work and that he in fact attended on 25 February 2009.
According to Mr Maan, he spoke with Rick Simpson, former human resources manager, Brooklyn, and was told that he was being dismissed for abandoning his employment the previous Friday. He says that he sought to argue, but was unsuccessful. He says he was given a “dismissal form” on the spot.
Mr Maan said that he returned on 26 February to get a separation document for Centrelink and spoke to a site manager called Tim, during which conversation reinstatement was discussed, but allegedly declined.
It should be noted that despite orders for the timely filing of materials, Mr Maan did not file his affidavits, sworn on 15 January 2010 and

1 February 2010, until the hearing itself. They were, it would appear, only provided to Mr Button-Parsonage, who appeared for the respondent, either at the hearing or very shortly beforehand.
This is not without significance because it in part explains why the respondent did not reply to some of the material assertions made in the two affidavits.
Swift Australia’s position was that Mr Maan had been at work on Friday 20 February 2009 and that he had performed the duty of head removal in the beef killing chain until about the lunch break. When the chain recommenced after lunch Mr Fennell, who said he was the foreman on the day for that shift, said that Mr Maan was nowhere to be seen.
Having searched himself for Mr Maan and not found him, Mr Fennell contacted the human resources officer for the plant, Mr Rob Hutchison, and Mr Hutchison made a more extensive search of the premises.
Neither of these searches succeeded in finding Mr Maan.
Mr Hutchison gave evidence in his affidavit of his failure to find Mr Maan, despite extensive search. He also deposed to the fact that Mr Maan’s timesheet had been wrongly filled out, showing him as leaving on time at the end of shift on that day, and that he had been wrongly paid for that.
Mr Fennell gave further evidence that he required a trainee foreman, Lionel Knowles, to perform the duty of head removal for the remainder of the shift.
Mr Knowles gave evidence in his affidavit that that was indeed the case.
Mr Hutchison, in addition to the evidence of the search, deposed that he had had a conversation with Mr Maan when he attended work on
25 February 2009. He said that he asked Mr Maan why he had left the site without notifying the supervisor and that Mr Maan said he was sick, but could not offer any explanation as to why he left without notification or authorisation. Mr Hutchison said he asked Mr Maan if he could provide a medical certificate, but he did not produce one. He deposed that Mr Maan then said words to the effect he was not happy working on the beef kill floor and his preference was to work on the mutton kill floor, to which Mr Hutchison replied with words to the effect that irrespective of his preference, by leaving the site without notification and authorisation on 20 February, 2009, Mr Maan had abandoned his work station and his job.
It was Mr Hutchison’s evidence that Mr Maan requested that a letter be provided for Centrelink, and there was further conversation about the separation certificate and as to whether or not Mr Maan was dismissed. Mr Hutchison deposed that, after that conversation, he said words to the effect, “If you are not satisfied, come back and speak to my manager, Rick Simpson”.
What I have just given is an abstract of the affidavits of the parties. When oral evidence was given, Mr Maan added a number of additional facts. First, and this was not in his affidavits which were prepared at a time when he was legally represented, he said he had in fact worked on the gutting table throughout the entire shift. He said he was one of three such employees on that table.
It emerged that it is normal for there to be three employees on the gut table, which is two positions after the head removal. The brisket saw apparently comes in between.
This is of some significance because, as the photographs tendered in evidence show and the oral evidence confirmed, the physical distance between the head removal and brisket saw positions is extremely close, and the gut removal is only one further position on and just round the corner, and only marginally, it would appear, out of sight in the photographs themselves.
Putting the matter shortly, it is quite clear that the gut table is no more than a few yards from the head removal station.
Mr Maan also asserted in his oral evidence that Mr Fennell had not been the foreman on the morning shift on Friday 20 February 2009 but rather, had been on the afternoon shift, and that Mr Fennell simply was not present during the morning shift at all.
Mr Maan went on to say that he had in fact not spoken to

Mr Hutchison at all on Wednesday 25 February 2009, but rather had spoken only with Mr Simpson. That latter point was of course consistent with his affidavit. He said that his medical certificate had been photocopied by the respondent and returned to him and that the original was with his solicitors.
When called to give evidence, Mr Fennell was adamant that he had been on the morning shift and, when questioned by Mr Maan:
“How did you find out that I was missing …
When I went to restart the chain after the lunch break, you weren’t on the block where you were supposed to have been

(P-53).”
Mr Hutchison, who was also called to give evidence, confirmed that Graham Fennell was supervising the morning shift on the beef kill floor on Friday 20 February 2009.
Mr Hutchison was cross-examined about discussions between Mr Maan and Mr Simpson, but despite my drawing it expressly to Mr Maan’s attention, he was not really challenged at all about the narrative to which he deposed at paragraphs 11 and following of his affidavit.
It should be noted that paragraph 23 of Mr Hutchison’s affidavit is plainly hearsay and is further made unhelpful by virtue of the obvious typographical error in referring to Wednesday, 26 February 2009, which was obviously meant to be Thursday, 26 February 2009.
It is common cause that Mr Maan was given a document, being exhibit R4, which was an internal clearance certificate on terminating employment. I note that it is dated 25 February 2009.
It is clear from the evidence that Mr Maan attended Centrelink on

25 February 2009 and returned on 26 February 2009. It is also clear that he received Centrelink payments from 2 March 2009 until 19 June 2009. He says that he obtained further employment as a butcher at Wagga Wagga on 18 August 2009, which employment continues. I see no reason to doubt that evidence. I would infer that he remained on Centrelink payments until his new employment commenced.

The applicable law

The requirements in cases such as these have been recently reviewed by Wilson FM in Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32. At [28], his Honour stated:
“From the above review of the authorities I conclude that the determination of this proceeding requires the following:
a) The applicant proving the fact of employment and its termination;
b) The applicant proving such of the facts that she intends to rely upon to invoke one or more of the provisions in

ss 659(2) of the Act;
c) The respondent proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
d) In discharging the onus the respondent does not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason, that the failure to establish a valid reason can be taken into account in assessing whether the respondent has discharged its onus of proof.”
It should also be noted that this case is not concerned with whether or not the dismissal was unfair (Sallehpour v Frontier Software Pty Ltd (2005) FCA 247 at [4]).

Consideration

The first step for the Court is to decide whose version of the events it believes. The Court is faced with two very starkly different versions.
Mr Maan’s case was of course primarily based upon his own evidence which was given with complete sincerity and obvious belief. His case is of course internally consistent. He says that he was at work for all of Friday, 20 February 2009, which after all is consistent with the timekeeping records of the respondent.
Mr Maan did file an affidavit from his then partner, a Miss Libreri, which I marked for identification as reference had been made to it in cross-examination. Miss Libreri was not called to give evidence and I found the excuse advanced for her non-attendance somewhat unconvincing. Mr Maan asserted that a friend of Miss Libreri had given birth the previous day, which did not strike me then, nor on reflection does it do so now, as being an appropriate reason for non-attendance at Court.
Nonetheless, Miss Libreri’s affidavit not having been received in evidence, there is no need to speculate further as to whether any

Jones v Dunkell
point arises.
Despite the sincerity with which Mr Maan gave his evidence, I am of the clear view that the version contended for by the respondent is substantially correct.
The witnesses called by the respondent all gave their evidence with equal sincerity to that of Mr Maan. The critical evidence of

Mr Fennell, in particular, struck me as being powerful. His answers about Mr Maan’s absence had the ring of truth about them. Likewise, not only was Mr Hutchison a good witness, but he was not challenged, as I have indicated, on the critical aspects of his evidence.
I am keenly conscious that demeanour evidence must be approached with some measure of hesitation. This is so, notwithstanding the decision of the High Court in Fox v Percy (2003) 214 CLR 118.
Nonetheless, the following objective considerations support the version for which the respondent contends:
a)Mr Fennell was either there or he was not there on the morning shift. There is no earthly reason for the respondent to have invented his presence, which Mr Maan roundly denied.
b)Contrary to Mr Maan’s recollection, Mr Hutchison undoubtedly spoke with him on 25 February 2009. There is no earthly reason for him to have invented the conversation to which he deposed.
c)
It was, if not common cause, ultimately I think clear, that

Mr Maan returned on 26 February 2009, although it was not entirely clear whether or not exhibit R4 was given to him on that day or the preceding day, which is the date it bears. The fact that it bears the date of 25 February is not, in my view, conclusive because that was the last day upon which Mr Maan attended in an attempt to work on any view.
d)Mr Maan was, it would appear, a satisfactory worker. He had worked without objection for the respondent for over a year, and had been re-engaged upon his re-presenting himself for work in February. It is not inherently likely that the employer would seek to get rid of him without any kind of valid reason.
e)Mr Maan’s explanation that he worked at least after lunch (and possibly in the morning, the evidence is not entirely clear) on the gut table is inherently improbable. Mr Fennell’s surprise at not seeing him at the head removal position after lunch is only consistent with his having worked there in the morning. Likewise, the suggestion that Mr Fennell would not have observed or found Mr Maan working only a short distance away, when he was clearly scouring the place to find him, is inherently improbable.
f)Mr Maan did not mention this issue of working on the gut table at any stage until his oral evidence.
g)
The medical certificate was valid for the period from 23 to 25 February 2009, which included a period during which Mr Maan, according to him, was seeking to work. It is more probable than otherwise that if he had presented it to Mr Hutchison and/or to

Mr Simpson on 25 February, they would have pointed out that he was unable to work during that period.
Bearing in mind all the inherent probabilities of the situation, it is far more probable than otherwise, and indeed I am quite sure that it is the case, that Mr Maan worked on head removal on Friday 20 February 2009 until the luncheon break, but not thereafter. He was spotted as being absent by Mr Fennell and could not, thereafter, be found either by Mr Fennell or Mr Hutchison.
Thereafter, nothing of any moment happened apart from two brief telephone messages from Mr Maan to the respondent until he attended on 25 February 2009 when, as I find, he had the conversation to which Mr Hutchison deposes, with him.
I think that Mr Maan left on that day and returned the following day when he spoke to Mr Simpson and had the discussion about his abandoning employment, to which he himself referred, and was given the separation document.
It should be noted that, prior to the luncheon adjournment on the first day of hearing, Mr Maan made much of the provision to him of two documents by the respondent which he put as being provided on 25 and 26 February respectively. During the luncheon adjournment he went to his solicitors and obtained a copy of the separation certificate which was not issued until March 2009.
Although re-reading the transcript of the proceedings is less clear than I had thought at the time, it is a fact that Mr Maan seemed to me, at least, to represent that the separation certificate had been given to him on

26 February 2009 when clearly it can not have been as it is dated, on its face, March 2009.
I also note that, despite going all the way to Lalor to see his solicitors, Mr Maan did not obtain from them the original medical certificate that he said was in their possession.
I find that the respondent was not given a copy of the medical certificate until it was produced during the preparation for this trial, as has been asserted by the respondent.
In making these findings, I am of course making findings that would suggest I think Mr Maan’s version of the events was untrue. I do think so, but I should make it clear I am not accusing Mr Maan of perjury. For whatever reason, he genuinely believes his tale, but unfortunately I am unable to accept it.

Conclusion

In my view, Mr Maan left his employment of his own motion before it was due to finish on 20 February 2009. The employer did not act in any material way upon that departure until 25 February 2009.
Mr Hutchison’s response was entirely consistent with an abandonment of the employment by Mr Maan. Although it was pleaded that this was an abandonment to be considered in the context of the applicable industrial instrument, the respondent neglected to properly prove the applicability of the agreement, and I therefore ruled it inadmissible.
Nonetheless, to walk off the job before your job is finished may well be thought to be a repudiation of the contract by the employee. It might be said to be a breach of a fundamental term of the contract, namely that the employee will work those hours lawfully allotted to them by the employer.
In my view, however, in the particular circumstances of this case nothing ultimately turns on this matter.
I find no evidence to suggest that Mr Maan was ill on Friday afternoon. It is not his case that he was. It would appear from the unchallenged evidence of Mr Hutchison that he may have been disenchanted with the particular duties he had been asked to perform (namely beef killing floor as opposed to mutton), but nothing turns on this either.
Mr Maan has, to paraphrase Badman, proved the fact of his employment and the fact that it has ended. He has proved that he was temporarily absent from work. It is clear that he was absent on 23, 24 and 25 February 2009 by reason of illness or injury, and that this was a temporary absence within the meaning of the Regulations. Nothing was put to the contrary.
However, as I find, the employment came to an end because the employer accepted what it perceived to be the abandonment of the contract by Mr Maan. This again might be said to give rise to interesting questions as to whether the termination of employment was effected by Mr Maan or by the employer (see Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200).
None of this needs in my view to be decided because what is plain is that either Mr Maan abandoned his employment or he was dismissed for walking off the job.
Each of these alternatives quite clearly was not dismissal for a temporary absence through illness or injury.

Even if, contrary to my findings, Mr Maan was at work for the whole of the Friday shift, the fact is that the employer genuinely did not believe that he was. His absence on sickness and ill-health between Monday and Wednesday had nothing to do with his dismissal, if that is what it was. The employment ended because the employer genuinely thought that Mr Maan had misconducted himself by walking off the job on the Friday.
In these circumstances, I am quite satisfied that Mr Maan’s absence on Monday, Tuesday and Wednesday had nothing to do with the termination of employment. The form given to Mr Maan by

Mr Simpson expressly asserted abandonment of employment, and that assertion is entirely consistent with all the evidence that the respondent has called, which I accept.
It therefore follows that the application must be dismissed.
In the circumstances, it is not necessary for me to consider the applicant’s other claims for the imposition of a civil penalty, reinstatement and back-pay.
The only comment I would make in passing is that I did not find

Mr Maan’s evidence about his endeavours to obtain other employment unpersuasive, as counsel urged. Mr Maan has had to go as far as Wagga Wagga to get another job, and that in my view in itself speaks volumes for his desire to be in employment. There is no reason to conclude that he was not actively seeking employment until he got it.
Accordingly, I will order only, for the present, that the application be dismissed.
The respondent gave an indication as to a costs application in the event that it was successful in the proceeding. I will grant both parties seven days from delivery of these Reasons for Judgment to submit any submissions in writing as to whether costs should or should not be ordered.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 9 March 2010