Manchin v Miners Tipper Services Pty Ltd
[2011] FMCA 485
•21 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANCHIN v MINERS TIPPER SERVICES PTY LTD | [2011] FMCA 485 |
| INDUSTRIAL LAW – General protections court application alleging dismissal – reason for dismissal not a proscribed reason. |
| Fair Work Act 2009, ss.323, 340, 341, 341(1)(a), 343, 345, 361 539(1), 539(2), 545, 546, 569, 570 and 570(2) |
| Hayward v Rohd Four Pty Ltd (2008) FMCA 1490 Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (2010) FCA 770 |
| Applicant: | PAUL MANCHIN |
| Respondent: | MINERS TIPPER SERVICES PTY LTD |
| File Number: | BRG 1172 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 21 February 2011 |
| Date of Last Submission: | 21 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 21 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Mr W. Boyd |
ORDERS
The application filed on 24 November 2010 be dismissed.
There be no order as to costs.
A transcript of these proceedings be provided to Fair Work Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1172 of 2010
| PAUL MANCHIN |
Applicant
And
| MINERS TIPPER SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Ex tempore
1.This is an application pursuant to the Fair Work Act 2009 – commonly referred to as an application alleging dismissal in contravention of a general protection. The application was commenced by an application and a form 2 filed on 24 November, 2010.
2.The application is not particularly helpful. It does not set out the orders sought, or the basis upon which the applicant seeks them. There is a little more detail in the form 2.
3.Mr Manchin seeks orders for compensation, calculated in accordance with appendix B to the form 2 and totalling $25,337.96, unspecified pecuniary penalties to be imposed upon the respondent, and other remedies set out, he says, in appendix C to the form 2. The “Other” remedies seem to be claims for unpaid allowances totalling $28,234.99.
4.According to the form 2 “Part G – Contraventions alleged”, Mr Manchin says that the basis of his claims are contraventions of ss.323, 340, 343 and 345 of the Fair Work Act 2009. Each of those provisions is a civil remedy provision for the purposes of the Act: s.539(1) of the Fair Work Act 2009.
5.Subsection 539(2) of the Fair Work Act 2009 permits Mr Manchin to apply to this court for orders in relation to the contraventions alleged by him. Section 545 of the Fair Work Act 2009 sets out the orders that this court can make on this application. They include orders for injunctive relief, orders awarding compensation for loss that a person has suffered because of a contravention of the Act and orders for reinstatement. Under s.546 the court can order the imposition of pecuniary penalties.
6.The tale in this case commences with the applicant, Mr Manchin, coming across an advertisement for a job with the respondent. It was advertising for a truck driver and Mr Manchin, on the evidence, made contact with one of the directors of the respondent.
7.There was a meeting between them and as a result, Mr Manchin was offered a job with the respondent. It seems tolerably clear that the parties agreed that the rate of pay would be $17.10 per hour, although Mr Manchin wanted more. It also seems tolerably clear, and I find that it was mentioned during the course of the interviews for the job that Saturday work would be required, although there was no certainty about the availability of Saturday work.
8.At its commencement Mr Manchin’s employment was governed by an industrial instrument referred to in the proceedings as the Transport Distribution and Courier Industry Awards, Southern Division 2003, until January 2010 when an alternative industrial instrument took over, namely the Road Transport and Distribution Award 2010.
9.I will refer to those industrial instruments at more length shortly. The evidence reveals that Mr Manchin was an employee who had some understanding of his rights as an employee and he was given to taking up those rights from time to time with his employer. It is not entirely clear to what extent he did that, although he complains that when he did take up what he saw as shortcomings on the part of his employer with a director of the respondent, Mr Robert Miners, Mr Miners would fly into a rage and would accuse him of being a “whinger”.
10.There are a number of complaints made by Mr Manchin about his entitlements not being honoured: annual leave was not paid appropriately; he was not given sufficient notice about the change of commencement times for his employment, annual leave and the like. Again, I will refer to some of these things in a little more detail shortly, but it seems that there was, according to his evidence, and in particular his affidavit filed on 21 January 2011, ongoing issues which raised their heads from time to time.
11.The respondent decided to terminate Mr Manchin’s employment, and to that end Mr Miner’s gave to him a letter on 2 August, 2010 in these terms:
It is with regret that I must inform you that your employment with Miners Tippers Services Pty Ltd will be terminated as of today, 2 August 2010. As discussed this morning, I believe that you have caused a serious and imminent risk to the reputation, viability and profitability to the company. I consider that your actions constitute immediate dismissal. You will be paid two weeks notice and any accrued entitlements up to and including the date of this letter.
12.What lead to the termination is at the heart of this dispute. Mr Manchin says that he was terminated, not for the reasons for which the respondent sets out in the above letter, but rather because he was – and these are my words, not his – an agitator, somebody who knew what his rights were, and insisted upon them being honoured, much to the chagrin of Mr Miners, who eventually had enough and terminated him. Mr Manchin points out hat the Fair Work Act provides that employees who do nothing more than exercise or attempt to exercise their workplace rights, by insisting upon those things that they are entitled to insist upon are entitled to protection from such action by employers, and therein is the issue in this case. Did the respondent take adverse action, namely the termination of Mr Manchin’s employment because he exercised, or attempted to exercise a workplace right?
13.The phrase “workplace right” is defined in s.341 of the Fair Work Act 2009. It seems to me that the definition in s.341(1)(a) is apt to cover exactly what it was that Mr Manchin was about in this case, namely bringing to his employer’s attention the legal requirements of the relevant award, and insisting upon compliance with those legal requirements. There is evidence from Mr Miners did just that from time to time.
14.There is no doubt either that the termination of an employee’s employment is adverse action for the purposes of the Act: see s.342, item 1, column 2.
15.Thus, it seems to me that on the basis of the evidence from Mr Manchin, and the evidence from Mr Miners, Mr Miner’s raises a case that the reason for his dismissal was Mr Manchin’s resort to his workplace rights.
16.As explained by Wilson FM in Hayward v Rohd Four Pty Ltd (2008) FMCA 1490 and the judgment of Logan J in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (2010) FCA 770 the establishment of facts which raise a case of a breach of the Act in the relevant sense engages s.361 of the Fair Work Act. That section provides that if, in an application in relation to a relevant contravention, it is alleged that a person took or is taking action for a particular reason, or with a particular intent, and taking that action for that reason, or with that intent would constitute a relevant contravention, it is presumed in proceedings in respect of the contravention that the action was, or is being taken for that reason, or with that intent unless the person proves otherwise.
17.Thus, I am to presume in these proceedings that the reason Mr Manchin’s employment was terminated was because he tried to raise with his employer from time to time and on one occasion too many, his workplace entitlements and rights. The presumption can be displaced if the respondent in this case proves otherwise. Has the respondent proved otherwise?
18.First, I need to determine whether I accept the evidence of a witness called by the respondent, Mr Ian Heymink. If I do not, it seems to me that the employer does not prove otherwise.
19.As the advocate for the respondent, Mr Boyd, has quite properly pointed out, the issue is not whether what was allegedly said to Mr Heymink by Mr Manchin was true, the issue is the state of the controlling minds of the respondents – its directors at the relevant time.
20.I accept Mr Heymink’s evidence. I do not see any reason to disbelieve him. He is a person who is not interested in the outcome of these proceedings, who is not interested insofar as either of the parties are concerned. His is independent of the parties and described in his evidence how he had been the subject of animosity from the directors of the respondent and others in his position (Mr Heymink is an owner operator and in direct competition with the likes of the respondent) and for the same or similar reasons, he is often not the best of friends with salaried drivers such as Mr Manchin..
21.Put shortly, there seems to me to be nothing for Mr Heymink to gain by telling falsehoods about what was said to him on the phone by Mr Manchin during the events relevant to this case.
22.Mr Heymink gave evidence that he is the owner and only truck driver of a business called Halfback Haulage. He contracts to Hansons, the main contractor for which the respondent also works. Mr Heymink was not a salary driver and was paid per load delivered for Hansons.
23.Mr Heymink knew the applicant Paul Manchin through working for Hanson's. Mr Heymink is known by the nickname, "Snozza".
24.Sometime towards the end of 2010 Mr Heymink was driving on the Logan Motorway when he received a mobile telephone call. Mr Heymink did not immediately recognise the caller but answered his phone. Mr Manchin was the caller and he and Mr Heymink had a conversation along the following lines:
Applicant:It's Paul here, 797 [the applicant's truck number], is that you Snoz?
Heymink:Yes.
Applicant:You had better watch your back.
Heymink:What do you mean?
Applicant:Just watch your back, there's people out to get you.
Heymink:What are you talking about?
Applicant:They want to put you in hospital.
Heymink:Who?
Applicant:Well there's my boss and Laurie's boss, for a start.
Heymink:What are you talking about?
Applicant:You're going to end up in hospital if you don't watch your back. I'm not going to say any more. Just watch your back.
25.The applicant hung up the telephone at that point. Mr Heymink says that the applicant’s tone and overall feel of the conversation led him to think that the applicant was not joking and there really were people out to get him. Mr Heymink says that he was distressed by the conversation and the thought that there were people out to get him.
26.Mr Manchin does not deny the conversation with Mr Heymink. He filed an affidavit in answer to Mr Heymink’s evidence and he takes no issue with the conversation as recorded by Mr Heymink. Why Mr Manchin would say those things to Mr Heymink I do not know, but in my view I do not have to trouble myself with an answer to that question. I speculate, and it is only speculation, that it may be something to do with, as Mr Heymink explained, the animosity between salaried drivers, and non-salaried drivers.
27.What was said on the telephone between Mr Manchin and Mr Heymink was not a direct threat by Mr Manchin to Mr Heymink for the former to do the latter bodily harm. Even Mr Heymink acknowledged that, although Mr Miners seemed not to want to accept that it was not a threat. In my view it was in fact a warning from Mr Manchin to Mr Heymink that others might wish to put him in hospital.
28.Mrs Miners gave evidence that she spoke to a representative of Hansons and she was told that there had been a threat of bodily harm made to Mr Heymink. Curiously she sought no further particulars about that, but simply said that she would contact the applicant, Mr Manchin. As it turned out, she did not. She contacted her husband and he took up with the applicant. However, at no stage, on any of the evidence, was exactly what was alleged to have been said to Mr Heymink by Mr Manchin put to him for his answer. That is very curious. If the respondents were at all interested in getting to the bottom of the matter, then one would have thought that they would have put to Mr Manchin, exactly what it was that he was alleged to have said or done, and obtained his side of the story.
29.Mr Miners says that they did not obtain Mr Manchin’s side of the story, but Mr Manchin was not forthcoming with his version. But when one reads Mr Miners’ evidence, what was done by him to obtain Mr Manchin’s side of the story was done in a vacuum. It is very curious the way in which he says in his affidavit, he went about finding out what went on. For example, in paragraph 31 of his trial affidavit, he says:
I discussed the Hanson report with Jane over the following weekend, and we decided that I would discuss the matter with Paul once again to see if we could find out the truth.
30.He goes on in paragraph 32:
On the morning of Monday 2 August 2010 while the applicant was waiting for a tyre to be fixed, I asked him again about the report from Hanson and about Ian. The applicant did not answer my questions and started talking about his wages, entitlements, leave and overtime. I told him that I did not want to discuss those matters and was more concerned about the report from Hanson as it could have a direct impact on my business. The applicant continued to move the conversation away from the report from Hanson and kept trying to discuss his wages. At that point I told the applicant to get on with his work, left him alone, and returned to the office.
31.There is no evidence at all that suggests that what was alleged to have been said to Mr Heymink was put to the applicant. There is no suggestion that the circumstances in which all of this arose were put to the applicant. There is no evidence that suggests that anything was done, other than to raise the report of Hanson, (whatever that might be for it is not described in the evidence) in a way which is not specified in the evidence. As I have been given to remark on a few occasions already during the course of this trial, this is a court, there needs to be evidence. What is contained in the affidavits in this case, although not the subject of objection is objectionable and inadmissible and is, in my view at least, largely unreliable.
32.Does that mean that the termination was not motivated by whatever occurred between Mr Heymink and Mr Manchin? I am satisfied, that Mr Heymink received the words that he said he received from Mr Manchin. I am also satisfied that those words have been honestly misconstrued by the respondents as being a threat by Mr Manchin to Mr Heymink to cause him bodily harm, whatever that might mean. But I am also satisfied that that was the reason for the termination of Mr Manchin’s employment. That motivated the termination and I am not satisfied on the evidence that there was any other reason that motivated the termination.
33.To put it in terms of s.361 of the Act, I am satisfied that the respondent has proved that the termination was for a reason other than a proscribed reason set out in the Fair Work Act 2009. That means that the application must be dismissed.
34.The successful respondent applies for its costs.
35.According to s.570 of the Fair Work Act 2009, a court can make an order for costs incurred by another party in the proceedings only in accordance with s.570(2) or s.569. Section 569 deals with the Minister’s entitlement to intervene in proceedings. It has no relevance here. Section 570 says this:
The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause, or;
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i)the party unreasonable refused to participate in a matter before Fair Work Australia; and
(ii)the matter arose from the same facts as the proceedings.
36.I am not satisfied in this case that these proceedings were instituted vexatiously or without reasonable cause. Nor am I satisfied that the proceedings are a result of Mr Manchin’s unreasonable act or omission which caused the other party to incur costs. Nor am I satisfied that Mr Manchin or the respondent unreasonably refused to participate in a matter when it was before Fair Work Australia and the matter arose from those same facts.
37.The application for costs is refused.
38.What I did not make any findings about in the course of my reasons for judgment, to which I will refer now that the question of costs is out of the way, is that there does in fact appear to be a number of breaches of the Act committed by the respondent in this case. The level of understanding of the respondent and of those that control it about the respondent’s obligations under the relevant award and the Fair Work Act is abysmal. I intend to refer these papers to the Fair Work Australia for investigation.
39.The Fair Work Act applies to all employers and it is no answer for the respondent to say that it is a small company that only employs four employees and therefore, its lack of understanding of the Act and the obligations it imposes is somehow justified. Employees of small concerns are entitled to just as much protection from employers, as employees of big companies.
40.I am not in a position in this case to assess damages or any compensation that Mr Manchin might be entitled to because he has not been paid his entitlements under the award, because he has been short changed his overtime payments, because he started before his ordinary work hours of 5.30 am, or because he has been short changed his entitlements for meal allowances and meal breaks. I am not in a position to assess any of that loss because the evidence that would permit me to make those assessments, quite frankly, is not before me. But they are matters to which Fair Work Australia will be able to attend.
41.They are things that will be able to be investigated once the proper books and records are produced to Fair Work Australia so that a proper assessment of what Mr Manchin is entitled to have can be properly worked out, and given to him for, it seems to me that he is entitled to something.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 7 July 2011
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