Martires v Endura Paint Pty Ltd (No. 4)
[2023] FedCFamC2G 218
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martires v Endura Paint Pty Ltd (No. 4) [2023] FedCFamC2G 218
File number PEG 364 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 22 March 2023 Catchwords: INDUSTRIAL LAW – general protections claim – whether applicant exercised or proposed to exercise workplace rights – whether adverse action was taken against applicant – whether adverse action taken because applicant exercised or proposed to exercise workplace right – no contravention of s 340 of Fair Work Act 2009 (Cth)
INDUSTRIAL LAW – claims arising under ss 343 and 344 of Fair Work Act 2009 (Cth) – no contraventions established
Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 343, 344, 361 Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76
Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) (2012) 64 AILR 101-659; [2012] FCA 697
Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72
Martires v Endura Paint Pty Ltd [2021] FCA 178
Martires v Endura Paints Pty Ltd (No 2) [2020] FCCA 717
Division: Division 2 General Federal Law Number of paragraphs: 107 Date of hearing: 13 December 2021 Place: Perth Applicant: The applicant appeared in person Counsel for the Respondent: Ms K Michael Solicitor for the Respondent: Aherns Lawyers ORDERS
PEG 364 of 2018 BETWEEN: EDMUND RICARDO MARTIRES
Applicant
AND: ENDURA PAINT PTY LTD
Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LADHAMS:
INTRODUCTION
The applicant, Mr Martires, brought this Fair Work application against his former employer, Endura Paint Pty Ltd (Endura Paint). Endura Paint is a company which is in the business of manufacturing and supplying water-based and solvent-based coatings. Mr Martires was employed by Endura Paint as a production assistant from 18 September 2017 pursuant to a written contract of employment. Endura Paint dismissed Mr Martires from his employment on 7 May 2018.
Mr Martires alleges that Endura Paint contravened the Fair Work Act 2009 (Cth) (Fair Work Act) by:
(a)taking adverse action against him by dismissing him for reason of his exercise of one or more workplace rights, in contravention of s 340 of the Fair Work Act;
(b)taking action to coerce him not to use his staggered work break at site after working for more than six hours, which is said to amount to a contravention of s 343 of the Fair Work Act; and
(c)pressuring him to accept his dismissal and to work in various parts of the company, which is said to amount to a contravention of s 344 of the Fair Work Act.
While I accept that Endura Paint took adverse action against Mr Martires by dismissing him from his employment, I do not find that this was because he exercised or proposed to exercise any workplace right. I am also not satisfied that there is any evidence that Endura Paint or its directors coerced or attempted to coerce, or placed any undue pressure on Mr Martires in any matter relating to his employment. The application to this Court is dismissed. My reasons for these conclusions are explained below.
APPLICATION TO THE COURT AND PROCEDURAL BACKGROUND
Application and claims
Mr Martires filed an application and a Form 2 on 5 July 2018. His claims were set out in an attachment to his Form 2 and, given the brevity of the claims, it is convenient to set out the claims in full (reproduced without alteration):
1) On 18 September 2017 I commenced employment with the respondent.
2)The enterprise agreement that applies to my workplace says that employees are allowed to have a 30 minutes lunch break as per the “Manufacturing Industry Award” (MA000010) of the National Employment Standards.
3)On 3rd of May 2018, I worked at the factory in Bibra Lake, at Sales Meetings in Welshpool and remedial works at site in 304 Gibbs Road Banjup. I worked continuously for 6 hours then I took my nap as I followed our Company Vehicle Policy that the priority of the driver is the safety of all passengers and as per the National Employment Standards guidelines.
4)On 4th of May 2018, I submitted to Aaron Soos a Safety Violation Letter regarding Company Director Michelle Cleary.
5)On 7th of May 2018, I was told by Company Directors Aaron Soos and Michelle Cleary that I was being sacked with the allegations stated in the Termination Letter given to me on that day. I was told to clear out my things and that it was my last day at work.
6)I rely on sections 340, 343, 344 the Fair Work Act 2009, which says that an employer must not dismiss an employee because an employee:
- has a workplace right
- proposes to exercise a workplace right
7)The respondent dismissed me because I had a workplace right to rest after 6hours continuous work. A workplace right to always think and practice working safely. A workplace right to issue Safety Violation letters to co-employees and company directors. And I performed those workplace rights which lead to my termination.
Mr Martires originally sought compensation in the amount of $30,000, comprising $3,000 in legal and miscellaneous fees, $10,000 in respect of ‘Bullying Acts of Unreasonable Work Demands committed by Endura Paint Pty Ltd against Edmund Ricardo Martires’ and $17,000 in loss of income. At the hearing, Mr Martires withdrew the claim for relief in relation to the legal and miscellaneous fees.
Previous hearing and remittal by Federal Court
The matter previously came before the Court, differently constituted, for hearing on 25 March 2020 and the application was dismissed on 20 April 2020: see Martires v Endura Paints Pty Ltd (No 2) [2020] FCCA 717. Mr Martires filed an appeal to the Federal Court and the Federal Court allowed that appeal on 9 March 2021, setting aside the orders made on 20 April 2020 and ordering that the matter be remitted for a new trial: see Martires v Endura Paint Pty Ltd [2021] FCA 178. The Federal Court found that Mr Martires had been denied procedural fairness based on how the Court addressed a series of emails that were put to Mr Martires in cross-examination, and which could relate only to credibility.
Mr Martires’ request for adjournment of hearing
Following the remittal by the Federal Court, the matter was listing before me for hearing on 21 September 2021. In the days leading up to that hearing, Mr Martires requested that the hearing be adjourned on the basis that he did not understand that the listing was for a final hearing and needed more time to prepare and seek additional evidence.
In circumstances where the matter had previously been remitted by the Federal Court due to a finding that Mr Martires had been denied procedural fairness, and where Mr Martires was self-represented and had not understood the nature of the hearing on 21 September 2021 until only a few days before that hearing, I agreed to his request to adjourn the hearing. I relisted the matter for hearing on 13 December 2021, and made orders giving the parties an opportunity to file any further affidavit evidence and to request the issue of subpoenas.
Issues relating to subpoenas
Documents were returned pursuant to two subpoenas filed by Mr Martires. One of the subpoenas was issued to the Fair Work Ombudsman seeking documents relating to a proceeding between Endura Paint and another former employee, who is not a party to this proceeding (hereafter, third person). The Fair Work Ombudsman brought to the Court’s attention that the documents included details of a confidential settlement following a conciliation process in respect of the third person. I brought the matter before the Court because I formed the view that the third person was an affected person and was not satisfied that the subpoena had been served on him. Mr Martires confirmed that he filed the subpoena because the date of the Fair Work Ombudsman process in relation to the third person was relevant to his application, but he did not seek the details of the confidential settlement. I granted leave to the parties to inspect the documents produced in accordance with the subpoena, save for those documents that disclosed the details of the settlement between Endura Paint and the third person. I consider that any details relating to any confidential settlement with the third person cannot be relevant to the issues in this proceeding and I was satisfied that Mr Martires would not be disadvantaged in any way by not being granted leave to inspect the documents disclosing the settlement reached between Endura Paint and the third person.
Ms Martires also filed a subpoena shortly before the hearing requiring Ms Cleary to produce a work diary. Ms Cleary gave sworn evidence at the hearing that she did not receive the subpoena and does not know whether she still has the diary. Mr Martires did not press this matter further.
Hearing on 13 December 2021
The application ultimately came before me for hearing on 13 December 2021. Mr Martires was self-represented at the hearing and Endura Paint was represented by Ms Michael.
EVIDENCE BEFORE THE COURT
Evidence of Mr Martires
The affidavits of Mr Martires filed on 20 July 2018, 25 November 2019, 22 January 2020, 28 January 2020 and 18 October 2021 were read into evidence without objection, although Endura Paint made submissions as to weight.
Mr Martires gave evidence at the hearing and was cross-examined. Mr Martires did not call any further witnesses.
After Endura Paint’s evidence was complete, Mr Martires sought an opportunity to reopen his case to give further evidence, claiming that he did not have an opportunity to ask questions of himself as he was self-represented. Even though I was satisfied that Mr Martires had been afforded an opportunity to give evidence in chief, and to give evidence in reply after his cross-examination, Endura Paint did not object to Mr Martires having an opportunity to reopen his case to give further evidence, and so I allowed him to do so.
Evidence of Endura Paint
Two witnesses, Mr Aaron Soos and Ms Michelle Cleary, gave evidence on behalf of Endura Paint.
Mr Soos was at all material times and continues to be a director of Endura Paint. His affidavits sworn on 22 August 2018, 13 January 2020, 14 February 2020 and 16 March 2020 were read into evidence, and he gave evidence and was cross-examined at the hearing.
Ms Cleary was a director of Endura Paint at the time of Mr Martires’ employment and dismissal, but is no longer a director of Endura Paint. Her affidavits sworn on 13 January 2020 and 16 March 2020 were read into evidence. She also gave evidence and was cross-examined at the hearing.
Mr Soos and Ms Cleary each, in their affidavits filed on 16 March 2020, explained that they had made unintentional errors in their earlier affidavits and corrected those errors. I accept that the errors in the affidavits were unintentional and in assessing their evidence, I have had regard to the ‘corrected’ evidence. Contrary to the assertions of Mr Martires, I make no finding that Mr Soos and Ms Cleary committed perjury and I draw no adverse inferences against them because of the errors in their evidence that they identified and corrected on 16 March 2020.
Mr Soos annexed to his affidavit filed on 22 August 2018 a handwritten letter of Mr Francis Westlake.[1] Mr Westlake is a former employee of Endura Paint who worked with Mr Martires on 3 May 2018, which is a day on which a number of relevant events happened. In his letter, Mr Westlake provided an account of the actions that he and Mr Martires took on that day, and many aspects of this account are disputed by Mr Martires.[2] Mr Westlake’s letter is signed, but it was not a sworn statement or statutory declaration. Mr Westlake has not provided any evidence in this proceeding and the facts asserted in his letter have not been tested in cross-examination. I give his letter no weight.
[1] Affidavit of Mr Soos sworn on 22 August 2018 at Annexure F.
[2] See affidavit of Mr Martires sworn on 18 October 2021.
Documentary evidence
There were also a number of documents that were tendered by the parties and marked as exhibits during the hearing, including screen shots of text messages, telephone records, minutes of meetings held by Endura Paint, and documents relating to other employees or former employees of Endura Paint. I have had regard to these documents.
The emails put to the applicant in cross-examination at the previous hearing before the Court differently constituted, and which were considered by the Federal Court in finding that the applicant was denied procedural fairness, were not in evidence at the hearing before me and I have not considered them in determining this matter.
Consideration of evidence
While I have had regard to all of the evidence before the Court, I only summarise in this judgment the evidence which has direct bearing on the findings of facts that I make.
ALLEGED CONTRAVENTION OF S 340 OF THE FAIR WORK ACT
Relevant legislation
Section 340(1) of the Fair Work Act provides:
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.
There is no allegation of any contravention of s 340(2) of the Fair Work Act in the present case.
The term ‘workplace right’ is defined in s 341 of the Fair Work Act. That section relevantly provides:
(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.
Pursuant to s 342(1) of the Fair Work Act, an employer takes ‘adverse action’ against an employee if the employer:
(a)dismisses the employee; or
(b)injures the employee in her or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
Issues to be determined
There are ultimately three related issues for the Court’s determination in relation to the claimed contravention of s 340 of the Fair Work Act:
(a)Did Mr Martires exercise a workplace right or propose to exercise a workplace right?
(a)If so, did Endura Paint take adverse action against Mr Martires?
(b)If so, was the adverse action taken because Mr Martires exercised a workplace right or proposed to exercise a workplace right?
Did Mr Martires exercise a workplace right or propose to exercise a workplace right?
Mr Martires asserted that he exercised the following workplace rights:
(a)a right to rest after six hours continuous work;
(b)a right to think and practice working safely; and
(c)a right to issue safety violation letters to co-employees and company directors.
Right to take a break after six hours of continuous work
Mr Martires claims that his right to have a rest after six hours of continuous work derives from cl 38.1(a) of the Manufacturing Industry Award MA000010 (Award), which at the relevant time provided:
An employee must not be required to work for more than five hours without a break for a meal except in the following circumstances:
(a)in cases where canteen or other facilities are limited to the extent that meal breaks must be staggered and as a result it is not practicable for all employees to take a meal break within five hours, an employee must not be required to work for more than six hours without a break for a meal break…
Endura Paint does not dispute that Mr Martires had this workplace right, and I find that Mr Martires had a workplace right to take a meal break after no more than five hours, or if the circumstances in cl 38.1(a) existed, after no more than six hours.
Having found that this workplace right exists, the next question for determination is whether Mr Martires was exercising this workplace right when he took a nap on a client’s outdoor furniture while attending a client’s property to perform remedial works on 3 May 2018.
The evidence before the Court shows that on 3 May 2018 Mr Martires and his then colleague Mr Westlake were working away from the main premises of Endura Paint. There is some dispute as to some of the events of that day and whether activities undertaken by Mr Martires on that day were authorised by Endura Paint or its directors. However, it is not in dispute that during the afternoon of 3 May 2018 Mr Martires and Mr Westlake conducted remedial works on a client’s pool at a site in Bibra Lake and that, while at the site, Mr Martires sat on the client’s outdoor white furniture, put his feet on a table and took a nap.
Mr Martires claims that, in taking a nap in these circumstances, he was exercising his right to take a meal break, and to stagger his meal break, in circumstances where he was unable to take a full 30 minute meal break earlier in the day. There is no evidence before me that the circumstances in paragraph (a) of cl 38.1 were met and neither party has addressed this in their submissions.
Mr Martires’ evidence was that after driving to Welshpool for sales calls, he drove for 10 or 20 minutes looking for a 7-11 store so that Mr Westlake could buy cigarettes. He and Mr Westlake were unable to locate the 7-11 and so they stopped instead at a BP petrol station for Mr Westlake to buy cigarettes.[3] Mr Martires gave evidence that sometime between 1:00pm and 1:30pm, they stopped at a KFC restaurant for lunch, but because they had spent approximately 20 minutes enabling Mr Westlake to buy cigarettes, they were only able to spend about 10 minutes at KFC.[4] I accept that on 3 May 2018, when he stopped at KFC, Mr Martires took a lunch break of less than 30 minutes.
[3] Affidavit of Mr Martires sworn on 25 November 2019 at Appendix C.
[4] Affidavit of Mr Martires sworn on 25 November 2019 at Appendix C.
Mr Soos gave evidence that Mr Martires was never required to work more than five hours without a break.[5] I accept that evidence. When Mr Martires’ account of the events of 3 May 2018 is considered as a whole, it appears that Mr Martires and Mr Westlake made their own decisions about when and where to take their lunch break. This appears to be supported by a document prepared by Mr Soos and submitted to the Fair Work Commissioner that Mr Martires annexed to his affidavit of 25 November 2019. The document purports to respond to a timeline of events on 3 May 2018 submitted by Mr Martires. In that document, Mr Soos said:
… Edmund Martires and Francis Westlake were told as they would be out for a long period of time to make sure they took their lunch break while they were out. It was the applicant that took it upon himself to purchase KFC and then invoice back to Endura Paint Pty Ltd for their lunch. The invoice Mr Martires presented to Endura Paint Pty Ltd for food was paid with no hesitation…
[5] Affidavit of Mr Soos sworn on 13 January 2020 at [9].
There is no suggestion in the evidence that Mr Martires sought permission from his managers before taking a rest on the client’s outdoor furniture, and Mr Martires confirmed in cross-examination that he did not seek permission from his manager or a director before having a nap on the outdoor furniture. There is also no evidence that Mr Martires communicated with his managers in any way about any difficulties in taking a 30 minute lunch break before proceeding to the site where the remedial works were to be conducted and where the applicant ultimately took his rest.
However, Mr Martires was not cross-examined on his evidence that he was taking his meal break that he was entitled to under the Award when he napped on the client’s furniture and Endura Paint appears to accept that Mr Martires was taking a meal break, or part of a meal break, when he napped on the client’s furniture. This can be seen in the closing submissions advanced by Counsel for Endura Paint at the hearing when, in addressing reasons for dismissal, she said (emphasis added):
…it’s clear, it’s in the award, the respondent did have a workplace right under the award, clause [38.1] particularly, to have an unpaid meal break of at least 20 minutes after being required to work for five hours. However, the applicant did not dismiss the respondent because of his proposed exercise of this workplace right for a break. As set out in the letter terminating his employment and the evidence we’ve heard today, one of the reasons he was dismissed was because that break was taken by the applicant, taking his shoes off and taking a nap or a rest on the client’s furniture whilst his co-worker was working in the background, without seeking permission from the respondent to do so beforehand.
In these circumstances, I accept that Mr Martires was taking part of his meal break when he had a nap at the Bibra Lake site. I therefore also accept that Mr Martires was exercising a workplace right when he took a break from his work at the Bibra Lake site.
Right to think and practice working safely
Mr Martires did not explain to the Court the precise nature of the right he is asserting when he says that he has the right to always think and practice work safely, or the source of that right. Mr Martires bears the onus of establishing the existence and exercise of the workplace right and he has not discharged that onus.
The asserted workplace right is so ambiguous that it is difficult to meaningfully make any findings as to the existence or exercise of the right.
Mr Martires has a workplace right insofar as he is entitled to the benefit of, or has a role or responsibility under, a workplace law: s 341(1)(a) of the Fair Work Act. The definition of workplace law includes, amongst other things, a law of the Commonwealth or a State or Territory ‘that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)’: s 12 of the Fair Work Act. Mr Martires has failed to explain clearly to the Court whether this is the type of workplace right he is asserting. If it is, then I accept that he has this workplace right, but for the reasons discussed further below, there is no evidence to support any finding that adverse action was taken because of any exercise or proposed exercise of this workplace right.
However, based on the manner in which the case was advanced, it appears more likely that Mr Martires is asserting that he has some sort of right to subjectively decide what is and is not a safe and appropriate workplace practice, and adopt that practice irrespective of any workplace laws or policies of Endura Paint to the contrary. In the absence of Mr Martires identifying a source of any such right, I do not accept that he had such a workplace right.
There are numerous incidents referred to in the evidence from which it might be inferred that Mr Martires took a different view to Endura Paint in relation to what amounted to a safe working practice. Mr Martires engaged in conduct that either or both of Mr Soos and Ms Cleary considered to be unsafe and a breach of Endura Paint’s Occupational Health and Safety policy, such as painting the client’s pool without wearing shoes,[6] allowing water to pool in an area where electricians were working,[7] standing on a stool on top of a table to run a conduit,[8] and being lifted on a forklift to install some ducting.[9] Mr Martires has not established that his conduct in this regard amounted to his exercise of a workplace right.
[6] Affidavit of Mr Mr Soos sworn on 22 August 2018 at [23].
[7] Affidavit of Mr Soos sworn on 22 August 2018 at [19]; affidavit of Ms Cleary sworn on 13 January 2020 at [7].
[8] Affidavit of Mr Soos sworn on 22 August 2018 at [12]; affidavit of Ms Cleary sworn on 13 January 2020 at [6].
[9] Affidavit of Mr Soos sworn on 22 August 2018 at [11].
Right to issue safety violation letters to co-employees and company directors
On 4 May 2018 Mr Martires handed to Mr Soos a two page document alleging that Ms Cleary had violated occupational health and safety rules on 2 May 2018 by not wearing personal protective equipment (PPE) when entering the production area, specifically, by not wearing steel toed safety shoes. The document concluded with Mr Martires stating:[10]
Upon this written notice submitted to you, I am expecting an IMMEDIATE and APPROPRIATE action to resolve this issue and looking forward to NOT SEE anymore this kind of Malpractice starting Monday, 7 May 2018 to avoid any untowards accident that can cause GRIEVOUS BODILY HARM that can affect our Company Operations and put our Company Employees in GRAVE DANGER.
If I don’t see any effort by you or the company management starting Monday, 7 May 2018 to stop this EH&S VIOLATION and If I continue to see this kind of MALPRACTICE still being performed in our company premises, I am OBLIGTED & MANDATED by Company and Workplace OHS WA Law to inform the proper authorities for them to act on this matter.
[10] Affidavit of Mr Soos sworn on 16 March 2020 at Annexure AS-2.
Under s 341(1)(c)(ii) of the Fair Work Act, Mr Martires had a workplace right to make a complaint or inquiry in relation to his employment. Neither party made any submissions in relation to whether or not this complaint by Mr Martires was in relation to his employment. The phrase ‘in relation to’ is a broad phrase which contemplates a direct and indirect relationship between the complaint and the employment: see, for example, Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) (2012) 64 AILR 101-659; [2012] FCA 697 (Pilbara Iron Co) at [61]-[64]. The complaint made by Mr Martires was about an issue which, in his view, affects the health and safety of employees and I accept that by handing the letter to Mr Soos, Mr Martires was making a complaint or inquiry in relation to his employment: see also, by way of analogy, Pilbara Iron Co at [66]-[72].
It appears from the document containing the complaint that Mr Martires proposed to make a complaint to the proper authorities in relation to a breach of workplace health and safety laws if his concerns were not addressed. Pursuant to s 341(1)(c)(i) of the Fair Work Act, a person has a workplace right if they are able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument. There is nothing in the pleading before the Court to suggest that Mr Martires is asserting that he proposed to exercise this workplace right or that Endura Paint took adverse action against him because he proposed to exercise this workplace right. Strictly speaking, it is unnecessary for me to consider this, given that it is not clearly pleaded. However, for the avoidance of doubt in the event that I have misunderstood the pleading, Mr Martires would not be entitled to relief on the basis that he proposed to exercise this workplace right. This is because, even if he established that he had this workplace right and proposed to exercise it, I do not accept, for the reasons discussed below, that Endura Paint took adverse action against him for this reason.
Did Endura Paint take adverse action against Mr Martires?
There is no dispute that Endura Paint dismissed Mr Martires on 7 May 2018.
As dismissing an employee is a form of adverse action within the meaning of s 342(1) of the Fair Work Act, I find that Endura Paint took adverse action against Mr Martires.
Was the adverse action taken because Mr Martires exercised a workplace right?
Endura Paint bears the onus of establishing that it did not take adverse action against Mr Martires because of his exercise or proposed exercise of the workplace rights he has asserted. This is the effect of s 361(1) of the Fair Work Act, which provides:
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.
If Endura Paint had multiple reasons for taking adverse action against Mr Martires, Endura Paint will have taken the action for a particular reason if the reasons for the action include that reason: s 360 of the Fair Work Act.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, the High Court confirmed at [44] that the central question remains ‘why was the adverse action taken?’. The High Court said (footnotes omitted):
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?”
The determination of the reason Endura Paint dismissed Mr Martires is one of fact, ‘taking account of all the facts and circumstances of the case and available inferences’: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 at [7].
The principles that inform the Court’s approach to its task under s 360 are well-established. They are conveniently summarised in Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178 (Alam) at [14]:
Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: [Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Bendigo v Barclay)] at [104] (Gummow and Hayne JJ);
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72];
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262 at [105]-[106];
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [154] (Snaden J);
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
In the present case, Endura Paint provided a letter dated 7 May 2018 (dismissal letter) to Mr Martires at the time of his dismissal, which included the following reasons for dismissal:[11]
On Wednesday 2 May 2018 you were cautioned by Endura Paint Pty Ltd Director Michelle Cleary about the unsafe manner in which water was gushing out of a defective joint on a hose going through the manufacturing area. She instructed you to turn the water off immediately which you failed to adhere to those instructions and kept going. This while working in the immediate area and having electrical work being installed on that same side of the facility and not having a contingency plan for the drainage of excessive water pooling over large areas of the manufacturing facility. Michelle proceeded into the office to speak with myself, Director Aaron Soos to inform me of what she had seen and expressed her concerns at the situation of an extremely unsafe work practice and for him to view the area of concern, to which you then started to follow instructions to fix and set right the flooded floor area, along with my assistance.
It has been over a period of time that you have been spoken to on numerous occasions by me that Michelle Cleary is a Director of the company and your superior and about your manner in which you do not follow instructions given to you from Michelle Cleary. It has become increasingly apparent that you are unwilling to follow directives given by Michelle, you fail to adhere to simple instructions from her unless they are issued by myself.
On Thursday 3 May 2018 you were sent to site for remedial works on a client’s property with another employee. On Friday 4 May 2018 at 7:43am we were informed that whilst at the client’s property on 3 May 2018 you sat yourself on the outside lounge furniture and made yourself comfortable then proceeded to take a nap whilst your co-worker continued to work. You actually relayed parts of that information that you had finished your half and instead of continuing on to help your co-worker to complete the painting, you made the decision to make yourself comfortable whilst your co-worker continued to complete the job. You then produced photo’s of yourself with your feet up only in socks on the outside area of the clients furniture. These photo’s were shown to me by you whilst in another meeting later that same afternoon of Friday 4 May 2018.
On Friday 4 May 2018 at 8:07am you sent an unsolicited and very concerning text message through to my mobile telephone making very serious accusations, statements and allegations over workplace bullying. You were present in a meeting that was specifically held with ALL employees of Endura Paint Pty Ltd regarding work place bullying and harassment. All employees were advised during this meeting that should anyone be experiencing any form or work place bullying or harassment that they needed to inform management immediately, this could be done as an individual on an informal or formal meeting. Endura view this conduct as totally unacceptable and extremely serious.
[11] Affidavit of Mr Soos sworn 22 August 2018 at Annexure I
Ms Soos gave evidence about the reasons for dismissing Mr Martires and he has articulated the reasons in different ways at different times, including the following:
(a)Mr Soos gave oral evidence at the hearing that the dismissal letter set out the reasons for dismissal.
(b)Mr Soos gave evidence in his affidavit sworn on 22 August 2018 that he met with Mr Marties on 7 May 2018 and told him that he was dismissed from his employment ‘because of his unacceptable conduct, his unsafe work practices, and his ignorance of all of the warnings Ms Cleary and I have given to him…’.[12] There were a number of paragraphs in this affidavit that provided content to the alleged unacceptable conduct, unsafe work practices and ignorance of warnings, and I consider these in greater detail below.
(c)Ms Soos gave further evidence in his affidavit sworn on 13 January 2020 that Endura Paint dismissed Mr Martires because during the course of Mr Martires’ employment:
(i)Mr Martires engaged in unacceptable conduct and unsafe work practices as set out in Mr Soos’ previous affidavit sworn on 22 August 2018; and
(ii)Endura Paint gave him numerous warnings regarding his unacceptable conduct and unsafe work practices which he ignored as set out in Mr Soos’ previous affidavit.[13]
[12] Affidavit of Mr Soos sworn on 22 August 2018 at [31].
[13] Affidavit of Mr Soos sworn on 13 January 2020 at [8].
Ms Cleary gave evidence of her knowledge of some of the matters that were said to form part of the reasons for dismissal.
On balance, for reasons explained below, I accept that the reasons for dismissal are those set out in the dismissal letter.
I address below each of the reasons that are said to amount to reasons for dismissal in the dismissal letter and in the evidence of Mr Soos starting with the reasons set out in the dismissal letter.
Incident on 2 May 2018 involving water in production facility
I accept based on the dismissal letter and Mr Soos’ evidence that one reason that Mr Martires was dismissed from his employment arose from an incident that occurred on 2 May 2018. According to Mr Soos, on 2 May 2018 he was informed by Ms Cleary that she warned Mr Martires about his unsafe work practices regarding water flooding in the production facility of Endura Paint while electrical work was being carried out, and Mr Martires chose to ignore Ms Cleary’s warning. Mr Soos deposed that it was not until after Ms Cleary informed him of the incident that Mr Martires stopped working and they started to clear up the flooding together.[14] This is consistent with the evidence of Ms Cleary, who deposed that on 2 May 2018, she warned Mr Martires about his unsafe work practices regarding water flooding in the production facility while electrical works were being carried out. Ms Cleary deposed that she said to Mr Martires words to the effect of, ‘Edmund turn the water off immediately, the factory floor is flooded, and we have electricians working in this area and this is extremely unsafe. Clean up the flooded floor area’. Ms Cleary believes that it was not until she informed Mr Soos of the incident that Mr Martires stopped working and cleaned up the flooding with Mr Soos.[15]
[14] Affidavit of Mr Soos sworn on 22 August 2018 at [19]-[20].
[15] Affidavit of Ms Cleary sworn on 13 January 2020 at [7]-[8].
Mr Martires takes issue with Mr Soos and Ms Cleary using different terminology to describe this incident, particularly noting the term ‘flooding’ used in their affidavit evidence, and the term ‘gushing’ to describe the flow of water in the dismissal letter.[16] In my view, nothing turns on the difference in terminology. Whether the water in the production area is most appropriately described as ‘gushing’, ‘flooding’ or ‘pooling’, it was appropriate and acceptable for Ms Cleary, as director of Endura Paint, to direct Mr Martires to turn off the water and clean up the area covered in water due to the perceived danger of having an excess of water in an area where electrical works were being conducted.
[16] Affidavit of Mr Martires sworn on 25 November 2019 at [7].
I do not accept that dismissing Mr Martires because of this incident amounts to dismissing him because he exercised or proposed to exercise a workplace right. The only workplace right asserted by Mr Martires which might be relevant here is the asserted workplace right to think and practice working safely. As indicated above, I have interpreted this an as assertion that Mr Martires believes he has the right to act according to his own beliefs as to what was a safe and appropriate practice, irrespective of any Endura Paint policy or directive, and I have found that he has not established the existence of that workplace right.
Mr Martires’ unwillingness to take directions from Ms Cleary
The dismissal letter refers to Mr Martires, over a period of time, refusing to take directions from Ms Cleary and being spoken to about this by Mr Soos. There is no elaboration of this in the dismissal letter, but the evidence of Mr Soos and Ms Cleary provide one example further to the incident involving water in the production facility referred to above.
Mr Soos deposed that he was informed by Ms Cleary that on or around 31 January 2018, she saw Mr Martires use a stool on top of a table to stand on to run a conduit at Endura Paint’s premises and she told Mr Martires to stop doing that because it was unsafe. After being informed by Ms Cleary, Mr Soos then told Mr Martires to stop because it was unsafe and he did. Mr Soos deposed that he considered the practice of using a stool on top of a table to run a conduit is an unsafe work practice in breach of Endura Paint’s Occupational Health and Safety Policy.[17]
[17] Affidavit of Mr Soos sworn on 22 August 2018 at [12]
This is consistent with Ms Cleary’s evidence. Ms Cleary deposed that on or around 31 January 2018, she was sitting in her office when she saw Mr Martires use a stool on top of a table to stand on to run a conduit at Endura Paint’s premises. She deposed that she said to Mr Martires ‘stop doing that, it’s unsafe’. Ms Cleary deposed that she then told Mr Soos that Mr Martires was using a stool on top of a table to run a conduit, and Mr Soos also told Mr Martires to stop doing that because it was unsafe, at which point Mr Martires stopped what he was doing. Ms Cleary deposed that she considers that using a stool on top of a table to stand on to run a conduit is an unsafe work practice and is in breach of Endura Paint’s Occupational Health and Safety Policy.[18]
[18] Affidavit of Ms Cleary sworn on 13 January 2020 at [6].
I am prepared to accept that this was a reason for dismissing Mr Martires, but I do not accept that the reason was because Mr Martires exercised or proposed to exercise a workplace right. As discussed above, Mr Martires has not established that he has a workplace right to work in a manner which he considers to be safe, but which is contrary to a lawful directive of Endura Paint or contrary to Endura Paint’s Occupational Health and Safety Policy.
Napping on client’s outdoor furniture
It is clear from the dismissal letter and from the evidence of Mr Soos, that the incident involving Mr Martires napping on the client’s furniture while conducting remedial work at a client’s property formed part of the reasons for his dismissal.
The relevant passage of the dismissal letter is extracted above.
Mr Soos described the incident in his affidavit of 22 August 2018 in the following way:[19]
23.I verily believe that on 4 May 2018 the Applicant told me about the following incident, and the Applicant and Francis Westlake, another employee of the Respondent who was working with the Applicant at the client’s property on 3 May 2018, gave me photos showing the following incident:
a.On 3 May 2018 the Applicant removed his work boots and worked in his socks when the Respondent sent the Applicant onsite to perform remedial work on a client’s property, in breach of the Respondent’s Occupational Health and Safety policy; and
b.On 3 May 2018 the Applicant used the client’s white outside furniture to take a nap.
24.On 4 May 2018 the Applicant told me about the incident described in the previous paragraph herein above and showed me a photo of himself with his feet up on the client’s furniture in the client’s outside area, only in his socks.
[19] Affidavit of Mr Soos sworn on 22 August 2018 at [23]-[24].
Mr Martires described how he believes this incident contributed to his dismissal in an affidavit sworn on 25 November 2019, where he deposed:[20]
One of the reasons for terminating me from employment as stated in the Termination letter handed to me on 07 May 2018 was I took a nap and did not help my colleague finished the remedial painting works at the site. This clearly shows that the Respondent Violated and Breached our Contract of Employment by violating the terms of the Manufacturing Industry Award MA000010 Chapter 38.1 stating that An employee must not be required to work for more than five hours without a break for a meal except in the following circumstances:
(a)in cases where canteen or other facilities are limited to the extent that meal breaks must be staggered and as a result it is not practicable for all employees to take a meal break within five hours, an employee must not be required to work for more than six hours without a break for a meal break.
[20] Affidavit of Mr Martires sworn on 25 November 2019 at [4].
In response to this, Mr Soos deposed on 13 January 2020 that:
(a)he does not believe that Mr Martires was ever required to work for five hours or more in the course of his employment; and
(b)Mr Martires was not dismissed because he simply took a nap.[21]
[21] Affidavit of Mr Soos sworn on 13 January 2020 at [9].
The question to be resolved in relation to this incident was whether the reason for dismissal was because Mr Martires exercised his workplace right to take a break, or because of his actions while taking his break. In this regard, Endura Paint relies on paragraph (j) of the extract of Alam above, to the effect that adverse action taken because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.
The distinction between taking adverse action because of conduct resulting from or connected with the exercise of a workplace right, and taking adverse action because of the exercise of a workplace right can be seen in the following two cases.
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41, the High Court considered an appeal in relation to an alleged contravention of s 346 of the Fair Work Act where an employer dismissed an employee who participated in lawful industrial activity. The High Court, by majority, held that dismissing an employee because he held a sign displaying content that was ‘inappropriate, offensive, humiliating, harassing, intimidating, and flagrantly in violation of [the employer’s] workplace conduct policy’ (see [3]), while participating in lawful industrial activity, did not amount to a contravention of s 346(b) of the Fair Work Act in circumstances where the primary judge had accepted that the reasons for dismissal were not because the employee participated in lawful industrial activity or represented or advanced the views of an industrial association. The relevant inquiry was not whether the adverse action was ‘connected with’ a protected industrial activity, but rather the reasons which motivated the person who took the adverse action: see [19], [22] per French CJ and Kiefel J.
In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76 (Endeavour Coal), adverse action was taken against an employee by moving him to a less favourable roster because his attendance at work was unreliable. His unreliable attendance resulted from exercising his entitlement to take personal leave. The primary judge found that the adverse action was not taken because the employee exercised his workplace right to take personal leave, and his Honour’s reasoning was upheld by the majority of the Full Court.
In the present case, I find that Endura Paint did not dismiss Mr Martires because he exercised his workplace right to a meal break. Rather, it was Mr Martires’ conduct during that break that was the reason for his dismissal, including using the client’s outdoor furniture and putting his feet on the table, wearing socks but not shoes, while Mr Westlake continued to work. This is consistent with what Mr Soos said in the dismissal letter, and there is nothing in his subsequent affidavits or oral evidence that causes me to doubt the genuineness of what was said in the dismissal letter.
I therefore find that to the extent that Mr Martires’ dismissal was based on the incident where he took a nap on the client’s outdoor furniture, it was not because he exercised his workplace right to take a meal break after five hours’ work.
Unsolicited text messages
I accept based on the dismissal letter and Mr Soos’ evidence that one of the reasons for dismissing Mr Martires was based on text messages that Mr Martires sent to Mr Soos, which was written as though the content had come from Mr Soos and which Mr Martires had suggested that Mr Soos use in relation to a separate claim by a former employee of Endura Paint.[22]
[22] Affidavit of Mr Soos sworn on 22 August 2018 at [27].
On 3 May 2018 Mr Martires sent to Mr Soos text messages that read:[23]
U may want to add this so ur conference call on May 22 would be the last with the commissioner [smiley face emoji] I can go to a psychiatrist which u will pay and complain of my mental issues if u want too [smiley face emoji] ha ha hq
U have threatened him many times with dismissal from baseless issues which has caused him to become afraid all d time to come to work … [smiley face emoji]
[23] Affidavit of Mr Soos sworn on 22 August 2018 at Annexure H.
On 4 May 2018 Mr Martires sent to Mr Soos a text message that he sent:[24]
As d Production Manager, u committed a grave malpractice by bullying one of our new employee from Sept to (find a date b4 d toolbox meeting) who is a new migrant in this country who is d only one working to fend for his wife & 2 kids.You also condone and influence our 2 other employees to also bully d poor guy for many months. You r d one who is supposed to stop such but u r d one who performed and condoned d bullying malpractice. Edmund recently complained to d management that he is suffering some mental issues because of d torment that u caused him and the company is now taking precautionary measures to help him cope up with his problems and we will pay for his treatment. We don’t how long it will take or the total cost for auch psychiatric treatment and if it d damage is irrepairable. We noticed how his dealings with d other company employees and with other people as badly affected.. Etc. Etc…[smiley face emoji]
[24] Affidavit of Mr Soos sworn on 22 August 2018 at Annexure H.
Mr Soos deposed that he originally thought the text messages were a joke and replied ‘Lol. Thanks’.[25]
[25] Affidavit of Mr Soos sworn on 13 January 2020 at [10].
There is a dispute between the parties as to whether or not the text messages were unsolicited. Mr Martires asserts that Mr Soos asked him to tell Mr Soos of any matter he could use against another former employee in relation to a dispute before the Fair Work Commission.[26] Mr Soos denied this in his affidavit evidence and in cross-examination where he was unequivocal in his denial.[27] It is unnecessary to resolve that question in the present case. That is because there is no assertion by Mr Martires that he was exercising any workplace right when he sent the text messages. Any adverse action based on the text messages does not therefore amount to a contravention of s 340(1) of the Fair Work Act.
[26] Affidavit of Mr Martires sworn on 25 November 2019 at [5].
[27] Affidavit of Mr Soos sworn on 13 January 2020 at [10], Transcript P-47.
Unacceptable conduct and unsafe work practices
The dismissal letter, which Mr Soos confirmed in his oral evidence set out the reasons for dismissal, does not refer to unacceptable conduct and unsafe work practices in those terms as reasons for dismissal. However, in his affidavit evidence, Mr Soos has deposed that unacceptable conduct and unsafe work practices were part of the reasons for dismissal.
The incidents referred to in the dismissal letter are appropriately considered to be examples of unacceptable conduct and unsafe work practices, and I have accepted above that they were reasons for termination. The question is whether the other examples of unacceptable conduct and unsafe work practices referred to in Mr Soos’ affidavit, but not the dismissal letter, were reasons for the dismissal.
Mr Soos’ affidavit of 22 August 2018 is structured in a way that first refers to ‘unacceptable conduct and unsafe work practices’ as the reasons for dismissal, and then sets out chronologically a number of issues that arose during the course of Mr Martires’ employment, without indicating specifically which of the incidents were a reason for dismissing Mr Martires from his employment. This structure leads to some confusion as to whether some of the incidents that occurred during Mr Martires’ employment were in fact reasons for his dismissal, or were simply set out in the affidavit to provide context and history. This was not clarified in Mr Soos’ oral evidence.
I acknowledge that Mr Martires denies many of the assertions in Mr Soos’ evidence.[28] However, I accept that the matters described in Mr Soos’ evidence reflect his understanding of the relevant incidents and events. The unacceptable conduct and unsafe work practices that were described in Mr Soos’ affidavit evidence can be summarised as follows:
(a)Mr Martires arrived late for work on 16 March 2018 and 19 April 2018.[29]
(b)Mr Soos was informed by Mr Westlake that on or around 31 January 2018, Mr Martires asked Mr Westlake, who was operating a forklift at the time, to be lifted on the forklift with a pallet on the forks to install ducting. Mr Soos formed the view that this was an unsafe work practice and told Mr Martires that it was in breach of Endura Paint’s Occupational Health and Safety policy.[30]
(c)Mr Soos held meetings with Mr Martires and other staff members on 9 April 2018. In one of these meetings, Mr Soos presented a slideshow of photographs showing the unclean and dangerous state that Mr Martires and other employees had left the factory in on the previous Friday, along with another slideshow of photographs of the factory following the cleaning that took place on the following two days, and warned Mr Martires and the other employees not to leave the factory in an unclean and dangerous state again.[31]
(d)Mr Soos held another meeting with Mr Martires on 9 April 2018 at which he discussed with Mr Martires serious breaches of Endura Paint’s policies, including the Occupational Health and Safety policy, concerns with Mr Martires’ performance and the need to put in place a Performance Improvement Plan (PIP).[32] Further meetings to discuss the PIP was held on 9 and 10 April 2018 and Mr Martires signed the PIP on 11 April 2018.[33] The duration of the PIP was 13 days. The evidence before the Court confirms that Mr Martires was not the only employee to be placed on a PIP at this time.[34]
(e)From 23 April 2018 to 27 April 2018 while operating a forklift, Mr Martires lifted a pallet of stacked pails, which are described as plastic buckets that hold paint, in an unsafe manner and in breach of Endura Paint’s Occupational Health and Safety policy. This resulted in all of the pails and lids falling off the pallet at height.[35]
(f)On three separate occasions between 16 April 2018 and 21 April 2018, three female staff members made verbal complaints about Mr Martires, which mostly suggested that Mr Martires was arrogant and rude to female staff.[36] Mr Soos held a meeting with Mr Martires to discuss these complaints on 25 April 2018 and told Mr Martires that this was unacceptable behaviour.[37]
(g)On 3 May 2018, Mr Martires used a work vehicle without authorisation for his own personal gain and in breach of Endura Paint’s Company Vehicle Policy, by driving to an auction site to collect items he had purchased for himself.[38]
[28] Affidavit of Mr Martires sworn on 25 November 2019 at [7].
[29] Affidavit of Mr Soos sworn on 22 August 2018 at [10]; affidavit of Mr Soos sworn on 16 March 2020 at [6].
[30] Affidavit of Mr Soos sworn on 22 August 2018 at [11].
[31] Affidavit of Mr Soos sworn on 22 August 2018 at [13].
[32] Affidavit of Mr Soos sworn on 22 August 2018 at [14].
[33] Affidavit of Mr Soos sworn on 22 August 2018 at [15]-[16] and Annexure D
[34] Exhibit 5.
[35] Affidavit of Mr Soos sworn on 22 August 2018 at [18].
[36] Affidavit of Mr Soos sworn on 22 August 2018 at [21].
[37] Affidavit of Mr Soos sworn on 22 August 2018 at [22].
[38] Affidavit of Mr Soos sworn on 22 August 2018 at [25].
Taking into account the whole of the evidence, I find that the unacceptable conduct and unsafe work practices that were referred to in the affidavit, which were not identified specifically or generally in the dismissal letter did not form part of the reasons for taking adverse action against Mr Martires on 7 May 2018. In making this finding, I acknowledge that the matters referred to may have been factored into account in the manner described by Perram J in Endeavour Coal at [91], where his Honour drew a ‘factual distinction between factoring something into one’s consideration of a matter and making a decision about the matter itself’ and acknowledged that a person may have regard to a matter without it constituting part of the person’s subjective reasons. The distinction is relevant because the ‘inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker’: Endeavour Coal at [91].
The alleged unauthorised use of the work vehicle could not have formed part of the reasons for dismissal because, on Mr Soos’ undisputed evidence, he was not aware of the issue until he was informed by Mr Westlake after Mr Martires was dismissed.[39] Each of the other examples of unacceptable conduct and unsafe work practices which were mentioned in Mr Soos’ affidavit evidence, but not the dismissal letter, appear to have been addressed at the time of, or shortly after, the incident without further action being taken. For example, there is no evidence before the Court of any further action being taken in relation to the two occasions on which Mr Martires used the forklift in a manner considered to be unsafe. The PIP identified punctuality as an issue for Mr Martires to work on, but he was only late on one occasion after the PIP was entered into and that was over two weeks before his dismissal. There is no evidence before the Court to suggest that the 13 day period of the PIP was extended or that there were any ongoing ramifications for Mr Martires beyond the PIP in relation to the unsatisfactory state of the premises in early April. In relation to the complaints made about Mr Martires by female employees, there is no evidence of any action taken by Endura Paint aside from the one meeting between Mr Soos and Mr Martires to discuss the concerns raised. The lack of any evidence of follow-up action or the need for any further disciplinary action in relation to each of the instances of unacceptable conduct or unsafe work practices strongly suggests that each of the instances themselves were not the reason for dismissing Mr Martires from his employment.
[39] Affidavit of Mr Soos sworn on 22 August 2018 at [25].
Even if I am wrong in finding that these matters did not form part of the reasons for dismissal, no contravention of s 340(1) would follow. That is because if any of those matters were a reason for dismissal, the reason was not because Mr Martires was exercising a workplace right or proposing to exercise a workplace right.
Complaint against Ms Cleary
The final matter to be addressed in relation to the alleged contravention of s 340(1) of the Fair Work Act is whether Mr Martires’ complaint that Ms Cleary breached the Occupational Health and Safety policy was a reason for his dismissal from his employment. I have accepted above that Mr Martires was exercising his workplace right to make a complaint in relation to his employment when he provided the letter about Ms Cleary to Mr Soos.
I accept that on 4 May 2018 Mr Martires handed to Mr Soos a two page document and asked him to sign it. The document was an incident report alleging that Ms Cleary had violated Occupational Health and Safety rules on 2 May 2018. Mr Soos deposed that Mr Martires misled him by saying that ‘this is the way Michelle wanted things to be done’.[40] Ms Soos provided a copy of the document to Ms Cleary and Ms Cleary provided a response to the allegation to Mr Soos by email on 8 May 2018.[41]
[40] Affidavit of Mr Soos sworn on 22 August 2018 at [28]; Affidavit of Mr Soos sworn on 16 March 2020 at Annexure AS-2.
[41] Affidavit of Mr Soos sworn on 16 March 2020 at [6(d)]; Affidavit of Ms Cleary sworn on 13 January 2020 at [9].
Ms Cleary also deposed that following the allegation a Senior Inspector in the Occupational Health Hygiene and Noise Team at the Department of Mines, Industry Regulation and Safety attended Endura Paint’s premises on 22 and 23 May 2018.[42] While I accept that the Senior Inspector conducted a site visit, there is no direct evidence that the Senior Inspector specifically investigated the allegation that Mr Martires made against Ms Cleary. However, in any event, Mr Soos’ action of providing a copy of Mr Martires’ complaint to Ms Cleary, and Ms Cleary responding to that complaint shows that the directors of Endura Paint took action in response to the complaint.
[42] Affidavit of Ms Cleary sworn on 16 March 2020 at [6(h)].
The complaint made by Mr Martires is not referred to in the dismissal letter of 7 April 2018, which I have found set out the reasons for dismissal. Likewise, the possibility that Mr Martires may make a further complaint if his concerns were not addressed, as he suggested he would in the document he handed to Mr Soos on 4 May 2018, was not referred to in the dismissal letter. I accept based on the evidence as a whole that Mr Martires’ complaint that Ms Cleary violated the Occupational Health and Safety Policy and his suggestion that he may make a further complaint, were not reasons that Endura Paint took adverse action against Mr Martires by dismissing him from his employment.
Conclusion in relation to alleged contravention of s 340(1) of the Fair Work Act
Endura Paint has not contavened s 340(1) of the Fair Work Act. Although I have accepted that Mr Martires exercised workplace rights to take a meal break and to make a complaint in relation to his employment and that Endura Paint took adverse action against him by dismissing him from his employment, I am satisfied that the reasons for dismissing Mr Martires did not include his exercise of workplace rights.
ALLEGED CONTRAVENTION OF S 343 OF THE FAIR WORK ACT
Section 343 of the Fair Work Act provides:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
Mr Martires alleged that Endura Paint contravened s 343 of the Fair Work Act by taking action to coerce him not to exercise his workplace right to use a staggered work break at the site where he was performing remedial works, after working for more than six hours in violation of the terms of the Award.[43]
[43] Applicant’s case outline filed on 4 March 2020 at Part D [2]. See also, affidavit of Mr Martires sworn on 25 November 2019 at [12].
This is a bare allegation and there is no evidence at all of any intent or coercion on the part of Endura Paint or its directors.
Coercion requires that two elements be satisfied, namely, negation of choice and the use of unlawful, or illegitimate or unconscionable means: see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 at [174].
Here, there is no evidence that Endura Paint, or its directors, even knew that Mr Martires intended or wished to stagger his meal break. There is no evidence that they denied him any choice, and no evidence that any illegitimate or unconscionable means were used. The alleged contravention of s 343 of the Fair Work Act is entirely without foundation and is not established.
ALLEGED CONTRAVENTION OF S 344 OF THE FAIR WORK ACT
Section 344 of the Fair Work Act provides:
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included or in the award or agreement under subsection 55(2); or
(c)agree to, or terminate, an individual flexibility arrangement; or
(d)accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Mr Martires alleges that Endura Paint contravened s 344 of the Fair Work Act by pressuring him to accept the dismissal letter, even though Endura Paint ‘committed bullying acts against [him] by their unreasonable work demands wherein they did not want [him] to take [his] badly needed rest’ required for his safety after working continuously for more than six hours.[44] Mr Martires further alleges that Endura Paint pressured him to work in production, maintenance, warehousing, purchasing, sales and other facets of the company while his co-workers did not do so.[45]
[44] Applicant’s case outline filed on 4 March 2020 at Part D [3]. See also, affidavit of Mr Martires sworn on 25 November 2019 at [13].
[45] Affidavit of Mr Martires sworn on 25 November 2019 at [13].
None of the matters raised by Mr Martires which are said to give rise to the contravention of s 344 of the Fair Work Act relate to the matters set out in s 344 of the Fair Work Act. The alleged contravention of s 344 cannot be established for that reason. In any event, there is no evidence before the Court of Endura Paint or its directors placing any undue influence or any undue pressure on Mr Martires in relation to any aspect of his employment.
The alleged contravention of s 344 of the Fair Work Act is not established.
ADDITIONAL MATTERS RAISED BY PARTIES
There were a number of other matters that were raised by the parties either at the hearing or in the documents, which have not needed to be directly addressed in the analysis above. However, in circumstances where these additional issues have been raised by the parties, I make some brief observations about them.
There have been a number of allegations made by Mr Martires that he has been discriminated against on the basis of his race or that he has been bullied in some way by Endura Paint. These allegations are not borne out on the evidence before the Court. In any event, the cause of action brought by Mr Martires is a general protection claim, not a claim for unfair dismissal or unlawful discrimination. In the particular factual context of the present case, it has not been necessary to address these allegations in any detail as they are not directly relevant to the issues to be determined by the Court.
Likewise, some of the cross examination questions that Mr Martires asked of the witnesses, in particular, Mr Soos, suggest that he is complaining that some of the reasons for dismissal were matters about which Mr Soos had either no or incomplete personal knowledge and Mr Soos did not seek input from witnesses. For example, Mr Martires purported to criticise Mr Soos for accepting Ms Cleary’s accounts of events, for not speaking with two electricians on site at the time when the water was pooling while electrical works were being conducted, and for not speaking with the client about whether Mr Martires had permission to use their outdoor furniture. The availability of other witnesses and whether there was any unfairness in the process of dismissal are beyond the matters that the Court is required to determine in this proceeding.
An issue arose at the hearing as to whether the direction given to Mr Martires to work off-site on 3 May 2018 was in accordance with his contract of employment. Mr Martires did not plead any cause of action based on breach of contract and it is not necessary to consider this issue any further. To the extent that Mr Martires appeared to refer to this at the hearing as a workplace right, there is no evidence to suggest that Mr Martires’ agreement to work at a client’s house on 3 May 2018, away from Endura Paint’s premises, was a reason for his dismissal, so it could not be a basis for granting him the relief that he seeks in this proceeding in any event.
CONCLUSION
The application to the Court is dismissed.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 March 2023
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