Martires v Endura Paints Pty Ltd (No.2)
[2020] FCCA 717
•20 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTIRES v ENDURA PAINTS PTY LTD (No.2) | [2020] FCCA 717 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – claim of adverse action because the applicant exercised a workplace right and or made a complaint regarding his employment – onus discharged by the respondent to establish that the termination of employment was not because the applicant exercised a workplace right – application dismissed – costs reserved. |
| Legislation: Fair Work Act 2009 (Cth), ss.341, 343, 344, 361 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 |
| Applicant: | EDMUND RICARDO MARTIRES |
| Respondent: | ENDURA PAINT PTY LTD |
| File Number: | PEG 364 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 25 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2020 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Ms Mihael |
| Solicitors for the Respondent: | Aherns Lawyers |
ORDERS
The application filed 5 July 2018 be dismissed.
Any application for costs by the Respondent be made within 7 days of the date of these Reasons and supported by a submission of no more than 2 pages in length.
Any response to the submission be filed 14 days thereafter, with the question of costs to be determined on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 364 of 2018
| EDMUND RICARDO MARTIRES |
Applicant
And
| ENDURA PAINT PTY LTD |
Respondent
REASONS FOR JUDGMENT
By an application filed on 5 July 2018, the applicant seeks orders pursuant to sections 340, 343 and 344 of the Fair Work Act 2009 (Cth) (‘the FW Act’) against the respondent (‘Endura Paint’), on the grounds that an employer must not dismiss an employee because the employee:
a)has a workplace right; and
b)proposes to exercise a workplace right.
The grounds of the application set out in the Form 2 application form provide as follows:
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 6 hours 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.
The applicant sought compensation of $3,000 for legal and miscellaneous fees, $10,000 for bullying acts or unreasonable work demands committed by Endura Paint against him and $17,000 for loss of income. The applicant relied upon the following documents:
a)his Originating Application filed 5 July 2018;
b)an affidavit affirmed 15 July 2018;
c)an affidavit sworn 25 November 2019;
d)an affidavit sworn 22 January 2020;
e)an affidavit sworn 25 January 2020; and
f)his Case Outline filed on 4 March 2020.
The application records that the applicant commenced work on 18 September 2017 and ceased work on 7 May 2018. The principal affidavit relied upon by the applicant was sworn on 25 November 2019.
To give context to the applicant’s evidence, I refer to the terms of the termination letter provided to the applicant on 17 May 2018. That letter provides, omitting irrelevant parts:
Dear Edmund, we are writing to inform you of the decision to terminate your employment with Endura Paint Pty Ltd.
We decided to terminate your employment for these reasons:
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, direction 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, about your manner in which you do not follow instructions given to you from Michelle Cleary. It has become apparent - increasingly apparent that you are unwilling to follow directions given by Michelle. You fail to adhere to simple instructions from her unless you are – 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 7.43 am, 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 and 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 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 photos of yourself with your feet up, only in socks, on the outside area of the client’s furniture. These photos were shown to me by you whilst in another meeting later that same afternoon on Friday, 4 May 2018.
On 4 May 2018, at 8.07 am, 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 at – in a meeting that was specifically held with all employees of Endura Paint Pty Ltd regarding workplace bullying and harassment. All employees were advised during this meeting that should anyone be experiencing any form of workplace 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.
You are requested to return any company property such as laptops, keys and books before you leave the premises.
Also, please keep in mind that you have signed an employment contract and within that contract is non-solicitation agreements which prohibit you from divulging confidential information about the company.
Your employment will cease immediately. Based on your length of service your notice period is one week in lieu of receiving that notice. You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.
However, Endura Paint Pty Ltd would like to thank you for your contribution to the company and we wish you all the very best for your future endeavours.
The claim that I must determine is whether the applicant’s employment was terminated because he exercised a workplace right as defined by section 341 of the FW Act.
I am not considering assertions that are raised in the affidavit sworn 25 November 2019 raising allegations of bullying or discrimination on the grounds of race, age, medical condition or gender because those claims have not been made in clear terms by the application.
Further, the claims that there has been coercion in breach of section 343 of the FW Act, or that the applicant has been subjected to undue influence or pressure as referred to in section 344 of the FW Act, are not made out in the sense that there is no evidence filed by the applicant which would give rise to any arguable claim regarding a breach of those provisions.
The applicant’s evidence
The applicant was self-represented throughout the process and his affidavit material is discursive, argumentative and often difficult to follow. At [7] of his affidavit sworn 25 November 2019, the applicant says:
Item 19 - In the Termination letter, the Respondent claimed there was water "GUSHING" out of a defective hose joint. In his Affidavit [the affidavit of Mr Soos], the statement suddenly changed to "FLOODING" together with made up lies on what Ms Cleary said on that day.
In addressing the Court on this day, Mr Martires stressed that there was gushing of water from the joint, not flooding, as if the distinction was of some significance given that the concern raised was about to water near electrical equipment. The applicant states in relation to the matters raised in the termination letter regarding the incident involving water near electrical equipment:
If there was "FLOODING" that happened, the Respondent should indicate how deep the water was in the said area. It also shows that Michelle Cleary completely violated OH&S policy and placed herself in grave danger as she was inside the production area without using a safety shoe. If there was "FLOODING" in the production area, they should had stop the electrical works being carried out that time else Michelle Cleary, I and even the electricians would be in grave danger of being electrocuted. The Electricians would voluntarily stop their work, leave the area if there was "FLOODING" as it can get them electrocuted.
The applicant then goes on to make a distinction between gushing, leaking and flooding:
There is a big difference on the definition of "Gushing", "Leaking" and "Flooding". This again clearly shows how deceitful the Respondent is to the FWC and Federal Court.
This style features throughout the applicant’s evidence.
By raising as a central point the distinction from his perspective between water gushing into an area and an area being flooded, he fails to adequately address the question of whether the Court should accept the respondent’s reasons for terminating his employment.
The applicant says at [9] of his affidavit sworn 25 November 2019 that on 3 May 2018 he was able to stagger his work break as mandated by the Manufacturing and Associated Industries and Occupations Award 2010. While he was doing this, he says, he reclined on outdoor garden furniture at a client’s property and slept while his co-worker worked. There is no evidence that he disclosed to the employer that he was relying on that entitlement (assuming it exists) or purporting to exercise that entitlement prior to the termination of his employment.
Otherwise he says that his employment was terminated for a reason which included that he had raised a compliant regarding Ms Cleary, a director of the respondent in relation to the events of 2 May 2018.
A difficulty faced by the Court is that there has been some attempt made by the respondent to respond in detail to matters raised by the applicant which are not central to the reasons offered for the termination. It has become, effectively, a call and response through affidavits, often on matters which are not of particular relevance or, indeed, of any relevance to the consideration of the question as to whether termination effected on 7 May 2018 was in breach of the provisions of the FW Act, in particular, section 340.
Mr Martires has become particularly fixated on errors in dates that were outlined in the respondent’s affidavits. In particular, as to the first date that the applicant met with the respondent’s representatives prior to him commencing work in September 2017. In my view, those errors have been adequately explained and they do not go to the substance of the case. However, Mr Martires sees them as evidence of deceit and, indeed, criminal conduct. I do not agree.
Endura Paint’s submissions
Mr Soos’ evidence
Mr Aaron Soos is a director of the respondent and gave evidence by an affidavit sworn on 22 August 2018, which included annexures, and affidavits of 13 January 2020 and 16 March 2020.
At [7] of his affidavit of 22 August 2018, he describes the role of production assistant, which was the role occupied by the applicant, as follows:
7. The Production Assistant role involves assisting in the manufacture of paint, installation of infrastructure within the Respondent's manufacturing facility, packing goods for the Respondent, delivering goods for the Respondent, collecting goods for the Respondent, purchasing goods for the Respondent, and other works as directed from time to time by the Respondent, such as going out on site to perform remedial work on 1 occasion.
The affidavit then states that he believed that the applicant had engaged in unacceptable and unsafe work practices, and he details those matters at [9]–[30] of his affidavit. Included in those matters are allegations that the applicant operated a forklift in an unsafe way on or around 31 January 2018, despite being told to stop operating the forklift in a particular way by Ms Cleary. It was also raised that the applicant had left the premises in an unclean and dangerous state, and that that was raised with him on or around 9 April 2018.
These matters, amongst others gave rise to the applicant being placed on a performance improvement program (‘PIP’), which was in writing and provided to him on 11 April 2018. The PIP is detailed and sets out those matters in which improvement was required and how it might be achieved. Page 3 of the PIP provides:
Effective immediately, you are placed on a 13 day PIP. During this time, you will be expected to make regular progress on the plan outlined above.
Failure to meet or exceed these expectations, or any display of gross misconduct will result in further disciplinary action, up to and including termination. In addition, if there is no significant improvement to indicate that the expectations and goals will be met within the timeline indicated in this PIP, your employment may be terminated prior to the end of this PIP. Furthermore, failure to maintain performance expectations after completion of the PIP may result in additional disciplinary action up to and including termination.
Mr Martires in his evidence before the Court stated:
For me it was not a warning unless it was explained as a warning.
In my view, the PIP stated in clear terms that it was a warning that his employment was at risk if he failed to meet the expectations which were set out in the PIP.
The affidavit of Mr Soos of 22 August 2018 also raised comments made to the applicant or comments made at toolbox meetings in relation to lack of productivity and a failure to meet requirements in relation to general housekeeping that production, factory and manufacturing staff were to adhere to: see [17].
The same affidavit of Mr Soos makes reference to events on 2 May 2018 when Ms Cleary warned the applicant about unsafe work practices regarding water flooding the respondent’s production facility whilst electrical work was being carried out in that section of the facility. It also states that the applicant effectively ignored Ms Cleary’s warning and kept working. Mr Soos’ evidence at [21] relates to comments made by other members of staff regarding the applicant which I do not have regard to.
The affidavit then deals with other matters which were not noted as reasons for the termination, including allegations that the applicant had used a work vehicle for unauthorised trips for his own personal gain. These allegations were all denied by the applicant, as indeed all allegations regarding the applicant’s conduct and performance were denied.
One further matter that was raised in the letter of termination involved text messages sent by the applicant to Mr Soos on 3 May 2018 and 4 May 2018. The text messages raised information that had been provided by the applicant which he suggested might be used against a previous employee of the respondent who had made a claim in the Fair Work Commission alleging unfair dismissal. Those text messages were to the effect that the other employee had subjected the applicant to bullying to the extent that he had suffered mental issues such that he required psychiatric assistance.
The text message was sent as a suggestion for matters to be raised against this other employee and included:
… Edmund recently complained to d management that he is suffering from 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 [know] how long it will take or the total cost of auch [such] psychiatric treatment and if it d damage is irreparable. We noticed how his dealings with d other company employees and with other people as badly affected. . Etc. Etc J.
In response to an affidavit filed by the applicant on 25 November 2019, (which asserted that the applicant had been encouraged to send a text message of that kind) Mr Soos, by an affidavit sworn on 13 January 2020, denied ever instructing the applicant to ‘inform me of any matter to use against (named employee)’. Mr Soos was not cross-examined by the applicant on this point, notwithstanding that I raised with him that he should raise these matters directly if the he was to challenge the matters in Mr Soos’ affidavit or the letter of termination.
An issue arose regarding this part of the case because Mr Soos responded to the applicant’s text message with a message stating ‘LOL’ (laugh out loud). Mr Soos gave evidence that at first he thought the text was a joke, but on closer reading it seemed that the applicant was truly suggesting that he create a story involving the applicant’s falsely claimed ill-health to use against the [other] employee.
I accept Mr Soos’ evidence that he did not solicit the information from the applicant and was mistaken about its contents when he responded as if it was a joke.
Ms Cleary’s evidence
Ms Cleary is a business manager of the respondent and she gave evidence in her affidavits filed 13 January 2020 and 16 March 2020 of her dissatisfaction with the applicant’s work performance, in particular in relation to the applicant’s unacceptable and unsafe conduct during the course of his employment. She also deposed that the respondent gave the applicant numerous warnings regarding this unacceptable conduct, which the applicant ignored.
The applicant alleges that he was terminated because on 4 May 2018 he provided Ms Cleary with a document (dated 3 May 2018) regarding a violation of company Occupational Health and Safety (‘OH&S’) rules.
Ms Cleary gave evidence by her affidavit of 16 March 2020 that on 4 May 2018 the applicant provided a letter to Mr Soos alleging that Ms Cleary had breached the OH&S regulations on 2 May 2018 by being in the production area without steel-toed safety shoes. His letter provided in part:
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 OBLIGATED & MANDATED by Company and Workplace OHS WA Law to inform the proper authorities for them to act on this matter.
Ms Cleary deposes that she responded to that letter by providing a document addressed to Mr Soos on 7 May 2018. She, in a detailed way, raised that on the day in question (2 May 2018) she cautioned the applicant about an unsafe manner in which water was gushing out of a defective joint on a hose going through the manufacturing area. She says:
I instructed Edmund to turn the water off immediately, which he failed to adhere to those instructions and kept going. This while we had Electricians working in the immediate area as electrical work was being installed on that same side of the facility and Edmund not having a contingency plan for the drainage of excessive water pooling over large areas of the manufacturing facility.
I then proceeded into the office to speak with you to inform you of what I had seen and expressed my grave concerns at the situation of an extremely unsafe work practice created by Edmund Martires and for you to view the area of concern, to which Edmund then started to follow instructions to fix and set right the flooded floor area, along with your assistance.
The letter concluded:
In summary it is becoming increasingly apparent that Edmund is unwilling to follow directives given by me, and he fails to adhere to simple instructions from me unless they are issued by you. I would also like to make mention that over a long period of time and on numerous occasions Edmund has been told by you that I am Director of the company and one of his managers. It has also been conversed to Edmund about the way he does not follow instructions given by him to me.
Consideration
I accept the evidence of the respondent in this case, and in particular the evidence of Mr Soos, that the termination of employment was not because of the exercise of any workplace right by the applicant, including him forwarding a letter on 3 May 2018.
Section 341 of the FW Act provides:
Meaning of a workplace right
(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.
In relation to adverse action, section 342 of the FW Act provides relevantly:
Meaning of adverse action
Item Column 1
Adverse action is taken by ...
Column 2
if ...
1
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his 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.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [44] per French CJ and Crennan J, the central question for the Court was ‘why was the adverse action taken?’
In Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, Tracey and Buchanan JJ state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; 245 IR 354. Relevantly, these authorities establish that:
• The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
• That question is to be answered having regard to all the facts established in the proceeding.
• The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
• It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer”.
• Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
• If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
In this case, I accept that there was adverse action taken by the respondent in the form of the termination of the applicant’s employment. However I do not find that the action was taken in breach of section 341 of the FW Act.
Mr Soos gave direct testimony of his reasons for the termination of the applicant’s employment and I accept that the reasons for the termination of employment were those as set out in the letter of termination.
I also accept that, over a period of time, there had been significant issues with the applicant’s performance in the workplace and, in particular, his failure to follow instructions and directions provided to him by Ms Cleary.
I accept that Mr Soos did not terminate the applicant’s employment for a reason that included that the applicant was exercising a workplace right when he took a break and slept on a client’s outdoor furniture or because the applicant raised a complaint regarding Ms Cleary.
The respondent has discharged the reverse onus of proof which arises by reason of section 361 of the FW Act.
In the course of the hearing, Mr Martires was questioned about an email that had been forwarded on 24 March 2020 to a Canadian director of the respondent under the name “Edmund Martirez”, noting the only difference between the applicant’s name and the name in the email was the letter Z. That email repeats many of the allegations that are made in the course of the affidavits filed by the applicant in this proceeding. There are details of the proceeding which would only be known to the applicant or the respondent. The applicant did not suggest that anyone from the respondent had created and forwarded the document. The document included statements calculated to embarrass Mr Soos and Ms Cleary.
Attached to that email was an email from the Australian Human Rights Commission (‘AHRC’) that purported to be from a senior investigator/conciliator from that organisation based in Sydney addressed to Mr Martires. The email included the email signature plate of the senior investigator. That purported email provides as follows:
Dear Edmund, good day. Regarding our phone call discussion this morning, as discussed, the Commission has accepted your complaint against Endura Paints Proprietary Limited. In the Commission’s view. Endura Company has committed many violation of your human rights. Thus, we have the duty to investigate and file the appropriate court proceedings towards the respondent.
AHRC is now conducting its thorough investigation and doing the necessary steps towards a complete resolution on this case matter. We are also in coordination with our Canadian Human Rights Commission counterpart for them to file the appropriate case against Endura Company in Canada for their human rights violation which the CHRC has a jurisdiction. I will inform you of further actions. I will inform you of further actions by the President’s delegate who acts and decides on the issues on this case matter.
The applicant disclaimed any knowledge of the email purporting to have been sent from the AHRC and was adamant that he had not forwarded that email or was responsible in any way for producing that email.
The email has plainly been concocted by someone other than any person from the AHRC. Whilst I am not required to make a definitive determination on this point, I think it is more probable than not that the applicant is in fact the author of these documents and forwarded the documents to the parent company in Canada in order to seek to produce a response from the company to encourage settlement of the proceeding in the applicant’s favour.
This is a case where there are matters of credit raised and where there is a difference between the accounts given by the applicant and those given by the witnesses for the respondent.
I accept the evidence of the witnesses for the respondent. Where there have been errors in the dates provided in the respondent’s affidavit material, I do not regard those errors as evidence of deceit or an attempt to mislead the Court and those errors have been explained satisfactorily in the affidavit material.
I do not accept that the applicant has established that he had a workplace right to take a particular break when he chose to recline on a customer’s outdoor furniture on 4 May 2018. I also do not accept that the existence of that right (or the exercise of the right in any way) informed the respondent’s decision to terminate the applicant’s employment.
Furthermore, I do not accept that the correspondence which was forwarded by the applicant to the company’s director formed any reason for the termination of employment.
For these reasons, I dismiss the application.
In relation to costs, I will allow submissions to be filed by the respondent limited to two pages in length within seven days of the date of these reasons, and with the applicant to file any response within 14 days thereafter.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 20 April 2020
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