McCormack v Chandler Macleod Group Limited
[2012] FMCA 231
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCCORMACK v CHANDLER MACLEOD GROUP LIMITED | [2012] FMCA 231 |
| INDUSTRIAL LAW – Small claim – general protections court application – alleged adverse action in relation to workplace right – complaint to Fair Work Ombudsman – alleged dismissal on basis of temporary absence – casual employee. |
| Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth), ss.335, 340, 341, 342, 352, 361(1), 365,369, 548, 681, 682, 696, 706, 712 Fair Work Regulations 2009 (Cth) |
| Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186 Poole v Rod Baker & Co (2011) 207 IR 264; [2011] FMCA 357 |
| JJ Macken, The Employment Revolution (Sydney: Federation Press, 1992) |
| Applicant: | KEVIN MAURICE MCCORMACK |
| Respondent: | CHANDLER MACLEOD GROUP LIMITED |
| File Number: | PEG 259 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 November 2011 |
| Date of Last Submission: | 17 November 2011 |
| Delivered at: | Perth |
| Delivered on: | 18 May 2012 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | Mr Yeatman |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 259 of 2011
| KEVIN MAURICE MCCORMACK |
Applicant
And
| CHANDLER MACLEOD GROUP LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 19 September 2011,[1] the applicant, Kevin McCormack,[2] brings small claims proceedings in the Fair Work Division of this Court against the respondent, Chandler Macleod Group Limited.[3] The Application is supported by a Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection.[4] The Claim Form also alleges other contraventions of the Fair Work Act 2009 (Cth)[5] by Chandler Macleod in relation to Mr McCormack.
[1] “Application”.
[2] “Mr McCormack”.
[3] “Chandler Macleod”.
[4] “Claim Form”.
[5] “FW Act”.
Until the alleged dismissal, Mr McCormack was working at a commercial printing and binding operation, PMP Limited.[6]
Claim Form
[6] “PMP”.
Employment
In the Claim Form, Mr McCormack states that he was employed by Ready Workforce/Chandler Macleod as a Bindery Assistant from 28 June 2009 to 25 July 2011.
Contravention alleged
Under the heading “Contravention(s) alleged”, the Claim Form refers to an attachment entitled “Part G Contraventions” in which Mr McCormack claims as follows:
Part G Contraventions
340Protection
(1)A person must not take adverse action against another person because that other person
(a) (ii)has exercised a workplace right (contacting the ombudsman in regards to pay).
342 Adverse Action
(1) (a) dismiss the employee
(c) alters the position of the employee to the employee’s prejudice (by trying to roster me on the press for several weeks)
(d) discriminates between the employee and other employees of the employer (taking on new casuals while at the same time telling me that there was no work for me at PMP).
352 Temporary Absence – Illness or injury
(I was off work with a medical certificate from Fremantle Hospital for three days and kept Chandler Macleod informed of my progress).[7]
[7] Typed from the original attachment to the Claim Form without amendment.
Remedy sought
The remedy sought by Mr McCormack is compensation and he claims $20,000. In an attachment to the Claim Form entitled “Part H – Remedy Sought” he says that:
… the amount of $20,000.00 compensation would assist me in obtaining new skills to increase my chances of earning a living and not being dependent on Centrelink payments for the next few years health permitting.
Section 369 certificate
Mr McCormack has also attached to the Claim Form, a certificate issued by Fair Work Australia[8] under s.369 of the FW Act which provides that:
a)an application pursuant to s.365 of the FW Act was made by Mr McCormack alleging that he was dismissed by Chandler Macleod in contravention of Part 3-1 of the FW Act;[9]
b)FWA conducted a conference to deal with the dispute on 6 September 2011; and
c)pursuant to s.369 of the FW Act, FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.[10]
[8] “FWA”.
[9] “FWA Application”.
[10] “Section 369 Certificate”.
The Section 369 Certificate gives this Court’s jurisdiction to deal with the application.[11]
[11] Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186 at paras.52-54 per Lucev FM; Poole v Rod Baker & Co (2011) 207 IR 264 at 270 per O’Sullivan FM; [2011] FMCA 357 at para.25 per O’Sullivan FM.
Law
The general protection that Mr McCormack relies upon is the protection of workplace rights under s.340 of the FW Act which relevantly provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
.......
(ii) has, or has not, exercised a workplace right; or
…….
The meaning of “workplace right” is dealt with in s.341(1) of the FW Act as follows:
(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.
Section 342(1) of the FW Act sets out the circumstances in which a person takes “adverse action” against another person. Item 1 of s.342(1) provides that an employer takes adverse action against an employee by:
a)dismissing the employee;[12]
b)altering the position of the employee to the employee’s prejudice;[13] or
c)discriminating between the employee and other employees of the employer.[14]
[12] FW Act, s.342(1), Item 1(a).
[13] FW Act, s.342(1), Item 1(c).
[14] FW Act, s.342(1), Item 1(d).
Section 352 of the FW Act is not related to workplace rights but rather falls under the heading “other protections” and provides as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
For all of the above provisions, the terms “employer” and “employee” have their ordinary meanings.[15]
[15] FW Act, s.335.
Section 361(1) of the FW Act invokes an evidentiary presumption in such cases. It provides as follows:
(1) 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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Evidence
Section 548(3) of the FW Act provides as follows:
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
It is unnecessary to consider the interesting question of whether the exclusion of the “rules of evidence” and the lack of regard for “legal forms and technicalities” extends to exclude or prohibit regard to the provisions of the Evidence Act 1995 (Cth).
Evidence for Mr McCormack
Mr McCormack adopted as his evidence-in-chief the contents of several attachments to the Claim Form:[16]
[16] Transcript, p.4.
a)a letter by Mr McCormack addressed to “Federal Court Officer” which appears to outline the factual basis for the allegations against Chandler Macleod;[17]
b)Chandler Macleod’s response in relation to the FWA Application;
c)emails from Mr McCormack to Jonathan Brown,[18] Sector Leader at Chandler Macleod,[19] dated:
i)25 August 2011; and
ii)26 August 2011,
requesting that a separation certificate be provided as soon as possible for Centrelink purposes;
d)a document entitled “Week Wage Slip List” summarising Mr McCormack’s gross wages for the period January 2011 to July 2011; [20] and
e)a Centrelink print-out, dated 31 August 2011, relating to the cessation of Mr McCormack’s employment with Ready Workforce on 25 July 2011.
[17] “Claim Form Letter”.
[18] “Mr Brown”.
[19] Transcript, p.27.
[20] “Wage List”.
Mr Clinton Willis, the General Manager of PMP was also called by Mr McCormack.
Evidence for Chandler Macleod
For Chandler Macleod, evidence was given by:
a)Mr Jonathon Brown – Sector Leader, Chandler Macleod; and
b)Mr Duncan Purkiss - State Sales Manager, Chandler Macleod.
Mr Brown gave evidence that he was responsible for managing Chandler Macleod’s client, PMP.
Documentary evidence
At hearing the following documents were admitted in evidence:
a)Exhibit 1 – the “Temporary Employee Agreement, Terms and Conditions of Employment” between Mr McCormack and Chandler Macleod signed 27 May 2009; [21]
b)Exhibit 2 – a PMP incident report detailing a workplace injury suffered by Mr McCormack on 8 July 2011;[22]
c)Exhibit 3 – email correspondence between Mr McCormack and Mr Brown on 25 August 2011;[23]
d)Exhibit 4 – a screenshot of the electronic record of Mr Brown’s conversation with Mr McCormack on 25 July 2011; [24]
e)Exhibit 5 – email correspondence between Duncan Purkiss,[25] State Sales Manager for Chandler Macleod,[26] and Rod Moss,[27] Bindery Manager of PMP at Bibra Lake, on 18 May 2011 regarding Mr McCormack’s classification level;[28] and
f)Exhibit 6 – email correspondence from Mr Moss to Mr Brown on 20 July 2011 concerning Mr McCormack’s work at PMP.[29]
Facts
[21] “Temporary Employee Agreement”.
[22] “PMP Incident Report”.
[23] “25 August 2011 Email”.
[24] “Candidate Contact Screenshot”.
[25] “Mr Purkiss”.
[26] Transcript, p.36.
[27] “Mr Moss”.
[28] “18 May 2011 Email”
[29] “20 July 2011 Email”.
Working arrangements
Mr McCormack began work at PMP on 1 February 2005. He was not then employed by PMP, but by a labour hire company called Bayside Personnel Labour Hire Company.[30] Mr McCormack appears to have worked primarily in the bindery at PMP.[31]
[30] “Bayside Personnel”.
[31] Claim Form Letter, page 1.
In May 2009 the working arrangements changed, and PMP’s labour was thereafter supplied by Ready Workforce. Ready Workforce appears to be a proprietary limited company, but a division of Chandler Macleod.[32] There was no dispute for the purposes of these proceedings that Mr McCormack was employed by Chandler Macleod. After the takeover by Chandler Macleod it appeared that Mr McCormack again primarily worked in the bindery at PMP as a bindery assistant.[33]
[32] Temporary Employee Agreement, cl.29.
[33] Claim Form Letter, page 1.
Temporary Employee Agreement
On 27 May 2009 Mr McCormack entered into the Temporary Employee Agreement with Chandler Macleod. Relevantly, the Temporary Employee Agreement, which governed the terms and conditions of Mr McCormack’s employment with Chandler Macleod, provided as follows:
1.My employment with Chandler Macleod is as a casual employee to be placed on assignment/s with customers of Chandler Macleod, with each shift constituting a discrete period of employment. I may accept or reject any offer of an assignment from Chandler Macleod. On completion of an assignment, whether satisfactory or otherwise, Chandler Macleod is under no obligation to offer me further assignments.
2.I understand that Chandler Macleod does not control the length of any assignment and I accept that whilst Chandler Macleod may indicate the potential length of an assignment with a customer in good faith, the customer may vary the length of an assignment period or terminate my attendance at any assignment at their absolute discretion.
3.I accept that if a customer of Chandler Macleod varies the length of an assignment period or terminates my attendance at an assignment, as provided for in Point 2 above, Chandler Macleod has the right, at its discretion, to discontinue my employment, due to operational reasons, and to not offer me further assignments with other customers in the future. In these circumstances my employment will end due to operational reasons within the meaning of the Workplace Relations Act 1996 (Cth) as may be amended from time to time. Where notice of termination is necessary, such notice shall be in accordance with the terms of Federal Industrial Laws or of any relevant award or Workplace Agreement, whatever the greater.
4.I accept that I am under the care, control and supervision of Chandler Macleod’s customer during the period of any assignment in regard to defined working arrangements and the manner and proficiency in which my work is to be performed. I acknowledge the right of Chandler Macleod’s customer to direct my work activities only in relation to the agreed job and location as instructed by my Chandler Macleod consultant. I acknowledge that if I am directed by the Chandler Macleod customer to undertake work outside of these agreed arrangements that I am to contact my Chandler Macleod consultant before agreeing to undertake the work.
5.I agree to adhere to all Occupational Health and Safety policies of Chandler Macleod and Chandler Macleod’s customer, and will obey all lawful and reasonable orders of Chandler Macleod or Chandler Macleod’s customer with regard to the use of safety equipment, the wearing of protective clothing and noise protection devices, and with regard to methods of performing work tasks.
…
8.Payment for my work will be made by Chandler Macleod on a weekly basis only on receipt of a Chandler Macleod timesheet, correctly completed and with appropriate authorisation by an approved customer supervisor, or by some other method defined by Chandler Macleod.
…
10.My remuneration by Chandler Macleod is on an hourly basis according to my classification and is subject to all relevant provisions regarding wage rates of an applicable award and/or Workplace Agreement.
…
17.Any personal or carer’s leave entitlement shall be determined according to the Australian Fair Pay and Condition Standard or where appropriate any relevant Award and/or Workplace Agreement.
…
21.I agree to notify the Chandler Macleod office as soon as practicable, but no later than normal start time on any date, if I am unable to attend during any period of that day’s assignment.
…
25.I understand that it is a condition of my employment that I may be required to undergo pre-employment and/or pre-assignment medical examination. In that event, I authorise the examining doctor to forward the results of my medical to the relevant Chandler Macleod customer and to the appropriate representative of Chandler Macleod. I acknowledge that the medical report will remain the property of Chandler Macleod and/or the relevant Chandler Macleod customer.
….
In general terms the Temporary Employee Agreement also makes provision for the payment of wage rates to be in accordance with any relevant award or workplace agreement, and for the application of the Australian Fair Pay and Conditions Standard to payment for public or trade holidays.[34] Provision is also made for the payment of occupational superannuation in accordance with any relevant legislation, or award or workplace agreement.[35] Mr McCormack acknowledged that he had read through the Temporary Employee Agreement and had a general understanding of it.[36]
[34] See for example Temporary Employee Agreement, cll.12, 13, 14 and 16.
[35] Temporary Employee Agreement, cl.15.
[36] Transcript, p.7.
Mr McCormack’s allergy and the Pre-Employment Health Questionnaire
Attached to the Temporary Employee Agreement is a Pre-Employment Health Questionnaire. Under the heading “Exposure History” Mr McCormack acknowledges that he has been required to work with noise or needed to wear ear protection, and ticked the “Yes” box accordingly. Mr McCormack annotated that acknowledgement with the note “Ear plugs P.M.P. 4 ½ Years”. In relation to the question immediately following the question with respect to noise or ear protection, namely “Have you Ever: Had any allergies to a chemical you have worked with?” Mr McCormack ticked the “No” box. Under the general information section of the Pre-Employment Health Questionnaire the question “Do you have any allergies to medications or chemical substances?” was asked. Mr McCormack ticked the “No” box. Under the personal history section of the Pre-Employment Health Questionnaire in relation to “PAST and PRESENT” Mr McCormack ticked the “No” boxes in relation to “Allergies”, “Other skin problems – cancer/tumour” and “Other allergies”.
Under cross-examination Mr McCormack asserted that he “started to develop” an allergy to the blanket wash in the press, but did not actually have an allergy, prior to commencing work with Chandler Macleod. He said that he “started to come out in a red, itchy rash just localised over my arms”.[37] He said that if he washed straight away after working on the press he did not get the rash, and therefore didn’t consider that he had an allergy. He said however that he spoke to PMP’s general manager of print and another PMP employee, the manager of the bindery, because having worked on the press during the week:
“I would spend the weekend suffering from an analogies [sic – an allergy] from half asleep and my eyes are all itchy and I’ve got the rash.”[38]
Of his discussion with those two people he said:
I explained to them the problem that I was having because I was in bindery at that time and they were suggesting that I go back to working on the press and I said to them both at the time that I did not want to go on the press because of my reaction. It’s detrimental to me because no matter how careful I am there’s always time when, you know, I get splashed and I don’t realise there was something like that and get a localised reaction.[39]
[37] Transcript, p.9.
[38] Transcript, p.9.
[39] Transcript, p.9.
Mr McCormack said that he told Mr Brown at the time he first commenced with Chandler Macleod about his allergy.[40]
[40] Transcript, p.9.
In relation to his negative responses to allergy questions in the pre-employment health questionnaire Mr McCormack asserted that he did not consider he had an allergy because he could stop himself from having a reaction by taking reasonable precautions. When it was put to him that his responses were incorrect he said:
Well no, I didn’t consider I had [an allergy]. Personally I didn’t consider I had a reaction in as much as I knew there was no reaction if I take reasonable precautions.[41]
[41] Transcript, p.10.
The Pre-Employment Health Questionnaire contains a declaration that the information given is to the best of the employee’s knowledge, true and complete. Mr McCormack signed that declaration on 27 May 2009.
Mr Brown denied that Mr McCormack ever told him about any allergy that Mr McCormack allegedly has to chemicals, and further denied that he had any one-on-one meetings with Mr McCormack at or about the time of Chandler Macleod taking over from Bayside Personnel.[42]
[42] Transcript, p.29.
Mr McCormack’s evidence about the Pre-Employment Health Questionnaire was unconvincing at best. In giving the answers he appeared tentative and confused. The answers themselves are implausible and inconsistent. Mr McCormack clearly had an allergy, knew that he had an allergy, and at least on one occasion (and possibly more) prior to him being employed by Chandler Macleod he acknowledged that he would “spend the weekend suffering” from such an allergy, which on those occasions was not just localised to his arms, but extended to his eyes. Mr McCormack’s evidence that he did not suffer from an allergy, or considered that he suffered from an allergy, because he could wash off whatever it was that was causing the allergy is therefore false and implausible. It is also inconsistent with evidence that he gave about the events of July 2011 where, having been to the print section at PMP, he contracted an allergy without knowing what had happened or what had caused the allergy.
The answers that Mr McCormack gave to the Pre-Employment Health Questionnaire questions about allergies and skin problems were false. Together with the way in which he answered questions about his completion of the Pre-Employment Health Questionnaire, they have assisted the Court in forming the view that where Mr McCormack’s evidence is inconsistent with that of other witnesses, the other witnesses evidence is to be preferred. In that regard, the Court accepts Mr Brown’s evidence that there was no one-on-one meeting between Mr McCormack and Mr Brown at or about the time of Mr McCormack being employed by Chandler Macleod, and no communication by Mr McCormack to Mr Brown about Mr McCormack suffering from any allergy.
The underpayment complaint
Mr McCormack asserts that after Chandler Macleod began to provide labour to PMP “the casuals became aware that they were being underpaid and I was put forward as their spokesperson.”[43] Mr McCormack says that he made inquiries on behalf of all of the workers about their pay, and that he subsequently received verbal and physical abuse from two of the PMP senior operators including “being shoulder barged from behind” by one of those senior operators.[44] Mr McCormack says he discussed the matter with the PMP union delegate, and he asked the union delegate to talk to the senior operators about the matter as he did not want any complaint to go on their record.
[43] Claim Form Letter, page 1.
[44] Claim Form Letter, page 1.
Mr McCormack says that a formal complaint concerning underpayment of casual workers working at PMP was lodged with the “Ombudsman” in February 2011. There is no dispute that this is a reference to the Fair Work Ombudsman,[45] the Office of which is established under the FW Act with powers and functions including the making inquiries and conducting of investigations into alleged underpayment of employees.[46]
[45] “FW Ombudsman”.
[46] FW Act, ss.681, 682, 696, 706 and 712.
Mr McCormack says that on 16 February 2011 the casuals at PMP had a meeting with Chandler Macleod. The next day Mr McCormack says that the senior operator at PMP “tore strips off me” for a suggestion made by Mr McCormack at that meeting that some of the casual workers should be paid at a higher level. Mr McCormack says that the next day, 18 February 2011, Chandler Macleod left his name off the roster, but after complaining about it, he was given two shifts for the following week. Mr McCormack conceded in cross-examination that the employee who “tore strips off him” was not a Chandler Macleod employee but a PMP employee.
In March 2011 Mr McCormack worked full-time for four weeks covering a full-time operator on extended leave.[47] Mr McCormack says that at the beginning of April 2011 he received a call from a person called “Neil” from Chandler Macleod. Neil was Mr Brown’s superior, and said to Mr McCormack that Mr McCormack’s name was on the complaint with the FW Ombudsman but that there was nothing wrong with the wages and he asked what Mr McCormack thought was wrong with them. Mr McCormack elaborated by indicating that he was covering for a full-time operator but being paid as a bindery stacker hand and that overtime for a 12 hour night shift the previous week had not been correctly paid. Mr McCormack says that Neil “got very nasty” and told him that he would not receive any extra work or shifts in the future. Mr McCormack says that he was transferred to another machine the next week, and was told that another casual was being trained up to do the job, despite the fact that there were only two weeks of the full-time operator’s leave (which obviously had extended into April 2011) remaining. Mr McCormack asserts that for the six weeks following his conversation with Neil his wages dropped on average around $290 a week.[48] That figure is incorrect. Mr McCormack’s wages dropped $183.45 a week on average in those six weeks compared to the previous 14 weeks in the Wage List. But when the first 14 weeks are compared to the 15 remaining weeks on the Wage List (that is the 15 weeks after this alleged incident) the average wages drop is $63.95 a week. The longer period is more reflective of the complete story. In any event, it is difficult to draw conclusions on pay comparisons for casuals over a relatively limited period. Cross-examined in relation to payments Mr McCormack agreed that his pay was “irregular and spasmodic”,[49] and that sometimes he worked the same number of shifts every week, but that it “varied a lot” and “wasn’t set in stone”.[50] Both the error and the choice of a limited and highly favourable comparator do not enhance Mr McCormack’s credibility.
[47] Claim Form Letter, page 2.
[48] Claim Form Letter, page 2.
[49] Transcript, p.15.
[50] Transcript, p.7.
Mr McCormack confirmed in cross-examination that his complaint to the FW Ombudsman with respect to underpayment was about other casuals working at PMP.[51] Mr McCormack confirmed that he had raised the matter with the relevant union representative. It would however appear that the union indicated to Mr McCormack that there was no underpayment, although the union was not happy with the way in which the casual employees were being paid.[52] The complaint to the FW Ombudsman was still being investigated at the time of hearing.[53]
[51] Transcript, p.11.
[52] Transcript, p.12.
[53] Transcript, p.12.
Mr Brown confirmed that he went to an initial meeting with the casual employees, a union representative and Mr Purkiss, and assured them that they were not being underpaid and that Chandler Macleod was doing everything possible with PMP to make sure that they were being paid correctly.
Mr Purkiss confirmed that there had been meetings with the union concerning complaints that Chandler Macleod employees had been underpaid, but following those meetings the union seemed content with the payments being made, save that they asked for changes in the manner in which Chandler Macleod delivered payslips and communicated how rates were calculated. Following that there were no further complaints concerning payments.[54]
[54] Transcript, p.37.
Mr Purkiss gave evidence that Mr McCormack raised an issue as to whether or not he had been paid at the correct classification level, and in relation to that issue there was an email exchange with PMP to ascertain whether Mr McCormack was being paid at the correct level.
The events of July and August 2011 and rostering arrangements
On 7 July 2011 Mr McCormack says that he was sent an SMS by Chandler Macleod with his shifts for the following week, which were on the press. Mr McCormack telephoned “Nick” from Chandler Macleod and told him that he could not be rostered to work on the press because he reacted to the blanket wash. Mr McCormack said that Nick told him that he would see if he could sort something else out, but eventually phoned back and told Mr McCormack that he had to work on the press as there was no-one else with experience to do the job. Mr McCormack acknowledges that a casual print assistant was on workers’ compensation and that two full-time print assistants had recently left. Mr McCormack says that he was told that he would be rostered on the press for several weeks.
On Friday 8 July 2011 Mr McCormack says that he worked a 12 hour shift from 6.00pm to 6.00am and “an incident happened, which at the time I was not aware of.”[55] He went home but started to feel itchy and woke up with a rash which got progressively worse. By the following Monday evening he attended Fremantle Hospital Emergency Department where he was examined, and told that he had “Urticarial Blanching Rash? secondary to chemical exposure.”[56] He was prescribed an over-the-counter antihistamine which cleared up the rash within two days. The rash was all over his body and not localised as it had been previously. Mr McCormack then says as follows:
As there are no chemicals in bindery, the only thing I could put it down to was walking by the press and came into contact with a chemical without being aware of it. The press had broken down so I walked down the side of the press to ask how long it would be down for so I could help out on another Machine.[57]
[55] Claim Form Letter, page 2.
[56] Claim Form Letter, page 2.
[57] [Claim Form Letter, page 3.]
On 12 July 2011 Mr McCormack contacted PMP and Chandler Macleod to advise that he had a medical certificate for time off work from 11 to 13 July 2011 inclusive. Chandler Macleod insisted that Mr McCormack go to see their doctor, which he did. Mr McCormack contacted Chandler Macleod on 14 July 2011 to say that he had received clearance to return to work and he emailed the clearance to them. On Friday 15 July 2011 Mr McCormack went to PMP to fill in the PMP Incident Report.
Mr McCormack acknowledged that he did not do any tasks involving blanket wash on the shift preceding his getting a rash over the weekend following 8 July 2011.[58] Nor did he come into contact with any blanket wash of which he was aware.[59]
[58] Transcript, p.16.
[59] Transcript, p.17.
Mr Brown confirmed that Mr McCormack was one of about ten casual employees at PMP who were press capable, out of a total number of about 25 casual employees.
Chandler Macleod phoned Mr McCormack on Wednesday 20 July 2011 to give him one shift for Wednesday night from 10.00pm to 6.00am. Mr McCormack was then phoned on Thursday 21 July 2011 and asked to work on Thursday and Friday night, 21 and 22 July 2011. Mr McCormack says that he later called Chandler Macleod and was told by “Nick” that the shift roster had not yet been made up for the following week but that he would contact Mr McCormack when it was made up.[60]
[60] Claim Form Letter, page 3.
Mr McCormack says that he was not contacted, and despite attempts to contact both “Nick” and Mr Brown he received no reply. On Sunday 24 July 2011 he says that he sent Mr Brown an email asking Mr Brown to get back in touch with Mr McCormack as soon as possible regarding the roster for the next week. Mr McCormack says that Mr Brown contacted him at 10.30am on Monday 25 July 2011 and told him that “there were no shifts available for me at PMP”. Mr McCormack says that he told Mr Brown that there was a lot of work in bindery and that even the new starters had got a full week’s work. He says that Mr Brown replied that “any work they get has nothing to do with you”, to which Mr McCormack responded “are you giving them work in preference to me?” Mr Brown responded “look, you work for [Chandler Macleod] not PMP and I am telling you, we’ve got no shifts for you at PMP”.[61]
[61] Claim Form Letter, page 3.
Mr Brown confirmed that:
a)Mr McCormack had called him to say that he was not rostered;
b)Mr Brown had called Mr McCormack back and told him that he was not rostered;
c)Mr McCormack then said that that there were new people rostered, and queried why he was not rostered; and
d)Mr Brown confirmed that PMP were queried about this and “informed us that he [Mr McCormack] wasn’t booked for any shifts.”[62]
[62] Transcript, p.30.
Mr Brown confirmed that at the time of a telephone conversation with Mr McCormack he had made a note of the conversation as set out in the Candidate Screen Shot, as follows:
Spoke to Kevin and advised him that he is not required at PMP I have also asked him if he would like other work as there are other casual assignments that he could do he said no that he only wanted to work at PMP. I advised him again that he would not be required back at PMP. He advised me that he was about to call the client.[63]
[63] Transcript, p.31.
Mr McCormack says he subsequently telephoned the bindery manager at PMP, Mr Moss, and he says that Mr Moss said he knew nothing about the roster arrangements which had been made with him, but that Mr Moss later phoned him back (after having spoken with Mr Brown) and told him that if he had any problems to contact Mr Brown and not PMP. If Mr McCormack’s account of this telephone conversation is correct (and there must be some doubt about that) then Mr Moss was not honest with him, having regard to the content of the 20 July 2011 Email, which was as follows:
Jon
We will not be requiring Kevin McCormack back at PMP, as of w/e 24th July 2011.
Mr Purkiss’ forwarded the 20 July 2011 Email to a Mr Melhuish on 21 July 2011 with the following message:
Good morning Peter
As discussed, please find attached the email from PMP regarding Mr McCormack and the fact that his services are no longer required at that site.
We will call Kevin in to the office and advise him that his services are no longer required at that site but that we will offer to try and find him suitable alternative employment.
After being told by Mr Brown that he no longer had any shifts at PMP Mr McCormack acknowledges that, at the very least, Mr Brown indicated that he would look to see whether any work was available elsewhere.[64]
[64] Transcript, p.19.
Mr McCormack was cross-examined about the preparation of the rosters and it was put to him that it was PMP who prepared the rosters and not Chandler Macleod. Mr McCormack did not concede the point, but did concede that there would be a problem with his claim if Chandler Macleod did not prepare the rosters.[65] Mr McCormack acknowledged that Chandler Macleod had no control over the length of placement at a particular client if the client asked for him to be removed.[66]
[65] Transcript, p.14.
[66] Transcript, p.22.
Mr Brown gave evidence that PMP prepared the rosters, and sent through to Chandler Macleod rosters containing the names of the persons that they wanted to work in particular sections of their business. Chandler Macleod then facilitated that by contacting those persons and advising them of their shift placement. Mr Brown said that Chandler Macleod did not do the rosters and did not roster particular persons on to the machines at PMP.[67]
[67] Transcript, p.30.
Mr Purkiss confirmed that PMP provided the names of those persons that they would like to work on particular machines, and it was only where a person’s skills did not match that machine, or the person was unavailable, that Chandler Macleod might make changes to a roster to make sure that all positions are covered.[68]
[68] Transcript, p.39.
Mr Purkiss was not directly involved in Mr McCormack’s placement at PMP and was not able to give first-hand evidence as to what happened in relation to Mr McCormack not being given shifts at PMP from late July 2011.
Mr Purkiss did confirm that he had been copied into an email from Mr Moss, the printing manager at PMP, advising Jonathon Brown that Mr McCormack would not be required back at PMP as of the weekend ending 24 July 2011.[69]
[69] Transcript, p.39.
Mr Purkiss denied every having personally phoned Mr McCormack to change his shift roster.[70] Mr Purkiss said that it was not part of his role.
[70] Transcript, p.41.
Mr Willis’ evidence indicated that to the best of his knowledge any decisions made with respect to the removal of Mr McCormack’s name from the roster were decisions made by Chandler Macleod. However, the basis for that knowledge was not made apparent, nor was it tested in cross-examination. Mr Willis’ evidence, which was very short, was quite vague, and not helpful in determining who it was that decided to remove Mr McCormack’s name from the roster at PMP. The Court obtained the distinct impression that Mr Willis simply did not know, who precisely made that decision.[71] That is why, when asked the question, he was only able to confirm that “to the best of my knowledge” it was Chandler Macleod who made the decision to remove Mr McCormack’s assignment to PMP.[72]
[71] Transcript, p.25-26.
[72] Transcript, p.26.
Ultimately, the best evidence of the PMP roster arrangements came from Mr Brown, the Chandler Macleod employee responsible for management of PMP as a client. Mr Brown’s knowledge of the events relevant to Mr McCormack’s rostering, as well as the general practice with respect to rostering at PMP, was direct, and his evidence clear and unequivocal: PMP prepared the rosters. In relation to the general practice with respect to rostering at PMP Mr Brown’s evidence was corroborated by Mr Purkiss. The Court accepts Mr Brown’s evidence.
Having regard to all the evidence, the Court accepts that PMP requested Chandler Macleod to no longer roster Mr McCormack for work at PMP, and Chandler Macleod acted on that request. There is no evidence to the contrary, and no evidence that Chandler Macleod removed Mr McCormack from the PMP roster when it did for any reason other than the request from PMP.
The separation certificate
Mr McCormack sought to obtain a separation certificate from Chandler Macleod. None was provided, and on 18 August 2011 Mr McCormack signed up with Centrelink for benefits as a consequence of his not having had any offer of work from Chandler Macleod since late July 2011.
On 25 August 2011 Chandler Macleod indicated to Mr McCormack that they still considered him to be an active candidate on their data base and requested that he advise by return mail if he would like to resign, in which case he would be made inactive, his file would be archived and he would be sent a separation certificate the same day.[73] In the 25 August 2011 Email Mr McCormack wrote:
[73] “25 August 2011 Email”.
Dear Ready Workforce,
Further to my telephone call to the office last Thursday 18 August 2011, I still haven’t received my Separation Certificate as requested. Could you please email it to me ASAP.
to which Mr Brown replied:
Hi Kevin,
At this time you re still an active candidate on our database.
Are you no longer available for work? If you are looking for work we have a number of vacancies I would like to discuss with you.
If you are not interested in work please advise us by return email that you would like to resign. We will make you inactive, archive your file and send a separation certificate the same day.
In cross-examination, Mr McCormack was asked about his request for a separation certificate as follows:
By asking for a separation certificate, are you saying you wish to resign? --- but I had already resigned because I was already signed on with Centrelink.[74]
[74] Transcript, p.21.
Mr McCormack then went on to claim that he had been “effectively dismissed” because he had gone for three weeks without any offer of work.[75]
[75] Transcript, p.21.
Mr Brown also confirmed that subsequent to Mr McCormack not being given further shifts at PMP he was offered at least two further roles, including one at the Smiths Snack Food Company, where his skills would have enabled him to carry out the tasks concerned.[76] Mr McCormack did not accept those offers because he did not want to work anywhere other than PMP.[77] Mr Brown confirmed that the role at Smiths Snack Food Company paid more than the role that Mr McCormack was previously filling at PMP.[78]
[76] Transcript, p.31.
[77] Transcript, p.32.
[78] Transcript, p.32.
Consideration
There is no doubt that Mr McCormack has exercised a workplace right by complaining to the FW Ombudsman concerning an alleged underpayment, albeit that the underpayment was, according to Mr McCormack’s, related to other employees. Mr McCormack was able to make such a complaint, and the FW Ombudsman was a body having the capacity under the FW Act to seek compliance with the law or a workplace instrument in that regard.[79]
[79] FW Act, ss.681, 682, 696, 706 and 712.
The issues which then emerge are these:
a)did Chandler Macleod take adverse action against Mr McCormack by:
i)dismissing Mr McCormack;
ii)altering Mr McCormack’s position to his prejudice by trying to roster him on the press for several weeks; and
iii)discriminating between Mr McCormack and other employees by taking on new casuals whilst at the same time telling Mr McCormack that there was no work for him at PMP; and
b)dismissing Mr McCormack because of a temporary absence by reason of illness or injury.
In relation to Mr McCormack’s alleging adverse action by way of dismissal it is necessary for Mr McCormack to have been dismissed by Chandler Macleod.
On the evidence, Chandler Macleod:
a)ceased to advise Mr McCormack of shifts to be worked at PMP, at the request of PMP; and
b)continued to offer Mr McCormack work or shifts at other possible places of work, which he declined.
The process described in the immediately preceding paragraph is what is contemplated by the Temporary Employee Agreement which envisages that Chandler Macleod will assign Mr McCormack to particular places of work, without a guarantee of ongoing work at that particular place, and with the proprietor or management of the business concerned having the ability to decline or refuse to have a particular person work in their business. This is a not uncommon labour hire arrangement.[80]
[80] See, generally, JJ Macken, The Employment Revolution (Sydney: Federation Press, 1992) Ch. 10-12.
The evidence of Mr Brown and Mr Purkiss, but particularly Mr Brown who was directly involved in making the arrangements for Mr McCormack and other Chandler Macleod personnel to work at PMP, clearly establishes that the persons chosen to be rostered at work at PMP was a matter for PMP, who then advised Chandler Macleod, and that it was only in the event of skill deficits or unavailability of personnel that Chandler Macleod sought to amend or change the persons on the roster.
That Chandler Macleod did not consider that they had dismissed Mr McCormack is evident from the 25 August 2011 Email exchange in which they request that he advise them if he no longer wishes to work for Chandler Macleod so that a separation certificate can be generated.
In all the circumstances, the Court considers that there is sufficient evidence to establish that Chandler Macleod did not dismiss Mr McCormack from their employment, either when he ceased working at PMP, or at all. That is sufficient to dispose of the alleged adverse action on the basis of dismissal. It is unnecessary to decide whether or not Mr McCormack ever resigned from Chandler Macleod. However, even if, contrary to the Court’s finding, there was a dismissal by Chandler Macleod the reason for that dismissal, and the cause of it, was not the exercise, some months previously it should be noted, of the workplace right of complaint to the FW Ombudsman, but a request by PMP not to roster Mr McCormack for work at PMP.[81]
[81] Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 221 per Gray and Bromberg JJ; [2011] FCAFC 14 at paras.27-28 per Gray and Bromberg JJ (“Bendigo Regional Institute”).
Mr McCormack asserts that Chandler Macleod altered his position to his prejudice by trying to roster him on the press for several weeks.
There is no evidence that the attempt to have Mr McCormack work on the press was a result of anything other than a request for him to be so rostered by PMP. It is apparent that the reason for the offer to Mr McCormack of work on the press was a shortage of staff qualified to work on the press. The reason was not the complaint to the FW Ombudsman some five months previously, which, on the evidence, does not seem to have been an issue in the PMP workplace for some months prior to the request to Mr McCormack to work on the press, albeit that there was still an open FW Ombudsman’s investigation. However, even if it were the case that Mr McCormack worked on the press it was not in the Court’s view an alteration of his position to his prejudice. There is no dispute that Mr McCormack was qualified to work on the press. Mr McCormack had worked on the press previously during Bayside Personnel’s period in charge of the labour hire arrangements at PMP. There is evidence of staff shortage at the time at which Mr McCormack was requested to work on the press - two full-time assistants and one casual apparently being unavailable. The Court does not accept the evidence of Mr McCormack that he told Mr Brown that working on the press may give Mr McCormack an allergic reaction. Under the Temporary Employee Agreement Chandler Macleod could request that Mr McCormack work on the press,[82] and he was being offered work on the press in circumstances where there was a shortage of staff qualified to work on the press. Mr McCormack, as a casual employee of Chandler Macleod, was at liberty to reject the offer of work on the press.[83] Therefore, it cannot be said that the position of Mr McCormack was being altered to his prejudice. In all of the circumstances, in relation to the request for Mr McCormack to work on the press the Court does not find that Mr McCormack had adverse action taken against him by reason of a complaint about a workplace right, or by way of an alteration of his position to his prejudice.[84]
[82] Temporary Employee Agreement, cl.1.
[83] Temporary Employee Agreement, cl.1.
[84] Bendigo Regional Institute FCR at 221 per Gray and Bromberg JJ; FCAFC at paras.27-28 per Gray and Bromberg JJ.
In relation to alleged adverse action on the basis of discrimination between Mr McCormack and other employees of Chandler Macleod, namely those being taken on as new casuals whilst he was being told that there was no work for him at PMP, the evidence discloses that the rostering of persons at work at PMP was a matter for PMP. Thus, it was PMP who selected which of Chandler Macleod’s employees were rostered on at PMP. It was PMP who discriminated between those employees, not Chandler Macleod. For that reason, Mr McCormack’s complaint that adverse action was taken against him by Chandler Macleod on this basis is not made out.
Mr McCormack also alleges that he was dismissed because of a temporary absence from work because of illness or injury. It is unnecessary to deal with the question of whether or not the illness or injury was of a kind prescribed by the Fair Work Regulations 2009 (Cth) for the purposes of s.352 of the FW Act. That is because, for reasons set out above, Mr McCormack was not dismissed by Chandler Macleod, and therefore s.352 of the FW Act has no application to the circumstances. However, even if, contrary to the Court’s finding, there was a dismissal by Chandler Macleod the reason for that dismissal, and the cause of it, was not Mr McCormack’s sick leave almost a fortnight previously, and since when he had worked further shifts, but a request by PMP not to roster Mr McCormack for work at PMP.[85]
[85] Bendigo Regional Institute FCR at 221 per Gray and Bromberg JJ; FCAFC at paras.27-28 per Gray and Bromberg JJ.
The evidence as to the matters in respect of which it is alleged that there was adverse action, and which the Court has referred in finding that there was no adverse action as alleged, is sufficient to disprove the allegations and displace the application of the evidentiary presumption under s.361(1) of the FW Act.
It follows from the foregoing that in the Court’s view Mr McCormack has failed to make out any of the alleged contraventions.
Conclusion and order
The contraventions alleged by Mr McCormack are not made out.
The application will therefore be dismissed, and an order made accordingly.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 18 May 2012
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