McIlroy v Thiess Pty Ltd
[2013] FCCA 1899
•28 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCILROY v THIESS PTY LTD & ANOR | [2013] FCCA 1899 |
| Catchwords: INDUSTRIAL LAW – Dismissal – claims of adverse action for a prohibited reason – evidence of decision-maker accepted – discussion of joinder of Second Respondent – application dismissed. |
| Legislation: Fair Work Act 2009, ss.340, 341, 361, 369, 371, 550 Federal Circuit Court Rules 2001 (Cth) |
| Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 Employment Advocate v National Union of Workers and Another (2000) 98 IR 302 |
| Applicant: | CHRISTOPHER MCILROY |
| First Respondent: | THIESS PTY LTD |
| Second Respondent: | MICHAEL DEVLYN |
| File Number: | PEG 162 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 26 July 2013 |
| Date of Last Submission: | 26 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lindsay |
| Solicitors for the Applicant: | Law Direct |
| Counsel for the Respondents: | Mr Hooker |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
The Application filed on 11 July 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 162 of 2012
| CHRISTOPHER MCILROY |
Applicant
And
| THIESS PTY LTD |
First Respondent
| MICHAEL DEVLYN |
Second Respondent
REASONS FOR JUDGMENT
In this matter, the Applicant, MR CHRISTOPHER MCILROY
(“the Applicant”), contends that the First Respondent
THIESS PTY LTD (“the Respondent”) is in breach of s.341 of the
Fair Work Act 2009(Cth) (“the Act”). The Applicant claims that his employment was terminated for exercising workplace rights, or proposing to exercise workplace rights, namely a right to:
·Make a complaint about harassment;
·Participate in a dispute resolution process under a workplace instrument; and
·Take sick leave.
The last of these was not pursued at the hearing on 26 July 2013.
The Applicant also contends that the Second Respondent,
MR MICHAEL DEVLYN (“Mr Devlyn”), was knowingly involved in the contravention of s.341 of the Act within the meaning of s.550 of the Act.
The Respondent denies the breach and contends that the Applicant was dismissed because of:
·
His ongoing antagonism towards, and conflict with,
his co-workers, including MR ANTHONY PHILLIPS (Snr)
(“Mr Phillips Snr”), MR ANTHONY PHILLIPS (Jnr)
(“Mr Phillips Jnr), MR ANDY HILL (“Mr Hill”) and
MR CHRIS RANFORD (“Mr Ranford”);
·The Applicant’s intimidating and aggressive manner towards a number of his co-workers;
·
The possibility that the Applicant’s conflict with some of his
co-workers could escalate into violence; and
·Reports of the Applicant requesting cans of beer, in breach of the Responsible Consumption of Alcohol policy.[1]
[1] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.12 at para.116.
The Respondent opposes the inclusion by the Applicant of Mr Devlyn as a party to the proceedings, and submits that the parties to the proceedings are confined to the parties to the dispute lodged with the Fair Work Commission (“FWC”) and the subject of the s.369 certificate issued on 29 June 2012.
Background
The Applicant is a painter who applied for and obtained employment with the Respondent on the construction work for the Gorgon Project on Barrow Island. The Applicant commenced employment in
January 2011.
Barrow Island is off the coast of Western Australia and is a
‘fly-in, fly-out’ worksite. The Applicant worked a roster of 26 days on and nine days off. Much of Barrow Island is a Class A nature reserve and there are restrictions on the area of Barrow Island that employees working there can access.
The incident with Mr Ranford
Mr Ranford is the father of the Applicant’s ex-Wife. He is also a painter and commenced work on Barrow Island some time in 2011.
The Applicant’s evidence was that Mr Ranford had alleged that the Applicant had made critical comments about him on Facebook.
Mr Ranford became upset about this and reported it to Mr Devlyn.
Mr Devlyn’s evidence concerning this incident was that he had been informed by a supervisor, MR STEVE GRIGIO (“Mr Grigio”), that there were problems between Mr Ranford and the Applicant. There was tension and conflict between them. Mr Grigio spoke to both the Applicant and Mr Ranford about the issue. A few days later, Mr Devlyn spoke to the Applicant in Mr Grigio’s presence. He told him that
“it needs to stop and we cannot have this animosity and behaviour on site”.[2] The Applicant agreed and added that it was not him that instigated it.
[2] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-9” at p.92.
Mr Ranford was moved to another work area on the site. The Applicant says that, “Thereafter I chose to ignore Ranford”.[3]
[3] Affidavit of Christopher McIlroy filed 24 October 2012, p.2 at para.8.
MR MARK QUARRELL (“Mr Quarrell”) gave evidence that he had many complaints from Mr Ranford about the Applicant sitting opposite him at breakfast staring him out and showing intimidating behaviour towards him. Mr Quarrell tried to tell the Applicant and Mr Ranford just to leave each other alone.
The taking of sick leave
About the middle of January 2012, the Applicant approached
Mr Devlyn and told him that he was not fit for work and should leave Barrow Island. The Applicant was stressed. He was having trouble with his ex-Wife and with people breaking into his house. The Applicant was not focussed on the job; he wanted to take annual leave.
Mr Devlyn told the Applicant that he needed to access his sick leave. The Applicant asked for two weeks leave but was later required to prove he was fit to return to work. The Applicant obtained a medical certificate[4] and returned to work in mid-February 2012.
[4] Affidavit of Christopher McIlroy filed 24 October 2012, Annexures “CM-3” and “CM-4” at p.58.
The Applicant agreed that, as of mid-January 2012, he was “drinking a little bit more, like than normal”[5] just so he could sleep better at night time. The Applicant denied telling his doctor that he was trying to cut down his alcohol consumption. The Applicant said that it may have been around October 2011 that he was drinking a little bit heavier but that he had cut back by the time he saw his doctor in February 2012; that is what he told him.
[5] Transcript of Proceedings, 12 March 2013, p.24 at lines 44-45.
The incident with Mr Hill
On 19 March 2012, the Applicant approached a supervisor,
MR BRENDAN RENNICK (“Mr Rennick), to complain that Mr Hill, a carpenter, was lazy. The Applicant said he was sure that Mr Rennick used Mr Hill’s name after the Applicant had said, “There’s a lazy person in the camp”.[6] The discussion was just before the debrief session at the end of shift. Mr Rennick said he would deal with it later. At the end of the debrief session, Mr Rennick said, “does anyone have any concerns, apart from Chris?”[7]
[6] Ibid, p.19 at line 1.
[7] Affidavit of Brendan Kevin Rennick filed 23 November 2012, p.2 at para.16.
Mr Devlyn was also at the meeting. He said that there were other people in the vicinity who also might have heard the conversation between the Applicant and Mr Rennick. Mr Rennick later told him that he had told the Applicant that it was his job to supervise, not the Applicant’s.
On 20 March 2012, before the pre-start meeting, Mr Hill approached Mr Devlyn and told him that he knew the Applicant had told
Mr Rennick he was lazy. He appeared very angry and emotional and Mr Devlyn told him to take the day off work.
The Applicant stated that he was confronted on 19 March 2012 by
Mr Phillips Snr who asked him who he had been talking to Mr Rennick about. When the Applicant told him it was Mr Hill, Mr Phillips Snr yelled to Mr Hill that the Applicant had “dobbed” on him.[8] The next morning, the Applicant heard Mr Phillips Snr call out loudly in the crib room that the Applicant was “a rat dobber”.[9]
[8] Affidavit of Christopher McIlroy filed 24 October 2012, p.3 at para.15.
[9] Ibid, p.3 at para.17.
The Applicant then approached Mr Devlyn and told him that he was being harassed and bullied by Mr Phillips Snr, Mr Phillips Jnr and
Mr Hill. Mr Devlyn told the Applicant that the matter would be discussed with MR JIM MCKAY (“Mr McKay”), the general superintendent, when he returned to Barrow Island the next day.
Mr Devlyn also asked the Applicant, Mr Phillips Snr, Mr Phillips Jnr, Mr Hill and MR AARON MULLER (“Mr Muller”), the leading hand, to make written statements about the event.[10] The Applicant also spoke to Mr Rennick, who told him, “you are carrying on like kids. Chris, you have got to let it go”.[11]
[10] Affidavit of Michael Allen Devlyn filed 23 November 2012, at Annexures “MAD-15”-“MAD-19”.
[11] Affidavit of Brendan Kevin Rennick filed 23 November 2012, p.3 at para.20.
On the following day, 21 March 2012, there was a meeting involving the Applicant, Mr Hill, Mr Rennick, Mr McKay and Mr Devlyn.
Mr Rennick’s notes of the day state:
Both parties were given a chance to have their say and have also been offered counselling for any personal issues they may have. They were both informed that they need to move forward and work as a team also that the way both parties handled and conducted themselves was not acceptable. They were also informed that work place bullying would not be tolerated under any circumstances by TDK.
They were both asked if they thought that this was a fair way forward and A Hill stated “no” and that he could not work with
C Mc Ilroy (sic), and he may resign. J Mc Kay (sic) asked him to reconsider. A Hill left the office.
C Mc Ilroy (sic) was then informed of allegations of him having more than four beers per night to which he said was not true, he was informed of the consequences of this as only four beers per night are permitted. He also said that he had an appointment with a counsellor when he goes on R & R. C Mc Ilroy (sic) left the office.
I spoke with A Hill around 3.30 pm and asked him if he had changed his mind about resigning, he said he was happy to stay on.
At 4 pm M Devlyn and myself had a meeting with A Phillips SNR and A Phillips JNR regarding the above as they had made witness statements. We informed them that we needed to move on from the current situation and they both agreed.[12]
[12] Affidavit of Brendan Kevin Rennick filed 23 November 2012, at Annexure “BKR-1”.
Later that day, Mr Devlyn spoke to the Applicant about the issue of him staring at people. This was a complaint made by both Mr Phillips Snr and Jnr and also something Mr Devlyn had observed.
The Applicant told him that he felt intimidated by the allegation.
Mr Devlyn told the Applicant that he needed to address his behaviour. The Applicant then told him that, “Andy has got away scot-free. I need to take this up with Jim [McKay] again”.[13] Mr Devlyn told him that the issue was resolved.
[13] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.8 at para.70.
The Applicant stated that he was not actually bullied but he was being intimidated. Mr Phillips Snr and Jnr and Mr Hill were going around telling people what had happened; they would stare at him.
The following day, the Applicant and Mr Devlyn had a conversation where the Applicant said either his ex-Wife used to tell him he stared her down (according to Mr Devlyn) or she told him if the children did something wrong, he would give them intimidating looks (according to the Applicant). Mr Devlyn told the Applicant that it was something he needed to address.
The Applicant went on his nine days rostered leave on 25 March 2012 and returned to Barrow Island on 3 April 2012.
The incidents on 8 April 2012
On 8 April 2012, the Applicant claims that Mr Hill was staring at him in the crib room and that he spoke to the leading hand,
Mr DEAN BAKER (“Mr Baker”), who told him to ignore it.
The Applicant’s evidence was that he walked into the work area carrying an armful of drop sheets and a five-litre blue water bottle.
The Applicant put his water bottle - he “may have dropped it”[14] a bit - on the floor as he walked in. The Applicant heard Mr Phillips Snr yell out to someone, “Wanker”.[15] When the Applicant walked out of the room, Mr Phillips Snr was standing there having a drink of water, calling the Applicant a “effing wanker” and threw a cup of water at him.[16] Mr Phillips Snr then said, “You shouldn’t slam your water bottle down. You scared me”.[17]
[14] Transcript of Proceedings, 12 March 2013, p.45 at line 23.
[15] Ibid, p.46 at line 1.
[16] Ibid, p.46 at lines 3-4.
[17] Ibid, p.46 at line 8.
The Applicant said Mr Phillips Snr then started pushing his chest into him and poking him in the chest. The Applicant said, “we can’t fight we will both lose our jobs”.[18] The Applicant then went to find a supervisor.
[18] Ibid, p.46 at lines 12-13.
On 8 April 2012, Mr Quarrell was the Applicant’s direct supervisor.
He was in the supervisor’s office when Mr Phillips Snr came to see him. Mr Phillips Snr appeared to be very angry. He told Mr Quarrell that the Applicant had walked up behind him in the corridor and slammed a water bottle down. Mr Phillips Snr said, “Chris is trying to intimidate me”.[19]
[19] Affidavit of Mark Ian Quarrell filed 23 November 2012, p.3 at para.22.
Mr Quarrell made a radio call to Mr Devlyn, the senior construction supervisor, and told him there was “an issue” and asked Mr Devlyn to meet with him.[20]
[20] Ibid, p.3 at para.27.
When Mr Devlyn received the call, he was with Mr TOM BAMBER (“Mr Bamber”). Mr Devlyn asked Mr Bamber to accompany him to see Mr Quarrell. Mr Quarrell told them, “something has blown up between Chris McIlroy and Tony Phillips”.[21] The three of them then went to the area where the painters were working and spoke to
Mr Phillips Snr who was working there.
[21] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.9 at para.81.
According to notes taken by Mr Devlyn that day:
Tony Phillips advised us the following took place:
· He was standing in the walkway wing 3 having a drink when Chris McIlroy walked up behind him and slammed his water bottle down causing him to jump in fright.
· Tony turned and followed Chris to the paint storage area and asked Chris what is your problem.
· A heated exchange took place.
· Tony claimed Chris had been baiting him all day.
· Chris claimed that Tony would never work on a mine site again.
· He asked if we were going to speak to Chris to get his “pack of lies”.[22]
[22] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-22” at p.126.
After speaking to Mr Phillips Snr, Messrs Quarrell, Devlyn and
Bamber went to the supervisor’s office where they found the Applicant.
The Applicant was then asked for his version of events. According to Mr Devlyn’s notes, the Applicant stated:
· He placed drop sheets in room where Tony was working and put his water bottle down.
· Tony followed him to the paint storage area and starting (sic) abusing him.
· Tony threw a cup of water at him.
· Tony was threatening to hit him but Chris warned him that they would both lose their jobs.
· Several workers (Tony Snr/Jnr & Andy Hill) were in a room talking about him and finding a way to have him removed from site.
· No one talks to him during the day even though he says hello all the time. They usually tell him to fuck off.
· He has done nothing wrong everyone else is to blame.[23]
[23] Ibid.
Mr Devlyn then asked Mr Quarrell to get Mr Hill and Mr Phillips Snr, and he met with them, Mr Quarrell and Mr Bamber. According to
Mr Devlyn’s notes, when all parties were in the office, the following discussion took place:
· Andy and Tony were upset at the constant staring down of people that Chris contently does. Chris claimed that in fact Andy has been staring him down. Andy stated that yes he started that today to see how uncomfortable it would (sic) and that he was sick of Chris doing it.
· Tony demonstrated the difference between putting the water bottle down and slamming it down, Chris denied this.
· Tony and Andy were sick of the bullshit and lies from Chris.
· Andy asked if we wanted him to resign.
· Tony denied throwing water at Chris even though Chris was wet. Tony said sweat from working – he was the same.[24]
[24] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-22” at p.126.
Mr Devlyn considered that, as the parties were all getting heated, they should go outside while the supervisors discussed the matter.
Mr Devlyn asked Mr Quarrell to change the Applicant’s work location.
Mr Devlyn’s notes then go on to state:
Chris then came in and claimed that he was the victim here.
I asked Chris if he had taken anything away from the last conversation we had over him staring and he claimed that he doesn’t stare. I reminded him that after our previous conversation he came to me the following day and told me that his ex wife had told him that he used to stare her down also and thanks for bringing it to my attention. Chris denied this was what he said. (At this point he was getting riled claiming we were calling him a liar). Chris talked about people that witnesses (sic) the confrontation yesterday and when asked to name them he struggled. He eventually came up with Chris Smith and
Brad Nannup.
Mark Quarrell, Tom Bamber and I went to speak to Chris Smith who stated that he was in the location when the heated discussion started by (sic) did not witness anything being thrown.
Brad Nannup advised he was in a room along the wing and didn’t see anything.[25]
[25] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-22” at p.127.
MR CHRIS SMITH (“Mr Smith”) later, after the dismissal of the Applicant, made the following statement:
On the 8th of April (Easter Sunday) in the morning I was in the central corridor up stairs (sic), near the painters (sic) area having a drink & getting some more sandpaper. All of a sudden I hear loud voices comming (sic) & then Chris McKilroy (sic) & Tony Phillips walked into that area and started arguing at each other, they both were very angry and chested up to each other, “Chris McKilroy (sic) said “look at that your (sic) a witness”
I turned away and drank my water. (It was a very akward (sic) moment for me)
Several comments were exchanged like “your (sic) a mad cunt, slamming down that water bottle near me” Tony Phillips said. Chris McKilroy (sic) replyed (sic) “just leave the job, go”
Tony Phillips said “you have a screw loose, your (sic) not right in the head”. Then Chris McKilroy (sic) replyed (sic) “you have been stairing (sic) at me all morning” The verbal exchange went on a bit longer & Chris McKilroy (sic) said “we better stop before this gets physical we will get sacked” It was all over and Chris walked off.[26]
[26] Ibid, at Annexure “MAD-27”.
Mr Devlyn, in his oral evidence, said what Mr Smith had told him was essentially what he had in his statement.[27]
[27] Transcript of Proceedings, 12 March 2013, p.72 at line 30.
Following speaking to Mr Smith and Mr BRAD NANNUP
(“Mr Nannup”), Mr Devlyn and Mr Bamber met with
MR SHANE WISEMAN (“Mr Wiseman”), the construction manager. According to Mr Devlyn’s evidence, they discussed the issue of the ongoing conflict between the Applicant and Mr Phillips Snr.
Mr Devlyn considered the option of transferring the Applicant to a different work crew but dismissed this because they would continue to have contact at work breaks and meals. Mr Devlyn, Mr Bamber and
Mr Wiseman decided to talk to MR DANIEL BOTHA (“Mr Botha”), the project manager.
There was a meeting involving Messrs Devlyn, Wiseman and Botha. Mr Devlyn says he discussed the following with Mr Botha:
(a)the ongoing conflict between Mr Hill, Mr Phillips (Snr) and Mr McIlroy;
(b)the tensions and issues this conflict was causing in the work crew;
(c)Mr McIlroy’s aggressive and intimidating behaviour, including towards Mr Ranford, and the fact that it appeared that these issues would only escalate in the future; and
(d)allegations that had been made against Mr McIlroy regarding his requests for cans of beers from co-workers in excess of the Responsible Consumption of Alcohol Policy.[28]
[28] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.11 at para.107.
Mr Wiseman’s recollection of the meeting with him was that
Mr Devlyn spoke about complaints about the Applicant from
co-workers involving intimidation and about attempts by the Applicant to violate the four beer can policy. Mr Devlyn said there were complaints by the Applicant about harassment and complaints against the Applicant about harassment. Mr Devlyn described the Applicant as behaving in an erratic and unstable manner.
Mr Botha’s recollection of the meeting with Mr Devlyn was that they had discussed on-going conflict between the Applicant and co-workers and the Applicant pressuring workers to give him cans of beer.
They decided to telephone MR TREVOR DOBSON (“Mr Dobson”), the Human Resources Manager, to obtain guidance about whether there were sufficient grounds to terminate the Applicant’s employment.
Mr Devlyn’s evidence was that Mr Dobson considered that, on the basis of the history of the Applicant’s unacceptable behaviour, including his antagonism and aggressive behaviour towards
Messrs Ranford, Hill and Phillips Snr, and considering the allegations that he had been requesting cans of beer in excess of the limit allowed, there were grounds to terminate the Applicant’s employment.
Mr Devlyn details his reasons for terminating the Applicant’s employment at paragraph 116 of his affidavit:
Having regard to the discussions I had with my colleagues described in the above paragraphs and having regard to the reports I had received of Mr McIlroy’s behaviour from his supervisors and co-workers, as well as my own observations of his behaviour, I formed the view that:
(a)Mr McIlroy’s ongoing antagonism towards and conflict with his co-workers, including Mr Phillips (Snr),
Mr Phillips (Jnr), Mr Hill and Mr Ranford, would not be resolved;
(b)Mr McIlroy was behaving in an intimidating and aggressive manner towards a number of his
co-workers on the Project;
(c)there was a possibility that Mr McIlroy’s conflict with some of his co-workers could escalate into violence; and
(d)there had been reports of Mr McIlroy requesting cans of beer, in breach of the Responsible Consumption of Alcohol Policy.[29]
[29] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.12.
Mr Devlyn prepared a letter of termination[30] and called the Applicant to the office. Mr Bamber and Mr Quarrell were also present.
Mr Devlyn told the Applicant that his employment was being terminated for unprofessional conduct and he was to leave
Barrow Island that night. The Applicant stated that it was wrong and he was the victim. The Applicant agreed that he swore at Mr Devlyn and may have looked aggressively towards him.
[30] Ibid, at Annexure “MAD-24”.
Mr Quarrell’s evidence was that he stood close to Mr Devlyn because he was concerned that the Applicant was going to do something to him. The Applicant stormed out of the office.
Mr Quarrell stated that there were frequent complaints about intimidating behaviour by the Applicant from Mr Hill and both
Mr Phillips Snr and Jnr. Mr Quarrell said he had never had to deal with a situation like this before with so much conflict going on in a work crew.
The Issue Resolution Procedure
In his oral evidence, the Applicant stated that he did not mention anything about the Issue Resolution Procedure[31] (“the IRP”) in the Thiess Pty Ltd - CFMEU - Gorgon Project Barrow Island Greenfields Agreement 2010[32] (“the Agreement”) when he spoke to Mr Rennick about Mr Hill. The Applicant described the matters he raised with
Mr Rennick and Mr Devlyn in March 2012 as ‘complaints’. He did not raise anything about the IRP and did not have the IRP in his mind when he spoke to Mr Rennick and Mr Devlyn.
[31] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-2” at p.36.
[32] Ibid, at Annexure “MAD-2”.
The Applicant agreed that he did not know much about the IRP until after he was dismissed by the Respondent. It was a suggestion of his industrial advisor that he include the reference to the IRP in his claim. The Applicant agreed that he never referred to the IRP when he was talking about any of the issues he raised with management.
Mr Devlyn was asked why he did not refer to the IRP on 8 April 2012. His response was that, at the time, he referred to the Thiess disciplinary procedure (“the Thiess procedure”) which is what he tended to use.
Mr Devlyn stated that under the Thiess procedure, he could go straight to dismissal if he felt the issue warranted it. Mr Devlyn could not recall the wording of the policy in relation to summary dismissal but could recall that it spoke about a ‘serious misconduct breach’.
Mr Devlyn said there were two issues on the day:
·First, the Applicant walking up behind Mr Phillip Snr and slamming his water bottle down; and
·
Second, the heated exchange between the Applicant and
Mr Phillips Snr.
Mr Devlyn chose to accept what Mr Hill and Mr Phillips Snr had to say, based on their character. He had never had any issue with them prior to this. There was nothing coming from the supervisors or from the work crew that there was anything they were doing that was causing disruption to the work crew.
The submissions
The Applicant’s submissions
The Applicant referred the Court to passages from the judgments of Lander J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 (“BHP Coal”), the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 (“Barclay”) and Einfeld J in Employment Advocate v National Union of Workers and Another (2000) 98 IR 302 (“Employment Advocate”) on the importance of examining the reasons advanced by a decision-maker in order to be satisfied that the real reason for the termination was not a proscribed reason or, at least, the prescribed reason was not a substantial or operative reason for the termination.
The Applicant contends that the Court must first consider if the reasons given for termination are valid. The next step is, if the reasons are not valid, that is a straw in the wind that the decision was actuated by quite different considerations.
The Applicant referred to the reasons given by Mr Devlyn at paragraph 116 of his affidavit.[33] With respect to Mr Ranford, the Applicant submits that there is no evidence to suggest any incidents that went beyond 2011. The Applicant contends that, when one looks at the evidence which Mr Devlyn purports to rely on in regard to Mr Hill and both Mr Phillips Snr and Jnr, there are suggestions of staring, which was something both parties alleged at some stage, and then the incident with the water bottle on 8 April 2012 itself. That seems to be the extent of the hostility and antagonism which is advanced to justify summary dismissal.
[33] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.12.
There is clearly a difference of views with three people on one side that have a particular hostility towards the Applicant and, on the other side, the Applicant who is really on his own.
The final reason advanced is the report that the Applicant requested cans of beer in breach of the Responsible Consumption of Alcohol Policy. The only people who were making the allegations, at the time, were Mr Phillips Snr and Jnr and Mr Hill. It is not mentioned to
Mr Dobson that the people making the allegations were the same people with whom the Applicant is in conflict. What is alleged is that the Applicant requested beer. Mr Devlyn agreed that that, in itself, was not a breach of the Responsible Consumption of Alcohol Policy.
When asked why he accepted that the allegations were true, Mr Devlyn was unable to explain why.
The Applicant submits that none of the alleged reasons sit comfortably with the ordinary meaning of unprofessional conduct as they do not relate to his performance as a painter.
There is minimal support for Mr Devlyn’s contention that the Applicant was behaving in an “intimidating and aggressive manner” and displaying “ongoing antagonism” towards co-workers.[34]
The Applicant contends that Mr Devlyn could not have been actuated by those particular reasons so it is necessary to ask what he was actuated by.
[34] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.12 at para.116.
Section 341(1)(c) of the Act refers to making a complaint or enquiry. Initially, the complaint was about the fact that Mr Hill was not pulling his weight or that he was disrupting the work which was being carried out. The issue was taken up with Mr Rennick. Mr Rennick does not seem to have taken it up or pursued it. There was then the complaint that the Applicant was being harassed and bullied which led to the meeting with Mr McKay. After that meeting, the Applicant reported to Mr Devlyn that the conduct had continued and he wanted to see
Mr McKay again. At this stage, the only allegation of intimidating and aggressive conduct against the Applicant is that he stares.
On 8 April 2012, Mr Quarrell reports the conflict between
Mr Phillips Snr and the Applicant, and Mr Devlyn goes to see
Mr Phillips Snr and takes a statement from him.[35] There was no statement taken from the Applicant. There was a statement taken from Mr Smith a few days later which indicates that the first abuse came from Mr Phillips Snr.[36] The Applicant’s evidence is that Mr Phillips Snr is the aggressor and he, the Applicant, says “we can’t fight we will both lose our jobs”.[37] It is the Applicant who goes to the office to make a complaint.
[35] Ibid, at Annexure “MAD-23”.
[36] Ibid, at Annexure “MAD-27”.
[37] Transcript of Proceedings, 12 March 2013, p.46 at lines 12-13.
The Applicant submits that, for the purpose of s.340(1)(c) of the Act, there is clear evidence of the Applicant making a complaint.
The Applicant says there should be no reliance on the evidence of
Mr Devlyn because he fails to mention what Mr Smith said about the incident and because his notes were not contemporaneous, but written the next day.
The other aspect is the IRP under the Agreement. The Agreement was part of the contractual terms under which the Applicant was employed. Clause 48 of the Agreement sets out the IRP, including for work to continue during the IRP.[38] By proceeding under the Thiess procedure, Mr Devlyn prevented the Applicant from exercising his workplace right to have the matter dealt with under the IRP of the Agreement.
The Applicant had made a complaint about Mr Phillips Snr’s behaviour. The Applicant had already complained about the harassment and bullying which had occurred.
[38] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-2” at p.36.
The letter of termination refers to summary dismissal (unprofessional conduct).[39] It is only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily.[40] What was the ‘unprofessional conduct’ of the Applicant? The Applicant’s only ‘unprofessional behaviour’ towards Mr Hill and Mr Phillips Snr was to complain about them bullying and harassing him.
[39] Ibid, at Annexure “MAD-24”.
[40] Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 at para.51; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 72-73.
The Applicant submits that the reasons advanced for dismissal are contrived and the strong inference is that the Applicant was dismissed for ‘dobbing in’ co-workers for their misconduct.
The Applicant submits that Mr Devlyn knew that the Applicant had made a complaint. Even if Mr Devlyn was not conscious of the IRP,
he was conscious of the Thiess procedure which had a graduated process and in which there were workplace rights which had to be followed before dismissal could occur. Mr Devlyn clearly knew that, in dismissing the Applicant, he would not be able to pursue those particular processes which, had they been pursued, would have vindicated his position.
With respect to the jurisdiction issue concerning Mr Devlyn as the Second Respondent, the Applicant submits that the dispute which was the subject of the s.369 certificate is clearly the same dispute. The fact that the s.365 application to the FWC did not name Mr Devlyn is not a basis to contend that the Court lacks jurisdiction in relation to him as the Second Respondent.
The Respondent’s submissions
The Respondent submits that this case is concerned with only a narrow issue. The Respondent accepts that, by terminating the Applicant’s employment, it took adverse action against the Applicant within the meaning of Part 3-1 of the Act. For the Applicant to claim the protection of s.340 of the Act, the Court must find that the dismissal was because of one of the proscribed reasons.
The correct approach is that enunciated by the High Court in Barclay. If this was an unfair or wrongful termination proceeding where there was an issue as to what truly warranted summary dismissal, there would be a necessity to analyse what constitutes unprofessional conduct or make findings about the process. In this case, the causal relationship between the adverse action and the proscribed reasons in Part 3-1 of the Act is the critical issue for determination. It follows that the necessary factual findings for the Court are confined to the causal connection between Mr Devlyn’s reasons for terminating the Applicant and the termination itself.
The Respondent accepts that, in this case, s.361 of the Act has work to do and that the onus is on the Respondent. The onus that has to be met is the balance of probabilities. The Respondent further contends that there is no evidence of any nexus between the termination of the Applicant’s employment and any reason or reasons proscribed by s.340 of the Act. The Applicant merely asserts there were alleged prohibited reasons for his dismissal and relies on the dispute resolution clause of the Agreement which he admitted at the hearing was something invented by his industrial advisor some time after the termination.
While the Respondent does not concede that it did so, the high water mark of the Applicant’s case is that there are criticisms which could be made of how the Respondent dealt with the termination.
The Applicant’s criticisms concentrate on how Mr Devlyn reached the conclusion that there had been unprofessional conduct that justified summary dismissal. What the submission amounts to is that there was something else going on.
The Respondent submits that Mr Devlyn gave his evidence in a way which showed he took his job seriously. He took seriously the importance of maintaining order on the unique environment of Barrow Island. Mr Devlyn was confronted by a range of issues concerning hostility and antagonism and ill will between employees in teams he was responsible for. He called it as he saw it on the material before him.
The Respondent submits that the criticisms of Mr Devlyn’s evidence made by the Applicant do not provide a sufficient basis to support some conclusion that he had something to hide. Mr Devlyn stuck consistently to his evidence that the reasons he gave at paragraph 116 of his affidavit,[41] and no other reasons, activated his mind in deciding to terminate the Applicant’s employment. In addition, Mr Devlyn made notes of the meeting on 8 April 2012 and the reasons for the termination.[42]
[41] Affidavit of Michael Allen Devlyn filed 23 November 2012, p.12.
[42] Ibid, at Annexure “MAD-22”.
The procedures and steps taken by Mr Devlyn in dealing with the incidents and allegations that occurred in March and April 2012, and why he choose to believe persons other than the Applicant, are irrelevant to the narrow issue in question: the reason, or reasons, why Mr Devlyn decided to terminate the Applicant’s employment. Equally, is not for the Court to consider whether the termination was harsh, unjust or unreasonable or whether the information on which a decision to take adverse action was flawed.
At the end of the day, Mr Devlyn says his reasons are those captured in paragraph 116 of his affidavit.[43] For the Applicant to have any prospect of success, the Court would have to actively disbelieve Mr Devlyn as to what he says motivated him.
[43] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.12.
In response to the Applicant’s contention that there was minimal evidence of the Applicant’s intimidating and aggressive behaviour, the Respondent points to:
·
Paragraphs 30 to 34, 53, 69 to 72, 92, 103 and 107 of
Mr Devlyn’s affidavit;[44]
·Paragraphs 15 to 17 of Mr Quarrell’s affidavit;[45]
·The oral evidence of Mr Quarrell;[46]
·Paragraphs 14 and 15 of Mr Bamber’s affidavit;[47]
·Mr Bamber’s oral evidence;[48] and
·Paragraph 20 of Mr Rennick’s affidavit.[49]
[44] Ibid, at pp. 4-6 and 8-11.
[45] Affidavit of Mark Ian Quarrell filed 23 November 2012, at pp.2-3.
[46] Transcript of Proceedings, 12 March 2013, at pp.112, 114 and 118-119.
[47] Affidavit of Tom Veale Bamber filed 26 November 2012, at p.3.
[48] Transcript of Proceedings, 12 March 2013, at p.86.
[49] Affidavit of Brendan Kevin Rennick filed 23 November 2012, at p.3.
The Respondent further submits that there is no evidence that the Applicant’s employment was terminated because he had utilised the IRP in the Agreement. The Applicant never mentioned it at the relevant time. The Applicant acknowledged under cross-examination that the IRP was never in his mind at the time, let alone that he was activating it; all the more reason why it could not conceivably have been in the mind of the Respondent at the time.
In relation to the claim against Mr Devlyn as the Second Respondent, the Respondent submits that a necessary pre-condition for the exercise of jurisdiction under Part 3-1 and the ancillary provisions of the Act, where an Applicant has been dismissed, is that a certificate under s.369 of the Act has been issued by Fair Work Australia (“FWA”). The Applicant had sought to name Mr Devlyn as a party to the proceedings without him being named as a party to the dispute commenced by the Applicant in FWA. Mr Devlyn is not referred to in the certificate issued under s.369 of the Act. An essential jurisdictional prerequisite to the exercise of judicial power against Mr Devlyn is therefore absent.
Conclusions
The Applicant contends that the Respondent took adverse action against him both because he had exercised a workplace right to make a complaint in relation to his employment and to prevent him exercising a workplace right to access the dispute resolution procedures of the relevant Agreement.
Section 340(1) of the Act provides:
(1)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.
Section 341(1) of the Act defines a workplace right as:
(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 360 of the Act provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 of the Act provides:
(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.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
It is for the Applicant to establish that he had suffered adverse action and that he had a ‘workplace right’. It is for the Respondent to establish that the reasons for the adverse action did not include a reason prohibited by s.340(1) of the Act.
In this case, it is not disputed that the Applicant suffered adverse action, namely the termination of his employment. Further, it does not appear to be disputed that the Applicant had a right to complain about the actions of other employees which were either impacting on his ability to work or amounted to harassment or intimidation.
There is no dispute that the Applicant’s employment was subject to the terms of the Agreement. There is a dispute about whether the Applicant ever sought to exercise any right provided by that Agreement.
The Respondent contends that the reasons for the termination do not include a reason which would attract the provisions of s.340 of the Act.
It is now well established that the question why a decision-maker took adverse action is one of fact to be determined in light of all the facts established in the proceedings. Direct evidence from the
decision-maker, which is accepted as reliable, is capable of discharging the burden. However, direct evidence of the decision-maker, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence.[50]
[50] See Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445.
The decision-maker in this case was Mr Devlyn. He provided two affidavits and gave oral evidence. Mr Devlyn was unshaken in his evidence that the reason for the termination of the Applicant’s employment was contained in paragraph 116 of his affidavit.[51]
That evidence was supported by a file note of the events of
8 April 2012[52] which Mr Devlyn made either on the same day or the day following. I found Mr Devlyn to be a forthright witness.
[51] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.12.
[52] Ibid, at Annexure “MAD-22”.
It is not for this Court, in proceedings under Part 3-1 of the Act,
to determine if the reasons given by Mr Devlyn were valid reasons.
If there was, however, no evidence to support those reasons, it might give rise to an inference that the reasons given were not the real reasons for the dismissal.
In this case, Mr Devlyn chose to accept the evidence of others over that of the Applicant. He gave as his reason for this the character of the employees concerned. Mr Devlyn had never had any issues with
Mr Hill or Mr Phillips Snr and Jnr prior to these events. Further, there was nothing coming from the supervisors, or from the work crew, that there was anything they were doing that was causing disruption to the work crew.
With respect to the Applicant, it was Mr Devlyn’s evidence that he had witnessed him ‘staring’ at other employees and had spoken to him about that behaviour. Mr Quarrell’s evidence was that he had had multiple complaints from Mr Ranford about the Applicant ‘staring him out’ and showing intimidating behaviour. Mr Quarrell further stated that he had had frequent complaints about intimidating behaviour by the Applicant from Mr Hill and both Mr Phillips Snr and Jnr. He said he had never had to deal with a situation like this before with so much conflict going on in a work crew.
There was clearly some basis on which Mr Devlyn could conclude that the Applicant was involved in:
·
Ongoing antagonism toward and conflict with both
Mr Phillips Snr and Jnr and Mr Hill, if not Mr Ranford, although the statements of Mr Hill of 20 March 2013 suggest that the Applicant’s antagonism towards Mr Ranford was continuing;[53] and
·
Showing an intimidating and aggressive manner towards
co-workers.
[53] Affidavit of Michael Allen Devlyn filed 23 November 2012, at Annexure “MAD-19”.
There was evidence from the Applicant himself that the conflict with co-workers could escalate into violence. The Applicant said he told
Mr Phillips Snr on 8 April 2012 that, “we can’t fight we will both lose our jobs”.[54] Mr Smith recalled him saying “We better stop before this gets physical. We will get sacked”.[55]
[54] Transcript of Proceedings, 12 March 2013, p.46 at lines 12-13.
[55] Affidavit of Michael Allen Devlyn filed 23 November 2012, at Annexure “MAD-27”.
While Mr Devlyn was unable to say why he had believed the reports that the Applicant had been requesting cans of beer from other employees, the medical report from DR MOAYAD AL KAPSTAN, provided when the Applicant required clearance to return to work in February 2012, stated, “Chris indicated he is trying to cut down on alcohol which he needed to fall asleep in October last year”[56] although the Applicant disputed this in his oral evidence.
Could a reason for the termination have been a reason prohibited by s.340(1) of the Act?
[56] Affidavit of Christopher McIlroy filed 24 October 2012, Annexure “CM-4” at p.58.
There is no doubt that the Applicant made a complaint about being bullied and harassed by both Mr Phillips Snr and Jnr and Mr Hill in March 2012. As a result of that complaint, a meeting was held involving all of the protagonists, plus Messrs Devlyn, Rennick and McKay. Mr Rennick’s recollections of that meeting are recorded at Annexure “BKR-1” of his affidavit.[57] Mr Devlyn’s evidence of the meeting is at paragraph 64 of his affidavit.[58] Mr Devlyn later spoke to both Mr Phillips Snr and Jnr and the Applicant after the meeting.
He told the Applicant, “The issue is resolved”.[59]
[57] Affidavit of Brendan Kevin Rennick filed 23 November 2012.
[58] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.8.
[59] Transcript of Proceedings, 12 March 2013, p.30 at line 32.
The Applicant made a complaint and it was dealt with. So far as
Mr Devlyn was concerned, the matter was over. There is, in my view, no causal link between the complaint made by the Applicant in
March 2012 and the reasons for the dismissal.
The Applicant also relies on a claim that a reason for the dismissal was to prevent him from exercising a workplace right to have the matter raised on 8 April 2012 addressed via the IRP of the Agreement.
There are two problems with that contention:
·
First, neither the Applicant nor Mr Devlyn gave evidence that the provisions of the Agreement were in their minds at the time.
The Applicant’s evidence was that he did not refer to it and
Mr Devlyn’s evidence was that he was following the Thiess procedure; and
·Second, cl.48.1 of the IRP states:
The resolution of any dispute about any matter arising under this Agreement and in relation to the National Employment Standards (including subsections 65(5) and 76(4) of the Fair Work Act 2009 or any other work related matter, but excepting issues concerning the termination of employment or safety concerns) shall be in accordance with the Issue Resolution Procedure.[60]
[60] Affidavit of Michael Allen Devlyn filed 23 November 2012, Annexure “MAD-2” at p.36.
Clause 48 of the Agreement does not apply to matters concerning termination of employment. Once Mr Devlyn had formed the view that transferring the Applicant was not an option, the issue became one of whether there were sufficient grounds to terminate his employment: cl.48 of the Agreement did not apply.
Barrow Island is a confined workplace where a large workforce, mostly male, spends 26 days at a stretch not only working together but eating and socialising with each other. In those circumstances, personal antagonisms can easily explode. Mr Devlyn had to make a decision in circumstances where he described the Applicant to Mr Wiseman as acting in an erratic and unstable manner.
I accept that the reasons for the termination Mr Devlyn gave in paragraph 116 of his affidavit[61] were the reasons for his decision to terminate the Applicant’s employment.
[61] Affidavit of Michael Allen Devlyn filed 23 November 2012, at p.12.
The First Respondent has therefore discharged the onus under s.361 of the Act.
In those circumstances, I do not need to determine if there was jurisdiction to include Mr Devlyn as a Second Respondent to the proceedings.
My own view is that, in making an application to the Court under s.371 of the Act, an applicant is confined to the parties named on the s.369 certificate in naming the respondents to the proceedings. Once the Court is seized of the matter, however, the Court may grant leave in accordance with the Federal Circuit Court Rules 2001 (Cth), to join other parties to the proceedings, particularly where it is alleged that s.550 of the Act has application in the matter.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 28 November 2013
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