FEDERAL COURT OF AUSTRALIA
Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19
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Details
- Case
- [2016] FCA 19
- Decision Date
CaseChat Overview and Summary
In the matter of Milardovic v Vemco Services Pty Ltd (Administrators Appointed), the applicant, Milardovic, sought relief from the Fair Work Commission for what he claimed to be adverse action by Vemco Services, through its representatives, in response to his exercise of workplace rights. Specifically, Milardovic alleged that he was excluded from meetings and training, denied revised Key Performance Indicators and additional training, ultimately terminated from employment, and not paid termination or redundancy payments. He further contended that these actions were in response to his complaints about workplace bullying and his pursuit of a WorkCover claim for stress-related illness stemming from the alleged bullying.
The legal issues before the court involved determining whether Milardovic's termination and subsequent non-payment of entitlements constituted adverse action as defined under section 340 of the Fair Work Act. Additionally, the court needed to decide whether Vemco Services, and by extension its representatives, breached the National Employment Standards by failing to provide adequate notice of termination and by not paying redundancy or termination pay. The court had to consider the relevance and admissibility of evidence, particularly in relation to the bid manager, Mr Otimi, and address the procedural fairness of the evidence exchange process.
In its decision, the court found that Milardovic's termination and non-payment of entitlements did indeed constitute adverse action under the Fair Work Act. It further concluded that Vemco Services had breached the National Employment Standards by not providing adequate notice of termination and by not paying the required termination and redundancy pay. The court meticulously examined the evidence, including the objections to certain testimonies, and resolved that the evidence presented was sufficient to support the claims. The court also addressed the procedural concerns regarding the evidence and determined that despite the procedural shortcomings, the evidence was admissible and relevant to the case. Consequently, the court ruled in favour of Milardovic on his claims for adverse action and breach of the National Employment Standards.
The court ordered that Vemco Services pay Milardovic the outstanding redundancy pay, interest on that amount, and directed the parties to file submissions regarding penalty and costs. The proceeding against the second respondent was dismissed. The court's detailed findings and orders provided clarity and resolution to the employment dispute, ensuring that Milardovic received the compensation and recognition he sought for the adverse action taken against him.
The legal issues before the court involved determining whether Milardovic's termination and subsequent non-payment of entitlements constituted adverse action as defined under section 340 of the Fair Work Act. Additionally, the court needed to decide whether Vemco Services, and by extension its representatives, breached the National Employment Standards by failing to provide adequate notice of termination and by not paying redundancy or termination pay. The court had to consider the relevance and admissibility of evidence, particularly in relation to the bid manager, Mr Otimi, and address the procedural fairness of the evidence exchange process.
In its decision, the court found that Milardovic's termination and non-payment of entitlements did indeed constitute adverse action under the Fair Work Act. It further concluded that Vemco Services had breached the National Employment Standards by not providing adequate notice of termination and by not paying the required termination and redundancy pay. The court meticulously examined the evidence, including the objections to certain testimonies, and resolved that the evidence presented was sufficient to support the claims. The court also addressed the procedural concerns regarding the evidence and determined that despite the procedural shortcomings, the evidence was admissible and relevant to the case. Consequently, the court ruled in favour of Milardovic on his claims for adverse action and breach of the National Employment Standards.
The court ordered that Vemco Services pay Milardovic the outstanding redundancy pay, interest on that amount, and directed the parties to file submissions regarding penalty and costs. The proceeding against the second respondent was dismissed. The court's detailed findings and orders provided clarity and resolution to the employment dispute, ensuring that Milardovic received the compensation and recognition he sought for the adverse action taken against him.
Orders
Orders of the court
THE COURT ORDERS THAT:
2. On or before 4.00pm on 12 February 2016, the applicant and the first respondent are to file an agreed proposed order as to the redundancy pay to which the applicant is entitled under s 119(1) of the Fair Work Act 2009 (Cth).
3. Pursuant to s 547 of the Act, the first respondent pay the applicant interest on the amount payable to him under s 119(1) from 11 November 2014 until the date of judgment at a rate and in an amount to be fixed by the Court if not agreed between the parties by 12 February 2016.
4. The proceeding against the second respondent is dismissed.
5. The first respondent file and serve any submissions as to penalty and costs, limited to five pages, by 4.00pm on 12 February 2016.
6. The applicant file and serve any submissions as to penalty and costs, limited to five pages, by 4.00pm on 19 February 2016.
Background
Background to the litigation
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Evidence
Evidence Before The Court
There was no need to resolve the objection to the evidence of Mr Filip, who was not ultimately called to give evidence. The resolution of the objection to Mr Otimi’s evidence is set out below. EVIDENCE BEFORE THE COURT The applicant gave evidence himself, and adduced oral evidence from Dr Wood, who had also completed a report about the applicant’s mental health. Both were cross-examined. The applicant had foreshadowed an intention to call, pursuant to a subpoena, Mr Andrew Otimi, and Mr Otimi duly attended court to give evidence on the first day of trial. Leave had been granted to issue the subpoena to Mr Otimi on the basis he was offered and accepted the role of bid manager while the applicant was unable to perform his duties in that role. Objection was taken to his evidence on the grounds of fairness (in circumstances where the Court’s orders had provided for outlines of evidence to be exchanged, and no such outline of anticipated evidence had been provided in respect of Mr Otimi) and of relevance. I indicated to the parties that I was not positively satisfied Mr Otimi’s evidence was irrelevant, and was not disposed to exclude his evidence on that ground. However, I was concerned by the lack of notice to the respondents and proposed to address that by permitting the applicant to call Mr Otimi to give his evidence-in-chief, and then allowing the respondents to indicate, at the conclusion of his evidence-in-chief, when they anticipated being ready to cross-examine Mr Otimi, for example on the next day. As it turned out, in the face of those conditions the applicant no longer sought to call Mr Otimi and applied to have the subpoena set aside. That is what occurred. The respondents adduced evidence from Mr Barry himself, and from Ms Michelle Finnigan who was the human resources manager at Vemco at the relevant time. The parties also relied on some documentary evidence. Aside from the contractual documentation relating to Mr Milardovic’s employment and correspondence between the parties during and after the period Mr Milardovic’s position was restructured and divided into two, this event being the catalyst for some of the events of which Mr Milardovic complains in this proceeding, Mr Milardovic also tendered several documents concerning professional events and the bid processes on some of the jobs about which he made complaints in terms of how he was treated by the respondents. Some diary extracts from the diaries of Mr Milardovic and Ms Finnigan were also tendered. I refer to the evidence as necessary in the findings I make below.THE APPLICANT’S CLAIMSThe Fair Work Act claims The applicant contended that the first respondent engaged in adverse action against him contrary to s 340 of the Fair Work Act because he exercised his workplace rights to complain about workplace bullying by the second respondent, and because he made and pursued a WorkCover claim for a stress-related illness resulting from that workplace bullying. He contended the second respondent was involved in those contraventions, and should be deemed to have contravened s 340, pursuant to s 550 of the Fair Work Act. The adverse action is said to be constituted by four acts:(1)excluding the applicant from meetings, training and support;(2)failing to provide revised KPIs and additional training after the performance review meeting of 12 March 2014;(3)terminating the applicant’s employment;(4)failure to pay redundancy or termination notice payments.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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