Morrison v ISS Australia
[2019] FCCA 1183
•10 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRISON v ISS AUSTRALIA | [2019] FCCA 1183 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – whether contravention of a general protection under Fair Work Act 2009 (Cth). |
| Legislation: Occupational Health and Safety Act 1994 (WA), ss.4, 42, 43 |
| Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 C Sappideen, et al, Macken’s Law of Employment (8th Edn) (Pyrmont: Law Book Co, 2016) | ||
| Applicant: | DAMIEN ANDREW MORRISON | |
| Respondent: | ISS AUSTRALIA T/A ISS FACILITY SERVICES PTY LTD |
| File Number: | PEG 38 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 2, 3 and 5 February 2015 |
| Date of Last Submission: | 5 February 2015 |
| Delivered at: | Perth |
| Delivered on: | 10 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G MacLean |
| Solicitors for the Applicant: | MacLean Legal |
| Counsel for the Respondent: | Mr J Moore (Respondent’s in-house lawyer) |
ORDERS
The applicant is to file and serve any application to extend time under s.370(a)(ii) of the FW Act, together with any affidavits, and an outline of submissions, by 24 May 2019.
The respondent is to file and serve any affidavits in opposition to the application for an extension of time, and an outline of submissions, by 7 June 2019.
Any application for an extension of time be listed for hearing at 2.00pm on 12 June 2019, and the proceedings are otherwise adjourned to that time and date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 38 of 2014
| DAMIEN ANDREW MORRISON |
Applicant
And
| ISS AUSTRALIA T/A ISS FACILITY SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed in this Court (“Application”), the applicant, Damien Andrew Morrison (“Mr Morrison”), alleges that the respondent, ISS Australia T/A ISS Facility Services Pty Ltd (“ISS”), took adverse action against him in contravention of a general protection, and thereby breached the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Morrison seeks final orders for compensation for loss of income, damages for hurt, distress and humiliation, and finally declarations made and pecuniary penalties imposed for the alleged contraventions of the FW Act.
Factual background
The following background facts were not in dispute:
a)Mr Morrison began his employment with ISS on 27 August 2013 as a plumber on various locations connected with, and including, the Roy Hill Mine Site Project located in the Pilbara area of Western Australia: Statement of Claim (“SOC”) at [2];
b)in September 2013, Mr Morrison made complaints to ISS concerning the conduct of an employee of ISS named Nick St George (“Mr St George”). The first complaint comprised an email dated 20 September 2013 (“First Complaint”) from Mr Morrison addressed to the Area Manager for ISS, Clinton White (“Mr White”): SOC at [3];
c)on 29 September 2013 Mr Morrison sent another complaint by email (“Second Complaint”) to the District Inspector of Mines Safety and Resources Safety from the Department of Mines and Petroleum (“DMP”), Jim Boucaut, in relation to workplace concerns arising out of the conduct of Mr St George. These concerns were said to have had a potential impact on safety conditions at the workplace: SOC at [4];
d)the concerns set out in the Second Complaint are said to be matters about which Mr Morrison had previously spoken to the DMP, and are alleged to be the behaviour of Mr St George including:
i)manic erratic behaviour;
ii)dangerous work practices;
iii)imbibing of illegal synthetic quasi-drug material at the workplace; and
iv)abuse and erratic behaviour, including throwing tantrums and tools, in the workplace during work time;
(SOC at [7(a)-(d)]); and
e)on 16 October 2013, Mr Morrison’s employment was terminated by ISS: SOC at [6].
Following the termination of his employment Mr Morrison then made an application to the Fair Work Commission (“FWC”) alleging he was dismissed by ISS in contravention of Pt.3-1 of the FW Act. Following an unsuccessful conciliation conference, the FWC issued a certificate pursuant to s.365 of the FW Act on 28 January 2014 (“FWC Certificate”).
The proceedings
Extension of time
The Application was filed on 12 February 2014. The date the Application was signed by Mr Morrison’s lawyer is 11 February 2014. Section 370 of the FW Act requires an Application to be made within 14 days after the day the FWC Certificate was issued. Following what was said as to the meaning of the phrase “within 14 days after” in Moon v JLG Industries (Australia) [2011] FMCA 343; (2011) 210 IR 72; (2011) 249 FLR 348 at [26] per Lucev FM, the Application was, therefore, to be made by 11 February 2014. The Application was filed one day late, and without an order pursuant to s.370(a)(ii) of the FW Act, the Application is incompetent.
No party acknowledged or addressed this issue in the course of the proceedings or at the hearing. It was only late in the preparation of these Reasons for Judgment that the Court identified the issue, therefore the Court has not been addressed on the issue by either party. This is unfortunate, given that the matter has been substantively heard over three days and the parties have adduced extensive evidence.
Section 370(a)(ii) of the FW Act provides that a general protections application which is not made within 14 days after the day the FWC Certificate is issued may be made “within such period as the court allows on an application made during or after those 14 days”.
As will be obvious, there is no such application in these proceedings, and given the use of the words “must not” is s.370 of the FW Act it will be necessary for an application to extend time to be made, as otherwise the Application cannot be dealt with. That is because the words “must not” impose a personal prohibition on a person making a general protections application out of time, unless they have made an application to bring the general protections application outside of the 14 day time limit, and the Court has allowed that application: FW Act, s.370(a)(ii). As to the meaning of the words “must not make” see Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563 at [22]-[43] per Lucev FM (and cases there cited).
In the circumstances, there will be an order that Mr Morrison file and serve any application to extend time under s.370(a)(ii) of the FW Act, supported by any necessary affidavits, and accompanied by an outline of submissions, by 24 May 2019, and that ISS file and serve any affidavits in opposition to the application for an extension of time, and an outline of submissions by 7 June 2019, and that the application for an extension of time be listed for hearing at 2.00pm on 12 June 2019, and the proceedings are otherwise adjourned to that time and date. In all the circumstances, the Court considers it appropriate to deal with the substance of the Application on a strictly provisional basis, that is, subject to the outcome of any extension of time application.
Adverse action claimed
Mr Morrison seeks a declaration that ISS breached s.340(1)(a)(ii) of the FW Act. Section 340(1)(a)(ii) of the FW Act provides that:
A person must not take adverse action against another person:
(a) because the other person:
…
(ii) has, or has not, exercised a workplace right; …
The Application alleges that the termination of Mr Morrison by ISS was adverse action taken against him under s.340(1)(a)(ii) of the FW Act. Mr Morrison alleges his termination was “because of” his exercise of workplace rights, namely:
a)a right to initiate or participate in a process or proceeding: FW Act, s.341(1)(b);
b)the right to make a complaint or inquiry to Worksafe or the DMP in relation to workplace laws: FW Act, s.341(1)(c)(i); and
c)the right to make a complaint or inquiry in relation to his employment: FW Act, s.341(1)(c)(ii).
ISS opposes the Application and says that Mr Morrison was not dismissed in contravention of a general protection under the FW Act, and was dismissed during his probationary period due to poor, or unsatisfactory, work performance and conduct.
Hearing
At hearing Mr Morrison tendered, and the deponents were cross-examined on, the following affidavits:
a)the affidavit of Damien Andrew Morrison sworn 8 October 2014 (“Morrison Affidavit”); and
b)the affidavit of Brian Bintley (“Mr Bintley”) sworn 9 January 2015 (“Bintley Affidavit”).
At hearing ISS relied upon, and the deponents were cross-examined on, the following affidavits:
a)the affidavit of Martin Forde (“Mr Forde”) affirmed 2 February 2015 (“Forde Affidavit”);
b)the affidavit of Clinton White affirmed 19 January 2015 (“White Affidavit”);
c)the affidavit of Adam Motbey (“Mr Motbey”) affirmed 16 January 2015 (“Motbey Affidavit”);
d)the affidavit of Matthew Toohey (“Mr Toohey”) affirmed 20 January 2015 (“Toohey Affidavit”); and
e)the affidavit of Nerida Robertson (“Ms Robertson”) affirmed 15 January 2015 (“Robertson Affidavit”).
Delay
The Court is mindful, and regrets, the delay in the provision of these reasons for judgment. The essential reason for that is the case load in the Western Australian Registry of this Court over several years, which, as recently as November 2017, has been described by the Federal Court as “extreme”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J. In preparing these reasons for judgment the Court has carefully considered all of the affidavit evidence and the written submissions filed by the parties. It has read and considered all of the 198 pages of transcript from the hearing (“Transcript”), and in particular has closely reviewed, and re-read various parts of, the oral evidence of the witnesses.
Relevant principles
In the context of adverse action proceedings it is for the applicant to assert and establish:
a)exercise of the workplace rights pleaded in the statement of claim;
b)that the conduct complained about in fact occurred; and
c)that that conduct constitutes adverse action under s.342(1) of the FW Act.
It was conceded by ISS that in terminating Mr Morrison, ISS had taken adverse action under s.342(1)(a) of the FW Act.
If Mr Morrison satisfies the Court that what he has pleaded in the SOC is a workplace right, and proves the conduct and exercise of that right in fact occurred, it is for ISS to prove, on the balance of probabilities, that the conduct was not for a prohibited reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”).
In Barclay the various members of the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)it is a question of fact as to why a decision-maker took adverse action and the state of mind, intent or purpose of the decision-maker will bear upon that question: Barclay at [41] and [44] per French CJ and Crennan J;
c)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
d)it is the reasons of the decision-maker at the time the adverse action was taken which is the focus of the inquiry, and when assessing whether the evidence led will discharge the onus upon the employer under s.361(1) of the FW Act, the reliability and weight of this evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case: Barclay at [127] per Gummow and Hayne JJ;
e)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
f)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 (“Russell”) at [60] per Foster J. In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”: see also, FW Act, s.360; Barclay at [104] per Gummow and Hayne JJ.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605, ALR at 617 per Mason J.
Submissions
Mr Morrison’s submissions
Mr Morrison’s submissions filed on 28 January 2015 are as follows:
a)Mr Morrison made the complaints to both ISS and the DMP in relation to several aspects of the conduct of Mr St George (and in this respect “complaints” refers to both the First Complaint, the Second Complaint and a further complaint made by Mr Morrison on 1 October 2013 which, if not the same as, was similar to, the subject matter of the First and Second Complaints (“Complaints”));
b)Mr Morrison had the right to initiate or participate in any investigation or prosecution by WorkSafe or the DMP and also to make complaints to or inquiries of ISS or the DMP;
c)the fact that Mr Morrison’s termination quickly followed his making the Complaints suggests that the two events were more than coincidentally connected;
d)Mr Morrison’s period of probation did not expire until 27 November 2013 and there was no official warning or counselling that his employment was in jeopardy, and this is not consistent with the view that he was let go on the basis that this period was due to expire, nor that ISS had given up on the utility of Mr Morrison’s employment independent of his making the Complaints;
e)the chronology and sequence of events infers that the making of the Complaints was causally connected to Mr Morrison’s termination;
f)ISS did not raise one instance of poor performance or conduct against Mr Morrison prior to his being terminated, and given the absence of any counselling or attempts to deal with this alleged poor performance, the more likely explanation is that the alleged poor performance did not in fact exist and in any event played no part in the decision to terminate;
g)the evidence does not identify how ISS dealt with a complaint alleging bullying and harassment by Mr Morrison of other employees, and ISS has not led any evidence on the subject, not having called the bullying complainant as a witness, nor Mr St George, and therefore any suggestion that this alleged bullying complaint against Mr Morrison provided a basis for the termination is difficult to sustain; and
h)it is not necessary for Mr Morrison to establish that the exercise of workplace rights were the only, or even the substantive, reasons for the termination occurring, but rather that they were one of the operative reasons for the decision to terminate.
At hearing Mr Morrison submitted (Transcript, pages 186-198) that:
a)the Complaints first manifested in an email on 20 September 2013 to Mr White and was further developed by way of the incident on 1 October 2013 and in the acknowledgment of WorkSafe contacting ISS on 2 October 2013;
b)ISS admitted in the response that Mr Morrison’s Complaint in the email and to the DMP were Complaints relevant to Mr Morrison’s employment: SOC at [57], Response at [28];
c)having the opportunity to view the witnesses as they gave their various accounts of the matters leading up to and involving the decision to terminate Mr Morrison’s employment, the evidence can be described as somewhat contradictory and incomplete;
d)nobody specifically claimed authorship of the decision to terminate Mr Morrison, and this gives rise to a difficulty for ISS in displacing the reverse onus under s.361 of the FW Act;
e)the evidence of Mr Toohey, one of the decision-makers concerning a critical event, being the discussion on 11 October 2013 resolving to dismiss Mr Morrison, lacked specific detail;
f)the probationary review document measuring Mr Morrison’s performance (authored presumably by Mr Forde), did not align with what Mr White had to say about the performance of Mr Morrison as a plumber;
g)the lack of record taking during the process is consistent with the view that ISS has got something to hide;
h)there is an underlying consistency in the theme that ISS did not look and did not want to see what was obvious: that Mr St George was smoking synthetic cannabis as he told Mr Morrison he was doing; and
i)it was not just the fact that Mr Morrison complained, but rather perhaps that fact in conjunction with the more significant intervention of WorkSafe, which was the reason for the termination.
ISS’s submissions
ISS’s submissions filed on 30 January 2015 are as follows:
a)Mr Morrison’s actions in advising Mr Forde and Mr Toohey of an allegation that Mr St George was smoking synthetic cannabis does not constitute a complaint in relation to his employment for the purposes of s.341(1)(c)(ii) of the FW Act;
b)to the extent Mr Morrison alleges that WorkSafe is a body with capacity under a workplace law, the Occupational Health and Safety Act 1994 (WA) (“OHS Act”), it is not, as mines are excluded by virtue of s.4(2) of the OHS Act and WorkSafe therefore does not have the capacity to enforce that law;
c)WorkSafe contacting ISS does not constitute a complaint by Mr Morrison for the purposes of s.341(1)(c)(i) of the FW Act;
d)in the event that the Court determines that Mr Morrison had a workplace right and that ISS has taken adverse action, the adverse action was not taken because of the workplace right;
e)the workplace right does not have to be completely disassociated from the adverse action, but it must be an operative factor in the decision and the workplace right need not be the sole or dominant reason but must be a substantial and operative reason; and
f)Mr Morrison’s complaint to the DMP was not a substantial and operative reason for his termination, rather it was his behaviour and low standard of work, further it is not unusual for ISS to terminate an employee prior to the conclusion of their three month probation period, particularly where behavioural issues pose a risk to the health, safety and wellbeing of other staff at site.
At hearing ISS submitted (Transcript, pages 184-186) that:
a)ISS terminated Mr Morrison as a result of his conduct and behaviour on site which consisted of his aggressive and intimidating conversation with Mr St George’s partner, his ongoing discussions with others on site regarding his allegations with respect to Mr St George using synthetic cannabis, and that based on the results of the drug tests undertaken by Mr St George the allegations were not true and unfounded; and
b)it is accepted that there were a number of procedural failings in the processes in terms of lack of investigation undertaken, but they do not affect the fact that the reason that Mr Morrison was terminated was not the actual making of the complaint be it directly to ISS or to Mr Forde and Mr Toohey.
Evidence
The Court made a number of evidentiary rulings at the hearing striking out certain paragraphs of certain affidavits. It follows that the Court has not had regard to those paragraphs which have been struck out.
The Complaints
The relevant portions of the First Complaint are as follows:
as mentioned previously my concern for safety is esculating on rail camp 1,
i believe nicholas st george is not a competant plumber requiring atleast 6 to 12 monthes supervision by an experienced plumber before he is able to satisfy all mining camp duties especially major works repairs of which he has spent days upon days wasting your companys time and money or roy hills whilst risking the safety of others as i will detail with some examples, he has made it common knowledge that he has manic bi polar which he has proven on multiple occassions on site which you are aware about with uncontrollable outbursts at the flick of a switch , on going intravenious drug rehabilitation issues with a doctor and the use of synthetic dope which he has smoked in front of your staff after hours and out the back durring work hours in front of myself and 1 other person which should be totally unacceptable.
he feels that his father being the general manager of the company gives him the right to break the rules at the expense of all the workers safety, and being a high level commercial risk is acceptable as the pre work medical statement stated as he claimed.
i have treated nicholas unbiasedly and believe he is not suitable in his condition to be working on a mining camp and im sure other partys like work safe will agree and ive even had pressure from other staff to issue these concerns in writing today…
i believe you must accept the facts and realise that nickolaus st george is not fit nor capable of working on roy hill mining camps in his present state of mind especially as he is not even competant as a plumber and put the other peoples safety first.
(Morrison Affidavit, Annexure DAM1, transcribed without alteration).
The Second Complaint relevantly reads as follows:
we have many serious issues with a worker however his dad is the general manager (dale st george) and the camp managers and the area managers are turning a blind eye to the problems and complaints of his son nick st george which are very serious and totally unacceptable.
nick st george is only 23 years young and has shared his personal issues with us and has been treated by myself unbiasedly.
firstly he is on camp with his girlfriend and smoke synthetic dope on site all day and night including whilst working and have been witnesed by most off the iss staff.
he has mental illness called manic bipolar and has thrown many tantrums and rages at the flick of a switch and has been witnessed by the camp managers and staff including throwing tools and calling myself and other staff to f$%” off and they are all d&”% heads on many different situations i have seen and to an electrician out of the camp on a repair job, he is even worse when he doesn’t take his medecine daily he claims to to not fully be treated for his amphetamine addiction and other phsychological problems, he has stated that iss would not employ him because of this and he was classed as a commercial high risk however his dad keeps bending the rules for him compromising the safety of all the other workers.
…
a few nights ago on thursday the 26th of september 2013 he was sent to roy hill rail camp3 to work there at approx 11 pm he called his father crying, his father called the area manager matthew toohey who instructed him to either send his girlfriend to him immediately or drive him back to rail camp3 as he is not mentally stable enough to handle his own company, matthew toohey &martin forde and mine camp manager damien mackney seeked advice from my friend an electrician called anish abraham who firstly said they had just spent 6 hours driving today and dropping off nicholaus st george on the way and that they would be at serious risk of fatigue driving him back that night and by chance had his phone.number. mr abrahan spent around 2 hours on the phone with nick st george until l pm who he had to talk him out of cutting his wrists with a raiser blade and killing him self.
on friday the 27th of september he was driven back to rail camp 1 to be with his girlfriend of which the assistant manager just flew in to site and was not made aware of his condition or of the situation of last night…
(Morrison Affidavit, Annexure DAM3, transcribed without alteration).
The substance of the First and Second Complaints were, critically, conveyed to at least one senior manager of ISS, Mr Toohey, on 1 October 2013, following which Mr St George was removed from site on 2 October 2013. It appears Mr Morrison also emailed a Henrik Tived, a HSE Coordinator with ISS, on 3 October 2013 concerning his issue with Mr St George, and had a sit down discussion with him concerning Mr St George: Morrison Affidavit, Annexure DAM2; Transcript, page 21.
Evidence of Mr Morrison
The following paragraphs of the Morrison Affidavit were struck out:
a)paragraphs [11], [12], [48], [96] and [99] in their entirety and the first sentence of [98] on the basis they were vague, non-specific and hearsay; and
b)paragraph [60] on the basis of it being opinion and conclusion.
In the Morrison Affidavit, Mr Morrison deposed to a number of incidents and issues concerning the behaviours and conduct of Mr St George that he states arose in the course of his employment: Morrison Affidavit at [22]-[47]. Mr Morrison stated he was never given any warnings or had any reason to believe his employment was at risk prior to raising the concerns: Morrison Affidavit at [49]-[50]. Mr Morrison denied ever having bullied Mr St George or having complained to WorkSafe, and that the Complaints he made were to Mr White at ISS and to the DMP: Morrison Affidavit at [51], [53] and [85].
Mr Morrison went into some detail concerning the meeting with Ms Robertson that took place on 16 October 2013 (“Termination Meeting”). He stated that he was handed a letter during the Termination Meeting saying his employment had been terminated (“Termination Letter”) and that Ms Robertson had referred to Mr Morrison having “caused a lot of trouble”: Morrison Affidavit at [62]-[81].
The Court accepts that Mr Morrison was deeply upset by his termination. It accepts that he raised concerns and that he felt the First Complaint was not addressed as it should have been and he then made the Second Complaint.
Mr Morrison was cross-examined, albeit briefly (Transcript, pages 19-24), but did exhibit a tendency not to listen to, or seemingly absorb, what was being said or told to him. Mr Morrison had a tendency to not deal with the issue about which he was being asked, or to add to what he was being asked, and thereby take the matter off track. Ultimately, however, there was very little of relevance which emerged from a relatively ineffectual, and often irrelevant, cross-examination.
Evidence of Mr Bintley
Mr Bintley’s evidence was largely focussed upon what occurred at the Termination Meeting. Mr Bintley was the Secretary of the Communications, Electricians, Plumbers and Communications Union (“Union”). Mr Morrison was not a member of the Union, however, after having been contacted by Mr Morrison, Mr Bintley accompanied Mr Morrison to the Termination Meeting as a support person: Bintley Affidavit at [2]-[4].
Mr Bintley’s evidence largely supported the statements of Mr Morrison that during the Termination Meeting Ms Robertson “did most of the talking” and that there was words to the effect that Mr Morrison had caused “a lot of trouble”: Bintley Affidavit at [7]-[16]. Mr Bintley deposed that during the Termination Meeting Ms Robertson did not mention any other reason for the termination save for Mr Morrison contacting WorkSafe: Bintley Affidavit at [18].
In examination-in-chief Mr Bintley conceded that in the Bintley Affidavit at [18] he had overlooked and failed to include that “it was more Damien’s attitude as well as the Worksafe issue…like, it was his attitude that led to his termination as well.”: Transcript, page 26 at [20]-[25]. Mr Bintley went on to state that “… they said it was Damien’s attitude that was the whole thing with the termination but it was quite clear that she was upset at Damien raising the matter of Nicholas St George”: Transcript, page 27 at [11]-[15].
Mr Bintley’s concession is not inconsistent with the allegation that Mr Morrison’s termination was made on the basis of his Complaints which incorporated the trenchant views he had expressed about Mr St George. On Mr Bintley’s account Ms Robertson adverted to the Complaints as the basis for the termination.
In relation to the issue of having to calm down Mr Morrison, Mr Bintley indicated that he did not have to do so, but rather had to get the discussion back on track because it was heading off in the wrong direction and that Mr Morrison was not angry at any stage: Transcript, page 28 at [7]-[16]. This is in part consistent with the Court’s observation of Mr Morrison set out at [34] above.
Mr Bintley says he specifically asked about Mr Morrison’s performance as a plumber during the course of the Termination Meeting. In that regard he says he was told by Ms Robertson that Mr Morrison’s performance as a plumber was okay. Mr Bintley also stated that he thought the purpose of the meeting, or what the meeting was going to be about, was Mr Morrison’s attitude and “the case with Nicholas St George”: Transcript, page 29 at [6]-[14]. While the Court will refer to the Termination Meeting in some detail below, the Court notes that Mr Bintley’s evidence was that it was Mr Morrison who raised issues around Mr St George at the Termination Meeting.
Mr Bintley impressed as a composed witness, who was prepared to concede that parts of his recollection were “pretty vague”, but had evident recall of certain matters that stood out to him.
Evidence of Mr Forde
Mr Forde was the Regional Manager of ISS at the time of Mr Morrison’s employment. He predominantly worked from the Perth office, however would visit those sites he was managing approximately once every three to four weeks. During Mr Morrison’s employment, Mr Forde possibly saw Mr Morrison four or five times.
Mr Forde gave evidence about an incident on 1 October 2013 when he stated that Mr Morrison “flagged down” his vehicle as he was leaving site with Mr Toohey and alleged that Mr St George was smoking cannabis on site. Mr Forde says that Mr Toohey contacted Ms Robertson who advised that Mr St George should be removed from site and stood down pending a drug test: Forde Affidavit at [5].
Mr Forde also gave evidence that he was involved in discussions with Ms Robertson and Mr Toohey concerning Mr Morrison’s suitability for ongoing employment, and after those discussions concerning Mr Morrison’s behaviour and work standards, the decision was made that Mr Morrison was to be terminated while on probation: Forde Affidavit at [6].
While Mr Forde’s affidavit evidence was very short, running to just six paragraphs (less than a typed page) of which just four related specifically to the circumstance of the case, his evidence in cross-examination was more revealing: it was often equivocal or vague, there were significant instances of a lack of recall, and when Mr Forde did recall events he was prone to change his mind about the detail of those events at a later stage. For example, Mr Forde’s initial evidence about the incident on 1 October 2013 (referred to at [5] of the Forde Affidavit and [43] above) was that the conversation with Mr Morrison was for about 20 minutes, and within minutes that changed to being 10-15 minutes, and then to being 5-10 minutes: Transcript, pages 35, 36 and 39. Whether the conversation took place while Mr Forde was in the car or not was also the subject of some inconsistency: Transcript, page 39-40. Mr Forde ultimately conceded that on 1 October 2013, Mr St George and another individual were in the back of the car when Mr Morrison “flagged” down the vehicle, and that the conversation took place outside the vehicle itself, between Mr Morrison and Mr Toohey, but not Mr Forde: Transcript, pages 48-49 (and see also pages 42-47).
When asked questions concerning what Mr Morrison was complaining about, Mr Forde was vague and casual, going so far as to describe it as “cannabis steroids, whatever it is” and then only later saying that it was “synthetic cannabis”: Transcript, page 40 at [35]-[41]. Given the importance of the issue of drug use on mine sites generally, but also specifically in relation to this issue, the casualness of his description is surprising.
Mr Forde was asked questions about whether Mr Morrison had in fact raised concerns with Mr St George’s behaviour prior to the incident on 1 October 2013, and it was put to him that such concerns were raised on or around 26 September 2013. Mr Forde admitted that he had spoken to Mr Morrison on or around that time and he had provided him with his phone number and email address. Mr Forde was very unsure as to where the meeting on 26 September 2013 took place, and whether it was in the mess or elsewhere, and in particular was vague and changed his mind at least twice as to whether or not the issue of synthetic cannabis was discussed, initially saying that it was “possibly” discussed, then indicating that it was not discussed, and then indicating that it “may have” been discussed: Transcript, pages 43-44.
Mr Forde gave evidence in respect of what the “behaviour” referred to at [6] of the Forde Affidavit encompassed. He said the “behaviour” discussed on 11 October 2013 was that Mr Morrison had been harassing Mr St George’s girlfriend and this was important in the decision to terminate Mr Morrison: Transcript, page 51. During cross-examination, Mr Forde asserted that Mr Morrison was not terminated because of the Complaints made against Mr St George, but because he was harassing Mr St George and Mr St George’s girlfriend, and he was not fit and suitable to be employed by ISS: Transcript, page 52.
Mr Forde conceded that as late as 1 October 2013 he had no difficulty in respect to the performance of Mr Morrison’s trade duties as a plumber: Transcript, page 68 at [18]-[19], having earlier said that it was correct that his view until 1 October 2013 was that Mr Morrison “was an okay sort of a plumber working for ISS and the Roy Hill project”: Transcript, page 47 at [14]-[15]. Mr Forde’s evidence about the performance related issues which were also said to have given rise to Mr Morrison’s termination also suffered from significant inconsistencies. He gave evidence about pipe work which had been installed the wrong way around, descending to detail with respect to the diameter and length of the pipe concerned, and that it had caused flooding in the waste water treatment plant: Transcript, page 54. Later in his evidence he indicated that it may not have been the waste water treatment plant, but “may have been somewhere else”, and may have involved a faulty valve: Transcript, page 65.
Mr Forde’s evidence concerning the circumstances in which the performance related issues were brought to Mr Morrison’s attention was also unsatisfactory. Initially, he indicated that it was on site and brought to his attention by Mr White: Transcript, page 71. Later, when it was pointed out that the performance review document indicated that Mr Bintley from the Union was present when the performance related issues were brought to Mr Morrison’s attention, Mr Forde changed his evidence to indicate that it was brought to Mr Morrison’s attention both on site and in Perth, and on the latter occasion, with Mr Bintley present: Transcript, page 72. His evidence in this respect was unconvincing, and appeared to change as his evidence was being given.
Mr Forde did however ultimately make a number of concessions of significance, namely:
a)that there was a combination of more than one event that led to Mr Morrison’s termination: Transcript, page 64 at [15];
b)that the allegation of substance abuse by Mr St George (which was one of Mr Morrison’s Complaints) was one of those events, and was “part of it” and was “[i]n addition to other complaints”: Transcript, page 64 at [17] and [26]-[29]; and
c)that the document which indicated that both the raising of the allegations of substance abuse about Mr St George by Mr Morrison and the performance issues concerning Mr Morrison were the reasons for Mr Morrison termination was correct: Transcript, page 64 at [41], and was signed by Mr Forde: Transcript, page 64 at [44].
Save for the concessions made in Mr Forde’s evidence, the Court will afford little weight to Mr Forde’s evidence given that much of it was variously equivocal, vague, lacking in detail and inconsistent.
Evidence of Mr Motbey
Mr Motbey is the State Training Manager for ISS and was present at the Termination Meeting. The Motbey Affidavit is again short, running to about one typed page, and five paragraphs, of which just three paragraphs were specific to the circumstances of this case. The Motbey Affidavit at [4] reads as follows:
4. On 16 October 2013, the Applicant’s probationary period performance appraisal was conducted by Ms Nerida Robertson with myself acting as he respondents witness, the Applicant and his union representative. During this meeting I observed Mr Morrisons aggressive behaviour towards Ms Robertson, including statements to the affect that he was only working with ISS until he got a job with a good company and that he hates ISS and only took the job to get contacts within the mining industry and was going to leave anyway. Mr Morrison was informed that he was being released from employment due to his onsite conduct and behaviour. At this point Mr Morrison started yelling about Nick St George and that the business was doing a cover up due to whose son he was. At this time a discussion was held in regards to Nick St George and the actions taken in regards to comments about Nick St George smoking an illegal substance. It was outlined to Mr Morrison that ISS had followed all protocols and that Mr St George had been tested and the results had come back negative to all substances including Synthetic cannabis. Mr Morrison objected to these statements and said the test that ISS had done does not prove anything and that we had not tested for Synthetic cannabis. Ms Robertson assured both the Union representative and Mr Morrison that the correct tests were completed and Mr St George had been cleared to resume work. Mr Morrison would not accept this was the case. He was at this stage clamed but the Union representative. It was made clear at the meeting that his termination was on the basis of his behaviour and it was also outlined that his aggressive behaviour in the room today only confirms that we have made the right decision, I recall that Mr Morrison did most of the talking, talked over Ms Robertson and was indeed trying to intimidate Ms Robertson throughout the meeting.
(Transcribed without alteration).
The evidence in the Motbey Affidavit that Mr Morrison yelled during the termination meeting was tempered somewhat by his oral evidence that Mr Morrison’s voice was “raised”, and his agreement with a suggestion put by the Court that Mr Morrison was, in colloquial terms, “a big bloke with a big voice”: Transcript, page 93. The “aggressive behaviour” referred to was that Mr Morrison kept trying to talk over Ms Robertson, after the Court asked why that would not be considered as rude or arrogant as opposed to aggressive, Mr Motbey stated that the manner in which Mr Morrison was talking was, in his view, aggressive: Transcript, page 93. Mr Motbey stated that Mr St George was discussed at the Termination Meeting, but that that discussion was limited to the allegation of smoking illegal substances, and that the other topic discussed was Mr Morrison’s behaviour on site: Transcript, page 94-95. Mr Motbey did not recall discussing Mr St George’s behaviour at any point.
Mr Motbey was the ISS “witness” at the Termination Meeting, but, remarkably, took no notes: Transcript, page 92, and could not recall if the concept of termination was mentioned during the meeting or when, in fact, Mr Morrison was terminated: Transcript, page 92.
The Court does not consider the evidence of Mr Motbey to have been especially helpful: his recall of the discussion around the termination of Mr Morrison in the Termination Meeting was almost non-existent in relation to the reasons for the termination, not assisted by the fact that he took no notes of the Termination Meeting, a fact which, in this day and age, is remarkable in itself, but perhaps also reflects a level of casualness on the part of ISS and its managers in relation to Mr Morrison’s termination. Ultimately, there is very little in Mr Motbey’s evidence which is relevant or of assistance to the Court.
Evidence of Mr Toohey
In respect to the Toohey Affidavit, the Court struck out the second sentence of [4] of the Toohey Affidavit on the basis of hearsay, and ISS conceded that the final six words of [11] of the Toohey Affidavit ought to be struck out.
Mr Toohey was the Project Manager of ISS on site during the time Mr Morrison was employed. Mr Toohey was at least one step removed from direct supervision of Mr Morrison, his evidence being that he was managing through the supervisors, and that he did not see Mr Morrison on a day-to-day basis. Mr Toohey reported directly to ISS’s general manager of resources, who was Mr St George’s father, but said that he and Mr St George Senior did not see “eye-to-eye”: Transcript, page 104.
In relation to the incident on 1 October 2013, Mr Toohey gave evidence which indicated that:
a)the conversation was between he and Mr Morrison, that it took 5-7 minutes, and that it occurred after Mr Morrison had knocked on the window at a time when the motor vehicle was started but had not yet moved, and that he and Mr Morrison had a discussion at the right-hand front-side of the motor vehicle: Transcript, pages 106-108; and
b)Mr Forde was not involved in that discussion: Transcript, page 108 at [17].
In relation to the tool throwing incident Mr Toohey gave evidence that Mr St George and Mr Morrison had argued about ongoing work, and that Mr St George subsequently threw his tools. Mr Toohey said the Assistant Manager on the site at the time issued Mr St George with a “first warning” as a result of the incident.
Mr Toohey agreed that one of the reasons which resulted in Mr Morrison’s termination was that he was engaging in ongoing banter about Mr St George, which he characterised as degrading him, and was spreading it across the site, and which was not “entirely factual”, and that what was being made up according to ISS, was the allegation that Mr St George was smoking synthetic cannabis: Transcript, pages 119-120. Mr Toohey indicated that he had not read Mr St George’s drug test results, and was surprised when told that they contained a line which indicated that the absence of metacolites did not exclude the use of synthetic cannabinoids: Transcript, pages 114-115.
Mr Toohey gave evidence that the decision to terminate was a joint decision of Mr Forde, Ms Robertson and himself and that he was “a bit lower” in the hierarchy at ISS than Mr Forde: Transcript, pages 124-125.
In relation to who made the decision to terminate Mr Morrison, Mr Toohey gave evidence that:
a)Ms Robertson had suggested or recommended that Mr Morrison be released prior to the decision being made to terminate Mr Morrison: Transcript, page 138; and
b)that the decision was that of Mr Forde and himself, with Ms Robertson subsequently being informed “of our decision” to terminate Mr Morrison: Transcript, page 126 at [20]-[23]; and
c)the decision was not made “until right at the end”, and after confirmation had been received from Ms Robertson that Mr Morrison could be released: Transcript, page 127.
During his evidence, Mr Toohey referred to a number of issues that had arisen with Mr Morrison that formed part of the reasons for Mr Morrison’s termination:
a)the complaint from Mr St George’s girlfriend that Mr Morrison was bullying and harassing her: Transcript, pages 122 and 124;
b)that Mr Morrison was continually degrading Mr St George and spreading information about him across the work site: Transcript, page 123;
c)that there was continual unrest on the site in regards to Mr Morrison and the way he was speaking about Mr St George and other staff, including the management team, who were not comfortable and were feeling intimidated but did not put anything in writing: Transcript, page 123;
d)that one of a “number of situations” relating to Mr Morrison’s work standards was when Mr Morrison was on duty as a plumber his work was deficient in that it caused the raw water tank to overflow and a third party contractor was required to fix this (Mr Toohey recalled this as he was “involved with” and present at the time): Transcript, pages 117-119; and
e)Mr Morrison failed to follow “company code” in that his behaviour was “abysmal” toward Mr St George and other staff members: Transcript, page 119.
Significantly, after Mr Morrison had completed his cross-examination of Mr Toohey, the Court asked a few questions, including the following:
HIS HONOUR: Well, did you think the fact that he complained to the company about Mr St George’s alleged drug use was simply part of the process of degrading his name? --- The report of – Damien Morrison reporting the alleged incident to myself did form part of Damien leaving the business.
So that’s not what I asked but it might be informative in terms of the way it was responded to. Is there anything arising out of that, Mr MacLean?
MR MACLEAN: No, thank you, your Honour.
HIS HONOUR: Any re-examination, Mr Moore?
MR MOORE: No, thank you. Thank you.
Transcript, pages 140-141.
The concession made by Mr Toohey that the making of a complaint to Mr Toohey “did form part of Damien leaving the business”: Transcript, page 140 at [43]-[44], came following an extensive cross-examination in which Mr Toohey had resisted suggestions to that effect from Counsel for Mr Morrison, and in which he had gone to not inconsiderable lengths to suggest that the reasons for termination were those referred to at [64] above. The Court notes that much of the evidence given by Mr Toohey suffered from his lack of recall of certain events, and it is fair to observe that his recollection on a number of issues was vague, and he also on a number of occasions resisted, or endeavoured to resist, answering the questions actually asked of him: see, for example, Transcript, page 128 at [6] and [42]-[44]. Furthermore, Mr Toohey’s credibility suffered when he agreed that he had signed an affidavit in which he recalled conversations and discussions of which he had no recall at all: Transcript, pages 128-129.
Evidence of Mr White
Paragraph [6] of the White Affidavit was struck out on the basis of hearsay.
Mr White was the Site Manager of the rail camp where Mr Morrison spent time during his employment. The White Affidavit stated that the quality and speed of Mr Morrison’s work was not at the required standards of ISS, and that Mr Morrison displayed an arrogant, confrontational and aggressive persona in his communications: White Affidavit at [4]. Mr White further stated that he received complaints from Mr Morrison on “a couple of occasions” concerning Mr St George’s conduct, though he did not recall on any occasion that there was a complaint concerning the use of synthetic cannabis: White Affidavit at [5].
Mr White referred to two instances where Mr Morrison’s work performance was unsatisfactory. Nonetheless, he acknowledged that Mr Morrison completed the tasks assigned to him, and more often than not was able to achieve the required standards: Transcript, page 86. The Court accepts the evidence of Mr White that while he and Mr Morrison had a cordial relationship, this did not preclude him from considering Mr Morrison intimidating or arrogant: Transcript, page 86.
Mr White gave forthright answers to the questions when put, and when an inconsistency concerning his knowledge of any complaints by Mr Morrison about Mr St George was put to him, he gave a plausible and reasoned explanation that the context of the question previously asked caused him to answer in the way he did. Mr White gave no reason for the Court to question the credibility of his evidence. That said, the evidence was of limited utility in relation to the ultimate issue presently being determined.
Evidence of Ms Robertson
Ms Robertson was the Human Resources Manager at ISS and was present at the Termination Meeting.
In the Robertson Affidavit, Ms Robertson stated that on 1 October 2013 she was advised that Mr Morrison had made an allegation that Mr St George was using synthetic cannabis on site. Ms Robertson advised Mr Toohey to remove Mr St George from the site and send him for drug testing: Robertson Affidavit at [4]. The following day Ms Robertson received a complaint that Mr Morrison had been bullying and harassing a cleaner on site (who was Mr St George’s girlfriend): Robertson Affidavit at [7].
At [11] of the Robertson Affidavit it is stated:
On 16 October 2013, the Applicant’s probationary period performance appraisal was conducted by myself, Adam Motbey, State Training Manager as witness for the respondent, the Applicant and his union representative. During the meeting I told the applicant the reason for his termination was as a result of his onsite behavioural issues, including aggressive and threatening behaviour towards staff and management alike. I mentioned that irresepective of whether he was a good plumber that the behavioural issues were unacceptable in our business.
During Ms Robertson’s cross-examination there was some inconsistency between what she stated in her affidavit evidence as to the nature of the Termination Meeting. She stated she would not call the meeting a “probationary period performance appraisal” meeting: contrast Robertson Affidavit at [11], because that was not what it was, it was a meeting to discuss terminating Mr Morrison’s employment, and that she would describe it as a “termination meeting” more than anything else: Transcript, pages 144 and 179.
Ms Robertson admitted that during the Termination Meeting she did say that Mr Morrison had created a lot of problems and that she advised him in the Termination Meeting that his employment was at an end: Transcript, pages 144, 170 and 177.
Asked directly as to whether Mr Morrison’s complaint about Mr St George was a “matter … so serious that it formed a part of your decision or your view that it was appropriate to terminate Mr Morrison?” Ms Robertson responded “Yes”: Transcript, page 171 at [42]-[44]. She answered in the affirmative when asked if Mr Morrison was causing problems because WorkSafe were now involved: Transcript, page 172 at [42]. Ms Robertson’s evidence was however that at no time during the Termination Meeting did she refer to WorkSafe: Transcript, page 169-170.
Ms Robertson also indicated to Mr Morrison at the Termination Meeting that it did not matter whether he was a good plumber, it was a behavioural issue that was the reason for his termination: Transcript, pages 177 at [24]-[26] and 179 at [29]-[31]. In context, it ought not be implied that Ms Robertson was suggesting that Mr Morrison was “a good plumber”, but merely that she was saying that even if he was a good plumber it was his behaviour which was a reason for his termination. She stated that in the Termination Meeting Mr Morrison sought to bring up Mr St George prior to his being advised that he was terminated, and questioned the veracity of the drug test results for Mr St George: Transcript, pages 177-178.
In respect of the Complaints, it was Ms Robertson’s evidence that on 2 October 2013 she was contacted by WorkSafe who indicated a complaint had been made to WorkSafe about Mr St George, specifically about the use of synthetic cannabinoids and Mr St George’s personal medical condition. Ms Robertson advised of the steps ISS had taken in light of the Complaints and the WorkSafe inspector “supported and approved the proposed action”: Robertson Affidavit at [5]. Ms Robertson assumed, given the nature of the complaint that was made to WorkSafe and the close proximity to “the complaint” Mr Morrison made to Mr Forde and Mr Toohey (on 1 October 2013), that it was Mr Morrison who had made the complaint to WorkSafe: Transcript, pages 152 and 169. This was never confirmed by WorkSafe. No independent investigations or inquiries into Mr St George were made by ISS, and it was not considered necessary to search his “donga” or ask other employees about Mr Morrison’s allegations.
The decision to terminate Mr Morrison was made on 11 October 2013, however a number of conversations had taken place prior to this. Ms Robertson confirmed in her evidence that she understood that the reason the decision was made on 11 October 2013 was because the results of Mr St George’s drug test came back negative, and that it had been discussed that the likely outcome was that if the drug test results came back negative then Mr Morrison’s employment would be terminated. It was, “definitely a deciding factor in – not the only factor but it was – certainly we were waiting on the results to come through”: Transcript, page 165 at [44]-[47].
Ms Robertson also gave evidence that the termination of the grievance process (when the drug test results came back negative) was not the entire reason that Mr Morrison was terminated, but Mr Morrison’s grievance with respect to Mr St George was a contributing factor to Mr Morrison’s termination. Ms Robertson admitted that, had the complaints against Mr St George not been made or the allegations proven to be true (that is, had the drug test results come back positive), Mr Morrison’s behaviour might only have warranted a first and final warning. While one part of the issue with respect to Mr Morrison was the complaints that he had made with respect to Mr St George, there still would have been an issue in relation to his on-site behaviour. It was not the Complaints alone that were the reason for the termination, it was also the behaviour surrounding how Mr Morrison managed the Complaints: Transcript, page 151, and that the grievance in relation to Mr St George was “not the entire reason Mr Morrison was terminated”: Transcript, page 152 at [3]-[4], but that that grievance “was certainly a contributing factor”: Transcript, page 152 at [12].
The Court was generally impressed by Ms Robertson’s evidence. Her answers were clear, forthright, and she gave the impression of being honest. She openly admitted matters that may not have been beneficial to ISS, and in particular, that Mr Morrison’s complaint in relation to Mr St George was a contributing factor in ISS deciding to terminate Mr Morrison’s employment: Transcript, pages 151 at [29] and 152 at [1]-[13].
The Drug Test Results
Some emphasis was placed at hearing on the results of Mr St George’s drug tests, which indicated that certain synthetic cannabinoids were not detected, but went on to observe in the report notes prepared by Clinipath Pathology that:
…Sample analysis and reporting have been performed in accordance with AS/NZS 4308 2008 section 4.
This sample was received from a facility not accredited to AS/NZS 4208 2008 section 2. The collection of this sample fully complies with Futuris health collection procedures.
…The absence of these metabolites does not exclude the use of synthetic cannabinoids.
(Robertson Affidavit, Annexure NR1).
An argument was advanced that the drug test results did not conclusively prove that Mr Morrison’s complaint was not true, and there may be some doubt as to the accuracy of the drug tests. It is not, however, relevant whether the drug test results were correct, incorrect or questionable, as the fact of the matter is that of the drug tests Mr St George had taken, one of which was for certain synthetic substances, but not all types of synthetic cannabinoids, Mr St George had been found not to have those substances in his system. The accuracy of the drug test results is not a matter the Court needs to determine. This is a general protections application and the issue is whether Mr Morrison was terminated because of his exercise of a workplace right, not whether the results of a drug test to which a complaint said to be a workplace right was related were accurate. What is of significance, however, is that ISS waited for the drug test results for Mr St George, which were sought following Mr Morrison’s “complaint”: Transcript, page 169 at [40], to at least Mr Toohey on 1 October 2013, before terminating Mr Morrison’s employment. There was, in that regard, a cause and effect relationship between the perceived outcome of the drug test results concluded as a consequence of Mr Morrison’s Complaints and Mr Morrison’s ongoing employment.
Grievance Record
A “Grievance Record” document was created by ISS to record the complaint of Mr Morrison against Mr St George. At the head of the page the following appears:
Name of complainant: Damien Morrison – (via Third Party – no direct complaint made to ISS)
Ms Robertson was the author of the document. Significantly, the Grievance Record describes Mr Morrison as the “Complainant”. Otherwise, Ms Robertson’s evidence was that:
a)the reference to “Third Party” was in fact, a reference to Mr Toohey and Mr Forde relaying the 1 October 2013 incident to her;
b)because Mr Morrison had not undertaken a “formal grievance” complaint, Ms Robertson produced the document to reflect that the complaint had come via information not directly made from the “complainant” but through Mr Forde and Mr Toohey relaying the matter; and
c)the reference to WorkSafe in the document was irrelevant to the reference to a “Third Party”: Transcript, pages 159-160.
While referring to two senior managers as “third parties” and it not being a “direct complaint to ISS” seems strange: Transcript, page 160 at [38]-[42], Ms Robertson confirmed that in discussions with WorkSafe it was revealed that the complaint to Worksafe concerned the alleged drug use of Mr St George and his other medical conditions. The Grievance Record records only the drug use allegation and the belief it posed an unsafe environment, not the medical conditions which were also the subject of the WorkSafe investigation: Transcript, page 169, which supports Ms Robertson’s evidence that WorkSafe was not the “Third Party”.
The Court accepts that arrangements were made on the afternoon of 1 October 2013, after Mr Morrison’s Complaint, to remove Mr St George from the site on the morning of 2 October 2013. WorkSafe contacted Ms Robertson on 2 October 2013, a time at which the Court accepts (from unchallenged evidence by Mr Toohey) that Mr St George was on a morning flight from the Pilbara to Perth. There was no evidence of what time the call from WorkSafe was received, though the Court is prepared to accept that arrangements for Mr St George to return were already made and actioned as a result of the Complaint.
The Court accepts Ms Robertson’s evidence that in order to record and address the complaints and Mr St George’s response, and also produce a record as to why Mr St George had been removed from the work site and been required to take a drug test, the Grievance Record had to be produced. It was the 1 October 2013 Complaint by Mr Morrison which had, in fact, ultimately caused Mr St George to be removed from site, and in the absence of Mr Morrison providing a written statement, Ms Robertson produced the Grievance Record based on the information provided by Mr Toohey and Mr Forde.
The Termination Meeting
The Court has set out some of the evidence as to what occurred at the Termination Meeting above: see [32], [35]-[41] and [74]-[75] above.
The Termination Meeting did not last for a significant period of time. While Mr Bintley stated approximately 2-5 minutes, the Court is more inclined to accept the evidence of Ms Robertson that the meeting lasted between 15-20 minutes. Ms Robertson suggested that Mr Morrison was advised of his termination approximately 5 or 6 minutes into the Termination Meeting, a fact the Court accepts. Whether or not Mr Morrison was given the Termination Letter during the Termination Meeting, is therefore immaterial, but in any event, the Termination Letter simply provided that Mr Morrison’s contract had been terminated and he would be paid any entitlements owing: Robertson Affidavit, Annexure NR3.
The evidence was clear that it was Mr Morrison who brought up Mr St George during the course of the Termination Meeting, and that Ms Robertson had not previously referred to Mr St George. Mr Morrison was disputing Mr St George’s drug test results prior to being informed he was terminated. Ms Robertson was candid that she did state that Mr Morrison had caused a lot of problems. Given Mr Morrison’s demeanour before the Court, the Court accepts that Mr Morrison may have been emotional at the Termination Meeting. It does not accept he was being aggressive toward Ms Robertson at the Termination Meeting, but rather that Mr Morrison was understandably voluble, tense and reactive in the circumstances.
As to what was stated during the Termination Meeting, the Court finds as follows:
a)Ms Robertson discussed the Probationary Period Performance Appraisal Form in which reference is made to poor communication styles and aggressive behaviour and conduct: Robertson Affidavit, Annexure NR2. Mr Bintley confirmed that Mr Morrison’s attitude was discussed and provided as being a reason for his termination;
b)the actual performance of work by Mr Morrison as a plumber was not given as a reason for Mr Morrison’s termination, and Ms Robertson said words to the effect that it did not matter if he was a good plumber;
c)during the course of the Termination Meeting, Mr Morrison sought to agitate the issues he had with Mr St George and his disagreement with the drug test results. During the course of exchanges on this topic, at some point, Mr Bintley intervened as he believed the conversation had gone “off-topic”. The Court accepts that this was likely as a result of Mr Morrison seeking to question the results of the drug test;
d)Ms Robertson discussed the Complaint concerning Mr St George and said that it had caused a number of problems. Ms Robertson did, at some point, advert (but seemingly not expressly) to the involvement of WorkSafe and that issues had arisen from their involvement which Ms Robertson likely perceived, and in fact assumed, were as a result of a complaint by Mr Morrison; and
e)as he exited the Termination Meeting Mr Morrison made adverse remarks about ISS as he felt the treatment he had received was unfair and unjust.
While what was stated during the course of the Termination Meeting is of some relevance, Mr Toohey and Mr Forde had made the decision to terminate Mr Morrison on 11 October 2013. Ms Robertson was simply advising Mr Morrison of his termination on 16 October 2013. Therefore, whilst what was discussed at the Termination Meeting has some relevance, it cannot be assumed the state of mind of the decision-makers at the time when it was decided that Mr Morrison was to be terminated was substantively reflected in the events at the Termination Meeting, which was not attended by either of the decision-makers.
Consideration
The exercise of a “workplace right”
Section 341(1) of the FW Act states:
Meaning of workplace right
(1)A person has a workplace right if the person:
…
(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
Mr Morrison alleges:
a)he exercised a workplace right pursuant to s.341(1)(b) of the FW Act in initiating and participating in a process or proceeding conducted by WorkSafe, or alternatively in initiating or participating in a proceeding conducted by the DMP (“First Right”);
b)he exercised a workplace right pursuant to s.341(1)(c)(i) of the FW Act in making a complaint or inquiry to Worksafe or the DMP (“Second Right”); and
c)he exercised a workplace right pursuant to s.341(1)(c)(ii) of the FW Act in making a complaint or inquiry in relation to his employment to WorkSafe, the DMP or ISS (“Third Right”).
The OHS Act, the MSI Act, WorkSafe and the DMP
With respect to the extent Mr Morrison exercised a workplace right in making a complaint or inquiry to WorkSafe, two issues arise:
a)whether Mr Morrison’s workplace was subject to the OHS Act, and whether Mr Morrison could initiate or participate in a process or proceeding by making a complaint or inquiry to WorkSafe under the OHS Act, and whether WorkSafe had jurisdiction under the OHS Act in relation to the workplace; and
b)the fact that there is no evidence that Mr Morrison did, in fact, make a complaint to WorkSafe.
Section 4(2) of the OHS Act states:
(2) Subject to this section and except as may be otherwise expressly provided by Parliament, this Act does not apply to or in relation to a workplace —
(a) that is, or at which work is carried out on, a mine to which the Mining Act 1978, or the Mines Safety and Inspection Act 1994, applies;
Section 4(1)(g) and (k) of the Mines Safety and Inspection Act 1994 (WA) (“MSI Act”) reads:
mining operations means any method of working by which the earth or any rock structure, coal seam, stone, fluid, or mineral bearing substance is disturbed, removed, washed, sifted, crushed, leached, roasted, floated, distilled, evaporated, smelted, refined, sintered, pelletized, or dealt with for the purpose of obtaining any mineral or rock from it for commercial purposes or for subsequent use in industry, whether it has been previously disturbed or not, and includes –
…
(g) the operation of any support facilities on the minesite, including mine administration offices, workshops, and services buildings; and
…
(k) operation of residential facilities and recreational facilities and the ground used for that purpose, where such facilities are located on a mining tenement and are used solely in connection with mining operations; and
…
workplace in relation to a mine, means a place, whether or not in a vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work, but does not include catering, residential, or recreational facilities for employees or self-employed persons except in the case of persons who are employed to service and maintain those facilities.
In the Morrison Affidavit at [3] and [6], the workplace or worksite was described as a “Mine Site Project” and a “large resource construction site”. In cross examination, Mr White stated that the type of work Mr Morrison was involved in was “all camp-related plumbing”, that is “purely accommodation. Kitchen… And office”, and also included a reverse osmosis and waste water treatment plant that was used for domestic consumption: Transcript, page 82.
Having regard to the above evidence (which is admittedly very limited) it would appear that Mr Morrison was engaged in the service and maintenance of facilities of a catering and residential kind, being buildings or other structures where he worked, or was likely to be in the course of his work, and that those buildings or structures were buildings or structures which were in relation to the Roy Hill Mine or rail camps and therefore subject to the MSI Act as the appropriate “workplace law”. In light of this finding, it is the Director of Mines and Resource Safety at the DMP to whom complaints should be made, and it is an inspector of mines who has the appropriate powers to seek compliance with the MSI Act: MSI Act, s.20.
With respect to the evidence of a complaint to WorkSafe by Mr Morrison, the evidence is as follows:
a)Mr Morrison denied he had made a complaint to WorkSafe, and the first that he became aware of the involvement of WorkSafe was at the Termination Meeting, as he had only ever made a complaint to the DMP on 29 September 2013: Morrison Affidavit at [85]; and
b)Ms Robertson was contacted by a WorkSafe Inspector on 2 October 2013 regarding complaints made about Mr St George, namely the smoking of synthetic cannabinoids and his medical condition. At no time during the phone call was it revealed that Mr Morrison was the source of the complaint to WorkSafe, rather Ms Robertson merely inferred that that was the case: Transcript, page 152.
On the evidence before the Court, it cannot be satisfied that Mr Morrison contacted WorkSafe to make the First Complaint. Mr Morrison’s evidence was that he did not contact WorkSafe, and that he only contacted the DMP.
First Right
ISS admits that Mr Morrison exercised a workplace right under s.341(1)(b) of the FW Act in that the Second Complaint constituted Mr Morrison being able to initiate an investigation by the DMP: Response at [22].
The language of s.341(1)(b) of the FW Act does not require that when initiating or participating in a proceeding or process under a workplace law that the workplace law entitle that individual to any benefit from it: Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399; (2010) 186 FCR 22; (2010) 196 IR 241 (“Jones”) at [52]-[54] per Collier J; Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 (“Tattsbet”) at [105]-[107] per Jessup J (the latter handed down after the hearing of this matter).
From Tattsbet and Jones it appears that s.341(1)(b) of the FW Act requires an individual to have the capacity, or ability, to initiate or partake in processes or proceedings arising from the workplace law. It does not require that the authority or capacity to do so derive from the workplace law. It also does not require a physical undertaking, or an action, it is sufficient that there be a proposal, or an inclination, to initiate or partake in a process under a workplace law. Unlike s.341(1)(c)(i) of the FW Act, it also does not require the process or proceeding be under a workplace law applicable to the workplace.
Mr Morrison alleges that as a result of the Second Complaint (which was made to the DMP), an investigation by WorkSafe was launched. ISS denied in their Response at [4] that the Second Complaint resulted in any investigation by WorkSafe. The evidence of Ms Robertson, and the views of Mr Toohey and Mr Forde, was that they assumed that Mr Morrison had made a complaint to WorkSafe. The reasoning for this was the close proximity of WorkSafe contacting ISS following the incident on 1 October 2013.
In relation to whether Mr Morrison initiated or participated in a process or proceeding, being an investigation by WorkSafe, Mr Morrison’s own evidence is that he did not initiate any such process or proceedings, including an investigation by WorkSafe, because he did not make a complaint to WorkSafe. If the OHS Act applied to Mr Morrison’s workplace he may have had a workplace right such that he could initiate or participate in a process or proceedings under the OHS Act, but the evidence here is that he did not do so. Furthermore, it is far from clear on the evidence that whatever inquiries were made by WorkSafe were made as a consequence of anything that Mr Morrison did by way of a complaint to the DMP. There was considerable speculation in relation to this issue in the evidence, but in the absence of any cogent evidence from anyone, or at least anyone from DMP or WorkSafe, the Court cannot conclude that such investigation as there might have been by WorkSafe was as a consequence of Mr Morrison’s complaint to the DMP, that is the Second Complaint.
The Court cannot be satisfied on the evidence before it that Mr Morrison’s complaint to the DMP indirectly initiated an investigation by WorkSafe. Therefore, it cannot be said Mr Morrison had exercised a workplace right pursuant to s.341(1)(b) of the FW Act in respect to any investigation by WorkSafe of the matters the subject of the Complaints.
The Second Right
ISS admits that Mr Morrison had exercised a workplace right under s.341(1)(c)(i) of the FW Act in that the First and Second Complaints constituted Mr Morrison making a complaint to WorkSafe and the DMP, but denies that WorkSafe had capacity to seek compliance with the MSI Act: Defence at [25].
Section 24 of the MSI Act explains the duties of an inspector when a complaint is made. Inspectors are appointed by the Minister responsible for the MSI Act pursuant to the MSI Act and have the powers and functions as provided in the MSI Act: MSI Act, ss.17 and 21. Section 96 of the MSI Act requires any commencement of prosecutions to be commenced by an inspector or other person authorised by the relevant Minister. WorkSafe inspectors are appointed by the Minister pursuant to the OHS Act and exercise the powers and functions provided for in the OHS Act: OHS Act, ss.42 and 43.
On Mr Morrison’s evidence he did not complain to WorkSafe. Again, in the absence of evidence on this point, the Court cannot be satisfied whether WorkSafe are a body with the capacity to seek that ISS comply with a workplace law in respect to the subject matter of the First and Second Complaints. Mr Morrison plainly has not established that he made a complaint to WorkSafe and thus exercised a workplace right as that term is described in s.341(1)(c)(i) of the FW Act: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [329]-[331] per Barker J.
The Court is not satisfied that Mr Morrison exercised a workplace right under s.341(1)(c)(i) of the FW Act by making the First and Second Complaint to WorkSafe. The Court is satisfied, and it was in fact admitted, that Mr Morrison had exercised a workplace right pursuant to s.341(1)(c)(i) of the FW Act in making the First and Second Complaint to ISS and the DMP.
The Third Right
ISS admitted that the Complaints were the exercise of a workplace right pursuant to s.341(1)(c)(ii) of the FW Act. The Court accepts that. Notwithstanding that Mr Morrison may not have personally made a grievance report or a formal written complaint that admission is plainly correct: Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271; (2014) 314 ALR 346; (2014) 242 IR 1 (“Shea (No.6)”) at [626]-[627] per Dodds-Streeton J.
Why was the adverse action taken?
Having established that Mr Morrison had exercised workplace rights pursuant to s.341(1)(c)(i) and (ii) of the FW Act in making the Complaints to ISS and s.341(1)(b) and (c) of the FW Act in making the Second Complaint to the DMP, it is for ISS to rebut the presumption that the adverse action was taken “because of” the exercise of those rights: FW Act, s.361.
The Court finds that Mr Forde and Mr Toohey were the “decision-makers” when determining if Mr Morrison was to be terminated. Where there are multiple decision-makers, the reasons of each must be taken into account: Rowland v Alfred Health [2014] FCA 2 at [37] per Marshall ACJ. It is, therefore, Mr Forde and Mr Toohey’s state of mind at the time of the decision to terminate Mr Morrison that must be analysed. Ms Robertson’s evidence is also important because at the time that Mr Forde and Mr Toohey were making the decision to terminate Mr Morrison it was to Ms Robertson that they turned for advice, and to whom they indicated what their reasons for terminating Mr Morrison were. The Court must, therefore, have regard to Ms Robertson’s evidence given her capacity as a human resources adviser in relation to the decision to terminate Mr Morrison insofar as it sheds light on the reasons of Mr Forde and Mr Toohey in deciding to terminate Mr Morrison: Gibbs v Palmerston Town Council [1987] FCA 732 at [75]-[77] per Gray J.
ISS argued that Mr Morrison was terminated for a number of reasons, namely:
a)issues with work performance;
b)his inability to work in a team environment and engage with colleagues and respect management, and his failure to follow “company code”;
c)his persistence in seeking to aggravate and verbalise the concerns he had about Mr St George throughout the work site, described as spreading “rumours” and his behaviour toward Mr St George and his girlfriend which was described as “bullying” and “harassment”; and
d)the matters that had arisen from the 1 October 2013 complaint, including the allegation against Mr St George and the subsequent negative results of Mr St George’s drug test.
It is apparent that ISS is alleging that there are “multiple reasons” for the adverse action: FW Act, s.360. Where there are multiple reasons proffered for termination, for there to be a contravention, just one reason must be a prohibited reason, but it must be a “substantial and operative” reason for the adverse action (in this case the termination): Barclay at [5] per French CJ and Crennan J, and at [104] per Gummow and Hayne JJ.
The Court proposes to deal with the first two “reasons” at [116] above, in the immediate paragraphs that follow. It will deal with the third and fourth “reasons” when considering if ISS took adverse action because Mr Morrison had made the Complaint to ISS about Mr St George, that is, in the exercise of a workplace right pursuant to s.341(1)(c)(ii) of the FW Act.
Ms Robertson did not have any knowledge of Mr Morrison’s plumbing and work abilities. When terminating Mr Morrison’s employment she said words to the effect that it did not matter whether Mr Morrison was a good plumber or not. Ms Robertson’s view can only have been informed by her discussions with Mr Forde and Mr Toohey, but having told Mr Morrison at the time of his termination that his skills as a plumber did not matter, that is a concession binding on ISS, and, also, in the Court’s view a concession which was informed by what Ms Robertson was told by Mr Forde and Mr Toohey, and is therefore indicative of their reasons for making the decision to terminate Mr Morrison. It follows that work performance was not a factor at all in Mr Morrison’s termination, or if it was, it was not a significant factor. Further, and in any event, the bases for asserting that ISS had issues with Mr Morrison’s work performance were not such as to satisfy the Court that Mr Morrison’s work performance was inadequate or that it was a factor in his termination.
Mr Forde, Mr Toohey and Mr White each sought to give evidence of sub-par work performance by Mr Morrison, but the Court does not accept that there were a “number of situations” where Mr Morrison’s work performance was below standard. For the most part, the evidence in relation to Mr Morrison’s performance was somewhat vague and inconclusive, and, tellingly, does not appear to have been the subject of any adverse comment or report at the time that it allegedly occurred.
The Court finds the Performance Appraisal Report annexed to the Robertson Affidavit at NR2 unconvincing. It appears to the Court that this document was completed after the decision to terminate Mr Morrison had been made. The scores Mr Morrison received are internally inconsistent, and also inconsistent with the evidence of Mr White, who was responsible and oversaw Mr Morrison’s work for the bulk of his employment. Insofar as it may have been considered by Mr Forde and Mr Toohey as a “reason”, the Court does not accept their evidence on this point. The one incident that appeared to be significant, being a flood caused in a tank when Mr Morrison was the plumber on duty, suffered from a number of inconsistencies in respect of where and what actually was flooded and what caused the problem giving rise to the flooding. In any event, each of Mr Forde, Mr Toohey and Mr White gave evidence which diminishes the suggestion that Mr Morrison’s overall work performance was poor: Mr Toohey described a significant part of Mr Morrison’s ongoing daily maintenance duties as being performed “sufficiently”: Transcript, page 111, and Mr White indicated that Mr Morrison finished plumbing tasks assigned to him and achieved the required standards: Transcript, page 86. In relation to Mr Forde, he gave evidence that up until 1 October 2013 (the date of the Complaint made to Mr Toohey) Mr Morrison’s performance had been “okay”: Transcript, page 47 (and see page 68), and the Court simply does not consider that there is any, or any sufficient, evidence that in the week and a half which followed (before Mr Morrison went on rest and recreation leave on 9 October 2013) that his performance was, or became so, substandard that termination of employment could be justified.
For the above reasons, the Court is not satisfied that Mr Morrison’s work performance was a factor considered in his termination. Even if Mr Morrison’s work performance was a factor considered in his termination, for reasons which follow, it was but one of a number of factors so considered, and a factor which does not displace the Court’s ultimate conclusion that a substantial and operative reason for Mr Morrison’s termination was in relation to the Complaints, and in particular the Complaint made on 1 October 2013.
To the extent Mr Morrison was not seen as suitable because he failed to follow the “company code”, the Court has limited evidence before it on this point: Bintley Affidavit, Annexure BB3; Transcript, page 118 at [4]. The Court is prepared to accept that Mr Morrison’s behaviour was of some concern, however, in the absence of evidence as to the content of the “company code” it can make no determination as to whether Mr Morrison was in fact acting in a manner incompatible with the “company code”, whatever it may have been. In any event, there was no evidence that a “company code” was a term of Mr Morrison’s contract of employment, or incorporated in some way into Mr Morrison’s contract of employment: as to which see C Sappideen, et al, Macken’s Law of Employment (8th Edn) (Pyrmont: Law Book Co, 2016) at [4.480]-[4.490].
There was some evidence that Mr Morrison was perceived to be arrogant and that others felt intimidated by him. The Court does not consider that Mr Morrison was “arrogant” or “aggressive” during the Termination Meeting, and, even if he was, that cannot have been a reason for terminating his employment, that decision having been made some days beforehand. The evidence of Mr White, Mr Toohey and Mr Forde was, however, that Mr Morrison had acted politely and cordially when he was engaged with them: Transcript, pages 40, 86 and 112. This does not evidence that Mr Morrison did not have respect for management, or that he failed to work well in teams and engage with his colleagues. In the Court’s view apart from nebulous statements about Mr Morrison’s conduct whilst on site, conduct in respect of which no evidence of a direct nature was called, there is no contemporaneous evidence of Mr Morrison being either arrogant or aggressive on site at the relevant times, and the Court does not consider this was, in fact, a substantial and operative factor in Mr Morrison’s termination. However, once again, if it was a substantial and operative factor of Mr Morrison’s termination that his conduct on site was poor, or arrogant, or aggressive, then it does not displace the fact that the Court has found that a substantial and operative factor in Mr Morrison’s termination was the Complaints.
The First Right
Given its earlier findings it may not be strictly necessary to deal with the First Right in relation to the adverse action taken, but the Court has done so in any event because it provides some further context to what follows. Each of ISS’s witnesses confirmed that it was not the case that the involvement of WorkSafe, which ISS assumed Mr Morrison was responsible for, was a reason for his termination. When each witness was pressed on this point, they remained firm that WorkSafe was not a part of the termination discussion on 11 October 2013. Indeed, Mr Forde, Mr Toohey and Ms Robertson all recognised that Mr Morrison had a right to make a complaint to WorkSafe (albeit this may be incorrect for reasons already discussed), or in any event had a right to make a complaint about the safety of the workplace.
The Court has already found that Mr St George was not removed from the work site because WorkSafe had become involved, rather Mr St George was removed from the work site on the basis of the Complaint that Mr Morrison made to, at least, Mr Toohey on 1 October 2013. Therefore, the Court is not satisfied that ISS felt compelled to act on Mr Morrison’s Complaint only because WorkSafe had become involved.
Ms Robertson stated that the extent to which the “investigation” by WorkSafe was undertaken, it was limited to the phone call by the WorkSafe inspector received on 2 October 2013. Ms Robertson provided the documents requested from that conversation to WorkSafe on 3 October 2013. In cross-examination, Ms Robertson stated that she was not required to forward the drug test results of Mr St George to WorkSafe. Between 11 October 2013 and 15 October 2013, Ms Robertson was advised by WorkSafe that the investigation had been completed: Robertson Affidavit, Annexure NR4. The extent to which Ms Robertson was examined on this point was only to confirm the closing of the WorkSafe investigation occurred prior to 16 October 2013, and responding in the negative that this was an instrumental part of the decision to terminate Mr Morrison.
In circumstances where the “decision-makers” each stated they respected the right of an employee to contact WorkSafe and make safety complaints, that Mr Toohey could not confirm if he was aware of the WorkSafe investigation at the time of the termination, and that ISS had taken action with respect to the First Complaint prior to the involvement of WorkSafe, the Court is not satisfied, on the balance of probabilities, that Mr Morrison was terminated because he indirectly initiated an investigation or proceeding by WorkSafe. ISS has therefore discharged the presumptive onus under s.361 of the FW Act and the Court is satisfied that, in this regard, that is a complaint to WorkSafe, adverse action was not taken for the proscribed reason in s.341(1)(b) of the FW Act: Barclay at [129] per Gummow and Hayne JJ.
Turning to the exercise of the right under s.341(1)(b) of the FW Act with respect to the Second Complaint (to the DMP), Ms Robertson’s evidence was that she did not become aware of the Second Complaint until 21 October 2013. That evidence did not appear to be challenged in any way. In the circumstances, given the Second Complaint was not within the knowledge of any of the decision-makers at the time of Mr Morrison’s termination, it cannot be said the termination was “because of” a process or proceeding initiated by the DMP because Mr Morrison had made the Second Complaint.
In light of the above findings, the Court is not satisfied on the balance of probabilities that Mr Morrison was terminated because he had exercised a workplace right pursuant to s.341(1)(b) of the FW Act. Therefore, there has been no breach of s.340 of the FW Act in this respect.
The Second Right
The Court has found that Mr Morrison did not exercise a workplace right pursuant to s.341(1)(c)(i) of the FW Act in relation to any WorkSafe involvement in the investigating of Mr St George. Therefore, the Court need not address if adverse action were taken for that reason.
Ms Robertson’s evidence was that she did not become aware of the Second Complaint until 21 October 2013. That evidence did not appear to be challenged in any way. In the circumstances, given the Second Complaint was not within the knowledge of any of the decision-makers at the time of Mr Morrison’s termination, it cannot be said the termination was “because of” the Second Complaint or the involvement of the DMP. To the extent the Second Right relates to the Second Complaint it must be dismissed. Therefore, Mr Morrison was not terminated by reason of exercising his workplace right pursuant to s.341(1)(c)(i) of the FW Act in complaining to the DMP.
It follows that no breach of s.340 of the FW Act has been established in relation to the Second Right.
The Third Right
There can be no doubt that what were perceived as behavioural issues on the part of Mr Morrison played some part, and perhaps even a substantial and operative part, in the reasons for the termination of his employment. The Court notes that:
a)Mr Bintley’s evidence was that the reason for Mr Morrison’s termination as described by Ms Robertson in the Termination Meeting was “more Damien’s attitude as well as the WorkSafe issue”: Transcript, p.26 at [20]-[23], and that whilst a considerable focus of the Termination Meeting was upon Mr Morrison’s attitude, Mr Bintley also said that “they said it was Damien’s attitude that was the whole thing with the termination but it was quite clear that she was upset at Damien raising the matter of Nicholas St George”: Transcript, page 27 at [12]-[15];
b)there was also some evidence that a grievance was made against Mr Morrison by Mr St George’s girlfriend for bullying and harassment, and that it was recorded that Mr St George was feeling victimised and unfairly targeted for being the “Bosses son”, and he was aware of “malicious gossip that has been shared on site from Damien [Mr Morrison]”: Morrison Affidavit, Annexure DAM5. Mr Toohey gave evidence that Mr Morrison had referred to Mr St George as a “druggo”, and that he had continued to disparage or talk about Mr St George which made it difficult for Mr St George to perform many of his duties on site: Transcript, page 113;
c)in relation to the complaint against Mr Morrison by Mr St George’s girlfriend, Mr Forde gave evidence that a significant part of the reason Mr Morrison was terminated was because of the alleged harassment of Mr St George’s girlfriend. Much of the evidence in this regard was vague and second-hand, and neither Mr St George nor his girlfriend, nor any other employee, gave direct evidence of these alleged events. The complaint against Mr Morrison was not made to ISS until after Mr St George had been removed from site on 2 October 2013, and Ms Robertson conceded that there “absolutely” may have been some form of retaliation in the making of that complaint: Transcript, page 171; and
d)each of ISS’s witnesses stated that there were complaints and issues surrounding Mr Morrison’s behaviour prior to his termination, but the evidence on these other complaints and issues was generally vague, or concerned matters that ISS became aware of “after the fact” of Mr Morrison’s termination. That evidence, which post-dates the termination cannot therefore have been in the mind of Mr Forde or Mr Toohey when making their decision to terminate Mr Morrison, and is therefore irrelevant, and Counsel for ISS properly conceded that it was not relevant to the issues presently to be determined by the Court: Transcript, pages 185-186.
The evidence of the witnesses for ISS made manifestly clear that Mr Morrison’s complaints concerning Mr St George were a factor in his termination. Ms Robertson said it was when the drug test results came back negative and that the complaint against Mr St George was proven “not true”, that ISS decided to move to terminate Mr Morrison. Ms Robertson said that had the test been positive, and the complaint had some veracity, a first and final warning would more likely have been given to Mr Morrison as opposed to his being terminated.
It suffices to observe that if the drug test results for Mr St George had been returned as positive, Mr Morrison would not have been terminated. When those results returned negative, Mr Morrison was terminated. It is plain that Mr Morrison’s complaint about Mr St George’s alleged drug use and other conduct was a substantial and operative factor in the decision of Mr Forde and Mr Toohey to terminate Mr Morrison’s employment. Mr Forde admitted that Mr Morrison’s complaints about Mr St George were “part of it”, that is the decision to terminate, whilst Mr Toohey ultimately admitted that Mr Morrison’s reporting of Mr St George’s alleged drug use to him “did form part of Damien leaving the business”: Transcript, page 140. Although Ms Robertson was not herself a decision-maker, she advised the decision-makers and was privy to their reasoning in relation to the termination of Mr Morrison, and she had little or no hesitation in saying, at least initially, that “part of the decision was around the complaint made”: Transcript, page 151, and that Mr Morrison’s grievance concerning Mr St George was a contributing factor to Mr Morrison’s termination: Transcript, page 152. There is also a clear cause and effect relationship between the outcome of the drug test results and the ultimate decision to terminate Mr Morrison as a result of his complaint which gave rise to the drug testing of Mr St George: Russell at [63] per Foster J.
Having regard to the findings that the Court has made in relation to the other reasons put forward by ISS as reasons that Mr Forde and Mr Toohey made the decision to terminate Mr Morrison, it is plain that the Complaints that Mr Morrison made in relation to Mr St George, as well as the outcomes deriving from them, were a substantial and operative reason for the decision to terminate Mr Morrison.
Mr Toohey’s evidence was that after the drug test results came back Mr Morrison continued to talk about Mr St George in a degrading way and spread rumours. It was put to him that the drug test results for synthetic cannabinoids did not come back until 10 October 2013 and the decision to terminate was made on 11 October 2013, leaving little time for Mr Morrison to continue to spread rumours. Mr Toohey sought to explain that he had advised Mr Morrison on 1 October not to say anything and from the period of 1 and 10 October 2013 Mr Morrison continued to spread “malicious gossip”: Transcript, pages 132-133. Mr Morrison left the site on “R&R” on 9 October 2013, therefore to the extent Mr Toohey stated Mr Morrison was informed Mr St George would be returning and continued to “say some abusive stuff about Nicholas”, this evidence must be rejected: Robertson Affidavit, Annexure NR4; Transcript, page 121 at [6]-[9].
Ms Robertson’s evidence was that it was not so much the fact of Mr Morrison making the complaint about Mr St George to Mr Toohey and Mr Forde on 1 October 2013, that was the reason for the termination, rather it was “how the complaint was managed internally and the behaviour surrounding how the complaint was managed”: Transcript, page 151 at [40]-[45]. This supports Mr Toohey’s evidence that it was Mr Morrison’s behaviour surrounding the issue with Mr St George that exacerbated the situation and caused some weight to be placed on the outcome of Mr St George’s drug test results.
The Court’s view is that, in all of the circumstances, ISS decided that Mr Morrison’s attitude and behaviour toward Mr St George throughout the period of his employment was unsatisfactory. In particular, that, while Mr Morrison was allowed, and encouraged, to bring to light any safety complaints or concerns to ISS management, the way in which he sought to do so was unsatisfactory.
It was when the results of the drug test returned as “negative” that it was decided to terminate Mr Morrison’s employment. A substantial and operative reason for Mr Morrison’s dismissal was that the results of the drug test, a drug test that was required, or ordered, as a result of Mr Morrison’s Complaints.
Mr Forde’s evidence was that it was as a result of Mr Morrison making “false allegations”: Transcript, page 64 at [20]-[21], and Mr Toohey stated in his evidence that it was Mr Morrison’s:
… continual discrimination against a fellow employee that was proved to be - the allegation was proved to be false.
(Transcript, page 114 at [6]-[9]).
In the “Grievance Recommendation/Resolution” authored by Ms Robertson it was stated:
As a result of the investigation into false allegations of substance use of Nick St George by Damien Morrison and the reports of onsite aggressive behaviour towards management and other staff – my suggestion is that Damien be released under probation.
(Bintley Affidavit, Annexure BB3).
Mr Forde, Mr Toohey and Ms Robertson all referred to the fact that the allegations, which formed the basis for Mr Morrison’s complaint, were “false”. The Court does not accept that Mr Forde and Mr Toohey formed the view that Mr Morrison was dishonest or untruthful in making the complaint, and it cannot be said that Mr Forde and Mr Toohey had made the decision on the premise that Mr Morrison was dishonest or untruthful in making the complaint: Construction, Forestry, Mining & Energy Union & Another v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492.
It follows, therefore, that a substantial and operative reason for the decision to terminate Mr Morrison was the matters that arose from his Complaint about Mr St George. Quite clearly, Mr Morrison had formed the view that Mr St George was incompetent and inhibited by both his medical condition and alleged substance use in carrying out his work safely and therefore placing Mr Morrison’s safety in danger. In Shea (No 6) at [621] per Dodds-Streeton J:
While the factual basis of a complaint need not be “true” or capable of ultimate substantiation, in my view, the grievance must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid. There would otherwise be no real, but merely a spurious, grievance. The exercise of the workplace right constituted by the making of a complaint is not within the scope of statutory protection if it is made without good faith or for an ulterior purpose, extraneous to that for which the statutory protection was conferred.
The Court is satisfied that the Complaint Mr Morrison made concerning Mr St George’s alleged drug use was made in good faith and he genuinely believed it to be true. The contrary suggestion was not put to Mr Morrison in his cross-examination: Transcript, pages 19-24. It is not the case that the allegations or complaint can be seen to fall into those terms described in Shea (No 6) at [620] per Dodds-Streeton J as outside the protection of s.341(1)(c)(ii) of the FW Act.
The fact of the matter is, but for Mr Morrison making the Complaint the drug test for Mr St George would not have been instigated, and but for the negative result the Court finds Mr Morrison would not have been terminated. The Court is not satisfied that when Mr Morrison’s concerns were not substantiated ISS had reason to believe he had acted dishonestly or maliciously.
ISS has failed to discharge the presumptive onus under s.361(1) of the FW Act to prove that Mr Morrison’s complaint concerning Mr St George was not a substantial and operative factor in his termination. It follows that a breach of s.340 of the FW Act has been established.
The Court again notes that the Second Complaint to the DMP was not a reason for Mr Morrison’s termination as it was not within the knowledge of the decision-makers at the time Mr Morrison was terminated.
Conclusion
For the reasons set out at [5]-[8] above, before there is a valid application upon which the Court can finally rule, there must be an application made to extend the time for the filing of the application pursuant to s.370(a)(ii) of the FW Act, otherwise, the application is invalid and will have to be dismissed. Likewise, if any application to extend time for the filing of the application is made, and an extension of time is not granted, the application will have to be dismissed. It follows that what is said at [26]-[149] above is entirely provisional, and contingent upon there ultimately being a valid application before the Court. In the circumstances, and for the reasons set out at [5]-[8] above, there will therefore be orders to facilitate the making of any application to extend time for filing the application by the applicant, and for the filing of affidavits and submissions by both the applicant and respondent, and the hearing of any application for extension of time which is made. Otherwise, the proceedings are adjourned to the date allocated for the hearing of an application to extend time, if one is made.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 May 2019
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