Motufoua v Diamond Communications Pty Ltd
[2019] FCCA 2818
•3 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOTUFOUA v DIAMOND COMMUNICATIONS PTY LTD | [2019] FCCA 2818 |
| Catchwords: INDUSTRIAL LAW – Dismissal – whether in contravention of a general protection – whether adverse action – whether as a result of complaints made. |
| Legislation: Fair Work Act 2009 (Cth), pt.3.1, ss.340, 341, 342, 361, 570 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 |
| Applicant: | IMOGENE JAZZ MOTUFOUA |
| Respondent: | DIAMOND COMMUNICATIONS PTY LTD |
| File Number: | PEG 406 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 7 and 8 March 2017 |
| Date of Last Submission: | 8 March 2017 |
| Delivered at: | Sydney (by video-link to Perth) |
| Delivered on: | 3 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr R Wade |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
That the originating application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 406 of 2014
| IMOGENE JAZZ MOTUFOUA |
Applicant
And
| DIAMOND COMMUNICATIONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Imogene Jazz Motufoua (“Mr Motufoua”) filed an Originating Application on 15 December 2014 against the respondent, Diamond Communications Pty Ltd (“Diamond Communications”), alleging dismissal in contravention of a general protection under the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Motufoua, who was employed as a Field Worker by Diamond Communications, alleges that he suffered various adverse actions either because he made workplace complaints or reports, or because he exercised workplace rights, in particular by lodging a workers' compensation claim.
The alleged adverse actions culminated in the termination of Mr Motufoua’s employment during October 2014, something Mr Motufoua attributes to him having made an earlier complaint or a workers' compensation claim.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read (and re-read in the case of the affidavits and transcript) all of the relevant papers prior to delivering these Reasons for Judgment including:
a)the Originating Application and Claim Form;
b)the Response;
c)the various affidavits filed by the parties;
d)an outline of submissions filed by the respondent; and
e)the transcript of the hearing before the Court on 7 and 8 March 2017 (“Transcript”).
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Law
It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
In the context of adverse action proceedings it is for Mr Motufoua to assert and establish that:
a)he exercised the workplace rights pleaded in his statement of claim;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
If Mr Motufoua proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for Diamond Communications to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 (“Geraldton Port Authority”) at [221] per RD Nicholson J.
In Barclay 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)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;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[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 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”.
In relation to the evidence bearing upon the decision made by an employer:
a)French CJ and Crennan J in Barclay said:
i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
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) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Mr Motufoua submits that the making by him of one or more complaints or inquiries was a reason for his dismissal. That allegation having been raised, s.361 of the FW Act operates to create a presumption that Mr Motufoua was dismissed including because of the making by him of one or more of the inquiries or complaints. The onus is then cast on the Diamond Communications to prove otherwise. To displace the presumption, the Diamond Communications need to establish that the making by Mr Motufoua of one or more of the complaints or inquiries was not a substantial and operative factor for dismissing him: Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285 at [17] per Bromberg J, where the Federal Court noted that the relevant authorities as to the operation of ss.360 and 361 of the FW Act are discussed in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911 (Bromberg J).
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person may be regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
Complaint or inquiry
An employee has a workplace right if the employee is able to make a complaint or inquiry in relation to his or her employment: s 341(1)(c)(ii) of the FW Act.
In Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 (“Trilab”) at [16] per Judge Lucev, this Court noted that divergent approaches have emerged in this Court and the Federal Court as to when an employee “is able to make a complaint or inquiry”.
The dichotomy in views as to the proper construction of s.341(1)(c) of the FW Act is reflected in judgments of this Court which have applied both views: see Trilab. It is unnecessary in this case to resolve the issue as to the dichotomy of views as it would appear to be accepted by Diamond Communications either that there are complaints for the purposes of s.341(1)(c) of the FW Act, or that even if the broader view is taken Mr Motufoua’s case still does not succeed.
The alleged contraventions and claims
The contraventions alleged in the Form 2 filed with the Originating Application are as follows:
1. I commenced work for the employer on 6 November 2012 as a Hauler.
2. In or about late February 2013 I filed a complaint with the employer alleging breaches of health and safety and also professional misconduct on the part of three other employees named Paul, Bill and Steven; I do not recall their surnames. I had noticed those employees purposefully installing optic fibres in a manner contrary to the employer’s instructions. I considered that their actions posed a danger to health and safety and would have caused the operation we were working on to be shut down immediately.
3. An investigation was carried out which confirmed my allegations about the conduct of those employees. Following the conclusion of that investigation I was relocated to a manual labour division, the Locator division. I had no experience in manual labour and had received a positive performance review on 29 February 2013 in respect of my work in the Hauler division. I was told by the General Manager of the employer, Mr Paul Tester, that the reason for my relocation was that many people were angry at me for filing the complaint.
4. Whilst I was in the Locator division, I was subjected to harassment and bullying which the employer failed to address. This included being physically assaulted four times during the period April – August 2013 by an employee named Ryan. I made an oral complaint each occasion I was assaulted to Paul Tester. I was also verbally threatened in June 2013 by another employee Johnnie who told me words to the effect that he could shoot me anytime he wanted to. I made oral complaints to both Paul Tester and James Smallman, a health and safety representative of the employer, about Johnnie’s threat. However, none of the complaints I made regarding the behaviour of Ryan and James towards me were ever followed up by the employer.
5. I also did not receive a pay rise despite having been told on 28 February 2013 at my performance review that my salary would increase. I raised this on several occasions with the employer following my relocation and was told that I was “not ready” because I had no experience. I was also told that the company was not performing as successfully as anticipated and accordingly no employee was receiving a pay rise. Despite this, I am aware of other employees that have received salary increases since February 2013.
6. By making a complaint regarding the risk that I considered the actions of the relevant three employees posed to occupational health and safety at the worksite, as I was entitled to do pursuant to the Occupational Safety and Health Act 1984, I exercised a workplace right within the meaning of section 340 of the Fair Work Act. I consider that by the employer relocating me to the Locator division, failing to act upon my complaints as detailed in paragraph 4 and refusing to give me a pay rise as detailed in paragraph 5, the employer took adverse action against me within the meaning of sections 342(1)(b)-(d) because of the exercise of my workplace right.
7. On 1 August 2013 I injured my hands at work. I subsequently made a workers’ compensation claim, as was my right pursuant to the Workers’ Compensation and Injury Management Act 1981.
8. After having made my workers compensation claim I was subjected to further instances of adverse action by the employer, which ultimately culminated in my termination, as follows:
(a) I requested in or about late August 2013 to be transferred to a division where manual labour was not required, as I was unable to use my hands due to the injury. My request was refused and I was told by Lee Marshal, Construction Manager, that the employer was paying for the injury to my hands and that if I couldn’t do my job then I would have to find a job elsewhere. Up until the time of my termination I was often told by various of my supervisors that although the employer company had lots of work, there was no work for me and that I should find another job. Marshal also told me on several occasions that I had “already been fired” so it did not matter what I said or did;
(b) I was continually refused permission to work on the Saturday shift for no valid reason. I was initially told on 26 July 2014 by Ryan Hickey, the Head Team Leader, that the reason was that there were too many employees working on Saturdays already. The Saturday shift is however known as the unpopular shift among employees. On 16 August 2014 I attended work to enquire whether I could work that shift and was told that I could not as I had not “put my name” on the relevant board to indicate willingness to work the shift. I was not aware that any protocol existed until that point and had not seen any other employees following any. Nevertheless, the next week I did put my name on the board as advised. When I arrived on 23 August 2014, I was turned away by Hickey and Ian Hampson, Field Supervisor, on the grounds that I had not received a call from Hampson confirming that I could work that day. The Saturday shift is calculated as time and half so I would have earned more if I was permitted to work on Saturdays;
(c) I was often singled out by Marshal and by health and safety supervisors (James Smallman and Ken Mariu) for purported non-compliance with health and safety regulations and have been threatened and/or disciplined as a result. On one occasion this occurred in or around early May 2014 when during work a gas pipe underground was accidentally hit. Due to the health and safety risk I declared an emergency situation and secured the area with all the traffic cones that had been securing my truck. I ran to look for more cones in other trucks stationed across the road. When I returned I was told by Marshall that I had breached regulations by not securing my truck with cones. I noted on that day that most of the company vehicles parked on that site were not secured by cones, but I was the only employee to have been followed up. The following day I received a “first and final” written warning;
(d) On another occasion in or around June 2014 I was helping some employees use a machine that I did not have a health and safety “ticket” for. However, none of the other employees working on the same machine had “tickets” and no one was aware that “tickets” were required. I was threatened with termination for this but the other employees without tickets were not spoken to;
(e) On yet another occasion on 7 August 2014 I was instructed by Foley to cease working on a particular task for the time being and assist him with another task. I was told by Mariu that I had breached health and safety regulations by leaving the first task unfinished and so leaving the site unsecured. Despite Foley explaining to Mariu that I had left that task unfinished because he had instructed me to do so, Mariu threatened me with termination and told me that because I had breached the regulations I would be fired the next week once Lee Marshal returned from leave;
(f) In or around 13 May 2014 I made a complaint to health and safety representative Ken Mariu about an employee, Haiden Cowley, not complying with health and safety regulations by failing to assist me hold up a heavy sewer lid on site that could have fallen on my supervisor Brian Foley. The lid was made of heavy concrete and could have killed Foley if it had fallen. In response to my claim Mariu told me to “stop whinging”;
(g) On 18 August 2014 I was involved in an incident where I turned around to find another employee Matt Burke raising a pitkey, a sharp tool, above his head as if to strike me from behind. I was fearful for my safety and reported the incident verbally to Lee Marshal on 25 August 2014. Since the incident occurred I have been instructed by that same employee Matt Burke, who has since been promoted, and supervisors Ian Hampson and Ryan Hickey to perform tasks that are in my view dangerous and contrary to health and safety regulations. Despite my having raised those concerns with Burke and my supervisors, they have continued to apply pressure on me to carry out those tasks. When I have refused, they sent me to another site to dig holes, or to the depot where I was told to sweep the floor.
9. I was told in a meeting on 7 October 2014 by Paul Tester that my employment was terminated with immediate effect because I had breached company policy by failing to report an incident that occurred on 29 August 2014 within 2 weeks.
10. I consider that the reason for my dismissal was that I had exercised a workplace right under section 240 by having made a workers’ compensation claim or by having made a complaint in February 2013, or both.
Summary of adverse actions
In summary the adverse actions relied on by Mr Motufoua from February 2013 to October 2014 are as follows:
a)his relocation to the Locator Division of Diamond Communications, which he asserts was adverse because it required him to perform more manual labour, and which he attributes to the fact that in early 2013 he raised a safety related complaint against a number of his work colleagues (“February 2013 Complaint”): affidavit of Mr Motufoua sworn 6 September 2016 (“Mr Motufoua’s Affidavit”) at [6]-[15];
b)the failure by Diamond Communications’ General Manager, Paul Tester (“Mr Tester”) to follow up allegations of bullying and harassment, including physical assaults, and a failure on the part of James Smallman, Diamond Communications’ Project Manager (“Mr Smallman”) to follow up a threat by a fellow employee, “Johnnie to "shoot" Mr Motufoua;
c)because of the February 2013 Complaint” being denied a pay increase when other employees received pay increases;
d)a collection of further alleged adverse actions, including the threat of dismissal, being deprived of the opportunity of working Saturday shifts, being singled out (and threatened or in fact disciplined) for breaches of "health and safety regulations", being falsely accused of unfounded safety breaches and being required to perform tasks which were both dangerous and contrary to health and safety regulations, attributed to his pursuit of a workers compensation claim; and
e)his dismissal from employment in October 2014 (“Dismissal”), which he attributes to both the February 2013 Complaint and the making of the workers' compensation claim.
Factual issues
Relocation
In his Claim, Mr Motufoua asserts that following the February 2013 Complaint he was relocated to perform manual labour because, according to what Mr Motufoua says was said by Mr Tester, "many people were angry at me for filing the complaint”;
The Court notes that:
a)Mr Tester regarded Mr Motufoua's complaints as serious, and initiated an investigation into them: Mr Motufoua's Affidavit at [22]-[27];
b)there is no, or no sufficient evidence, to support the assertion that Mr Motufoua's relocation was designed to punish him or otherwise prejudice him in his employment: Mr Motufoua's Affidavit at [33]-[40];
c)Diamond Communications had a commitment to safety and, in relation to the February 2013 Complaint, and that:
i)Mr Tester and Ed Peverley, Diamond Communications’ Human Resources Manager (“Mr Peverley”), met Mr Motufoua because of Mr Motufoua's request that he be transferred: Peverley Affidavit at [53];
ii)Mr Tester acceded to Mr Motufoua's request to be transferred; and
iii)there was no discussion about the alleged unhappiness of others or Mr Motufoua's ability to undertaket asks in the Locator Division: Tester Affidavit at [54]-[56]; and
d)Mr Peverley, who had participated in the investigation of the February 2013 Complaint, confirmed that the February 2013 Complaint gave rise to a degree of unhappiness: Peverley Affidavit at [7]-[9], and that he attended a meeting with Mr Tester and Mr Motufoua, and that Mr Motufoua's relocation was consensual: Peverley Affidavit at [13]-[14].
On the basis of the evidence the Court is satisfied that Mr Motufoua’s transfer to the Locator Division occurred as a result of an agreement between Mr Motufoua and Mr Tester. The transfer was not related to or an attempt to punish or otherwise prejudice Mr Motufoua because he made the February 2013 Complaint.
Assaults and harrassment
There is no doubt that Mr Motufoua raised with Mr Tester issues about behaviour of a fellow employee, Ryan. Mr Motufoua says that Ryan physically assaulted him on four separate occasions between April and August 2013. Mr Motufoua's Affidavit, however, does not say anything about any "physical assault" by Ryan. Mr Tester confirms having addressed the issue with Ryan and having subsequently confirmed that with Mr Motufoua. There is a denial by Diamond Communications that any alleged physical assaults upon, or a threat (to shoot), Mr Motufuoa were ever reported to either Mr Tester or Mr Smallman: Tester Affidavit at [58]-[60].
In relation to whether Mr Tester ignored a complaint from Mr Motufoua regarding the alleged threat to shoot by Johnnie, Mr Motufoua did not in attest to any discussion with Mr Tester regarding this issue, but instead confirms the fact that he did not address the issue with Mr Tester: Mr Motufoua's Affidavit at [83].
Mr Smallman disputes that Mr Motufoua complained that Johnnie had threatened to shoot him: Smallman Affidavit at [11]. Mr Smallman says that such a threat would have considered very serious and he would have been obliged to report it: Smallman Affidavit at [12].
The evidence demonstrates that Mr Motufoua did complain about a fellow employee exposing his private parts, but that complaint was in fact followed up. There is in fact no suggestion that the relevant complaints were not followed up: see Mr Motufoua's Affidavit at [41]-[83];
In the Court’s view there is no, or no sufficient, evidence that Mr Motufoua was physically assaulted on four occasions, or at all.
No pay rise
There is no dispute that Mr Motufoua did not receive a pay rise.
Mr Motufoua alleged that he was promised a pay rise which never eventuated. Mr Motufoua also alleged that, in about September 2014, other, unidentified, employees told him that they had received pay rises. Mr Motufoua does however concede that he was informed by Diamond Communications at some stage that no employees of diamond Communications would receive a pay rise because Diamond Communications performance had not met expectations.
There was evidence from Diamond Communications that:
a)Mr Peverley, who is alleged to have made the promise, simply did not have the authority to promise a pay rise, and Mr Peverley gave evidence that he did not tell Mr Motufoua that he would receive a pay increase upon completion of his probation period, and that although he discussed promotional prospects Mr Motufoua might have confused the possibility of promotional prospects with a pay increase: Peverley Affidavit at [18]-[20]; Tester Affidavit at [61]; and Jenaway Affidavit at [17]; and
b)except for pay increases as a consequence of promotions, no-one at Diamond communications had received a general pay increase since about September 2012: Jenaway Affidavit at [18]-[21]; Tester Affidavit at [62]; and Peverley Affidavit at [19].
The evidence from Diamond Communications, which is consistent and logical and to be preferred to Mr Motufoua’s evidence, contradicts Mr Motufoua’s assertion that:
a)he was promised a pay rise;
b)others received a pay rise; and
c)the lack of a pay rise was because of any complaint made by Mr Motufoua.
The Court therefore finds that Mr Motufoua did not receive a pay rise, but was never promised one and that, in this respect, he was not treated differently to other employees of Diamond Communications, none of whom received a pay increase either.
Transfer
Mr Motufoua claims that for proscribed reasons he was not put in a position where manual labour was not required: Motufoua Affidavit at [101]-[116]; see also Tester Affidavit at [63]-[64] and the affidavit of Lee Marshall (“Marshall Affidavit”) at [6]-[11].
The evidence indicates that Mr Motufoua:
a)had a shoulder injury for which, following medical treatment, a final workers compensation medical certificate was issues in July 2013: Jenaway Affidavit at [21]-[22];
b)a carpel tunnel injury which resulted in his transfer, with medical approval, to a temporary, and specially created, position of storeman: Marshall Affidavit at [7]; Jenaway Affidavit at [26]; and
c)was prohibited from carrying out any duties with vibrational tools anmd equipment because of their possible effect on his carpel tunnel injury: Jenaway Affidavit at [27]
The evidence shows that Mr Motufoua’s injuries were dealt with appropriately by Diamond Communications, including by the creation of a special temporary position as a storeman. There is nothing in the evidence that indicates that the actions taken by Diamond Communications were because of any proscribed reason.
Work on Saturdays
In relation to Mr Motufoua's allegations of a denial of available work on Saturdays the Court notes that on Mr Motufoua’s own evidence:
a)that on at least one occasion he was not permitted to work on Saturday he had not put his name forward: Mr Motufoua's Affidavit at [123];
b)that on other occasions he was expressly informed that his skills were not required: Mr Motufoua's Affidavit at [126];
c)on another occasion he had put his name forward, but was not called to work: Mr Motufoua's Affidavit at [127]; and
d)that although the lack of Saturday work is said to be because of the February 2013 Complaint, the first complaint by him about a lack of Saturday work was some 18 months later in August 2014,: Mr Motufoua's Affidavit at [117]-[126].
The evidence of Diamond Communications: see Tester Affidavit at [65]; Hickey Affidavit at [6]-[8]; Marshall Affidavit at [13]-[15], establishes that eligibility for Saturday work was dependent upon:
a)the willingness of employees to perform the particular Saturday work;
b)the nature of the work being performed; and
c)the available skill set of the employees willing to perform Saturday work in relation to the nature of the work to be performed.
In the circumstances set out above the Court is satisfied that the availability of Saturday work, and the selection of persons to perform that work, was not, in the case of Mr Motufoua, because of any proscribed reason.
Disciplinary issues
Mr Motufoua alleges that certain disciplinary incidents, including
a)the gas pipe incident: Motufoua Affidavit at [152]-[159]; and
b)the incidents in May 2014: Motufoua Affidavit at [140]-[151],
were as a result of his complaints.
The gas pipe incident involved a failure to have safety cones around a truck used by Mr Motufoua at the time of a reported possible gas leak for which Mr Motufoua received a first and final warning: Marshall Affidavit at [21]-[23]. There is nothing in the evidence which, in any way, suggests that that warning was as a consequence of any complaint made by Mr Motufoua, or for any other proscribed reason,
Motufoua does not appear to reference what he refers to as the "7 May 2014 incident", but in any event, his evidence in relation to it does not support a conclusion of adverse action, or any action taken for a proscribed reason
The 13 May 2014 incident involved a failure by Mr Motufoua to either have on his truck, or to put out, safety signs indicating that there were workmen working, and subsequently an incident with a sewer lid: Mariu Affidavit at [30]-[37]. The failure to put out the signs resulted in a safety report being written up. In relation to the sewer lid incident, in which Mr Motufoua says he nearly dropped a sewer lid on another employee who gone down a manhole, Mr Motufoua also asserts that he was treated adversely when one of Diamond Communications' health and safety representatives, Ken Mariu (“Mr Mariu”), told him to "stop whingeing" in connection with a safety related complaint he had made. Mr Mariu says that he told Mr Motufoua to “calm down” as Mr Motufoua appeared quite upset: Mariu Affidavit at [37]. Either way it is immaterial: there is no evidence that establishes that this incident was in any way related to any complaint made by Mr Motufoua.
Mr Motufoua's also alleged that he was treated differently in connection with him operating a quick-cut saw for which he did not have a "ticket": Mr Motufoua's Affidavit at [160]-[177]. It is not in dispute that Mr Motufoua was not qualified to use the machine. Even if, as Mr Motufoua asserts, others who were not appropriately qualified were allowed to use the quick-cut saw, this does not give rise to adverse action. Adverse action does not arise because an employee is not allowed to perform unsafe acts, even if other employees are so allowed. Diamond Communications' duty of care to Mr Motufoua prevented it from allowing him to operate machinery that he was not qualified to operate: Smallman Affidavit at [16]-[23] and [26]-[28];
There is, on the evidence, no basis for asserting that any of the disciplinary action taken in relation to Mr Motufoua was taken by reason of any complaint he made to Diamond Communications. Or otherwise for any proscribed reason.
Dismissal
The dismissal of Mr Motufoua followed what was described as the "pit-key incident" which involved Mr Motufoua failing to promptly report the very serious allegation that a fellow employee, Matt Burke (“Mr Burke”), had raised a metal pit-key above his head as if to strike Mr Motufoua.
Mr Motufoua's disciplinary history and the basic facts relevant to the pit-key incident were as follows:
a)on 7 May 2014 it was established that Motufoua had failed to place sufficient safety signage around his work site, which together with what occurred on 13 May 2014, resulted in a formal warning;
b)on 13 May 2014, a safety observation report was conducted in relation to work being performed by Mr Motufoua, when he was found to have placed insufficient safety signage around his work site;
c)on 19 May 2014, as a result of the above two incidents, Mr Motufoua was given a formal verbal warning by Mr Marshall. Mr Motufoua was, during the relevant meeting, told that any further safety breaches would result in a final written warning: Marshall Affidavit at [16]-[17];
d)as a result of the gas leak incident on 27 May 2014, Mr Motufoua was given a final written warning in relation to his approach to safety in the workplace and his failure to follow instructions;
e)the final written warning made Diamond Communications' expectations clear and highlighted Mr Motufoua's duty of care under the Occupational Safety and Health Act 1984 (WA). The warning specifically stated that "Failure to comply in future may result in the termination of your employment with the company";
f)Mr Motufoua was asked to provide a written response to the final written warning if he believed it was unfair, but did not do so;
g)on 15 September 2014, Mr Motufoua telephoned Mr Marshall and told him of the pit-key incident involving Mr Burke. The incident was originally alleged to have occurred on 29 August 2014. Mr Motufoua subsequently revised the date to 28 August 2014 and then to 18 August 2014. Mr Motufoua's allegations were investigated and found to be unsubstantiated; and
h)during the investigation, Mr Motufoua was asked why he had failed to report the matter to Diamond Communications at the time it occurred. Initially, Mr Motufoua told the investigators that he had reported the matter to Mr Marshall several times before 15 September 2014. Mr Marshall disputed this. When questioned further, Mr Motufoua told investigators that he had failed to report the incident as he was "exercising my right to remain silent";
i)on 25 September 2014, when Mr Motufoua was told to report back to the depot at about 1.30 pm. Mr Motufoua apparently "got lost" and arrived back at the depot at around 2.30 pm and he then left without advising anyone and without authority to do so. During the disciplinary process, Mr Motufoua was unable to provide a satisfactory explanation for failing to return to the depot and for failing to continue working.
There is no dispute that Mr Tester and Mr Jenaway were the decision-makers in relation to the decision to dismiss Mr Motufoua. Both said that the dismissal was not because of a proscribed reason: Jenaway Affidavit at [54]-[57] and Tester Affidavit at [47]-[48]. Neither Mr Tester nor Mr Jenaway were moved from this position in cross-examination.
In summary, Mr Motufoua had an unsatisfactory disciplinary record, including a final written warning. On a further safety issue arising after the giving of the final written warning Diamond Communications investigated the circumstances surrounding that further safety issue, and found that there had been a further safety breach by Mr Motufoua. Having regard to Mr Motufoua's past disciplinary record, Mr Jenaway and Mr Tester decided to dismiss Mr Motufoua from his employment with Diamond Communications on 7 October 2014 with pay in lieu of notice. Mr Motufoua's Dismissal was solely attributable to the fact that Mr Motufoua, who had a poor disciplinary record, misconducted himself by failing to report a serious safety incident and because he absented himself from his workplace without proper justification
Mr Motufoua has failed to establish his claim that he was dismissed from employment on the basis of complaints made by him, or for any other proscribed reason, or that any of the incidents leading up to his dismissal and any of the actions taken by Diamond Communications were taken because of any proscribed reasons.
Conclusion and orders
The Court has concluded that Mr Motufoua has failed to make out his claims and that his application must be dismissed.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No.2) [2017] FCCA 1713). If, however, Diamond Communications considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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