Ogbonna v CTI Logistics Ltd (No 2)
[2015] FCCA 2318
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OGBONNA v CTI LOGISTICS LTD & ORS (No.2) | [2015] FCCA 2318 |
| Catchwords: INDUSTRIAL LAW – Award entitlements – allowances – first aid and travelling. |
| Legislation: Evidence Act 1995 (Cth), ss.138(1) and (3) |
| Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; (2012) 261 FLR 211; (2012) 86 ACSR 713 Jones v Chief of Navy [2012] FCAFC 125; (2012) 205 FCR 458; (2012) 294 ALR 28 Metz Holdings Pty Ltd & Ors v Simmac Pty Ltd (No. 1) [2011] FCA 263; (2011) 193 FCR 195 Smith v Saracen Management Pty Limited [2002] WAIRComm 5619; (2002) 82 WAIG 1050 Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694 |
| Applicant: | CELESTINE OGBONNA |
| First Respondent: | CTI LOGISTICS LTD |
| Second Respondent: | TIM BARTON |
| Third Respondent: | MARK VANDERLIST |
| File Number: | PEG 72 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing dates: | 19-20 December 2013 and 6 February 2014 |
| Date of Last Submission: | 6 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| For the Applicant Counsel for the Respondents: | In person Mr S P Kemp |
| Solicitors for the Respondents: | Jackson McDonald |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 72 of 2013
| CELESTINE OGBONNA |
Applicant
And
| CTI LOGISTICS LTD |
First Respondent
| TIM BARTON |
Second Respondent
| MARK VANDERLIST |
Third Respondent
REASONS FOR JUDGMENT
The application and amended Statement of Claim
By application filed on 19 April 2013 the applicant, Celestine Ogbonna (“Mr Ogbonna”) alleged racial discrimination, relying upon ss.9, 15 and 18A of the Racial Discrimination Act 1975 (Cth) (“RD Act”), by his former employer, the first respondent, CTI Logistics Ltd (“CTI Logistics), the second respondent, Tim Barton (“Mr Barton”), and the third respondent, Mark Vanderlist (“Mr Vanderlist”).
In an Amended Statement of Claim filed on 29 July 2013, in addition to the allegations of discrimination under the RD Act, an allegation was raised that the applicant was not paid allowances to which he was entitled and superannuation.
The Amended Statement of Claim is short and provides as follows:
1.At all material times:
(a)The applicant was an employee of CTI logistics Ltd
(b)The respondents were both employer and managers respectively
2.On 25 June 2012, I was phoned by Mark Vanderlist to bring completed quarantine document to 310 Spearwood Avenue, Bibra Lake, after the handover of this document to Mark Vanderlist, he called me outside his office and informed me that I will be the only person to bring documents down to the abovementioned address and I will be paid $30 per week and not $30 per trip as others were previously paid, when I objected he threatened me and said I would get kicked out if I go against his order and that I should be grateful I am in Australia and not back in my home country.
3.On 6 July I was bullied by Tim Barton and Mark Vanderlist and threatened by Tim Barton. This was not the first time it happened.
4.On 16 July 2012 I received an email from Alan Rapley, to come to Spearwood to assist him with the quarantine at Spearwood. But on arrival I was sent to the floor to work entirely differently from the content of his email and other employees including a client harassed me during this time.
5.On 22 July 2012, I was told my services were no longer needed even though at the beginning of the week, CTI logistics Ltd had contracted a significant number of employees through Choice Workforce; my employment was terminated because of all of the above incidents.
6.I was also not paid other entitled allowances even though Mark Vanderlist was duly informed by me but he refused to do so.
7.As a result of the respondents’ breached of Section 9, Section 15 & Section 18A of the Racial Discrimination Act 1975, I, the applicant suffered significant loss and damage.
I, the applicant claim the following relief:
PARTICULARS OF LOSS AND DAMAGE –
· Loss of income: $54,934.54
· Unpaid entitled allowances: $3,358.04
· Superannuation: $4,275.47
· Emotional trauma and stress experienced: $30,000
· Letter of apology
(Transcribed from the original without amendment.)
The Response and Defences
In a Response filed on 3 May 2013 the respondents denied that they acted in the manner alleged and denied that they discriminated against the applicant in any way whether as alleged or at all.
On 12 June 2013 each of CTI Logistics Ltd, Mr Barton and Mr Vanderlist filed Points of Defence. In substance, those Points of Defence denied the allegations made in relation to discrimination against Mr Ogbonna under the RD Act and non-payment of allowances to which Mr Ogbonna alleged he was entitled. Each of the Points of Defence took some issue with aspects of the factual matrix alluded to in the Amended Statement of Claim. Those factual matters are dealt with below.
RD Act provisions
Sections 9, 15 and 18A of the RD Act provide as follows:
9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) …
(4) The succeeding provisions of this Part do not limit the generality of this section.
15. (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c) to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4) …
(5) …
18A. (1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
Evidence and credit
The applicant, Mr Ogbonna, filed three affidavits on 9 October, 5 November and 26 November 2013 (hereafter Mr Ogbonna’s First, Second and Third Affidavits respectively), and gave evidence upon which he was cross-examined.
Mr Ogbonna also subpoenaed:
a)Phillip Jacker, an employee of Leighton Contractors Pty Ltd (“Leighton Contractors”);
b)Bruce Saxild (“Mr Saxild”), whom the evidence discloses is a joint Managing Director of CTI Logistics; and
c)Amanda Jane Symons (“Ms Symons”), a Security Services Contact & Operations Co-Ordinator for the City of Cockburn.
Each of Mr Jacker, Mr Saxild and Ms Symons gave evidence, and Mr Jacker and Ms Symons were cross-examined, to the briefest possible extent.
For the respondents there were affidavits filed 24 October 2013 from:
a)Mr Barton, the Gorgon Project Manager (“Mr Barton’s Affidavit”);
b)Denise Leanne Byrne (“Ms Byrne” and “Ms Byrne’s Affidavit” respectively), formerly a site supervisor for CTI Logistics’ Bibra Lake site (Wellard Street);
c)Alan Graham Rapley (“Mr Rapley” and “Mr Rapley’s Affidavit” respectively), the site supervisor for the CTI Logistics’ Spearwood Avenue site (“Spearwood Avenue site”);
d)Mathew John Robins (“Mr Robins” and “Mr Robins’ Affidavit” respectively), a leading hand at the Garston Way, North Coogee CTI Logistics’ site (“Garston Way site”); and
e)Mr Vanderlist, the Manager Operations and Plant for CTI Logistics (“Mr Vanderlist’s First Affidavit”). A second affidavit from Mr Vanderlist was filed 5 November 2013 (Mr Vanderlist’s Second Affidavit”).
There was also an affidavit filed on 17 December 2013 by Ean Ross Barton (“Mr ER Barton” and “Mr ER Barton’s Affidavit” respectively), an Information Systems Manage with CTI Logistics.
Each of the above witnesses gave evidence and was cross-examined by Mr Ogbonna.
The credibility of Mr Ogbonna’s evidence was affected by a number of matters including:
a)his tendency to speak over both Counsel and the Court, or to endeavour to do so; and
b)his failure to answer the question that was asked, often a question which admitted of a simple yes or no or brief answer, and to instead proceed to give a lengthy answer which was not in relation to the matter about which he had been asked.
By contrast, the CTI Logistics employees who were called as witnesses, including Mr Saxild, who was called on subpoena by Mr Ogbonna, were patient, and gave proper and thoughtful answers to questions asked of them, often in the face of cross-examination which was difficult to understand as to its conception and relevance, and which was perplexing to the witnesses, and sometimes the Court. In particular, the principal witness for CTI Logistics, Mr Vanderlist, impressed as a truthful common sense witness. To the extent that there is conflict between the versions of events described by Mr Ogbonna and CTI Logistics’ witnesses, the Court prefers the evidence of the CTI Logistics’ witnesses, and in particular the evidence of Mr Vanderlist where his evidence conflicts with that of Mr Ogbonna.
Ms Symons was a quiet, thoughtful, and in the Court’s view truthful witness, and where her evidence conflicts with that of Mr Ogbonna, Ms Symons’ evidence is to be preferred.
Factual matters
Contract of employment and the nature of the work performed
Mr Ogbonna was offered and accepted employment by CTI Logistics on the following terms and conditions:
We are pleased to offer you casual employment with CTI Logistics Mineral and Energy division on the following terms and conditions which, from time to time may change:
Commencement Date: 1 May 2012
PositionWarehouse Storeperson
Reporting To: Mark Vanderlist
Wage Rate:Your hourly rate is $23.50 per hour (ordinary hours) which is payable fortnightly on the Thursday following the fortnight ending in the bank nominated by you. Approved overtime will be calculated in accordance with the Fair Work Act – Road Transport and Distribution Award 2010. The award can be found at your monthly earnings exceed $450.00 the Company will pay an additional 9% of your pay into the Company’s Superannuation Plan currently maintained by the Colonial First State. Should you have your own complying Super Fund please advise us.
Wage Reviews: Your base rate will be reviewed from time to time by the Board in line with Group policy.
Hours:Start and finish times and lunch breaks will be confirmed by your Manager and may be varied from time to time to take into account work load and staffing levels.
Nature of Employment: Your duties will be as discussed at your interview but may be varied from time to time by your Manager.
Mr Vanderlist’s First Affidavit at [4], Annexure MV-1.
Mr Ogbonna was therefore employed, under the contract of employment, to be a casual employee in the capacity of Warehouse Storeperson. See too Mr Vanderlist’s First Affidavit at [34].
Mr Ogbonna was employed on quarantine work. Mr Ogbonna had “red-tag” training. This allowed him to certify that materials had been cleaned to a standard required for quarantine purposes. Mr Ogbonna undertook quarantine work that CTI Logistics performed under contract for Leighton Contractors.
When Mr Ogbonna commenced employment at the Garston Street site he took over from a Mr Lindsay. Mr Ogbonna gave evidence that Mr Lindsay was the site supervisor, and that Mr Lindsay’s duties as site supervisor were handed over to Mr Ogbonna. Subsequently, when Mr Ogbonna signed documentation, including quarantine documents and other types of documents, he took to describing himself as the “Site Supervisor”.
Mr Barton gave evidence that Mr Ogbonna was not a site supervisor: Mr Barton’s Affidavit at [8]. Mr Barton gave evidence that he did not see all of the documentation which was signed by Mr Ogbonna, and probably would not have seen most of it. Mr Barton indicated that he did not challenge Mr Ogbonna’s description of himself as Site Supervisor, and that there was no explanation as to why, but he did observe that Mr Ogbonna could have described himself as any manner of things, including for example team leader, and Mr Barton would not have been concerned about that either: Transcript, 19 December 2013, page 68.
Cross-examined in relation to Mr Lindsay’s duties, Mr Barton gave evidence that Mr Lindsay was a 16 tonne forklift driver, and not the site supervisor. Mr Lindsay was responsible for the receipt and dispatch of goods, which included forklift driving duties, and which would have included meeting people who came on site to deliver and pick up goods.
Because of the difficulties that Mr Ogbonna was having in managing staff and work at the Garston Way site, Mr Barton, Mr Vanderlist and Mr Robins, would go to the Garston Way site, the latter in the role of Team Leader, and supervise and instruct the team at the Garston Way site to ensure that work was being performed properly. Consequently, Mr Ogbonna remained in the role of red-tag person, and remained in charge of administration and quarantine paperwork. In this regard, Mr Robins’ introduction to the Garston Way site was to support Mr Ogbonna in relation to the non-paperwork aspects of his role, and in particular to assist his interaction with other staff.
Mr Ogbonna was informed of these changes to the roles at the Garston Way site, and was told what his role would be and what Mr Robins’ role would be. Mr Vanderlist told Mr Ogbonna, in response to a query from Mr Ogbonna, that he was not being demoted, but rather that Mr Robins was there to support his performance in his role.
On the basis of the evidence the Court is not prepared to find that Mr Ogbonna, who was a casual employee whom CTI Logistics thought was terminable on an hour’s notice: Mr Barton’s Affidavit at [27], was a site supervisor or team leader at the Garston Way site. Rather, he was, as contracted, a Warehouse Storeperson.
15 June 2012 comment
Mr Ogbonna alleges that on 15 June 2012 Mr Barton made a statement in his presence that he “was a criminal and of questionable character”: Mr Ogbonna’s First Affidavit at [3]. This remark was allegedly made by Mr Barton to Mr Marcusek and overheard by Mr Ogbonna. Mr Marcusek was not called by Mr Ogbonna to give evidence about the alleged statement by Mr Barton. Furthermore, there was evidence in the form of the Visitor’s Register for the Garston Way site, which indicated that Mr Marcusek might not have been on that site on that day: Mr Barton’s Affidavit at [14], Annexure TB1. Mr Barton denies making the statement: Mr Barton’s Affidavit at [13]. Mr Barton was not cross-examined on the actual statement alleged to have been made by him: Transcript, 19 December 2013, pages 67-75, and particularly page 75.
In the circumstances, the Court prefers the evidence of Mr Barton, and is of the view that the statement attributed to Mr Barton by Mr Ogbonna was not made by Mr Barton.
For all of the above reasons, the Court finds that the statement alleged to have been made by Mr Barton on 15 June 2012 to the effect that Mr Ogbonna was a criminal and of questionable character, was not made on that date by Mr Barton, or at all.
The Court notes that the statement now alleged to be made, namely, that Mr Ogbonna was a criminal and of questionable character, was only made in those terms in these proceedings. Prior to these proceedings, that is, before the AHRC, it appears that the complaint was only that Mr Barton said that Mr Ogbonna “was a criminal”. Much was made by Counsel for the respondents of the recovery in memory of Mr Ogbonna over time, and that his memory of this event became better the further away it was. Whilst that may be unusual, in the Court’s view nothing turns on it in these circumstances, because, for reasons set out above, the Court prefers Mr Barton’s evidence in any event.
The 21 June 2012 comment
Mr Ogbonna alleges that on 21 June 2012 he heard Mr Robins tell a driver, George Cripps, that he was “dodgy”: Mr Ogbonna’s First Affidavit at [4]. Mr Ogbonna did not call Mr Cripps. Mr Robins, who the Court considers was a fairly forthright character, denies making the statement: Mr Robins’ Affidavit at [9]; Transcript, 20 December 2013, page 17.
For reasons previously expressed, and in the circumstances, the Court prefers the evidence of Mr Robins to that of Mr Ogbonna. The Court therefore finds that the statement that Mr Ogbonna alleges that Mr Robins made to a driver, to the effect that Mr Ogbonna was dodgy, was not made on 21 June 2012, or at all.
The 25 June 2012 meeting
On 25 June 2012 Mr Ogbonna was telephoned by Mr Vanderlist, who requested that he come to the Bibra Lake site with some quarantine documentation. Mr Ogbonna alleges, and there is no dispute, that he and Mr Vanderlist met outside Mr Vanderlist’s office. Mr Ogbonna says that he was then told that in relation to traveling between the Garston Way and Spearwood Avenue sites he would only be paid $30 per week in future and not $30 per trip as had previously been paid, and that when he objected to this Mr Vanderlist said that Mr Ogbonna would “get kicked out of” Australia if he did not comply with Mr Vanderlist’s order, and that Mr Ogbonna “should be grateful to be in Australia and not back in his home country of Nigeria”: Mr Ogbonna’s First Affidavit at [6]; Transcript, 19 December 2013, page 32.
The Court accepts that Mr Vanderlist at the 25 June 2012 Meeting told Mr Ogbonna that:
a)he would from then on be paid $30 per week travel allowance for travel between the Garston Way and Spearwood Avenue sites;
b)Mr Vanderlist did not expect that Mr Ogbonna would travel between the Garston Way and Spearwood Avenue sites more than once per week;
c)the reason that Mr Vanderlist did not expect that Mr Ogbonna would travel between the Garston Way and Spearwood Avenue sites more than once per week was because other employees would be able to pick up and transport the quarantine paperwork to the Spearwood Avenue site; and
d)if Mr Ogbonna found that he had to travel more than once per week between the Garston Way and Spearwood Avenue sites then CTI Logistics would review the situation, but thought that this was unlikely to occur given Mr Taylor’s frequent visits to the Garston Way site.
Mr Vanderlist’s First Affidavit at [19]-[25].
In relation to the allegation that Mr Vanderlist threatened Mr Ogbonna by suggesting that he would be “kicked out of” Australia, and that he “should be grateful” to be in Australia and not in Nigeria, the Court, for reasons set out above prefers the evidence of Mr Vanderlist to that of Mr Ogbonna, and therefore finds that these statements were not made. As with the evidence of the comment alleged to have been made by Mr Barton on 15 June 2012, the evidence as to the statement alleged to be made by Mr Vanderlist at the 25 June 2012 meeting was one which changed over time to include reference to Mr Ogbonna’s home country of Nigeria. As with the 15 June 2012 alleged comment, the Court, whilst considering the addition of material unusual, does not need to comment further upon it, as, in any event, for reasons set out above, it prefers the evidence of Mr Vanderlist to that of Mr Ogbonna.
In the circumstances, the Court therefore finds that the allegation that Mr Vanderlist said to Mr Ogbonna that he would be kicked out of Australia if he did not comply with Mr Vanderlist’s order, and that he should be grateful to be in Australia and not back in Nigeria, was not made.
The $30 travel allowance
Insofar as any claim of racial discrimination is based upon the change in the travel allowance from $30 per trip to $30 per week, the Court is of the view that that change does not give rise to any racial discrimination in relation to or against Mr Ogbonna. The instruction given to each of CTI Logistics’ sites with respect to the travel allowance was the same, and it applied to other employees, such that the applicant was not treated any differently. Furthermore, the decision was clearly taken to reduce travel expenses, and to avoid unnecessary travel by employees. In essence, it was an expense reduction and productivity improvement measure: Mr Vanderlist’s Affidavit at [22]-[26] and Annexures MV2 and MV3; see also Ms Byrne’s Affidavit.
In that respect, therefore the Court finds that there was no racial discrimination against Mr Ogbonna based upon the change to the travel allowance.
The 6 July 2012 meeting
On 6 July 2012 Mr Barton and Mr Vanderlist met with Mr Ogbonna (the “6 July 2012 Meeting”). It appears the meeting was in two parts.
The 6 July 2012 meeting – admissibility of recording
At hearing an issue arose as to the admissibility of a recording of part of the 6 July 2012 Meeting. The recording was deliberately and secretly made by Mr Ogbonna. Mr Ogbonna did not disclose the fact of the recording of the meeting until a few days prior to the hearing when he wrote to the solicitors for CTI Logistics indicating that he had the recording and would seek to rely upon it at hearing. The recording was not disclosed for the purposes of either the conciliation conference in the Australian Human Rights Commission or the mediation before a Registrar of this Court. Nor was it disclosed in any of Mr Ogbonna’s three affidavits, or in his submissions filed in accordance with orders of the Court. The first occasion on which the Court became aware that Mr Ogbonna intended to rely upon the recording was when the matter was raised in Court on the first morning of the hearing.
Section 138(1) and (3) of the Evidence Act 1995 (Cth) (“Evidence Act”) provides as follows:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Section 5(1) of the Surveillance Devices Act 1988 (WA) provides as follows:
(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a) to record, monitor, or listen to a private conversation to which that person is not a party; or
(b) to record a private conversation to which that person is a party.
Penalty:
(a) for an individual: $5 000 or imprisonment for 12 months, or both;
(b) for a body corporate: $50 000.
Section 9 of the SD Act relevantly provides as follows:
(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Penalty:
(a) …;
(b) ….
(2) Subsection (1) does not apply —
(a) where the publication or communication is made —
(i) …;
(ii) …;
(iii) …;
(iiia) …;
(iv) …;
(v) …;
(vi) for the protection of the lawful interests of the person making the publication or communication;
(vii) …;
(viii) …; or
(ix) …;
(b) …
or
(c) …
(3) Subsection (2) only provides a defence if the publication or communication —
(a) is not more than is reasonably necessary —
(i) …;
(ii) …; or
(iii) for the protection of the lawful interests of the person making the publication or communication;
(b) …;
(c) …; or
(d) …
In Metz Holdings Pty Ltd v Simmac Pty Ltd & Ors (No. 1) [2011] FCA 263; (2011) 193 FCR 195 (“Metz Holdings”) the Federal Court was dealing with the tender of a computer disk containing recordings of conversations by using a mobile telephone. The Federal Court held that in the circumstances where there was a dispute between the parties concerning legal obligations, and when the recordings were made they had been made in order to protect lawful interests, the further publication of the recordings was necessary in order to protect the same legal interests: Metz Holdings at [24] per Barker J.
In Jones v Chief of Navy [2012] FCAFC 125; (2012) 205 FCR 458; (2012) 294 ALR 28 (“Chief of Navy”) there was an appeal by a male naval officer against his dismissal for, amongst other things, smacking the buttocks of a junior female naval officer. In issue on the appeal was the admission of a recording between the male naval officer and service police, the recording having been admitted pursuant to the discretion in s.138(1) of the Evidence Act by the Federal Court at first instance. The appeal was rejected with the Full Court of the Federal Court observing that the male naval officer’s extraordinary responses to the questioning about the pretext for recording was distinctly probative as tending to show a consciousness on his part that his conduct towards the female naval officer involved knowing manipulation of her: Chief of Navy at [161] and [163] per Keane CJ; Emmett, Edmonds, Besanko and Robertson JJ.
In Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694 (“Wintle (No.3)”) this Court admitted into evidence an inadvertent covert recording of a meeting, by consent of both parties, in circumstances where the parties, and the Court, considered that the recording was likely to assist with the determination of an issue concerning undue influence or undue pressure allegedly placed on an employee at a meeting. In Wintle (No.3) at [43] per Judge Lucev the following observations were made:
43. Even if the recording is otherwise improper, the result of an impropriety or in contravention of an Australian law, it is the view of the Court that under s.138(1) of the Evidence Act 1995 (Cth) it ought to be admitted as:
a) it is the best evidence available of what occurred at the 31 May 2011 Meeting, particularly as to what was said, and the tone of what was said;
b) the evidence is patently important in the context of this aspect of Mr Wintle’s claim, and the nature of the relevant contravention is such that an actual recording of the 31 May 2011 Meeting is likely to assist significantly with the question of whether or not there was undue influence or undue pressure exerted;
c) in the context of the circumstances of an inadvertent recording the gravity of any impropriety or contravention is not great, and neither was it deliberate or reckless; and
d) whilst other evidence is obtainable in relation to what was said at the 31 May 2011 Meeting, and its tone, and there is not really any dispute as to what was actually said, the recording nevertheless conveys with precision how it was said, which is always a difficult matter to determine where, as here, it is in dispute as to whether what was said was said in a manner which exerted undue influence or undue pressure.
In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; (2012) 261 FLR 211; (2012) 86 ACSR 713 (“Georgiou Building”) the Western Australian Supreme Court held that whether the use of a device is reasonably necessary is to be judged on the circumstances that existed at the time of its use, and that a recording made where a serious dispute has erupted, and where there will be a dispute as to different versions of an arrangement, may give rise to a lawful interest, and the lawfulness of the interest may exist whether a dispute was either present or anticipated: Georgiou Building at [16]-[17] per Allanson J.
In Smith v Saracen Management Pty Limited [2002] WAIRComm 5619; (2002) 82 WAIG 1050 at [154] per Smith C (“Saracen Management”) it was held that the tape recording of a company board meeting, at which the applicant in unfair dismissal proceedings was present, was necessary for the protection of the applicant’s lawful interests where the “matters discussed … go to central issues in these proceedings”: Saracen Management at [154] per Smith C.
In this matter, the Court refused to admit the recording at hearing: Transcript, 19 December 2013, page 66, and indicated that it would provide written reasons later.
In this matter, Mr Ogbonna covertly made a secret recording of the meeting contrary to the terms of s.5(1) of the SD Act. At no stage, until shortly before the hearing, and after all of the other evidence was in (other than Mr ER Barton’s Affidavit which is not relevant to this issue), did Mr Ogbonna disclose the existence of the recording. The recording is not the best evidence of what occurred at the 6 July 2012 Meeting. It is a partial recording of one part of a meeting which was comprised of two lengthy parts. It is not likely to assist with the question of whether or not Mr Ogbonna was bullied at the 6 July 2012 Meeting, or as to the conduct of that meeting, taken as a whole and in its proper context. The other evidence of the 6 July 2012 Meeting, namely the evidence of Mr Vanderlist and Mr Barton is, in the Court’s view, likely to give the Court a better impression of what occurred at the 6 July 2012 Meeting than it would obtain from Mr Ogbonna’s fragmentary recording. Finally, and perhaps most importantly, the issue of racial discrimination did not arise in the recording, and Mr Ogbonna was forced to resort to the suggestion that issues and comments were made which were unacceptable, and a basis for having the recording admitted: Transcript, 19 December 2013, page 65. Put differently, what is in the recording, is not relevant to the claim made by Mr Ogbonna of discrimination under the RD Act. Even if the recording had been relevant the Court would have been most reluctant to admit a fragmentary recording in any event, but particularly so in circumstances where it was originally deliberately made, and then, seemingly, deliberately never disclosed until shortly before the hearing.
For the above reasons, the recording was not admitted into evidence, as the desirability of admitting it did not outweigh the undesirability of admitting it having regard to the way in which it was obtained, that is deliberately, and the fact that the evidence was not of probative value, and in any event evidence of the meeting was obtainable, without difficulty, without admitting into evidence, evidence obtained in contravention of s.5(1) of the SD Act: see s.138(1) and (3)(a), (b), (e) and (h) of the Evidence Act.
The conduct of the 6 July 2012 Meeting
At the 6 July 2012 Meeting:
a)Mr Barton and Mr Vanderlist told Mr Ogbonna that Leighton Contractors’ liaison person based at the Spearwood Avenue site, Marcello Cabrera (“Mr Cabrera”) had told them that Mr Ogbonna had told him that Mr Ogbonna felt insecure in his job;
b)Mr Barton and Mr Vanderlist told Mr Ogbonna that they were concerned about what he was saying to a representative of the client, Leighton Contractors;
c)Mr Ogbonna denied speaking to Mr Cabrera, and said that he wanted to contact Mr Cabrera directly about the issue;
d)Mr Barton told Mr Ogbonna not to contact Mr Cabrera directly;
e)Mr Barton told Mr Ogbonna that he and Mr Vanderlist were meeting with him to find out why it was that he felt insecure in his job;
f)Mr Barton made it clear to Mr Ogbonna that he could only discuss work-related matters with Mr Cabrera, but Mr Ogbonna repeatedly told Mr Barton and Mr Vanderlist that he would contact Mr Cabrera directly about the matter;
g)Mr Barton told Mr Ogbonna that if he contacted Mr Cabrera, Mr Ogbonna’s employment would be terminated;
h)Mr Ogbonna claimed during the meeting that he was being victimised, and repeatedly asked Mr Barton and Mr Vanderlist if they were there to terminate his employment;
i)Mr Barton told Mr Ogbonna that he and Mr Vanderlist were not there to terminate his employment, but that if they wanted to terminate his employment they could do so on an hour’s notice given that Mr Ogbonna was a casual employee, and that they would have bothered to meet with him if it was their intention to terminate his employment;
j)Mr Barton and Mr Vanderlist told Mr Ogbonna that they wanted him to move to the Spearwood Avenue site where more supervision was available because they thought that he needed more support;
k)Mr Ogbonna said that he did not want to move to the Spearwood Avenue site;
l)it was agreed that Mr Ogbonna not move to the Spearwood Avenue site immediately, and Mr Barton and Mr Vanderlist told Mr Ogbonna that he could stay at the Garston Way site for two weeks and that there would be a follow up meeting with him at that time;
m)Mr Ogbonna indicated to Mr Barton and Mr Vanderlist that he did not want a follow up meeting, but after further discussion agreed to a meeting, but indicated that he would not participate in the meeting; and
n)Mr Barton and Mr Vanderlist took the keys and phone for the Garston Way site off Mr Ogbonna and gave them to Mr Robins.
Mr Vanderlist’s First Affidavit at [37]-[50]; Mr Barton’s Affidavit at [21]-[28].
Cross-examined on the 6 July 2012 Meeting, reasonably extensively by Counsel for CTI Logistics, Mr Ogbonna made no claim which could be construed as a claim of racial discrimination arising from the 6 July 2012 Meeting. See Transcript 19 December 2013, pages 33-37.
The instruction given to Mr Ogbonna by Mr Barton and Mr Vanderlist on 6 July 2012 to not contact Mr Cabrera from Leighton Contractors was a lawful and reasonable direction or order by an employer to an employee in respect of dealings with a client. On the evidence, there is no basis for any suggestion that the direction or order was made or given because of Mr Ogbonna’s race.
In relation to the 6 July 2012 Meeting itself, it is evident that that meeting was difficult, and at times testy, but, on the evidence of Mr Vanderlist and Mr Barton, which the Court accepts, and even on the evidence of Mr Ogbonna, there is no basis, either expressly or impliedly, for a finding that anything that was done in or as a result of the 6 July 2012 Meeting was as a consequence of Mr Ogbonna’s race. Furthermore, because of the factual findings in relation to the matters that preceded the 6 July 2012 Meeting, as set out above, there is nothing in the circumstances preceding 6 July 2012 which would provide a foundation for any suggestion that what was done at the 6 July 2012 Meeting was by reason of Mr Ogbonna’s race.
Alleged computer hijacking – 11 July 2012
On or about 11 July 2012:
a)Mr Ogbonna told Mr Vanderlist that his work computer had been “hijacked”;
b)Mr Vanderlist told Mr Ogbonna that it would have been the IT department, and that he would contact IT, and that there was nothing to worry about;
c)Mr Vanderlist spoke to CTI Logistics’ network administrator, a Mr Ashworth, who told Mr Vanderlist that:
i)he had been trying to diagnose some internet and email issues which he was having with the majority of CTI Logistics’ sites;
ii)the majority of CTI Logistics’ sites were services by iinet, but Garston Way was serviced by Amnet; and
iii)Mr Ashworth had taken over the computer at Garston Way for testing purposes to determine whether the internal problems were with iinet; and
d)Mr Vanderlist suggested to Mr Ashworth that he would always contact the operator prior to remotely accessing someone’s computer terminal.
Mr Vanderlist’s First Affidavit at [51]-[53]
On 17 July 2012:
a)Mr Vanderlist emailed Mr Ashworth regarding the computer incident on 11 July 2012 and asked Mr Ashworth to inform Mr Vanderlist of what he had been doing; and
b)Mr Ashworth responded by email, advising Mr Vanderlist that he had connected to the applicant’s computer the previous week to test connectivity to a website, and that the internet connection at Garston Way was via Amnet which was different to the majority of the other sites which were connected to the internet via iinet, and he was testing to see whether the problem was with iinet, Amnet or the websites that employees were trying to open.
Mr Vanderlist’s Second Affidavit at [13] and Annexure MV12.
In substance, Mr Ogbonna’s evidence with respect to what occurred on the day, namely that the Garston Way computer had been remotely taken over, was not different to Mr Vanderlist’s. Mr Ogbonna, however, sought to posit all sorts of reasons as to why it was inappropriate that “his” computer (the evidence was that it was a shared worksite computer) be taken over and be remotely operated by another CTI Logistics’ employee. None of the matters referred to by Mr Ogbonna went however to the issue of racial discrimination. They went to the manner in which the remote take-over of the computer occurred, and why for reasons not at all related to racial discrimination, it ought not to have occurred. It did however occur, and the Court feels constrained to observe, that nothing was put to it which would suggest that an employer’s information systems’ personnel, including Mr Ashworth who was the network administrator, are not entitled to remotely take-over another employee’s computer, particularly when it is being done for a particular work-related purpose, as was said to be the case here. Even if it was not done with that purpose, it was still not done because of any race related reason. The matter might have been handled better by Mr Ashworth, by contacting Mr Ogbonna and telling him what he was going to do, but that did not occur, but it does not give rise to a claim for racial discrimination.
In all the circumstances, there is nothing arising from the alleged computer hijacking on 11 July 2012 which sustains a claim of racial discrimination by Mr Ogbonna.
Direction to work at the Spearwood Avenue site – 16 July 2012
On or around 16 July 2012 Mr Vanderlist directed Mr Ogbonna to report for work at the Spearwood Avenue site. This direction was given because:
a)Leighton Contractors were not happy with the standards that CTI Logistics were producing at the Spearwood Avenue site;
b)CTI Logistics were short of red-tag trained staff at the Spearwood Avenue site;
c)the site supervisor for the Spearwood Avenue site, Mr Rapley, had requested more red-tag trained staff to assist at that site;
d)Mr Ogbonna was able to assist at the Spearwood Avenue site by reason of his red-tag training;
e)CTI Logistics had a supervisor who was red-tag trained, Ross Putland, who could manage the Garston Way site; and
f)Mr Barton and Mr Vanderlist had become very uncomfortable with having Mr Ogbonna at the Garston Way site as the Leighton Contractors’ contact point.
Mr Barton’s Affidavit at [28] and Annexure TB2; Mr Rapley’s Affidavit at [4]-[8] and Annexure GR1; Mr Vanderlist’s First Affidavit at [56]-[59].
The direction given to Mr Ogbonna on or about 16 July 2012 to move to the Spearwood Avenue site was a lawful and reasonable direction by CTI Logistics to their employee, Mr Ogbonna, who was a casual employee whose contract of employment did not specify a particular work location. There was nothing in the circumstances surrounding the giving of that direction to Mr Ogbonna which would suggest that it was based upon his race. Rather, the Court finds it was based upon:
a)the need to have red-tagged staff at the Spearwood Avenue site in order to improve standards at that site; and
b)concerns about Mr Ogbonna’s relationship with the client, Leighton Contractors, at the Garston Way site.
17-22 July 2012
Mr Ogbonna did not attend work at the Spearwood Avenue site on 17 July 2012 as he was sick, and did not attend on 18 July 2012, but did not contact anyone that day concerning his absence.
On 19 July 2012:
a)Mr Ogbonna reported for work at the Spearwood Avenue site and attended the pre-start meeting;
b)after the pre-start meeting, Mr Ogbonna asked Mr Rapley, who was the Spearwood Avenue site supervisor, for a job description;
c)Mr Rapley told Mr Ogbonna that he would be doing red-tagging, ensuring pipes were clean, helping to give guidance to the team and leading the team so that staff at the Spearwood Avenue site knew what to look for when cleaning pipes;
d)Mr Ogbonna went on the Spearwood Avenue site floor, but returned to speak to Mr Rapley after about five minutes, and asked Mr Rapley why he was trying to belittle him, and said that Mr Rapley already had personnel doing the job that Mr Ogbonna had been asked to do, and Mr Ogbonna asked what he was supposed to be doing, and repeatedly asked what his job description was;
e)as a consequence of the approached from Mr Ogbonna, Mr Rapley took Mr Ogbonna to see Mr Barton in Mr Barton’s office;
f)in the 19 July 2012 Meeting Mr Ogbonna repeatedly asked questions about what he was supposed to be doing and whether he was being belittled, and in so doing directed what he had to say towards Mr Rapley and turned his back on Mr Barton;
g)Mr Barton told Mr Ogbonna that CTI Logistics needed a red-tagged person for the Spearwood Avenue site, that there was a shortage of red-tag trained staff, and that Mr Ogbonna knew what his job was and why he was there;
h)Mr Ogbonna said he was stressed and wanted to go home, and Mr Barton said that Mr Ogbonna could go home;
i)Mr Ogbonna then changed his mind, and said that he did not want to go home;
j)subsequently Mr Ogbonna went back to the floor to work;
k)Mr Ogbonna came back to Mr Barton’s office not more than 10 minutes later, and again complained about the work he had been assigned to do, asked why he was at the Spearwood Avenue site, and there was, in essence, a repeat of the conversation in the first 19 July 2012 Meeting;
l)Mr Ogbonna again said that he was stressed, wanted to go home, and Mr Barton again said that he could go home; and
m)Mr Ogbonna went home, having been at work for not more than two hours.
Mr Rapley’s Affidavit at [7]-[21] and evidence at Transcript, 20 December 2013, pages 19-21; Mr Barton’s Affidavit at [30]-[38] and Annexure TB-3.
There is nothing in the evidence in relation to the events of 19 July 2012 which suggests that race was a factor in anything done by Mr Rapley or Mr Barton on that day. In the Court’s view there is no basis for the suggestion in Mr Ogbonna’s evidence that he was being belittled by being made to do a job that he ought not to have been doing. It is clear on the evidence that the duties he was being asked to perform on 19 July 2012 were part of the duties of a warehouse storeperson. In this regard, the Court accepts the description of those activities in the evidence of, in particular, Mr Rapley, the Spearwood Avenue site supervisor, over that of Mr Ogbonna who had been with CTI Logistics for less than three months.
In the circumstances, nothing in the events of 19 July 2012 forms the basis for any finding by the Court of racial discrimination against Mr Ogbonna by CTI Logistics, or its employees.
Mr Ogbonna attended for work on 20 July 2012, but there was an incident during the day where Mr Ogbonna thought that another, younger, staff member was making fun of his name. Mr Ogbonna reported the incident to Mr Rapley soon after it occurred, and said to Mr Rapley that he felt under a bit of stress, and that he thought people were trying to stir him up. Mr Ogbonna left work early, at 3.00pm, on 20 July 2012.
The Court accepts the description of the incident set out in Mr Rapley’s Affidavit as follows:
22.On the next day on which Celestine [Mr Ogbonna] came to work as Spearwood Avenue, on 20 July 2012, the second incident occurred. A young staff member named Ryan introduced himself to Celestine and Celestine then introduced himself to Ryan, telling Ryan that his name was “Celestine”. Ryan responded by saying “that is a sik name mate”. Celestine then became very upset and asked Ryan why he was having a go about his name when Celestine had not said anything about Ryan’s name.
23.Ryan reported this to me immediately after it happened. Celestine then came to see me soon after the incident and told me that he felt under a bit of stress as he thought people were trying to stir him up. He left work early, at 3pm, that day.
Mr Rapley’s Affidavit at [22]-[23].
There is nothing in the above description of the incident on 20 July 2012 which gives rise to any suggestion of racial discrimination on the part of the employer, CTI Logistics, or on the part of Mr Barton and Mr Vanderlist, who were simply not involved. In any event, seemingly “sik” is a common word used mostly by younger people to indicate something good, as Mr Ogbonna himself admits: Mr Ogbonna’s Second Affidavit at [12].
On 22 July 2012 Mr Barton sent Mr Ogbonna a text message advising him that there was no work available for him on Monday 23 July 2012.
21-23 July 2012
From 21-23 July 2012 there were email exchanges concerning Mr Ogbonna between Mr Saxild, Mr Barton and Mr Vanderlist, and at least two other CTI Logistics’ senior management personnel. As a consequence of the email exchanges there was a direction from Mr Saxild to terminate Mr Ogbonna’s casual employment. The 21-23 July 2012 email exchanges followed a setting out of the circumstances referred to above in a series of 19 July 2012 emails from, amongst others Mr Vanderlist to Mr Barton. There is nothing in those emails which provides any evidence that any action was being sought to be taken against Mr Ogbonna by reason of his race. Rather, all of the matters concerned themselves with workplace related issues, including safety matters and staff interactions, none of which, for reasons set out above, had any relationship to Mr Ogbonna’s race. Both Mr Barton and Mr Vanderlist expressed the view that Mr Ogbonna was endeavouring to manufacture a situation where he might have a claim against CTI Logistics. Another manager (who was not called but whose email appears in the evidence without objection) described Mr Ogbonna as:
… a nutcase, disrespectful, disruptive and it appears he is looking to set us up and the longer we keep him working the more chance we give him to create a situation he can lunch off … we need to get this guy away from our workforce immediately. Who knows what he is capable of, he could pull a workers comp claim or just continue to disrupt the workforce around him (let alone waste supervisors and senior managers’ valuable time.
I feel he has nothing really honest except threats about humiliation, etc. If he is really serious about having a go at us I think he will do it regardless and I would rather fight that if and when rather than increase the risk by keeping him on.
Mr Vanderlist’s First Affidavit, Annexure MV8, email from Neil Raspa to Tim Barton, 21 July 2012 11.50am.
Mr Saxild brought the matter to a head by sending an email to, amongst others, Mr Barton and Mr Vanderlist, in the following terms:
We should finish him today. Tell him his services are no longer required. Make sure there is two people present and secondly do not let him work on pass the time you tell him. I think we should watch him until he leaves the premises.
It is important that you do not enter into discussion with him. Do not give any reason. He will ask and we are best sticking to the line “You are a casual employee and as such your services are no longer required”.
Mr Vanderlist’s First Affidavit, Annexure MV8, email from Mr Saxild to, amongst others, Mr Barton and Mr Vanderlist, Monday, 23 July 2012 10.52am.
On 23 July 2012 Mr Vanderlist called Mr Ogbonna and told him that CTI Logistics no longer required his services as a casual employee, and confirmed that advice by email to Mr Ogbonna later that day: Mr Vanderlist’s First Affidavit at [69] and Annexure MV9.
In the Court’s view, and upon a consideration of the evidence generally, and in particular that of Mr Saxild (see Transcript, 19 December 2013, page 11), Mr Barton and Mr Vanderlist, and specifically of the email exchanges on or about 21-23 July 2012, there is no basis for an allegation of racial discrimination being the reason for Mr Ogbonna’s employment being terminated. It was simply that he had become troublesome in the workplace, and was a casual employee whose employment could be easily terminated. There is, therefore, no basis for any allegation that Mr Ogbonna’s termination of employment was by reason of his race.
Allegation that Mr Ogbonna was followed
Mr Ogbonna made various allegations about having been followed by a CTI Logistics’ van when he went home on 7 June 2012, and other allegations generally concerning his being followed by City of Cockburn security officers. Not only is there no evidence to sustain these allegations, they are specifically denied by Ms Symons, and there is nothing otherwise to sustain any allegation that Mr Ogbonna was followed by anyone, whether CTI Logistics, officers from the City of Cockburn or otherwise: Transcript, 6 February 2014, page 11.
Even if Mr Ogbonna were so followed, there is nothing to indicate that it was by reason of his race.
Award provisions
There is no dispute that the Road Transport and Distribution Award 2010 (“Award”) applied to Mr Ogbonna’s employment.
Mr Ogbonna made very general claims with respect to two allowances under the Award, namely the First aid allowance and the Travelling allowance. He also claimed a site supervisor’s allowance, but there is no such allowance in the Award. There is a leading hand allowance at cl.16.1(a) of the Award, but there is no evidence that Mr Ogbonna was ever a leading hand.
Clause 16.1 of the Award provides as follows:
(e)First aid allowance
An employee holding a current first aid qualification from St John Ambulance or similar body and appointed by the employer to perform first aid duty must be paid 1.6% of the standard rate in addition to wages for any week so appointed. The employer will reimburse the cost of fees for any courses necessary for any employee covered by this clause to obtain and maintain the appropriate first aid qualification.
(f)Travelling allowance
(i)An employee engaged in ordinary travelling on duty, or on work on which the employee is unable to return home at night must be paid personal expenses reasonably incurred in travelling, of at least $30.90 per day. Provided that where an employee travels by boat or other conveyance in which the ticket includes meals and bed, the employee will not be entitled to the said allowance.
(ii)An employee prevented from returning with the employee’s turn-out to the depot, yard or garage from which the employee started must be paid any travelling expenses required to be incurred and as if for time worked for the time the employee reasonably takes to get home beyond the time it would ordinarily have taken to get home from the depot, yard or garage.
In relation to the travelling allowance, as indicated above, a decision was made to pay that allowance once per week on the basis that an employee would only travel once per week, and the decision was made in respect of all employees of CTI Logistics in Western Australia. See also Ms Byrne’s Affidavit. Nothing in the evidence indicates that the change to the travelling allowance, either generally or as it affected Mr Ogbonna, was made by, or based upon, reason of race.
With respect to the first aid allowance the evidence indicates that CTI Logistics paid first aid allowance to only one of its employees, Mr Rapley, at the time that Mr Ogbonna was employed. Whether or not the first aid allowance should have been paid to others, and whether it should have been paid to Mr Ogbonna, is not to the point in relation to any allegation of racial discrimination under the RD Act. The evidence does not disclose any reason based upon race for the first aid allowance not being paid to Mr Ogbonna: see Mr Vanderlist’s Second Affidavit at [7]-[11] and Annexure MV11.
Mr Ogbonna’s Amended Statement of Claim also appears to claim for payment of unpaid entitlements for the first aid allowance and travelling allowance. Insofar as the travelling allowance is concerned Mr Ogbonna has not given any evidence of any particular day or days upon which he was “engaged in ordinary travelling on duty”: Award, cl.16(f)(i); see Mr Ogbonna’s Second Affidavit at [4]-[6] where he discussed the entitlement to travelling allowance under the Award, but provides no specification of any particular day upon which he travelled, and for which he was not paid a travelling allowance.
In relation to the first aid allowance the Court is not satisfied that Mr Ogbonna was “appointed by the employer to perform first aid duty”. Mr Ogbonna did not call the employee who he said appointed him, and there was no other evidence that he had been appointed “by the employer” to perform first aid duty. Mr Ogbonna indicated that it was he who wrote his name on the first aid duty box (as to which see Annexure D to Mr Ogbonna’s First Affidavit). The Court prefers the evidence of Mr Vanderlist that Mr Rapley was the only person appointed by the employer to perform first aid duty at CTI Logistics: Mr Vanderlist’s Second Affidavit at [7]-[11]. In these circumstances the Court is not satisfied that Mr Ogbonna was entitled to a first aid allowance as appears to have been claimed. Further, and in any event, there is no specific detail of payments made or hours worked by Mr Ogbonna which would allow the first aid allowance to be properly calculated. The evidence is deficient in that respect.
The Court observes that there was a lack of specification with respect to the claims to unpaid entitlements, and superannuation. With respect to superannuation, apart from what is in the Amended Statement of Claim as to a monetary amount claimed, there is no other evidence as to the hours worked by Mr Ogbonna, or the amounts that he was paid, which would provide a basis for calculating what he might have been entitled to be paid by way of superannuation. Clause 21 – Superannuation of the Award does not assist, as it refers to the employer having to make superannuation contributions which will avoid the employer being required to pay the Superannuation Guarantee Charge under Commonwealth superannuation legislation with respect to a particular employee. In the absence of details as to what Mr Ogbonna was paid, which he did not put into evidence, it is not possible to calculate what the employer contribution for the purposes of cl.21.2 of the Award would have been. Therefore, the claim to superannuation cannot, in the Court’s view, succeed as there is no evidence which is capable of proving that claim.
Defamation
Mr Ogbonna also made reference to a defamation claim, seemingly based in part upon the content of the Centrelink Separation Certificate, and the fact that it indicated that the reason for separation was “Other” and that under the heading “Please give reason” the words “Contact Manage” had been inserted. Mr Ogbonna also referred in his evidence to, without specification, “things” that had been said about him by Mr Vanderlist and Mr Barton. Assuming that this Court has ancillary jurisdiction to deal with a defamation claim: see ss.14 and 18 of the Federal Circuit Court of Australia Act 1999 (Cth), the claim was not put, pleaded, particularised or pursued in a manner which would enable this Court to properly understand what the claim in defamation actually was, or what the evidence was in support of it, and in the circumstances the Court finds that Mr Ogbonna’s defamation claim (insofar as it was made) must fail.
Conclusion and order
The Court has concluded that:
a)Mr Ogbonna has failed to prove his claims of racial discrimination under the RD Act;
b)Mr Ogbonna has failed to prove his claims for unpaid entitlements and superannuation;
c)Mr Ogbonna has failed to prove his claim in defamation (so far as it was made),
and in the circumstances, his application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 August 2015
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