Popovic v Downer EDI Engineering Electrical Pty Ltd
[2020] FCCA 607
•16 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POPOVIC v DOWNER EDI ENGINEERING ELECTRICAL PTY LTD | [2020] FCCA 607 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – no age discrimination held – no adverse action – no exercising of a workplace right – no coercion – no reasonable prospects of success – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 343, 351 |
| Cases cited: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499 |
| Applicant: | IGNAC POPOVIC |
| Respondent: | DOWNER EDI ENGINEERING ELECTRICAL PTY LTD |
| File Number: | PEG 30 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 16 March 2020 |
| Date of Last Submission: | 16 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 16 March 2020 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Ms Cosentino |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The Application filed on 1 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 30 of 2019
| IGNAC POPOVIC |
Applicant
And
| DOWNER EDI ENGINEERING ELECTRICAL PTY LTD |
Respondent
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT – DELIVERED EX-TEMPORE)
Introduction
By an Application filed on 1 February 2019 the Applicant seeks a declaration that the dismissal of his employment with the Respondent on 15 November 2018 involved a breach of:
a)section 351 of the Fair Work Act 2009 (Cth) (‘the Act’) (‘age discrimination claim’);
b)section 340 of the Act because the Applicant exercised a workplace right; and
c)section 343 of the Act by taking adverse action against the Applicant (dismissal) because the Respondent allegedly subjected the Applicant to coercion.
The Application is supported by a Form 2 Claim in which there are three attachments. Attachment A sets out the letter of termination, Appendix B is a statement of the Applicant relevant to his age discrimination claim and Appendix C is a statement of 64 paragraphs in relation to the adverse action claims and the coercion claims.
In addition to the claim, the Applicant filed an affidavit in support of an Application in a Case for Orders for discovery and Orders for the transfer of the proceedings to Victoria.
The Applicant has filed two submissions, the first being on the 1 November 2019 and the second on 30 December 2019. Additionally he has filed an affidavit sworn on 1 November 2019 and a further affidavit sworn on 7 February 2020.
The 7 February 2020 affidavit is in the nature of submissions although it does exhibit a document called a Stop Work Authority. The Applicant swore by his affidavit on 7 February 2020 that he and all other workers on Chevron’s Wheatstone Project had a Stop Work Authority, and that was said to authorise employees from stopping work in the event that they were facing unsafe circumstances. The Stop Work Authority reads as follows:
Stop Work Authority
Wheatstone Project
You will always have my full support to make decisions in accordance with our guiding principles:
·We do it safely or not at all
·We always have time to do it right
Remember, it is your responsibility and you have our authority to stop a task if you believe an unsafe act is being performed!
If you see it, you own it.
By an Application in a Case file on 4 October 2019 the Respondent seeks Orders pursuant to section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘FCCA Act’) for Orders that the Application be dismissed on the grounds that the claim has no reasonable prospects of success.
The Respondent relies upon an affidavit of James Hopping sworn on 4 October 2019 and also relies on written submissions.
Background
The Applicant commenced work with the Respondent on 4 October 2018 and his employment was terminated on 15 November 2018. He was subject to a probation period at the time of the termination of employment.
The Applicant was aged 63 years at the date of dismissal.
The Form 2 Claim in its body asserts that the Respondent contravened section 351 of the Act by taking adverse action against the Applicant.
Appendix B of the Claim which is dated 4 December 2018 sets out in greater detail the basis of the age discrimination claim. The Applicant at [2]-[5] says that during the second week of work he was in a car with the Respondent:
2. During the applicant's second week, the applicant was in a car with the respondent returning from a recently done job. There was a conversation about different things.
3. Suddenly the respondent starts to ask the applicant about the applicant's age: 'How old are you?'
4. Applicant does not like questions about his age from anyone and not from the respondent then. Applicant tried to escape answering but the respondent asked the applicant again.
5. Applicant answered to the effect of: 'It is not important how old exactly, a lot of years were collected.'
At [8]-[11] the Applicant refers to a conversation about which coffee machine would be the best for everyone to use. The Applicant states in his claim that he suggested that the best option would be a coffee machine with a grinder as it makes healthier coffee, as opposed to capsule machines which are not as healthy as coffee capsules as they are factory made. Another employee then commented that the coffee capsules have aluminium which increased senility and there was laughter.
The Applicant states that at the time he was terminated, he analysed the termination letter and the words in the letter were:
[…] your performance has not met the required standard.
The Applicant realised it was his age which was not standard, and that the Applicant was twice as old as the average person in the group.
Appendix C to the Form 2 claim is lengthy, and at [2]-[3] the Applicant states that he worked for Delva FM at Wheatstone CV Camp as a dual electrician for four and a half years, but in August last year the Respondent won the contract to continue with maintenance in the Wheatstone CV camp and other facilities. At [6] he says:
6. During the applicant’s first 14 day / 12 hour a day swing electricians and other tradespeople were not given the authority to isolate hazardous energies. Tradespersons were allowed to do only minor jobs that would not require hazardous energy isolation. There were periods without jobs at all for some tradespersons.
The Applicant says that in the third week he was not granted authority to conduct electrical isolations and that there were only a small number of jobs to do. In his final week he says that he was asked to travel to an “Off Plot Facility” about 15 minutes away from the main camp. He says that he and another worker were given eight jobs to do but those jobs were not authorised.
Further in his Appendix C document, the Applicant says that the authorisation process, which included a permit to work, takes two to four days to be approved and that did not happen. He says there were eight unauthorised permits to perform work provided to him.
The Applicant then gave a day-by-day description of the work performed and made comments in that document as to what he regards as the deficiencies in the authorisation process and the work process generally. At [49] of his statement he described the process of the performance review for all electricians on the Wheatstone Project. At [51]-[57] the Applicant says:
51. A performance review is a two-page document concerning four areas of performance: communication, safety, technical aspects etc. Each area of performance consists of six to eight questions. Scores were given for overall areas not for individual questions themselves; that is, if one question was deemed failed then the entire area would be regarded as failed. The scores range from: significant improvement needed to fully competent in all tasks.
52. The respondent did not give the applicant adequate time to prepare for the probation review meeting; there was only two-hour notice which was spent working.
53. The respondent did not allow the applicant to bring a support person to the probation review meeting. There were no witnesses. The applicant did not have a chance to express his views and put them on the questionnaire form.
54. The fifth respondent judged all Team's work done at Off Plot in the last four days as bad. The fifth respondent scored the applicant in all areas as needing 'significant improvement' or the lowest score.
55. The fifth respondent signed the performance review and asked the applicant to do the same but the applicant refused.
56. The applicant deeply believes he deserved a 'good score' as the Team set out to execute all jobs in a wholly safe manner.
57. The daily sign in/sign out sheet proves Team were at Off Plot from November 10 to November 13.
The evidence relied upon by the Respondent is given by Mr James Hopping who swore an affidavit on 4 October 2019. He gives evidence that he has been employed by the Respondent since about 2011 and in his current role he was the contract manager at Chevron since July 2018. He gives evidence in relation to the employment of the Applicant and states at [6] and [7] that:
6. Mr Popovic applied for a position with Downer as a dual trade instrumentation electrician on the Wheatstone project. Downer accepted Mr Popovic's application and on 18 September 2018 I sent him a letter with an offer of employment […]
7. I first met Mr Popovic in the first week of October 2018, when I was on site delivering site inductions to new employees. Aside from my brief interaction with Mr Popovic during the induction process, I did not have any other direct dealings with Mr Popovic.
Mr Hopping notes that Mr Popovic’s employment was subject to a 12-week probation period and makes reference to the requirement that employees engaged in technical trade must successfully complete a series of Chevron-specific training modules. He says that on or about 15 November 2018 he received a telephone call from Mr Nilon, the Site Lead, and Ms Dunscombe, the Human Resources Manager, regarding the 5-week probationary progress reviews for a number of employees including the Applicant.
At [11] of the affidavit Mr Hopping gives the following detailed evidence:
11. During that call, Mr Nilon informed me that:
(a) Mr Popovic's probationary progress review had been undertaken by Mr Popovic's direct supervisor, Nick Thornbury;
(b) Mr Thornbury had concerns regarding the way in which Mr Popovic had been performing some of his work, which was not in accordance with the standard isolation and lockout procedures, even though Mr Popovic had completed the IHE module;
(c) Mr Thornbury had advised Mr Popovic that he would need to undertake the IHE module again;
(d) Mr Popovic had told Mr Thornbury that he would not undertake the IHE module again, and that he did not need any further training;
(e) Mr Popovic was asked to sign the probationary progress review form to acknowledge that he understood the outcomes of the review, but that he had refused to do so because he did not agree with it;
(f) Mr Thornbury then approached him, and reported to Mr Nilon what had happened during the meeting with Mr Popovic;
(g) on the morning of 15 November 2018 Mr Nilon approached Mr Popovic and explained to him that he was concerned that Mr Popovic did not understand the isolation and lockout procedures, and that Mr Popovic would need to do the IHE module again. Mr Popovic said that he did not need more training and would not do the course again. Mr Popovic also said he would not sign the probation progress review form;
(h) he told Mr Popovic that retaking the IHE module was required, and that if he did not agree to retake the course, it could impact his employment;
(i) Mr Popovic still refused to retake the course; and
(j) it was his recommendation that Mr Popovic's employment be terminated.
A copy of the probation progress review form was annexed to Mr Hopping’s affidavit.
Mr Hopping then gives evidence that as a result of the recommendation made by Mr Nilon he decided that Mr Popovic’s employment should be terminated during the probation period and at [13] of his affidavit says that:
13. […] I considered that Mr Popovic was not able to continue to perform work on site in circumstances where his supervisor had assessed his performance and determined that Mr Popovic required further training on mandatory safety procedures, and Mr Popovic refused to undertake that training. I also considered that Mr Popovic's refusal to acknowledge that he required further training in those safety procedures meant that his performance was not to the standard required by Downer or the facilities management contract requirements.
Mr Hopping gave evidence that he prepared the letter of termination.
Evidence was given by Mr Hopping to the effect that at the time of making the decision to terminate Mr Popovic’s employment he did not know Mr Popovic’s age, that he had not spoken to any of the people who were referred to in Appendix B to the Claim and had no knowledge of the conversations that are referred to in that claim. He also gives evidence that he was not aware of the circumstances set out in Appendix C of the Claim in relation to the progress of work being performed or whether there was any impediment to Mr Popovic performing the work. At paragraph 20(b) of his affidavit he says he was not aware of Mr Popovic making any complaint or inquiry regarding those matters.
Legislation
Section 340(1) of the Act provides:
(1) A person must not take adverse action against another person
(a) because the person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent exercise of a workplace right by the other person.
Section 341(1)(a) provides that a person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or a body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee -- in relation to his or her employment.
Coercion which is alleged by the Applicant is defined in section 343 of the Act as follows:
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Section 17A(2) of the FCCA Act provides:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Section 17A(3) of the FCCA Act provides:
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Consideration
The submissions which have been filed on behalf of the Applicant make reference to a decision of Judge Lucev in Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [15]. I respectfully adopt those principles, and also make reference to a decision of Sundberg J in a decision of Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499 where his Honour examined the application of the analogous provision of section 31A of the Federal Court of Australia Act 1976 (Cth). The principles extracted are:
• In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial. Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
• In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party. Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A.
• The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”.
• As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
(citations omitted)
When making submissions this day, the Applicant commented that the real reason for the termination of his employment was because of his age. There is no allegation that any of the employees that he spoke to or referred to in Annexure B had any role in the decision to terminate the Applicant’s employment. Mr Hopping gave clear evidence that he did not know the Applicant’s age when the decision was taken to terminate the Applicant’s employment. The Applicant’s age was not an issue either raised by the Applicant or any other person at the time of termination, and there is no reasonable prospects of the Applicant succeeding on this ground.
In relation to ground 2, there is no clear expression by the Applicant of what the workplace right that the Applicant was said to have exercised which is said to be the reason for the adverse action. The failure or refusal to sign the performance review form is not an exercise of a workplace right as defined by section 341(1) of the Act.
Citing the Work Health Safety Act 2011 (Cth), the Applicant in his submission of 1 November 2009 states that:
13. The Applicant exercised his basic work right to work safely.
The Respondent submitted that that Act has no application to the Applicant’s employment, and that the appropriate Act was the Occupational Safety and Health Act 1984 (WA), and in particular section 26.
Whatever Act applied (and I accept that the relevant Act was the Occupational Safety and Health Act 1984 (WA)), there is nothing alleged by the Applicant to find any basis for a claim that he exercised (or sought to exercise) any benefit under that Act. There is no evidence of any refusal, or indeed failure, on the part of the Applicant to do anything because of the operation of any workplace law. The Applicant does not allege that he refused to sign the performance review form because of an entitlement under any workplace law. Nor did the refusal to sign the form amount to a complaint in relation to his employment as he did not give evidence that he accompanied the refusal to sign the document with any words that could be construed as a complaint in relation to his employment.
The Applicant’s main complaint as expressed in his written submissions is that his employment was terminated without him being given a proper opportunity to fix performance issues or alternatively the performance issues were mischaracterised by the employer. The Applicant has not established that the his employment was terminated because he sought to exercise a workplace right, and he has not established that the Respondent has the onus of proving that the action was not taken for a particular reason because the allegation is so vague.
As to coercion, the Applicant has not identified what workplace right he has had which is said to have been the subject of coercion. The Applicant contends that the coercive act was the act of dismissal but that does not provide an adequate basis for the claim of coercion. The Applicant’s refusal to sign the performance review form is not an exercise of a workplace right as that act does not relate to “the benefit of or a role or responsibility under a workplace law”.
For these reasons the Court is of the view that the Applicant’s claims have no reasonable prospects of success as that expression is used in the authorities, including Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233. For these reasons it is not necessary for the Court to consider the Applicant’s Application in a Case and the Court will dismiss the Application.
The Respondent sought costs. It is not clear that the Court is able to split the proceeding in the way that it has been suggested by the Respondent. It is a question of whether the whole proceeding was instituted vexatiously or without reasonable cause. There are matters of argument which were raised by the Applicant in relation to the adverse action claim.
Ultimately I do not think that any claim had any reasonable prospects of success. However, I do not think the Application was instituted vexatiously or without reasonable cause so I will decline to make any order for costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 23 March 2020
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