RailPro Services Pty Ltd v Flavel

Case [2015] FCA 504

FEDERAL COURT OF AUSTRALIA

RailPro Services Pty Ltd v Flavel [2015] FCA 504

Citation: RailPro Services Pty Ltd v Flavel [2015] FCA 504
Appeal from: Flavel v RailPro Services Pty Ltd [2013] FCCA 1189
Parties: RAILPRO SERVICES PTY LTD v COLIN FLAVEL
File number: SAD 276 of 2013
Judge: PERRY J
Date of judgment: 22 May 2015
Catchwords:

APPEAL AND NEW TRIAL – discussion of principles governing circumstances in which primary judge’s findings of fact can be set aside on appeal

INDUSTRIAL LAW – appeal from the Federal Circuit Court – where respondent was dismissed from employment as a locomotive driver following refusal because of illness to undertake assessment of his competence – discussion of principles by which it is determined whether an employer took adverse action “because of” a proscribed reason

INDUSTRIAL LAW - whether dismissal was an adverse action “because of” respondent’s disability in contravention of s 351(1) of the Fair Work Act 2009 (Cth) – where primary judge erred in finding that decision-makers were aware respondent had a disability prior to dismissal or his conduct was a manifestation of a disability – where primary judge failed to address statutory question in finding breach of s 351(1) by reason of a breach of s 15(2) of the Disability Discrimination Act 1992 (Cth) – where finding of a contravention of the Disability Discrimination Act 1992 (Cth) was made in breach of the natural justice hearing rule

INDUSTRIAL LAW – whether dismissal was an adverse action “because of” respondent’s exercise of a workplace right under s 21 of the Occupational, Health, Safety and Welfare Act 1986 (SA) in contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where no error in decision of Court below that evidence not sufficient to rebut statutory presumption in s 361 of the Fair Work Act 2009 (Cth)

EVIDENCE -  whether primary judge erred in application of rule in Jones v Dunkel – where Jones v Dunkel inference drawn in circumstances where lack of availability for trial explained but failure to provide affidavit evidence of a decision-maker in advance of trial not explained

COMPENSATION – where award of compensation was based upon a mistake of fact – where compensation failed to account for workers compensation payments – where award of damages for hurt and distress excessive - where question of compensation is to be remitted to the primary judge

INDUSTRIAL LAW – error in pecuniary penalty imposed by Court below – where question of penalty is to be remitted to the primary judge
Legislation:

Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 10, 15(2)
Fair Work Act 2009 (Cth) ss 336, 340, 341, 342, 346, 351, 352, 360, 361, 539, 545, 546, 725, 732
Federal Court of Australia Act 1976 (Cth) s 24(1)(d)
Occupational Health, Safety and Welfare Act 1986 (SA) s 21
Rail Safety (General) Regulations 2008 (SA)
Rail Safety Act 2007 (SA) ss 9, 28, 69, 71, 75
Workers Rehabilitation and Compensation…

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Details
AGLC
RailPro Services Pty Ltd v Flavel [2015] FCA 118
Case
[2015] FCA 504
Decision Date

CaseChat Overview and Summary

The appeal in RailPro Services Pty Ltd v Flavel concerns the dismissal of Mr Flavel, a locomotive driver, by RailPro Services Pty Ltd, his employer. Mr Flavel was dismissed following his refusal to undertake a competence assessment due to illness. Mr Flavel brought proceedings in the Federal Circuit Court, alleging that his dismissal constituted adverse action taken because of his disability and because of the exercise of a workplace right. The primary judge found in favour of Mr Flavel, leading to an appeal by RailPro and a cross-appeal by Mr Flavel. The appeal was heard in the Federal Court of Australia.

The central legal issues in the appeal were whether the primary judge's findings on the reasons for dismissal were correct and whether the compensation awarded was appropriate. Specifically, the court had to determine if the dismissal was an adverse action "because of" Mr Flavel's disability or his exercise of a workplace right, in contravention of the Fair Work Act 2009 (Cth). The court also had to consider if the compensation award was based on a factual error and if it appropriately accounted for workers' compensation payments and the quantum of damages for hurt and distress.

The Federal Court found that the primary judge erred in his assessment of the reasons for dismissal and the compensation awarded. The court held that the primary judge did not correctly apply the statutory tests under the Fair Work Act and the Disability Discrimination Act 1992 (Cth). The court found that the primary judge's determination that the decision-makers were aware of Mr Flavel's disability prior to dismissal was improbable. Furthermore, the court held that the statutory presumption under the Fair Work Act had not been rebutted, and thus, the dismissal was not solely because of the exercise of a workplace right. The compensation award was found to be based on a factual error and failed to account for workers' compensation payments and the appropriate quantum of damages for hurt and distress. The court ordered that the case be remitted to the primary judge for a reassessment of compensation and a reconsideration of the penalty imposed.

The appeal was allowed in part, and the cross-appeal was also allowed. The court mandated that a joint minute of orders be filed by a specified date or, in case of disagreement, separate minutes with supporting submissions. Costs were reserved.

Orders

Orders of the court

1. The appeal is allowed in part.

2. The cross-appeal is allowed.

3. By 4pm on Friday 29 May 2015, the parties are to file and serve a joint minute of orders reflecting these reasons or, in the event of disagreement, a separate minute of orders with short written submissions in support thereof.

4. Costs are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, it is not in dispute, as Mr Flavel contends by his cross-appeal, that the penalty was wrongly calculated at the rate set for an individual, as opposed to a corporation, namely at $110 per unit to a maximum of 60 penalty units giving a total maximum of $6,600 whereas the penalty for a corporation is set at $550 per unit to a maximum of 60 penalty units giving a total maximum of $33,000. However the parties are not agreed as to the consequences which flow from that error. The respondent contends (on the assumption that the appeal is unsuccessful) that there is no error in the primary judge’s assessment of the seriousness of the breaches of the Act and that, the penalty having been imposed at 75% of the maximum penalty that could have been imposed if RailPro were an individual, the penalty should be imposed commensurate with that reasoning at approximately 75% of the maximum for a corporation, namely, $25,000.1.3 Summary of conclusions In my opinion, the appeal must be allowed in part on the following grounds.a)The primary judge erred in finding that there was a breach of s 351(1) of the FW Act by reason of a breach of the Disability Discrimination Act. In so finding, his Honour failed to ask the right question under s 351(1). The finding of such a breach and the making of a declaration to that effect was also in breach of the natural justice hearing rule.b)The finding of a breach of s 351(1) was in error in any event. The finding that the three decision-makers were aware that Mr Flavel had a physical or psychological condition prior to dismissal was glaringly improbable. The primary judge ought to have found that the statutory presumption in s 361 of the FW Act had been rebutted as, in the absence of such knowledge, the decision-makers could not be found to have dismissed Mr Flavel because of his disability.c)The primary judge’s finding that competence was a concern but not a reason for the dismissal failed to take account of the real strength of RailPro’s evidence, is based on evidence that is too slight and is contrary to compelling inferences. Nonetheless, there is no error in the primary judge’s finding that Mr Flavel was dismissed because of the exercise of a workplace right contrary to s 340(1) of the FW Act as the evidence was not sufficient to rebut the statutory presumption in s 361 and it is sufficient if the proscribed reason is a substantive and operative reason. It need not be the sole reason. d)The award of compensation was based upon an obvious mistake of fact, namely, that the medical evidence was that Mr Flavel would likely be able to return to work in or about January 2012 (i.e. three months from the date of the injury), whereas the medical evidence was that he would be able to return to work in about three to six months from July 2012. As a consequence, the matter must be remitted to the primary judge for an assessment of compensation. In this regard, I do not consider that no economic loss was suffered as a consequence of the dismissal given the unchallenged medical evidence that his condition deteriorated after his dismissal. However, I accept RailPro’s contention that the primary judge erred in failing to take into account workers compensation payments in calculating the loss occasioned by the dismissal. e)The primary judge’s reasons do not sufficiently disclose the reason for the award of $25,000 for distress, hurt and humiliation and, it is inferred, took into the account the wrong finding of fact that the decision-makers were aware that Mr Flavel had a disability. In all of the circumstances, an award in the sum of $7,500 for hurt and distress occasioned by the dismissal is made in substitution for the award below. 2. RELEVANT PROVISIONS OF THE FAIR WORK ACT 2009

Ratio Decidendi

Legal Principle Established

The Act places responsibility upon SBR to ensure that its operations are safe including that its drivers are competent and able to safely operate the trains. Section 28(1) of the Rail Safety Act imposed an obligation upon Specialised Bulk Rail Pty Ltd (SBR) to “ensure, so far as is reasonably practicable, the safety of the operator’s railway operations”. Subsection (2) further provided that:Without limiting subsection (1), a rail transport operator contravenes that subsection if the operator fails to do any of the following:(a)develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the operator's railway operations;(b)ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the operator's railway operations—(i)is of sufficient good health and fitness to carry out that work safely; and(ii)is competent to undertake that work;…(f)provide, so far as is reasonably practicable—(i)such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator's railway operations in a way that is safe; and(ii)such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety.(Emphasis added.) Section 69 of that Act, in particular, obliged SBR to ensure that each rail safety worker who is to carry out rail safety work (including driving rolling stock (s 9(1)) has the competence to carry out that work. By subs (2), the competence of a rail safety worker to carry out rail safety work must be assessed:(a)by reference to any qualification or any units of competence recognised under the regulations applicable to the rail safety work to be carried out;(b)by reference to the knowledge and skills of the rail safety worker that would enable the worker to carry out the rail safety work safely. Conversely, s 71(1) and (3) of the Rail Safety Act provided that: (1) A rail safety worker, when carrying out rail safety work must—(a)take reasonable care for his or her own safety; and(b)take reasonable care for the safety of persons who may be affected by the rail safety worker's acts or omissions; and(c)cooperate with the rail transport operator with respect to any action taken by the rail transport operator to comply with a requirement imposed by or under this Act or the regulations.Maximum penalty: $10 000.…(3)A rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.Maximum penalty: $10 000. RailPro employs the drivers and other employees who undertake work for SBR. SBR is a Rail Operator of which RailPro is a subsidiary.3.3 Witnesses Mr Flavel gave evidence by affidavit and also relied on the reports of a number of medical practitioners including Dr Marcus Bem who examined Mr Flavel on 20 March and 19 July 2012. The medical practitioners were not required for cross-examination and their evidence was not in dispute.