Read v GRP Technology Pty Ltd
[2019] FCCA 2354
•29 August 2019 (and delivered by by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| READ v GRP TECHNOLOGY PTY LTD | [2019] FCCA 2354 |
| Catchwords: INDUSTRIAL LAW – General protections claim – dismissal from employment – whether contravention of a general protection – whether dismissal from employment by reason of exercise of workplace right. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340, 341, 342, 360, 361 362, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954; Birkett v A F Little Pty Ltd [1962] NSWR 492 Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 Browne v Dunne (1894) 6 R 67 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferris & Ors (No 2) [2017] FCCA 1713 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; (1999) 47 AILR 4-239 Picos v Healthengine Pty Ltd [2015] FCCA 1983 Romig v Tabcorb Holdings Ltd [2014] QSC 249 Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 |
| Applicant: | NICHOLAS STEVEN READ |
| Respondent: | GRP TECHNOLOGY PTY LTD |
| File Number: | PEG 216 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 April 2016 |
| Date of Last Submission: | 7 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2019 (and delivered by by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | The applicant appeared in person |
| Counsel for the Respondent: | Ms E Hartley |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 216 of 2015
| NICHOLAS STEVEN READ |
Applicant
And
| GRP TECHNONOGY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Nicholas Steven Read (“Mr Read”) has filed an application under the Fair Work Act 2009 (Cth) (“FW Act”) alleging the respondent, GRP Technology Pty Ltd (“GRP”), dismissed him from employment in contravention of a general protection.
Contraventions alleged
Part G (contraventions alleged) of the Form 2 (“Application”) filed by Mr Read states the grounds for the claim under the FW Act are:
On 11/3/15 and prior, general protection, being workplace right, being a workplace law was breached by employer, being: -Occupational Safety and Health Act 1984 – Section 19((1)(d) – see Attach A
Description of claim - see Attach B.
Attachment B to the Application sets out the claim as follows:
11/3/15:- Lightweight gloves not provided by employer, but employee (Applicant) told to do a laminating job after employer told employee to wear lightweight gloves. Employee told to leave property.
Prior to 11/3/15:- Respirator not provided by employer, but employee (Applicant) told to cut and grind fibreglass fittings, after employer told employee to wear respirator (employee wore a pink rag to cover nose & mouth.)
Prior to 11/3/15:- Heavy weight gloves not provided by employer, but employee (Applicant) told to use hand grinder, to make fittings after employer told employee to wear heavy weight gloves.
At Interviews:- Employee (Applicant) told to wear boots, if employed. After job application successful, employer did not provide employee with boots.
Employee (Applicant) did all jobs/tasks, others above, but with above evidence, this evidence was without personal protective equipment, except boots, as employee purchased his own, being worn.
Attachment A to the Application sets out s.19(d) of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”), while Attachment C to the Application deals with compensation and lost wages.
Response
On 15 July 2015 GRP filed a response to the Application. In respect of the substantive claim made in the Application the following was stated:
a)a series of workplace incidents arose prior to Mr Read’s termination whereby:
i)Mr Read unreasonably and consistently failed to constructively deal with and appropriately respond to feedback and direction from his supervisor and managers of GRP;
ii)Mr Kingsley and the co-workers had a reasonable basis for the feedback they provided;
iii)there was an obligation upon Mr Read to engage constructively and in many cases this did not occur; and
iv)Mr Read did not communicate in an appropriate way with Mr Kingsley and his coworkers; and
b)GRP is limited in its ability to respond to Mr Read’s claim as Mr Read has not adequately particularised the workplace rights he alleges GRP has prevented him from exercising;
c)in relation to the first claim set out in Attachment B, GRP denies that it failed to provide Mr Read with light weight gloves on 11 March 2015, or at any time during the course of Mr Read’s employment, rather it provides all of its employees with light weight gloves or “disposable latex gloves” as and when required for when employees are required to undertake laminating work or when employees are required to handle wet fibreglass material;
d)upon commencing employment with GRP, Mr Read was advised by Mr Kingsley that:
i)GRP provides all its employees with personal protective equipment (“PPE”) to wear when undertaking work;
ii)all PPE is kept in the back store room of the workshop and all employees are required to help themselves; and
iii)Mr Read was required to wear PPE at all times;
e)in relation to the second claim set out in Attachment B, GRP denies that it failed to provide Mr Read with a respirator at any time during the course of Mr Read’s employment, rather; a respirator is only required to be used by employees if they are working inside of a tank or a confined space, such as working on an internal overlay not when cutting and grinding fibreglass fittings;
f)Mr Read was never required to use a respirator as it was not required as part of his role, which was to undertake cutting, grinding and laminating work only;
g)it did not instruct Mr Read to wear a pink rag to cover his nose and mouth as alleged and that Mr Read was only required to use a “Pl dust mask” whilst cutting and grinding the fibreglass fittings for which Mr Read knew where the P1 dust masks were kept and that he could help himself to one whenever required;
h)in relation to the third claim set out in Attachment B, GRP denies that it failed to provide Mr Read with heavy weight gloves at any time during the course of Mr Read's employment rather it provided Mr Read with heavy weight gloves when Mr Read was required to undertake work such as handling unfinished fibreglass products;
i)between January and March 2015, GRP purchased 30,000 light weight gloves, 320 Pl dust masks and 37 heavy weight gloves for its employees to use and Mr Read knew where these were kept and that he could help himself to one whenever required;
j)in relation to the fourth claim set out in Attachment B, GRP denies that it told Mr Read that after a successful job application Mr Read would be provide with boots, further Mr Kingsley did not discuss protective work boots with Mr Read as protective work boots are only provided to those employees who are required to work onsite, attending either waste water treatment plants or chemical plants around Perth suburbs where it is mandatory to wear protective work boots and as Mr Read was not required to work on site as part of his role, GRP was not required to provide Mr Read with protective work boots to wear; and
k)GRP does not operate in an industry that uses heavy machinery; the majority of employees prefer to use their own light closed-in shoes to work.
GRP finally sought that the Application be dismissed.
The hearing and the evidence
The following were marked as Exhibits in the hearing:
a)a document titled “Employment Information Form” dated by 13 January 2015 proved by Mr Read in the course of cross-examination (“Exhibit 1”);
b)a letter from Mr Read addressed to GRP and dated 12 March 2015 also proved by Mr Read in the course of cross-examination (“Exhibit 2”); and
c)Mr Kingsley’s notes made regarding the termination of Mr Read dated 18 March 2015 proved by Mr Kingsley in the course of his examination (“Exhibit 3”).
During the course of the hearing Mr Read had with him a number of items he referred to, namely what he called a “UniSafe kit” which was described as a “Combination earmuff, respirator and goggle safety kit”, a pair of thongs, or flip-flops as they are sometimes referred, and a pair of steel-capped boots. None of these were tendered to the Court or marked as exhibits.
The evidence at hearing was taken orally, and no affidavit evidence was filed prior to or at the hearing. At hearing three witnesses were called, as follows:
a)Mr Read;
b)Mr Ridley who was the Managing Director of GRP: Transcript, p.35; and
c)Mr Kingsley who, at the relevant time, was Workshop Supervisor at GRP: Transcript, p.53.
The Court explained to Mr Read that he was required to tell the Court what the matters, the facts and the conduct were that he relies upon to support his claim, what he says happened when he was dismissed from employment, and the conduct he complains of that gave rise to his dismissal and bringing of the Application for dismissal in breach of a general protection.
When assessing the credibility of evidence and making findings of fact the Court has considered the evidence in its entirety, and in preparing these Reasons for Judgment has read and relied upon the transcript of the hearing (“Transcript”) and the exhibits tendered.
During cross-examination Counsel for GRP put a number of matters to Mr Read, as it was necessary to do: Browne v Dunne (1894) 6 R 67. When these matters were put to Mr Read he became immediately defensive, argumentative and evasive, on many occasions he failed to answer the question and made an allegation that counsel cross-examining was “telling lies”. Throughout the course of Mr Read’s evidence he strayed into the realm of argument and submission, and at other times his evidence was completely irrelevant, including discussing his strong mental health, his other business endeavours, how far he can walk in his boots, how quickly he can ride his bicycle and what his ambitions are. The manner in which he conducted himself overall during the hearing confirmed that contrary to his evidence, he was argumentative and stubborn in his views.
In the Court’s view Mr Ridley was an honest and reliable witness. In the circumstances, many of the questions Mr Read asked of Mr Ridley were convoluted and difficult to understand, others were irrelevant or concerned matters and events about which Mr Ridley simply had no knowledge. For this reason, much of the evidence given by Mr Ridley during cross-examination is of no use in determining the facts surrounding the dismissal of Mr Read, save that in the entire period Mr Read was employed Mr Ridley never became aware of any issue regarding PPE availability or deficiencies having been raised by Mr Read or having actually occurred.
Mr Kingsley too appeared to be an honest and reliable witness, but his evidence was, understandably, disjointed given the number of occasions on which the Court had to intervene during Mr Read’s cross-examination of Mr Kingsley to deal with questions being put by Mr Read which were vague, ambiguous, rambling and sometimes, nonsensical. Mr Kingsley remained relatively composed in the witness box in light of the questions posed to him. When examined, and cross-examined, on the PPE issues Mr Kingsley provided mostly consistent answers. Mr Kingsley confirmed he was in the workshop with Mr Read every day, had never seen him wearing a pink rag over his nose and mouth, and that Mr Read had never raised any concerns regarding safety prior to his dismissal. There were some inconsistencies as to whether Mr Kingsley was on a ladder when Mr Read approached him about the lack of disposable gloves: Transcript, pp.56 at line 19, 70 at line 32 and 75 at line 7. Likewise, Mr Read stated that Mr Ridley spoke to him when he called asking for a job, and Mr Kingsley also stated such: Transcript, p.16 at lines 35-37 and p.54 at line 21, however, Mr Ridley’s evidence, and what was put to Mr Read, was that Mr Read had actually spoken to a woman named Rachel: Transcript, p.36 at [15]-[19]. These inconsistencies are inconsequential in relation to the findings of fact required to be made in relation to the issue or issues to be determined.
The Court has come to the view that Mr Read’s evidence is not as reliable as that of Mr Ridley and Mr Kingsley, and where there is conflict between the evidence of Mr Read and Mr Ridley or Mr Kingsley, the evidence of Mr Ridley or Mr Kingsley is to be preferred.
The hearing came to a strange end, and the Court sets out the following excerpt from the Transcript to describe the strange departure of Mr Read prior to the close of the hearing. The excerpt also highlights some issues relevant to the assessment of Mr Read referred to at [12] above. The excerpt, from Transcript pp.77-78, is as follows:
HIS HONOUR: Well, I’ve said before, whether or not you asked for an MSDS on your way out of the building, after you had been terminated, has nothing to do with the reasons for your termination.
MR READ: I’m just proving my opinion that Troy Kingsley here is telling lies, and that I did not – did not ask for them, and I’m putting to him that it’s a tactic, a strategy in a future claim of some health effect. My health is fine except for a point in time when some – and I just mentioned it. I do not use drugs. Why would I when I drink Guinness?
HIS HONOUR: Get on with something relevant, Mr Read.
MR READ: Right. I put it to you that I’m the one who’s not standing over. I’m the one who does the job. I’m the one who performs the specification. I’m the one who has the commonsense in this application. Commonsense cannot be determined via myself to have commonsense when I’ve been told to do two jobs in different locations, and then being told off for not doing the job?
MR KINGSLEY: So what’s the question?
MR READ: I’m putting it to you what my application is, and I’m putting it to you what your false defence is.
HIS HONOUR: Mr Read, that question made as little sense as the one before, with great respect to you.
MR READ: Okay. Well, basically you’re telling me that you don’t agree that I was not supplied with latex rubber gloves; I was not supplied with heavyweight gloves; I was not supplied with a P1 respirator; and I was not supplied with covered-in shoes?
MR KINGSLEY: You were supplied with all personal protective equipment required.
MR READ: So after my request, I was supplied all that, including the covered-in footwear?
MR KINGSLEY: Yes. Not – not including the covered-in footwear.
MR READ: That’s in your supplied – so you’ve won. It’s finished, your Honour. My application was for personal protective equipment, and he says he supplied it, and I said he didn’t supply it. He has won. They won.
HIS HONOUR: So have you completed your cross-examination, Mr Read? Mr Read, have you completed your cross-examination?
MR READ: Yes. I have, sir. I’m going home now…
HIS HONOUR: I should say before you go, Mr Read, that if you do go, you won’t have the opportunity to make final submissions.
MR READ: Yes. I know that. It’s your court. See you
Having revisited this portion of the Transcript it remains unclear to the Court what Mr Read sought to achieve by leaving the hearing before making final submissions. That Mr Read failed to make final submissions was, however, ultimately a matter for him.
Evidence – background
The background to the matter is as follows:
a)GRP operates as a small manufacturing business employing up to 12 employees;
b)Mr Read attended an interview with a supervisor at GRP, Mr Kingsley, who explained to him the role and terms of employment for a position at GRP, specifically:
i)the rate of payment was at $23.00 per hour; and
ii)Mr Read would be subject to a three month probationary period;
c)Mr Read orally agreed to the terms of employment and despite lacking any prior experience in any manual trades, he was employed by GRP on a casual basis as a fibreglass labourer from 12 January 2015; and
d)on 11 March 2015 Mr Kingsley dismissed Mr Read from his employment with GRP.
Evidence – events prior to dismissal
Based upon the evidence provided at hearing, the following sequence of events occurred immediately preceding the dismissal of Mr Read on 11 March 2015:
a)on the morning of 11 March 2015 Mr Read was asked by William Marriott (“Mr Marriott”) to place his roller in acetone and at that same time another employee asked him to assist moving a trestle;
b)he did not do the task as requested by Mr Marriott and he was chastised for not doing so, and an argument ensued between Mr Marriott and Mr Read, with Mr Read attesting he was unable to do two different jobs in two different locations at the same time (“First Incident”). Mr Kingsley intervened and directed the men to return to work;
c)Mr Read (though this point is contested) “carried on” about how he was supposed to do two things at the same time for a period thereafter until he was told to “shut up” by Mr Kingsley;
d)Mr Read then approached Mr Kingsley and stated that GRP had run out of disposable gloves. Mr Read says that Mr Kingsley’s response was to state “Can’t you see I’m up a ladder, I can’t get gloves”, while GRP contends Mr Kingsley stated a colleague had “gone to Bunnings and would be back in five minutes with more gloves”;
e)Mr Read approached Mr Ridley, the managing director, about the First Incident and was advised to “move on”, though Mr Read then approached Mr Kingsley and further agitated the issue;
f)Mr Read was then asked to roll up sheets of fibreglass, and was told they were required to be rolled tighter. He sought clarification from Mr Kingsley who advised there was no “correct” procedure, rather it was a matter of preference, and Mr Read expressed disagreement with the answer Mr Kingsley provided;
g)Mr Read returned to the work bench and moved glass out of the way, but was unaware there was another work bench he may have utilised to complete his task, and the employee whose glass was moved out of the way then became engaged in an argument with Mr Read (“Second Incident”);
h)Mr Kingsley took Mr Read into his office and advised him that “it wasn’t working out” and he was dismissed. Mr Read asked if he was required to leave immediately and moved toward the car park. Mr Kingsley sought to advise Mr Read he could talk to Mr Ridley if he wished, however, Mr Read responded that Mr Kingsley should stop harassing him, and there was some argument in which Mr Read said words to the effect of “I will see you in Court”; and
i)on 12 March 2015 Mr Read wrote a letter to GRP whereby he referred to the First Incident as “unfair”, and asked for “…a list of safety equipment” that GRP “think” Mr Read should have worn.
The law
In the context of adverse action proceedings it is for an applicant to assert and establish that:
a)he exercised the workplace rights pleaded;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
The relevant provisions of ss.340 and 341 of the FW Act are as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
341 Meaning of workplace right
Meaning of workplace right
(1) 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
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment
Section 342 of the FW Act defines the meaning of “adverse action”. Relevantly, s.342(1), item 1, column 2(a) of the FW Act provides that adverse action is taken by an employer against an employee when an employer “dismisses” the employee. There is no dispute in the present circumstances that the dismissal of Mr Read constitutes adverse action as defined, and the real question is whether or not the adverse action was taken because of any workplace right that Mr Read had under s.340(1) of the FW Act, that is, whether the adverse action was taken for a prohibited reason.
The word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”). The meaning of “because” is not defined in the FW Act. Its meaning, albeit in relation to s.346 of the FW Act (which is relevantly in similar terms to s.340), was discussed in Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”) at [100] to [104] per Gummow and Hayne JJ as follows:
100.The application of s 346 turns on the term “because.” This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101.The use in s 346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.
102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability”. Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
“Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3- 1.”(emphasis added)
The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling.
104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
Mr Read must establish that any alleged adverse action was taken “because” of the circumstances alleged and needs to “establish the existence of the circumstances as an objective fact…”: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J.
If Mr Read can establish, on the balance of probabilities, that:
a)the conduct alleged occurred;
b)he has a “workplace right”; and
c)GRP took “adverse action”,
the onus then shifts to the employer to prove that the adverse action was not motivated by an impermissible reason, but rather was taken for a reason unrelated to any workplace right held or exercised by Mr Read: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; (1999) 47 AILR 4-239 at [221] per RD Nicholson J; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [368]-[369] per Barker J.
The reverse onus is created by operation of s.361(1) of the FW Act which provides as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The principles, in determining whether an employer has proven otherwise were established in Barclay, and can be summarised as follows:
a)the central question to be determined: “why was the adverse action taken?” is one of fact;
b)the central question is to be answered having regard to all the facts established in the proceeding;
c)the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;
d)it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;
e)even if the decision-maker gives evidence that they acted solely for non-proscribed reasons, other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and
f)if, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s.361 of the FW Act.
See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J.
In Barclay the High Court also said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)“… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”: Barclay at [44] per French CJ and Crennan J; and
c)French CJ and Crennan J went on in Barclay at [41] to observe that “… why an employer took adverse action against an employee is a question of fact …” and then at [45] per French CJ and Crennan J it was said that
Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…
d)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
e)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
f)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person is regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.
A workplace law is defined in s.12 of the FW Act. Mr Read purports to rely upon s.19(d) of the OSH Act as the “workplace law” referred to is s.341 of the FW Act.
This Court has previously recognised that under s.12 of the FW Act, and for the purpose of s.341 of the FW Act, the OSH Act is a “workplace law”: Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954; Picos v Healthengine Pty Ltd [2015] FCCA 1983.
GRP conceded at hearing that Mr Read did make a complaint in relation to his employment, being the statement in relation to GRP having run out of disposable gloves, thereby enlivening ss.341(1)(a) and (c) of the FW Act, and that Mr Read was the subject of adverse action, because he was dismissed from his employment: s.342(1)(a) of the FW Act. Having conceded these matters, pursuant to s.361 of the FW Act there is a presumption that the adverse action was taken for a prohibited reason and it is for GRP to rebut the presumption. Therefore, the Court must consider if the adverse action taken against Mr Read was “because of” his exercising a workplace right under the OSH Act in relation to the supply of disposable gloves.
Consideration
First and foremost it must be observed that Mr Read bought an action alleging dismissal in contravention of a general protection, namely that GRP had breached s.340 of the FW Act by exercising a workplace right under the OSH Act, and specifically that he was dismissed by reason of not being allowed to wear PPE equipment (disposable gloves) or voicing a complaint that he was unable to access the PPE equipment.
There is no doubt that Mr Kingsley was the decision-maker in relation to the dismissal of Mr Read. Mr Kingsley was asked directly why he made the decision to dismiss Mr Read, and at Transcript, p.60 the following exchange occurred:
COUNSEL: So we will just spend a little bit of time going over those again. Can you explain to the court exactly what your reasons were for why you made that decision to terminate his employment?
MR KINGSLEY: My reasons were – for terminating his employment, because he was disruptive towards other staff and becoming argumentative towards me and intimidating to me.
COUNSEL: And was your concern about his view on common sense not being needed a factor as well?
MR KINGSLEY: Yes, it was. Yes.
COUNSEL: And were there any other reasons such as his complaining about no gloves. Did that come into play at all?
MR KINGSLEY: No.
COUNSEL: And there were – other than his statement that you had run out of gloves, your evidence is – is that he had raised no other complaint with you - - -?
MR KINGSLEY: Yes. That’s correct.
COUNSEL:- - - about personal protective equipment. You had seen him wearing personal protective equipment?
MR KINGSLEY: Yes.
COUNSEL: So from your perspective it wasn’t an issue at all?
MR KINGSLEY: Yes. That’s – that’s correct.
COUNSEL: It was only about the arguments that had occurred about doing the two jobs?
MR KINGSLEY: Yes.
COUNSEL: And the way that he just wouldn’t let it go?
MR KINGSLEY: Yes.
Mr Kingsley reiterated the above view during cross-examination, and further said that he had concerns that someone who did not exercise common sense should not be in the industry. Mr Ridley also gave evidence that upon returning to the workshop he was advised by Mr Kingsley that Mr Read had been dismissed as he was disruptive and argumentative and did no tasks on the day without there being some issue. In Exhibit 3 the only mention Mr Kingsley made of any PPE was:
Nicholas then started to speak to me in a condescending manner saying that we have run out of disposable gloves and that I have told him in the past if he has any safety concerns he should speak to me and not having any disposable gloves is a safety concern! I replyed thanks for your concern Nich and I have already sent Olga Barron to get some more gloves, she should be back in 5 minutes.
Exhibit 3 was undated, however at hearing Mr Kingsley explained that given the letter received by GRP from Mr Read after his dismissal (Exhibit 2) he thought it best to write down what happened and he did so around 18 March 2015. Most of the hearing was focussed upon the arguments Mr Read had engaged in on that day, and the basis of Mr Read’s claim of exercising a workplace right pursuant to the OSH Act almost became peripheral at the hearing.
Much of the hearing was focussed upon an assertion, conceded to have been made, but fiercely defended as to its meaning, by Mr Read to Mr Kingsley after the First Incident that as a labourer he “shouldn’t have to use [his] common sense”. Mr Read stood by his position that as he was a “worker” and not an “officer” he should not have to use his common sense, though he sought to qualify this by stating he was referring to the context of having to do two things at once, and, significantly, in the context of these proceedings that his comments were not in relation to his safety: Transcript, p.25. Throughout the hearing Mr Read argued about what common sense was and if asking someone to do two things at once was common sense. The premise of the “common sense” argument Mr Read was pursuing was, however, irrelevant.
It appeared Mr Read was pre-occupied and intent upon Mr Kingsley or Mr Ridley conceding that being able to do two things at once in two different locations was not a matter of common sense nor possible. What Mr Kingsley and Mr Ridley both stated was they considered it a matter of “common sense” to be able to prioritise and problem solve in order to get both tasks done in as short time as possible, something Mr Read could not comprehend on that day.
Common sense is an innate characteristic of what is considered ordinary, reasonable and sound judgment and understanding in the wider community. Common sense is not a workplace right. In Romig v Tabcorb Holdings Ltd [2014] QSC 249 at [8] per Dalton J made the comment that when an employee is asked to do a task of some difficulty or risk that “was not just a matter of common sense or performing a task so basic it could be reasonably left to the employees to decide how to perform it”, some training or guidance must be provided. In the context of this case, the Court cannot picture what training or guidance Mr Read could have been provided in order to complete the tasks asked of him, rather it was a matter of his prioritising them and doing them accordingly, or, at the very least, seeking direction as to which to do first. Whether or not Mr Read being given two instructions and not knowing which to prioritise or how to “get the job done” was a matter of common sense, but that was not the question the Court was required to consider. Mr Read bought an application alleging adverse action taken in the exercise of a workplace right.
To the extent Mr Read may have been arguing that he was making a complaint to Mr Kingsley and Mr Ridley about the First Incident, the “conflicting instructions” he was given and how he was expected to complete this task, common sense or not, the Court does not accept that this was a relevant complaint or inquiry, but was rather a refusal to properly perform his duties. In any event, Mr Read was not dismissed because of any complaint or inquiry, rather, it was his conduct thereafter which Mr Kingsley and Mr Ridley both described as his “carrying on” in a loud voice about how he could not do two things at once which caused his dismissal.
Mr Read’s evidence confirmed that he was shown on his first day by Mr Kingsley the PPE he was required to use in his employment and where the equipment was located and that if he ever needed anything to do with safety or PPE he was to see Mr Kingsley: Transcript, p.18-19 .
It is clear there was a very temporary shortage of lightweight disposable gloves on 11 March 2015. Mr Kingsley stated that there were occasions when supply would be exhausted, and on that day he was aware that that had occurred, and he had sent an employee to purchase more disposable gloves. Mr Read at that time was still wearing a pair of disposable gloves. Mr Kingsley did not direct Mr Read to stop work until the gloves came nor did he direct him to continue to work. Upon advising Mr Read the gloves were on their way, the issue appeared to be disposed of save for Mr Read again carrying on in a boisterous fashion. Mr Read then referred to his not being provided a pair of heavy weight gloves. Mr Kingsley could not recall if Mr Read had requested such gloves but said had he done so he would have been provided with them. In any event, the use of heavy weight gloves were provided to employees on request, and Mr Ridley’s policy was that employees could wear, and be provided with, such gloves if they preferred, and the issue of gloves, whether disposable or heavyweight, was not a substantial or operative cause of Mr Read’s dismissal.
An issue was further raised with the availability and accessibility of dust masks or respirators (the terms were sometimes used discretely, but sometimes also interchangeably). Mr Read consistently maintained that he was required to wear a pink rag over his nose and mouth for a period of two days as no dust masks were available. Mr Kingsley’s evidence was that he worked with Mr Read every day during his employment and never saw him wearing a pink rag. Mr Ridley stated he often walked through the workshop in the morning and intermittently during the day when he left his office and he did not recall seeing anyone wearing a rag over their nose and mouth. In this regard the evidence of Mr Kingsley and Mr Ridley is to be preferred, and the Court finds that Mr Read was not seen to wear a pink rag over his nose and mouth at any stage.
Mr Read did not give evidence that he approached Mr Kingsley, whom he was directed to refer to for safety issues, about dust masks or respirators. In circumstances where the evidence established that a large portion of work undertaken at GRP requires the use of at least a dust mask, and some 10-12 other employees worked at GRP, that Mr Read went without a dust mask for two days. Where the evidence supports the fact that Mr Kingsley had been notified and rectified a situation where there were no disposable gloves almost immediately, it seems unlikely he would have not been aware there were two days in which it was said by Mr Read that there were no dust masks available. As Mr Kingsley worked in the workshop everyday with Mr Read, and given there were only 10-12 other employees, the Court accepts Mr Kingsley and Mr Ridley’s evidence that Mr Read was not wearing a pink rag over his nose or mouth.
Both Mr Kingsley and Mr Ridley deposed that prior to Mr Read’s final day at GRP he had not raised any issue regarding PPE. The first mention of any PPE issue by Mr Read was his advising Mr Kingsley there was no disposable gloves.
The Court does not accept that Mr Read raised issues with regard to his right to obtain and be provided with PPE at any time prior to the date of his dismissal. In any event, the PPE Mr Read was required to have access to was made available to him.
While GRP conceded Mr Read had made a statement about there being a lack of disposable gloves, and therefore the presumption under s.361 of the FW Act was enlivened, there was no evidence of any causal connection between the issue of the disposable gloves and Mr Read’s dismissal.
What was apparent from the evidence as a whole was that:
a)the manner and the attitude of Mr Read on the day of his dismissal was far from appropriate and acceptable in the workplace as adjudged by Mr Kingsley;
b)Mr Read had not previously raised any issue with PPE availability; and
c)the issue of the disposable gloves was a very minor one,
and the Court accepts the evidence of Mr Kingsley that the issue of the disposable gloves was not in his mind in making his decision to dismiss Mr Read, and the Court is satisfied the adverse action was not taken because Mr Read was exercising a workplace right under s.341(1)(a) or (c) of the FW Act.
Conclusion and order
The Court has concluded that Mr Read was not dismissed in breach of s.340 of the FW Act. The Application must therefore be dismissed. There will be an order accordingly.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferris & Ors (No 2) [2017] FCCA 1713). If, however, Advantage Panel and Paint considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 August 2019
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