Reay v Fuel and Gas Haulage Pty Ltd
[2019] FCCA 2473
•6 September 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REAY v FUEL & GAS HAULAGE PTY LTD & ANOR | [2019] FCCA 2473 |
| Catchwords: WORDS AND PHRASES – “disability” – “mindset”. |
| Legislation: Disability Discrimination Act1992 (Cth), ss.4, 5, 15 Social Security Act 1991 (Cth), ss.94, 95 Workplace Relations Act 1996 (Cth), s.170CK |
| Cases cited: Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43 Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017) |
| Applicant: | ALLAN MICHAEL REAY |
| First Respondent: | FUEL AND GAS HAULAGE PTY LTD (ACN 155 577 343) |
| Second Respondent: | MICHAEL EDWARDS |
| File Number: | PEG 391 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 1 and 2 February 2017 |
| Date of Last Submission: | 2 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 6 September 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr J Fiocco and Mr D Stojanoski |
| Solicitors for the Applicant: | Slater + Gordon Lawyers |
| Counsel for the Respondents: | Mr RA Millar |
| Solicitors for the Respondents: | K & L Gates |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 391 of 2015
| ALLAN MICHAEL REAY |
Applicant
And
| FUEL AND GAS HAULAGE PTY LTD (ACN 155 577 343) |
First Respondent
| MICHAEL EDWARDS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Allan Michael Reay (“Mr Reay”), alleges the first respondent, Fuel and Gas Haulage Pty Ltd ACN 155 577 343 (“Fuel and Gas Haulage”), took adverse action against him by terminating his employment because of a disability or because of a temporary absence from work due to illness or injury, and thereby contravened one or both of ss.351 and 352 of the Fair Work Act 2009 (Cth) (“FW Act”). Mr Reay also alleges that the second respondent, Michael Edwards (“Mr Edwards”), is accessorily liable for any contravention by Fuel and Gas Haulage by reason of s.550 of the FW Act. Mr Edwards is the General Manager of Fuel and Gas Haulage and by his own admission made the decision regarding the termination of Mr Reay’s employment.
Mr Reay’s case was that the reason for termination of his employment was because of his being temporarily absent from work because of physical or mental disability or incapacity. Fuel and Gas Haulage contended that it was because a number of issues in relation to Mr Reay’s performance and conduct had arisen during his probationary period of employment.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In preparing these Reasons for Judgment the Court has read and reviewed all of the relevant materials including:
a)the pleadings, and in particular the statement of claim;
b)each of the affidavits referred to at [5] below;
c)the written submissions filed by both parties; and
d)the 220 pages of transcript of the hearing on 1 February and 2 February 2017 (“Transcript”).
In the circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by telephone, by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Evidence
The following affidavits were read into evidence:
a)the affidavits of Mr Reay affirmed 11 March 2016 (“First Reay Affidavit”) and 23 August 2016 (“Second Reay Affidavit”);
b)the affidavit of Scott Hope (“Mr Hope”) affirmed 21 April 2016 (“Hope Affidavit”);
c)the affidavit of Mr Edwards affirmed 21 July 2016 (“Edwards Affidavit”); and
d)the affidavit of Garry Kevelham affirmed 21 July 2016 (“Kevelham Affidavit”),
and each of the deponents of the above affidavits were cross-examined and re-examined, save for Mr Kevelham who was not re-examined, and in the case of Mr Hope he was further cross-examined and further re-examined, during the hearing.
A brief chronology and factual outline
The following is a brief chronology and factual outline:
a)on 20 April 2015 Mr Reay signed an employment agreement (“Contract”) with Fuel and Gas Haulage providing that he would commence work on 4 May 2015 as a Bulk Tanker Driver based in Bibra Lake (a southern suburb of Perth), the employment being on a full time basis, with a six month probationary period, and with the Road Transport Award 2010 applying to Mr Reay’s employment: First Reay Affidavit at Annexures AMR-12 and AMR-13;
b)on 30 June 2015 Mr Reay provided Fuel and Gas Haulage with a medical certificate from Dr Gerhard Viviers (“First Medical Certificate”) which provided that:
This is to certify that
Mr Allan Michael Reay
is or has been receiving medical attention.
He will be, or has been unfit to continue his usual occupation for the period:
Tuesday, 30 June 2015 to Friday, 3 July 2015 inclusive.
This Certificate was completed on 30/6/2015
(First Reay Affidavit, Annexure AMR-15);
c)on and between the dates set out in the First Medical Certificate Mr Reay took sick leave and was absent from work;
d)Mr Reay sent the following email (transcribed verbatim) to Mr Hope on 30 June 2015 (“30 June 2015 Email”) notifying Mr Hope of Mr Reay’s absence from work:
Scott I have just been to the Doctors as I have been experiencing bad headaches and lack of sleep due to stress with family issues being my granddaughter has been extremely ill and in out of hospital having to have major operation on the 10th of July once all infection is clear. Work has also been stressing me out with going to work on Sunday with no work and not having been told. I was told it had been cancelled the Friday before. Friday and Monday having Government following me. Seeing the major spill at Rolleystone stressed me out majorly as I didn’t want to be blamed for it. I didn’t yet again want to be blamed for sabotage which you have blamed me for in the past which I have never done. I am having tests tomorrow but my doctor is worried about me driving Dangerous Goods. I myself feel unable to perform in a professional manner at the moment. My doctor will reassess me Friday.
I would appreciate you not calling me at home all the time as I need to rest.
I will send you my Doctors Certificate shortly and I will keep you informed.
Thanks Allan
(First Reay Affidavit, Annexure AMR-16);
e)Mr Reay provided a further medical certificate from Dr Viviers to Fuel and Gas Haulage on 3 July 2015 (“Second Medical Certificate”) which provided that:
He will be fit to continue his usual occupation from:
Tuesday, 7 July 2015.
This Certificate was completed on 3/7/2015
(First Reay Affidavit, Annexure AMR-19); and
f)on 6 July 2015 Mr Reay received, by email, a letter dated 3 July 2015 (“Termination Letter”) advising that his employment with Fuel and Gas Haulage had been terminated. The Termination Letter was sent to Mr Reay on 6 July 2015, though dated 3 July 2015. The terms of the Termination Letter were as follows (transcribed verbatim):
To Allan,
I am writing to advise you of your future employment with Fuel & Gas Haulage.
I would like to advise you that we are terminating your employment effective immediately.
You are still working within your six (6) months probationary period and I have great concerns as to your current mindset with regards to being able to safely operate a Heavy Vehicle delivering Bulk Dangrous Goods. This decision has been assisted as per your own admission which you forwarded to us via E-Mail on the 30th of June 2015.
I will arrange for any and all of your entitlements to be paid out to you and would like to wish you all the best with your future endeavours.
Yours Sincerely
Mick Edwards
General Manager
Fuel & Gas Haulage
Evidence
Mr Reay gave his evidence in a manner which was never entirely confident, and sometimes lacking in direction, and occasionally ambiguous: Transcript, pp.24 (re dangerous goods licence), 44-46 (re small disputes), 50-52 (about saying whether he was going to have a beer), 52-53 (re granddaughter) and 68-72 (re position with Toll). His evidence was not however evasive or hostile, and the lack of confidence and direction, and occasional ambiguity, are not a basis for making adverse credit findings in relation to Mr Reay’s evidence, or for finding that he lacked credibility. The fact that his evidence was not always confident or direct, and was sometimes ambiguous, simply means that there are occasions in the Reasons for Judgment which follow where the Court has simply preferred the evidence of other witnesses to that of Mr Reay on the basis of their evidence being clearer and more direct.
The Court notes the following in relation to Mr Reay’s evidence:
a)Mr Reay is a man with extensive experience as a driver in fuel and gas transportation: Transcript, p.79 line 29;
b)Mr Reay has never been diagnosed with a physical or mental disability, nor did he consult with a psychiatrist, or like specialist, or any other specialist, with respect to any disability: Transcript, pp.27-28 and 31 at lines 4-19;
c)the mandatory medical assessment Mr Reay undertook prior to commencing employment indicated that he “unconditionally meets the criteria for fitness to drive”, and questions concerning his mental health, including his sleeping patterns, in this medical assessment elicited no reason for concern: First Reay Affidavit, Annexures AMR-10 and AMR-11;
d)Mr Reay said that he was under stress at the time of his termination and immediately prior thereto as:
i)his granddaughter was seriously ill: First Reay Affidavit at [46]-[47], Transcript, pp.30 and 52-53;
ii)there had been a number of “small disputes” or “run ins” at work with Mr Hope: First Reay Affidavit at [45], Transcript, p.44-46;
iii)on 24 June 2015 he had offered his resignation due to proposed roster changes, but his resignation had not been accepted: First Reay Affidavit at [41]-[44]; and
iv)he was concerned that an oil spill would be “pinned on” him: First Reay Affidavit at [41]-[47];
e)Mr Reay consciously decided not go to his night shift on 22 May 2015. He became aware that the previous shift would be returning late and he consciously checked his Contract, and unilaterally determined that his shift had been cancelled, and he was not required to attend work: Transcript, pp.34-39; and
f)Mr Reay was absent from work from 30 June 2015 to 3 July 2015 inclusive, but was given the “all clear” to return to work by his doctor on 3 July 2015: Transcript, p.57.
Mr Hope, who was called to give evidence by Mr Reay, was a former employee of Fuel and Gas Haulage, and was no longer employed by Fuel and Gas Haulage at the time of the hearing. Mr Hope stated he had not spoken to Mr Reay since advising him of his termination on 6 July 2015. Mr Hope openly admitted that he had left Fuel and Gas Haulage on less than good terms. Mr Hope also admitted that his affidavit was prepared some nine months after the events described therein, and he agreed with the proposition that was put to him that, in particular in relation to [27] of the Hope Affidavit, where he deals with Mr Reay being on sick leave “due to his mental health”, that these were not positive recollections but what “would make sense” and “fit in with Mr Reay’s arguments in pursuing this case”: Transcript, pp.100-101. Mr Hope’s evidence is not, therefore, in the Court’s view entirely impartial, and must be viewed through the prism of its endeavour to assist Mr Reay in his case.
In respect of Mr Hope’s evidence the Court accepts that:
a)Mr Reay had reported an oil spill to Mr Hope, and Mr Hope asked Mr Reay to put the matter in writing, be it an incident report or otherwise, and Mr Reay did not do so, which caused Mr Hope to contact someone “higher up” who he advised of the spill and that Mr Reay had not made a report: Hope Affidavit at [21] and Transcript, pp.96-97;
b)Mr Reay had missed a shift in May 2015 and he was disciplined for this as it was unacceptable. Mr Hope had reported this to Mr Kevelham and while it was discussed that Mr Reay would be issued with a “counselling notice”, it being an issue “kind of” taken seriously by Fuel and Gas Haulage, but the issuance of the counselling notice was “never got round to” by Fuel and Gas Haulage: Hope Affidavit at [22]; Transcript p.96, lines 4-24;
c)a number of discussions about Mr Reay occurred between Mr Edwards, Mr Hope and Mr Kevelham after Mr Reay provided the First Medical Certificate: Hope Affidavit at [27]-[28] and [33]-[38];
d)Mr Hope had concerns about terminating Mr Reay because of the medical certificates supplied in support of his absence from work and he raised those concerns with Mr Edwards: Hope Affidavit at [35]; and
e)Mr Hope was asked to provide, by email, information on the issues that had arisen during the course of Mr Reay’s employment, but does not accept that Mr Hope was, as he states, asked to provide “an email … digging up any dirt” on Mr Reay: Hope Affidavit at [46], in circumstances where Mr Hope could not remember the exact conversations concerning the email request: Transcript, p.105, but rather now says that that was how he interpreted a request from Mr Kevelham to provide the information (as to Mr Kevelham’s version of these events, see [12(g)] below). Mr Hope did provide information by return email, but notably there was no mention of the missed shift in May 2015: Hope Affidavit at [46] and Transcript, pp.104-106.
Mr Edwards was a credible, forthright, confident and composed witness whose evidence the Court accepts as an accurate account of the events with which Mr Edwards was involved. Mr Edwards evidence was that:
a)it was Mr Hope who told Mr Reay he was being terminated (albeit that it was the decision of Mr Edwards to terminate Mr Reay and Mr Edwards who had responsibility for the termination of Mr Reay’s employment);
b)prior to the decision to terminate Mr Reay there were discussions between Mr Edwards, Mr Kevelham and another Fuel and Gas Haulage management official, however it was Mr Edwards who had the final decision-making authority and who signed the Termination Letter;
c)it was Mr Edwards who determined not to give Mr Reay a counselling notice after the 22 May 2015 shift work incident as there had been a high turnover of drivers, and Mr Edwards felt it best that the notice not be issued to try to build stability, however he remained informed by Mr Kevelham, who was in turn informed by Mr Hope, of matters arising in respect of Mr Reay’s employment;
d)a significant number of issues had arisen in the short time of Mr Reay’s employment including:
i)the 22 May 2015 shift work refusal incident: Edwards Affidavit at [12]-[15];
ii)Mr Reay’s actions in respect of the oil spill: Edwards Affidavit at [16]-[24];
iii)Mr Reay’s reaction to the proposed roster changes: Edwards Affidavit at [27]-[35];
iv)Mr Reay’s request that he not be contacted by Fuel and Gas Haulage: Edwards Affidavit at [25]-[26]; and
v)Mr Reay’s lack of co-operation with colleagues and protocols: Edwards Affidavit at [36]-[37];
e)Mr Edwards was concerned about Mr Reay’s “attitude”, and he considered that Mr Reay’s attitude would not improve: Edwards Affidavit at [36]-[38]; and
f)Mr Edwards was aware of the medical certificates that indicated Mr Reay’s absence was because he was “unfit” for work: Edwards Affidavit at [39]-[43], and he still chose to terminate him, however, these matters did not go “hand in hand” because he did not terminate Mr Reay over the medical certificates, but because of the concerns and issues (including those at (d) and (e) above) that had arisen over the short period of time in which Mr Reay had been employed: Edwards Affidavit at [36]-[38] and [54].
Mr Kevelham was the National Fleet and Operations Manager for Fuel and Gas Haulage. Mr Kevelham, like Mr Edwards, was a credible, forthright, confident and composed witness whose evidence the Court accepts as an accurate account of the events with which Mr Kevelham was involved. Mr Kevelham’s evidence was that:
a)on 24 June 2015 he had talked Mr Reay out of resigning because of the proposed roster changes;
b)he was part of a “group” involved in the discussions concerning the termination of Mr Reay’s employment (other aspects of Mr Kevelham’s evidence in this regard are detailed when considering the Termination Letter below);
c)it was reasonable for Mr Reay to request he not be contacted at home while on sick leave: Transcript, p.163 at lines 29-46;
d)he denied ever telling Mr Hope that Mr Reay was on sick leave due to his “mental health”;
e)he had no reason to question the validity of the medical certificates or to deny that Mr Reay was under stress;
f)when asked what was discussed in the meeting where it was determined that Mr Reay would be terminated Mr Kevelham stated he did not remember the word “mindset” being raised in the meeting: Transcript, p.168 at lines 8-34; and
g)denied ever using the words “dig up dirt” in relation to his request to Mr Hope for information about Mr Reay’s employment but did agree that he requested Mr Hope to obtain “information” about Mr Reay’s employment: Transcript, p.170 at lines 12-21.
In respect of the assertions made concerning Fuel and Gas Haulage asking Mr Hope, one or two weeks after Mr Reay’ termination, to “dig up dirt” on Mr Reay, the Court finds that Mr Reay had commenced these proceedings against Fuel and Gas Haulage, and that Fuel and Gas Haulage were entitled to, as they did, ask their then employee Mr Hope to provide a report on any issues that arose during Mr Reay’s employment. The evidence confirms that Mr Hope was a person involved in discussions in relation to the decision to terminate Mr Reay, and was Mr Reay’s manager, and was therefore an appropriate person to undertake such a task. The Court finds that there was not a request made to Mr Hope to “dig up dirt” (or words to that effect) on Mr Reay, and considers Mr Hope’s evidence in this regard to be a somewhat colourful embellishment, or interpretation, of what he was actually asked to do. There was nothing untoward in the request made of Mr Reay to Mr Hope to provide information concerning issues which had arisen in relation to Mr Reay’s employment. Further, having regard to the findings now made by the Court, there is nothing to suggest that the process of preparing a report on employment issues in relation to Mr Reay’s period of employment with Fuel and Gas Haulage was a means or device intended to camouflage any prohibited reason for the termination of Mr Reay’s employment.
Mr Reay’s case
In respect to the claim he was terminated in breach of s.351 of the FW Act Mr Reay submitted that:
a)he suffered from a physical or mental disability, and was the subject of direct disability discrimination as defined in s.5 of the Disability Discrimination Act 1992 (Cth) (“DD Act”), and was discriminated against in his employment on the ground of that disability under s.15 of the DD Act;
b)there is no evidence to contradict Mr Reay’s stated symptoms and the First Medical Certificate certifies Mr Reay as unfit for his usual occupation;
c)although the Doctor’s medical records are not in evidence, the Court can infer that Mr Reay presented to the medical practitioner with symptoms which were sufficient to certify Mr Reay unfit and this supports a finding that he did not have the capacity for his usual occupation, or that he had an “incapacity” which is within the meaning of disability;
d)if a finding of discrimination under s.351 of the FW Act is dependent upon a finding that it was not “lawful” under the DD Act, Mr Reay relies upon s.15(2) of the DD Act in that it is unlawful to discriminate on the grounds of an employee’s disability by dismissing the employee and the definition of disability under the DD Act is sufficiently wide to capture Mr Reay’s incapacity for work;
e)consistent with RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 (“RailPro Services”) at [112] per Perry J, the evidence shows that there has been a contravention of the relevant provision of the DD Act and therefore the exception at s.351(2) of the FW Act is overcome; and
f)the Termination Letter of 3 July 2015 is clear and unambiguous in stating that the reason for dismissal was “great concerns” as to Mr Reay’s “mindset”.
In respect of the claim pursuant to s.352 of the FW Act Mr Reay submitted that:
a)Mr Reay was dismissed contrary to the protection under s.352 of the FW Act, operating together with regs.3.01 and 6.04 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”), because of his temporary absence from work because of illness or injury;
b)it was observed in Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 at [85]-[87] per Bromberg J that the reason for dismissal that s.352 of the FW Act proscribes is not merely the employee’s temporary absence but the temporary absence from work because of illness;
c)on the evidence, the Court will be satisfied that Mr Reay was not merely dismissed because he was absent, but he was dismissed for being temporarily absent due to his illness;
d)the Termination Letter authored by Mr Edwards discloses Mr Reay was terminated because he was still working within his probationary period, there were concerns as to Mr Reay’s mental disability and that Mr Reay admitted that he was suffering from a mental disability in the 30 June 2015 Email;
e)although there is no prohibition on dismissal during a period of temporary absence within the meaning of that term in the FW Act and FW Regulations, a dismissal nonetheless has to be valid;
f)there exists no valid reason for dismissal, and therefore a conclusion can only be made that the reason for dismissal was because of Mr Reay’s temporary absence from work;
g)the evidence establishes that Mr Reay’s injury or illness was of a kind prescribed by the FW Regulations; and
h)even if the Court accepts the reasons for dismissal as alleged by Fuel and Gas Haulage, the Court will need to find that they were valid reasons for dismissal, and in circumstances where no disciplinary action was ever taken, or no warnings were ever given as to the consequences of the alleged behaviour, it cannot be deemed as valid.
Fuel and Gas Haulage’s case
Fuel and Gas Haulage submitted that the application should be dismissed in its entirety as the evidence fails to establish any of the contentions relied upon by Mr Reay. Fuel and Gas Haulage made a general submission that because Mr Reay was still in his probationary period he was unable to pursue an unfair dismissal claim and so pursued the current claim in a “manifestly inappropriate jurisdiction”: Transcript, p.184 at lines16-32.
In respect of the claim that adverse action was taken against Mr Reay “because of” a physical or mental disability contrary to s.351 of the FW Act it was argued:
a)there is no evidence before the Court of Mr Reay having any disability within the meaning of the FW Act or DD Act, and the evidence goes no higher than that Mr Reay had visited his doctor and obtained the First and Second Medical Certificates which attest simply to the fact that he had been “receiving medical attention”, such being well short of showing that he was suffering some form of disability;
b)Mr Reay provided no detail to make out the contention that he is suffering from a mental or physical disability and the contention should be rejected;
c)Mr Reay’s employment was terminated within the six month probationary period, following a number of significant performance and conduct issues including that:
i)on 22 May 2015 Mr Reay missed a shift;
ii)Mr Reay did not fully co-operate with an investigation into an oil spill that occurred on 11 June 2015;
iii)Mr Reay was unwilling to consider a proposed roster change in mid-June 2015;
iv)Mr Reay refused to be contacted by Fuel and Gas Haulage when he was at home; and
v)there was a general lack of co-operation with his colleagues and his manager, and a general lack of compliance with procedures and protocols;
d)these performance concerns provide a clear and cogent basis for the conclusion to terminate Mr Reay’s employment during the probationary period, and the making of an assessment on suitability for ongoing employment is the reason for having a probationary period;
e)the issue before the Court in this proceeding is not whether the reasons for terminating Mr Reay’s employment were fair or unfair, or even whether they are soundly based, but simply whether the termination was because of a physical or mental disability;
f)there is an important distinction between action taken because of a disability and action taken because of conduct which may be a manifestation of that disability;
g)there is nothing in the reasons for termination suggesting any connection with any disability, rather it was a simple decision, during the probationary period, to not continue employment and did not involve any reason in contravention of the requirements of the FW Act;
h)if the Court were to accept Mr Hope’s evidence that there was some discussion that included the words “mental illness” or “mental disability” when considering to terminate Mr Reay’s employment, this does not establish that the termination was “because of” these reasons, rather it was simply Mr Edwards and Mr Kevelham determining it was unnecessary to seek further medical reports about Mr Reay’s illness because Mr Reay did not need clearance to return to work as he was going to be terminated; and
i)if it is accepted that Mr Reay’s suffering ordinary everyday conditions constitutes a disability this would render meaningless the description given by Parliament that adverse action taken on the basis of physical or mental disability is unlawful, thus if that was what Parliament intended it should have said “illness or injury”.
Fuel and Gas Haulage did not dispute that Mr Reay had a right to take leave for illness or injury, however for many of the same reasons as are set out at [11(d) and (e)] above it submitted that it could not be established that the adverse action was taken because of absence for illness or injury. Particularly with respect to s.352 of the FW Act it was submitted that:
a)the reasons for the termination of Mr Reay’s employment did not involve any absence from work due to illness or injury but were entirely operational in nature, arising from performance and conduct issues not related to any absences from work due to illness or injury;
b)one must be careful not to approach the legislation as if Mr Reay is protected from termination simply because he has taken sick leave, the prohibition does not provide immunity from termination just because a person has taken sick leave, rather the person cannot be terminated because they have taken sick leave;
c)there is nothing in the evidence to indicate Fuel and Gas Haulage are an employer who would take action against an employee for an employee taking a perfectly legitimate sick day or days because of illness;
d)Mr Kevelham sent Mr Reay a supportive email, and one would hardly expect such an email to be sent if Mr Kevelham had decided that the reason for the absence was dubious, baseless or inconvenient to the extent that Mr Reay ought to be terminated because of it; and
e)there was little or no connection between the absence from work and the termination of Mr Reay’s employment. That Mr Kevelham sent an email wishing Mr Reay to get better does not imply that termination of Mr Reay’s employment was not being considered before this, rather it was a genuine expression of concern and entirely unrelated and divorced from the real reason for termination of employment, being the performance and attitude concerns.
Consideration – general
In the context of these proceedings:
a)it was not in dispute that adverse action was taken against Mr Reay, that being that his employment was terminated: FW Act, s.342(1)(a);
b)it was disputed that Mr Reay had a “physical or mental disability” for the purposes of s.351 of the FW Act;
c)it was not in dispute that Mr Reay had been temporarily absent from work due to illness prior to his termination: FW Act, s.352; and
d)it was disputed that Mr Reay had been terminated because of a disability or a temporary absence from work due to illness.
In relation to whether adverse action was taken “because of” a prohibited reason the High Court 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 (“Barclay”) said as follows:
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)why an employer took adverse action against an employee is a question of fact that must be answered in the light of all the facts established in the proceeding and without the direct evidence of the decision-maker it may be difficult to displace the reverse onus under s.361 of the FW Act: Barclay at [41]-[45] per French CJ and Crennan J;
c)adverse action will have been found to have been taken if the prohibited reason was, or reasons including the prohibited reason were, a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
d)the test is whether adverse action has been taken because of a prohibited reason and it is the reasons of the decision-maker at the time the adverse action was taken which must be the focus of the inquiry: Barclay at [127]-[129] per Gummow and Hayne JJ; and
e)“[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.
In Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [63] per Foster J observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action: see FW Act, s.360, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
On the basis of the concession adverse action had been taken by terminating Mr Reay’s employment and that Mr Reay had been temporarily absent from work for illness, and because he alleges it was for those reasons, and also because of his alleged disability, that the adverse action was taken, the onus falls to Fuel and Gas Haulage to satisfy the Court that it was not “because of” the temporary absence or illness or disability that the adverse action was taken: FW Act, s.361. The purpose of s.361 of the FW Act is to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Consideration – dismissal by reason of disability
Mr Reay contends that he was dismissed by Fuel and Gas Haulage by reason of a physical or mental disability. The relevant protection is provided in s.351 of the FW Act which is as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
...
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; …
Mr Reay is required to demonstrate and establish that he had one of the “protected attributes”, that is, Mr Reay has to establish that he has, or had at the relevant time, a physical or mental disability: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J. In Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43 (“Bahonko”) at [103] per Jessup J, referring to s.170CK(f)(2) of the Workplace Relations Act 1996 (Cth) (“WR Act”) (which was relevantly in the same terms as s.351(1) of the FW Act) the Federal Court said:
Neither is there any evidence of any physical or mental disability which the applicant had while employed by La Kosta. It is not, in my view, sufficient that she allege an “imputed” disability. The provisions of s 170CK(2)(f) are designed to protect employees who in fact fall within the categories referred… Rather, she conducted her case solely upon an allegation as to La Kosta’s reasons for her dismissal which was expressed as “social disability”, and without either specification or evidence as to what the disability was. Indeed, as I have said above, it was the applicant’s case that she did not in fact have a disability at all. For this reason, as their counsel made clear in his final address, the respondents did not give evidence that the applicant’s disability was not the reason for the termination of her employment. Neither need they have. It would have been embarrassing and invidious to have expected them to discharge the reverse onus by reference to a fact situation which was not referred to in s 170CK(2)(f) and which was not part of the applicant’s factual case.
There is no definition of “disability” in the FW Act. The Court does note however that s.12 of the FW Act does define “employee with a disability”. This phrase appears only to be used in those provisions of the FW Act concerning national minimum wages. That definition refers to an “employee with a disability” being one who qualifies for the receipt of a disability support pension pursuant to ss.94 and 95 of the Social Security Act 1991 (Cth) (“SS Act”). Those provisions plainly have no application to what constitutes a “disability” for the purposes of s.351 of the FW Act, and in any event no application to Mr Reay’s circumstances, because:
a)section 94 of the SS Act requires that the person concerned have:
b)an impairment, but an impairment at a specified level: SS Act, s.94(1)(a) and (b), which cannot be met in this case as there is no medical evidence which addresses the level of impairment for the purposes of the SS Act; and
c)“a continuing inability to work”: SS Act, s.94(1)(c), which is not this case as Mr Reay was only “unfit” for a maximum period of eight days; or
d)section 95 of the SS Act requires that the person concerned be permanently blind, which Mr Reay is not.
Mr Reay relied upon Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2017) 63 AILR 101-328 (“Hodkinson”) at [141]-[142] per Cameron FM where the Federal Magistrates Court referred to the definition of “disability” in s.4 of the DD Act, but found that an “incapacity” was within the ordinary meaning of “disability” for the purposes of s.351(1) of the FW Act.
In RailPro Services at [124] per Perry J the Federal Court said that:
I agree that the term “disability” cannot be limited to the “underlying diagnosed medical or physiological or psychological condition”. Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object. For example, it may permit adverse action because of its manifestation in an unsightly skin condition. That such manifestations or symptoms are embraced within the term is consistent with the existence of the defence, for example, in s 351(2)(b) of the FW Act excluding adverse action taken because of the inherent requirements of the job. Thus, as Smith FM explained in this regard in Stephens v APC at [88], this “defence” permits adverse action by reason of a disability “where it can be shown that functional or practical effects of a disability are incompatible with the employment of the disabled person”. However, particularly close consideration needs to be given to the reasons of the employer for taking the adverse action where it may not be apparent that the symptom or manifestation is in fact a symptom or manifestation of a disability, as is the case here.
In RailPro Services at [126] per Perry J the Federal Court went on to state that:
However, as RailPro contended below, a disability “does not include ordinary human responses to particular circumstances, such as nervousness”, and knowledge by a lay person that a person feels nauseous and has other feelings typically related to nervousness in a stressful situation like an assessment is likely to fall short of amounting to knowledge of a disability. In this case, in my view the evidence went no higher than to suggest that the decision-makers were aware that Mr Flavel had had an “attack of nerves”.
There will not be a breach of s.351(1) of the FW Act if the action and circumstances are “covered by” s.351(2). Mr Reay therefore contended that there was a contravention of s.15(2)(c) of the DD Act which provides as follows:
…
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
…
(c) by dismissing the employee; or
The first matter for the Court to determine is whether Mr Reay suffered a physical or mental disability at the time he was terminated. If Mr Reay is found not to have been suffering from a physical or mental disability, his pleading that the adverse action was taken “because of” the disability, and thus in contravention of s.351 of the FW Act, cannot be made out.
Mr Reay’s submissions were that he suffered an “incapacity”, and that the First and Second Medical Certificates provided certifying he was “unfit”, and then “fit”, for his usual occupation are sufficient for the Court to find that Mr Reay was suffering an “incapacity” at the time of the termination of his employment. The Court raised an issue with the sufficiency of the First and Second Medical Certificates to establish that Mr Reay was in fact suffering a “disability” in light of Federal Court authorities exhibiting a reluctance to accept “bare medical certificates” or pro-forma certificates or documents as sufficient in proceedings where adjournments of hearings or other procedural indulgences had been sought by applicants alleging illness or injury.
There are many judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as being excused from attending Court proceedings, needs to provide evidence to the Court from a medical practitioner sworn on affidavit concerning the medical condition: see, for example Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; Singh v Minister for Immigration & Border Protection [2016] FCA 108 (“Singh”) at [20] per Pagone J; Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge(No.2) [2017] FCCA 190 at [35] per Judge Lucev. The Federal Court has refused to grant an adjournment in migration proceedings on the basis of a bare medical certificate because it does not address the critical question as to whether, and if so why, an asserted medical condition prevents a person from attending Court or participating effectively in any Court hearing: Luck at [49] per Collier, Griffiths and Mortimer JJ, citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; Singh at [2] per Pagone J; see also MZAMF v Minister for Immigration & Border Protection [2016] FCA 121 at [14]-[16] per Davies J; MZAHI v Minister for Immigration & Border Protection [2016] FCA 129 at [7] and [9] per Davies J (and there referring to other Federal Court authority to similar effect: MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 and Singh v Minister for Immigration & Border Protection [2014] FCA 538).
It would, in the Court’s view, be particularly incongruous if a bare medical certificate, such as the First and Second Medical Certificates here, would be insufficient to warrant an adjournment of proceedings (a procedural issue), but sufficient (as contended by Mr Reay here) as proof of a disability which might ultimately lead to a finding resulting in the imposition of a civil penalty. In any event, the further Federal Court authorities referred to in these Reasons for Judgment with respect to both the nature of pleadings in relation to the issue of a disability and the nature of the evidence in support thereof further support the Court’s view that it would be wrong to rely upon bare medical certificates such as the First and Second Medical Certificates to prove a disability leading to a liability for a civil penalty in proceedings such as this.
In Stevenson v Murdoch Community Services Inc [2010] FCA 648; (2010) 202 IR 266 (“Stevenson”) at [87]-[88] per Gordon J the Federal Court observed that:
87. …Ms Stevenson asserted that her disability was her thyroid condition. Ms Stevenson did not make any submissions establishing, on the balance of probabilities, that her thyroid condition was in fact a disability within the meaning of s 4 of the DDA. Indeed, the submissions of Ms Stevenson appear to assume it is a disability. No evidence was adduced concerning how the condition manifested itself or how the condition affected Ms Stevenson from May 2008 to June 2009. The only evidence concerning her condition was in the medical certificate of Dr Slipcevic (see [70] above) which stated that she had chronic hypothyroidism and that she needed an adjustment of medication to accommodate her “thyroid upset” due to stress.
88. That evidence was not sufficient. I am not satisfied that Ms Stevenson demonstrated that her thyroid condition can be described as a disability in circumstances where limited evidence was adduced as to its existence and no evidence was adduced as to its seriousness or its impact.
The above remarks in Stevenson were made in the context of a claim under the DD Act, but when considering if a breach of the equivalent former provision of the WR Act had occurred, the Federal Court in Stevenson at [103] per Gordon J observed that:
…for the reasons identified above (see [87] to [94]), there was no or insufficient evidence to establish that Ms Stevenson had a physical or mental disability.
At the most basic level pleadings which assert a “disability” need to identify the nature of the disability with some precision: Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 (“Gama”) at [91] per French and Jacobson JJ. The pleadings in this case do not identify the nature of the disability alleged to have been suffered by Mr Reay. In the Statement of Claim at [11] it is pleaded that, by reason of the facts alleged at [6] and [8] of the Statement of Claim, Mr Reay has a “physical or mental disability” (emphasis added), but does not specify or identify the alleged disability. The Statement of Claim at [6] and [8] does not identify the disability either, those paragraphs referring only to Mr Reay’s attendance upon Dr Vievers and the issuance of the First and Second Medical Certificates. The nature of the disability is thus not pleaded.
Regard must also be had to s.140(2) of the Evidence Act 1995 (Cth) (“Evidence Act”) as to the proof required in relation to a critical matter – here, disability – having regard to the consequences arising in the proceedings for Fuel and Gas Haulage, namely, the possibility of findings of contraventions of the FW Act and the imposition of civil penalties in relation thereto. In that regard the Court notes the observations in:
a)Gama at [139] per Branson J where it was observed that:
The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings … that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.
b)Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 AJR 170; (1992) 110 ALR 449 at 449-450 per Mascon CJ, Brennan, Deane and Gaudron JJ, where a majority of the High Court observed that:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The Court does not therefore accept the submission that the First and Second Medical Certificates, which assert no more than that Mr Reay was “unfit” and then “fit”, are sufficient to establish that Mr Reay had a “disability”. The First and Second Medical Certificates simply do not prove any alleged disability. Further, a number of other matters have led the Court to conclude that Mr Reay has not proven that he has a physical or mental disability, as follows:
a)Mr Reay has not asserted or stated with specificity from what disability he was suffering: see Statement of Claim at [11], and at [4.1] of Mr Reay’s written submissions filed on 11 January 2017 where it states:
The Applicant suffers a physical or mental disability; (Emphasis added)
which highlights the lack of specificity or particularity as to the nature and extent of the alleged disability;
b)Mr Reay, in his pre-employment medicals, on a number of occasions ticked the “No” box when responding to questions of whether he had or has a disability: First Reay Affidavit, Annexures AMR-10 and AMR-11;
c)Mr Reay confirmed in the hearing that he did not and has not ever been diagnosed as suffering from a disability: Transcript, p.31 at lines 4-19;
d)the First Medical Certificate states no more than that Mr Reay is “unfit”, not that he is incapable or has a disability; and
e)no specialists or doctors’ reports (as opposed to the bare First and Second Medical Certificates) were tendered in evidence indicating that Mr Reay had a disability, and his treating general practitioner who issued the First and Second Medical Certificates was not called to give evidence, and nor were his medical records put into evidence, and Mr Reay thereby failed to provide the required proof of disability from a person relevantly qualified to assess Mr Reay and state whether or not he had a disability.
Mr Reay also placed some emphasis on the use of the word “mindset” in the Termination Letter as indicative of Mr Reay being terminated because of a disability. A “mindset” is a “particular mental framework of attitudes, expectations, prejudices”: Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017), p.955. A mindset is not a particular weakness or incapacity, and is therefore not a disability: Hodkinson at [145]-[146] per Cameron FM. Further, the evidence makes it clear that, when read and considered in context, the “mindset” being referred to in the Termination Letter is no different to Mr Reay’s “attitude” which Mr Edwards considered would not improve: Edwards Affidavit at [36]-[38]. Both on the evidence and as a matter of definition, the “mindset” referred to in the Termination Letter is not a disability.
Based upon the materials before the Court, the Court is not satisfied that Mr Reay has proven that he has, or at the time of his termination had, a “physical or mental disability”, because there is no evidence, or insufficient evidence, and in any event no evidence of a nature or gravity, to make, or warrant making, a finding to that effect: Bahonko at [103] per Jessup J; Stevenson at [103] per Gordon J; Evidence Act, s.140(2). To the extent that Mr Reay was experiencing “bad headaches” and “lack of sleep” the Court finds these are not “symptoms” or “manifestations”, but ordinary human responses to the circumstances arising from both Mr Reay’s work issues and family health issues at the time: RailPro Services at [126] per Perry J. Hodkinson is therefore distinguishable on the facts, particularly as there the applicant had significant physical manifestations of a disability, namely a back injury which was the subject of a graduated work program, and had also had, during the relevant period, surgery for gynaecological problems: Hodkinson at [19], [37], [42]. [65], [92] and [120] per Cameron FM.
Having failed to establish the existence of an objective fact, a disability, Mr Reay’s claim under s.351 of the FW Act must fail, and the reverse onus in s.361 of the FW Act is not enlivened. Nonetheless, lest the Court be wrong and the applicant can be said to have been affected by a disability, or an incapacity sufficient to be deemed a disability, the findings the Court makes at [63]-[64] below as to the “reasons for” Mr Reay’s dismissal also mean there would be no contravention of s.351 of the FW Act in any event because the reason Mr Reay was terminated was not because of the asserted disability, but was rather because of performance and conduct issues arising during Mr Reay’s probationary period.
Consideration – dismissal for reason of temporary absence
The second contention Mr Reay raises is that he was terminated in contravention of s.352 of the FW Act which provides that:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
There was no dispute that Mr Reay was temporarily absent from work because of illness or that the “illness or injury” was a kind prescribed by reg.3.01(2) of the FW Regulations.
The Court notes that there was some attention given at hearing as to whether Mr Reay was in fact terminated while he was absent due to illness: see, for example, Transcript, pp.7-8. The First Medical Certificate deemed Mr Reay unfit for work until 3 July 2015. The Second Medical Certificate deemed Mr Reay “fit to continue” in his occupation from 7 July 2015. Mr Reay was advised of his termination on Monday, 6 July 2015, though the Termination Letter was dated 3 July 2015 (which was a Friday). Mr Edwards and Mr Kevelham stated the decision to terminate Mr Reay was made late in the week, that is on the Thursday or Friday (2 or 3 July 2015). Mr Reay was on his rostered days off from 4-6 July 2015, that is, he was not “temporarily absent from work due to illness” on these days. Ultimately, the evidence established that the decision to terminate Mr Reay’s employment was made on 2 July 2015 or (at the latest) 3 July 2015, and was therefore made at a time that Mr Reay was said to be temporarily absent from work due to illness. In those circumstances, the fact that Mr Reay was told of the termination of his employment on a day, 6 July 2015, when he was absent on a rostered day off, is immaterial.
Mr Reay’s submissions referred to reg.6.04 of the FW Regulations. The Court notes this regulation has no application to this case. Regulation 6.04 of the FW Regulations refers to s.772(1)(a) of the FW Act, a provision that, by virtue of s.723 of the FW Act, applies to non-national system employers. Mr Reay both pleaded that Fuel and Gas Haulage was a “national system employer” for the purposes of s.14 of the FW Act: Statement of Claim at [2.2], and raised no issue with Fuel and Gas Haulage’s admission that they were a “national system employer”. It follows therefore that reg.6.04 of the FW Regulations has no application.
In the present matter the reverse onus under s.361 of the FW Act has been enlivened and the Court must determine if Fuel and Gas Haulage has, on the balance of probabilities, satisfied the Court that the temporary absence for reason of illness was not the reason for Mr Reay’s termination.
Given Mr Edwards was the “decision-maker”, a matter that was conceded by Counsel for Fuel and Gas Haulage and Mr Edwards at the hearing, the Court has necessarily carefully considered his evidence as to the reasons for the termination of Mr Reay. It takes into account that Mr Kevelham was consulted prior to Mr Edwards terminating Mr Reay and that his evidence may therefore be informative: Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 (“Clermont Coal”) at [103]-[104] per Reeves J. The mere fact that Mr Reay’s termination occurred at a time, or in close proximity to a time, when he was temporarily absent from work for reason of his illness does not inevitably mean that the termination was because of that absence: 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 [18]-[19] per French CJ and Kiefel J; Dahler v Australian Capital Territory (No.2) [2015] FCCA 845; (2015) 296 FLR 363 at [18] per Judge Driver.
In Clermont Coal the Federal Court considered that in circumstances like the present, where there was a process or consultation prior to the taking of adverse action, a two stage inquiry is necessary as follows:
a)first, the Court must ascertain whose reasons had a material effect on the reasoning process that preceded the ultimate decision to terminate employment; and
b)second, the Court must examine the reasoning employed by those persons identified in the first inquiry to ascertain whether the decision was affected by a prohibited reason: Clermont Coal at [122] per Reeves J.
The Court places little weight on the evidence of Mr Hope as to the discussions which occurred concerning Mr Reay’s termination. While the Court accepts Mr Hope may have raised a concern that Mr Reay should be assessed by a doctor before any return to work, it appears that prior to Mr Hope raising that concern Mr Edwards had already decided that Mr Reay would be dismissed: Hope Affidavit at [36]. Hence, that concern was also one which was not considered by Mr Edwards in determining to terminate Mr Reay’s employment: Edwards Affidavit at [36]-[38] and [54].
Mr Edwards confirmed that he was aware of the 30 June 2015 Email that Mr Reay was suffering from headaches and felt stressed. He, and Mr Kevelham, stated they had no reason to deny that that was true. Fuel and Gas Haulage can therefore be taken to have known that the reason for the absence was illness: Speradio v Lynch [2006] FCA 1648; (2006) 160 IR 360; (2006) 59 AILR 100-599 (“Speradio”) at [91] per Jessup J, and as is explained in Speradio at [91] per Jessup J, the employer can be found not to have contravened s.352 of the FW Act by proving the termination was not by “reason of the absence”.
On the basis of the Termination Letter, it appears that Mr Reay was terminated as:
a)he was still working in his probationary period; and
b)there were concerns as to his ability to safely complete his role in his “current mindset”, something he admitted to in the 30 June 2015 Email.
Clause 1.5 of the Contract refers to the probationary period, being six months, and states that Fuel and Gas Haulage, or Mr Reay, may terminate employment with one weeks’ notice during this period.
The Edwards Affidavit at [36]-[38] stated:
36. By now I was very concerned about Reay’s attitude at work and the obstruction he placed in the way of the Company’s operations and the flexibility that is required in the role. He was refusing to engage with management and his colleagues regarding the roster change in a collaborative and cooperative manner. He was aware that we had recently lost a driver and that the proposed roster change was necessary for the purpose of meeting operational requirements with the number of drivers that remained. I was also concerned that his refusal to accept the changes to the roster would result in other drivers leaving because they were not getting the opportunity to earn the income that they expected.
Reasons for termination
37. Due to the issues we had experienced with Reay, I decided that Reay was not a suitable fit for the Company and that I would terminate his employment before the end of his probation. In summary the issues were:
a)the Driver Incident Report on 22 May 2015;
b) Reay’s reaction to the fuel spill in Roleystone and the Company’s investigation into the fuel spill;
c) Reay’s reaction to the proposed roster change;
d) Reay’s request not to be contacted by the Company; and
e) Reay’s general lack of cooperation with his colleagues, manager and the Company’s procedures and protocols.
38. Given the number of issues which had arisen in such a short period of time, I did not believe Reay’s attitude would improve.
In the Edwards Affidavit at [46]-[49], Mr Edwards identifies the health, safety and environmental implications if Mr Reay were to be involved in an accident involving a fuel spillage of 15,000 to 20,000 litres as a matter about which he had concerns.
It is apparent that the reasons for termination in Mr Edwards’ Affidavit differed from those in the Termination Letter. In the Edwards Affidavit at [54] Mr Edwards explains this as follows:
54. Attached to my email to Hope was the letter of termination that I had drafted. As Reay was still in his probationary period I felt like I did not need to provide Reay with a detailed letter outlining all the reasons why I was not impressed with his attitude and why I did not think he was not a good fit within the Company. Instead, I referred to Reay’s own admission in his email of 30 June that he felt himself unable to perform in a professional and safe manner.
In cross-examination Mr Edwards evidence “detailed” more comprehensively the reasons for termination:
We had too many red flags. We were getting the red flags early in the day with the dropping of the shift and stating – and the comments about going for a beer. We then got the next red flags in relation to ongoing issues with the management and the roster. We thought we were trying to build a team and build longevity in our employees, so we thought we will work through these, which is what we were trying to do. Then the next lot of issues started to come, and we thought it’s all too close in a very short period of time. How much is this going to grow with demands and issues and concerns? So we decided it’s best to part company before it gets too bad.
(Transcript p.124 at lines 14-22).
Mr Edwards gave further evidence as to his awareness of various incidents which raised “red flags” in relation to Mr Reay’s employment. The detail of this evidence was impressive, and Mr Edwards:
a)referred to the “significant issue” and impact of Mr Reay failing to arrive for his shift and that the client was “spitting chips” because of this: Transcript, p.129 at lines 34 and 36;
b)confirmed that Mr Reay’s belief that someone was following him, a matter which Fuel and Gas Haulage made enquiries about with a government department, also played a role in the decision to terminate Mr Reay as when it was unable to be verified that Mr Reay was being followed, Mr Edwards interpreted that Mr Reay “didn’t like it” and thought Fuel and Gas Haulage were following him covertly: Transcript, p.128 at lines 9-11; and
c)maintained that the number of “red flags” was concerning: see [56] above.
Mr Kevelham did not see the Termination Letter until after it was provided to Mr Reay and his evidence was that he could not recall discussing Mr Reay’s “mindset” or expressing any concern as to Mr Reay’s ability to drive safely when the meeting concerning Mr Reay’s future employment took place.
Mr Kevelham stated: Kevelham Affidavit at [27], that he was not concerned about Mr Reay’s absence from work and it was common for drivers to take leave, which is consistent with an email Mr Kevelham sent to Mr Reay on 30 June 2015 saying that he was “sorry” because Mr Reay felt stressed by work and wishing him well with his granddaughter (“Kevelham Email”). The Kevelham Email also stated “I hope these days needed will reenergise your batteries and look forward to your return next week”: First Reay Affidavit, Annexure AMR-18.
The Court infers from the Kevelham Email that Mr Kevelham believed that Mr Reay would return to work the following week. Insofar as Mr Kevelham had some input into the decision-making process with Mr Edwards this supports the view that Mr Reay was not terminated by reason of his temporary absence.
The Court notes that Mr Reay had offered his resignation to Fuel and Gas Haulage on 24 June 2015, and he was “talked out of it”, or at the least was given information that led him to remain with Fuel and Gas Haulage. Mr Kevelham gave evidence that the reason he did not take the opportunity to accept Mr Reay’s resignation was because in Western Australia it is difficult to keep drivers. Mr Edwards gave similar evidence as the reason why he chose not to issue a notice to Mr Reay after the 22 May 2015 incident, stating Fuel and Gas Haulage did not want to lose another driver, although there was a “long discussion” over whether to accept the resignation: Transcript, pp.142-143.
Mr Edwards, who was the “decision-maker”, made clear that Mr Reay was not terminated because of the “medical certificates”: Transcript, p.147-148. In all the circumstances, the Court accepts that evidence.
In the Court’s view, the substantial and operative reason for Mr Reay’s termination was Mr Edwards’ belief that Mr Reay was “not a good fit” for the role he was employed in. In so doing, Mr Edwards, as he was entitled to do given Mr Reay was within his probationary period: see [65] below, weighed up the performance concerns he had about Mr Reay, including the perceived difficulties with Mr Reay’s attitude, and the possible implications for the future operations of Fuel and Gas Haulage in Western Australia if Mr Reay were to continue to be employed.
The Court is satisfied that is it was the performance and attitude concerns, that is Mr Edwards growing number of “red flags”, and the view that Mr Reay was not the “right fit” for employment at Fuel and Gas Haulage, that were the substantial and operative reasons for Mr Reay’s termination. Mr Edwards, as the decision-maker, has satisfied the Court, of that fact on the balance of probabilities.
Consideration - valid reason
Mr Reay also submitted that even if the Court accepts the reasons for Mr Reay’s termination as alleged by Fuel and Gas Haulage, the Court will need to find that they were valid reasons for termination, in circumstances where no disciplinary action was ever taken, or no warnings were ever given as to the consequences of the alleged behaviour. Determining whether there was a valid reason for termination is not, however, the task of the Court in a general protections application relating to termination of employment. Rather, the focus is on whether the termination was ‘because of” a prohibited reason: see [20]-[22] above. To the extent that it was submitted that no disciplinary action was taken against, and no warnings were given to, Mr Reay, the Court notes that Mr Reay was still within his probationary period of employment, and that “[t]he very purpose of probation will often be to consider, by observation of the probationer’s work performance under trial, whether he or she is suitable to enjoy the privileges attaching to permanency”: Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648; (1992) 42 IR 38; (1992) AILR 360 (“Mitchelson”), NSWLR at 658 per Kirby P. That phrase from Mitchelson is apt to describe what Fuel and Gas Haulage did here before deciding to terminate Mr Reay’s employment, which in this case was done for performance reasons which did not constitute a prohibited reason. Further, it is unnecessary for Fuel and Gas Haulage to establish or prove that it was correct in its assessment of Mr Reay’s performance in these proceedings. The issue is not whether the performance related reasons are right or unfair: this is not an unfair dismissal case. Ultimately, even if the reasons for dismissal are wrong or unfair (and in this case the Court does not consider them to be so), and provided that they were not designed or intended to camouflage prohibited reasons (which in the Court’s view they were not in this case), the fact that the reasoning with respect to Mr Reay’s performance might be wrong or unfair does not alter the basis for the reasons not being prohibited reasons.
Accessorial liability
Having concluded that Fuel and Gas Haulage have not contravened the FW Act, no issue of accessorial liability under s.550 of the FW Act arises.
Conclusion and orders
The Court has concluded that adverse action was not taken against Mr Reay for a prohibited reason. Specifically, the Court finds:
a)in respect of the claim under s.351 of the FW Act, Mr Reay has failed to establish that he had one of the “protected attributes”, namely a physical or mental disability, to found a basis for a claim under that section;
b)in respect of the claims under ss.351 and 352 of the FW Act, Fuel and Gas Haulage has satisfied the Court that the reason for the termination was not “because of”, or for the substantial and operative reason that, Mr Reay had a physical or mental disability (even if he had such a disability, which the Court has found he did not have), or because Mr Reay was temporarily absent from work due to illness or injury; and
c)in circumstances where no contravention has been found, it is unnecessary to consider the issue of accessorial liability under s.550 of the FW Act.
It follows from the above conclusions that the application must be dismissed. There will be an order accordingly.
On the face of it this is a no costs matter: FW Act, s.570(1). If, however, any party considers that they might be entitled to costs: see FW Act, s.570(2), an application for costs might be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth). The Court observes, however, that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints, with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors 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.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 September 2019
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