Ross v R.C. MacKenzie and Sons Pty Ltd
[2013] FMCA 31
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROSS v R.C. MACKENZIE AND SONS PTY LTD | [2013] FMCA 31 |
| INDUSTRIAL LAW – Alleged termination of employment in contravention of section 340(1) of the Fair Work Act 2009 (Cth) – Respondent failed to displace onus under section 361 of the Act – adverse action taken against the Applicant. |
| Fair Work Act 2009 (Cth), ss.12, 123, 340, 361, 539, 545, 570 Fair Work Regulations 2009 (Cth), reg.1.07 |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32 Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21 |
| Applicant: | DARREN JOHN ROSS |
| Respondent: | R.C. MACKENZIE AND SONS PTY LTD |
| File Number: | MLG 1259 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 7 & 8 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Flower |
| Solicitors for the Applicant: | Arnold Dallas McPherson |
| Counsel for the Respondent: | Mr Tracey |
| Solicitors for the Respondent: | Cosgriff Orchard Legal |
THE COURT DECLARES THAT:
The Respondent took adverse action against the Applicant in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (‘the Act’).
THE COURT ORDERS THAT:
Pursuant to s.545 of the Act the Respondent pay compensation to the Applicant for loss suffered by him because of the contravention in the sum of $32,872.87.
Pursuant to s.570 of the Act there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1259 of 2011
| DARREN JOHN ROSS |
Applicant
And
| R.C. MACKENZIE AND SONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced by Application and Form 2 Claim under the Fair Work Act 2009 (Cth) (‘the Act’) and alleged termination of the Applicant’s employment in contravention of the “general protections provisions” of the Act. The proceedings were filed on 5 September 2011. The remedy sought by the Applicant is for compensation and damages.
The contraventions alleged in the Form 2 Claim filed are as follows:
“1. On 4 July 2011 the Applicant was summarily terminated from his employment by the Respondent’s Managing Director, Mr Rob Mackenzie.
2. No reason was given to the Applicant for the termination of his employment save for a statement by Mr Mackenzie to the effect: “Things are going to get quiet out here and someone has to go”.
3. The Applicant was terminated without being given notice of termination of employment or payment in lieu of notice of termination of employment in contravention of section 117 of the Fair Work Act 2009.
4. The Applicant was terminated on the ground of redundancy and has not been paid a redundancy entitlement in contravention of section 119 of the Fair Work Act 2009.
5. The Applicant was terminated without payment of his annual leave entitlements due to him pursuant to Division 6 of Part 2.2 of the Fair Work Act 2009.
6. The Applicant was terminated whilst he was exercising his right under sections 104-106 of the Fair Work Act 2009 to take compassionate leave.”
The Applicant claims:
a)a contravention by the Respondent of s.340 of the Act; and
b)a breach by the Respondent of the contract of employment between the parties.
Subsequently, the Applicant filed a Statement of Claim dated 17 October 2011.
The Respondent filed a Response on 27 September 2011. The grounds of opposition to the orders sought by the Applicant are as follows:
“1. By way of summary, the termination of the Applicant’s employment on 4 July 2011 occurred because the Applicant breached occupational health and safety procedures by bringing a child (without the Respondent’s permission) into an area of the Respondent’s workplace where there were serious health and safety risks (including a high traffic volume of grain trucks and industrial machinery).
2. The Applicant was not dismissed for a “prohibited reason” of the kind contemplated by Part 3-1 of the Fair Work Act 2009(Cth).
3. The Respondent told the Applicant the reason for the termination. That communication occurred on 4 July 2011.
4. The Applicant’s position was not made redundant.
5. The Respondent was entitled to dismiss the Applicant summarily for misconduct and, as such, no notice of termination was required to be given.
6. Even if there was a redundancy (contrary to the Respondent’s contention), the Applicant had no entitlement to severance pay.
7. The Respondent paid the Applicant his full annual leave entitlement.
8. In the circumstances, the Court should refuse to make the orders for compensation which the Applicant seeks and should dismiss the Application.”
The Respondent filed a Defence to the Statement of Claim on 25 November 2011 and relies upon same. The Respondent seeks that the Applicant’s claims be dismissed. The Applicant at trial acknowledged that he has been paid outstanding annual leave entitlements and thus does not proceed with that part of the claim.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
History
The Applicant was born on 4 February 1966 and at the time of his termination was aged 45 years and 5 months approximately. Prior to his employment with the Respondent, the Applicant had worked at feedlots since in or about 1993. He commenced employment with the Respondent on or about 3 July 2006. There was no written contract of employment. The Applicant was employed as a feedlot manager on a permanent basis on a salary of $60,000 per annum, together with provision of:
a)a vehicle with all fuel, registration, insurance and all repairs for business use and private use; and
b)a mobile telephone for business use and private use; and
c)payment of $150 per week towards the rental of a property for he and his family to live in; and
d)payment of all electricity accounts at his residence in the quarterly figure of approximately $700; and
e)payment of all landline telephone accounts at his residence until approximately December 2010 of approximately $120 each month.
The Applicant’s duties and working hours were as described by him at paragraph 4 of his Witness Statement filed 2 May 2012 as follows:
“As a Feedlot Manager my duties were to oversee the day to day operation of the feedlot at Lot 1, Nolan Road, Womboota. The feedlot was called Bunnaloo Feedlot. I was employed five (5) days per week. On a normal day I would start work at 8.30a.m. Some days I would pick up parts in Echuca or Moama on the way out to my place of work. On a normal day I could leave work at approximately 4.30 p.m. to 5.00p.m. My hours of work though varied a great deal Sometimes I started work as early as 6.00 a.m. Sometimes I was still at work until midnight. I have worked on many occasions later into the evening.”
The Applicant continued in his employment with the Respondent, and as a feedlot manager, until his termination from his employment on 4 July 2011. The Applicant was paid for the hours he had worked up to Friday 1 July 2011.
As to his employment since the time of termination, the Applicant stated at paragraph 23 of his Witness Statement that:
“On Monday 18 July 2011 I commenced employment with the RSL Club in Moama, New South Wales as a Storeman on a permanent part time basis and guaranteed sixteen (16) hours work per week. From Monday to Friday I am paid $18.00 gross per hour, on Saturday I am paid $27.00 gross per hour and on Sundays I am paid $45.00 gross per hour.”
Thereafter, and at the time of the trial, the Applicant was employed by AMRS (a contractor) as a special meter reader for the electricity company Powercorp. He was in receipt of income of $23.50 per hour and worked approximately 38 hours each week ($46,436 gross per annum). The Applicant ceased his employment at the RSL Club in Moama in approximately mid July 2012. His PAYG Payment Summary for the year ended 30 June 2012 (which was tendered in evidence in the proceedings) details a receipt of income by him during that employment of $28,515 gross.
At the hearing, the Applicant gave evidence and was cross-examined. Robert Mackenzie, Director of the Respondent Company; Mr Travis Wright and Mr Gregory Power, both employees of the Respondent Company, also all gave evidence and were cross-examined. They all relied upon witness statements tendered in evidence in the proceedings. Written Submissions were filed by each of the parties.
Evidence of the Applicant
The evidence of the Applicant as to the circumstances surrounding the cessation of his employment was as follow:
“11. On Thursday 30 June 2011 at approximately 11.00a.m. I received a telephone call at work from [my] partner, Shelley, saying that she had received a telephone call from her brother, Dean Jackson, saying that her father, Edwin Jackson, who had been extremely unwell, had taken a turn for the worse and the family should go to St. Vincent’s Hospital in Melbourne to be with him. Shelley needed to go to St. Vincent’s Hospital in Melbourne. Our son ZACHARY WILLAM ROSS was at school but our daughter, MILLY TAYLOR ROSS was home.
12. I told Shelley to jump in her car and that I would meet her halfway between the Bunnaloo Feedlot and our home at 29 Aberdeen Way, Moama and I would take Milly off her and she could proceed to go to Melbourne to see her gravely ill father. I met Shelley half way as arranged. Shelley drove to Melbourne and I drove back to my place of employment with Milly in my vehicle. I was doing tractor work and farm loader work. I parked my vehicle on the end of the wash bay approximately twenty (20) metres to thirty (30) metres from where I was working. Shelley had given Milly food, water, fruit, a DS and also a DVD player. Milly sat in the back of the vehicle watching DVD’s. Milly did not get out of the vehicle save and except when I took her to the toilet on one occasion and on another occasion when she was lifted out of the vehicle by me and urinated in my presence. I lifted Milly out of the vehicle on this occasion and held her because she had no shoes on. Milly did not run around the front of the sheds. The only other vehicle in the area was the tractor I was driving and the front end loader I was driving.
13. A fellow employee of the respondent Greg Power has had his child, Cody, at the Bunnaloo Feedlot since 2006. In 2006 Greg Power’s child was aged 3 years. Cody is now aged approximately 8 years. Cody had her pony at the Bunnaloo Feedlot.
14. On the afternoon of Thursday 30 June 2011 I told a fellow employee of the Respondent TRAVIS WRIGHT, a Feeder, that I would have to leave work at 2.30p.m. to pick up my son, Zachary from school. I left work at 2.30 p.m. on Thursday 30 June 2011 with one (1) load of feed left to be mixed for the cattle.
15. I went to work the next day, Friday 1 July 2011. I took my Zachary to school dropping him off at 8.50 a.m. I met a friend of Shelley’s who came to the school and took Milly and agreed to look after Milly for the day. I got back to work and did my usual day’s work. I said I would have to be back in town by 2.00p.m. to pick up Zachary from school. School finished early as it was the last day of the school term.
16. I finished work at approximately 1.30p.m. I normally worked varied hours. I went to go home and got in my company vehicle I had had since 2006 and noticed the keys were not in the ignition where I thought I had left them. I went into the office and had a quick look around. The keys to my company utility were in the top drawer of a communal desk in the office.
17. On Sunday 3 July 2011 I telephoned the Live Stock Supervisor of the Respondent, Greg Power, and advised him that I might not be able to attend at work on Monday 4 July 2011 because of the state of my father-in-law’s health.
18. On the morning of Monday 4 July 2011 at 7.30a.m. I telephoned a fellow employee of the respondent, Travis Wright, and advised Travis Wright that I definitely would not be able to attend work that day as my father-in-law’s health was not very good and was deteriorating rapidly. I telephoned the Live Stock Supervisor, Greg Power, to make sure “everything was organised and ticking along” for the day. I also advised Greg Power that I definitely would not be able to attend work that day.
19. At around 8.30am on Monday 4 July 2011, Shelley got a call from her brother, Dean Jackson, to say that my father-in-law only had a couple of hours to live and that she needed to go to St. Vincent’s Hospital in Melbourne to be with her father immediately. Shelley went to see her father for the last time in Melbourne. I had to stay home to look after the children because by this stage [there] was no school and no kindergarten.
20. I telephoned the office of the Respondent as I had had a few missed calls. I spoke to Rob MacKenzie who became upset with me despite the earlier provisions I had made for my absence. Rob MacKenzie demanded, “Where are you? Where are you?” I proceeded to explain what was happening and that was met with “I do not f……. care mate. I’m trying to run a business not a nursery”. The conversation went for twenty (20) minutes. Rob MacKenzie said “You’re finished” and accused me of costing his business $80.00 per hour/ $140,000.00 per year.
21. I had never received any verbal warnings and/or written warnings in relation to the performance of my duties or responsibilities and/ or otherwise for the period from 3 July 2006 to 4 July 2011. Rob MacKenzie said to me “Things are going to get quiet out here and someone has to go.”
(Witness Statement of Applicant (Darren John Ross) at paragraph 11 - 21.)
In cross-examination, the Applicant confirmed that he did not see or speak to Mr Mackenzie on 30 June 2011 or 1 July 2011. It was put to him that Mr Mackenzie saw the Applicant’s daughter Milly out of her father’s parked vehicle on two occasions on Thursday 30 June 2011. The Applicant’s evidence was that Milly would not have left the car without her father being present and, that although he would not have been able to see her when he was out at the cattle pens feeding the cattle, that he would have known if she had left the car as she had white socks on with no shoes, and her socks would have become soiled in the dirty, grubbed environment that is the feedlot, an environment Milly did not like. He described his daughter as ‘a very timid little girl – little bit of a princess.” Nevertheless, the Applicant conceded that on that morning he was driving a tractor with a feed cart attached from the loading bay out to the cattle pens and then feeding the cattle. He could thus be 200 to 750 metres away from the loading bay (being near to where he had parked his vehicle) and that the process could take 30 to 45 minutes. Importantly, during such time, his daughter was out of his sight.
When cross-examined as to his activities on Friday 1 July 2011, the Applicant’s evidence was that he had arrived at work at about 9.00am and left at 1.30pm. He was a bit flustered, trying to finish all his work for the day and arranged for Mr Travis Wright to finish off a feed load on his behalf after his departure. He was unsure of what he had done with his car keys and thought, when he found them, someone had placed them in the top drawer of the desk in the office for ‘safe keeping’. When the Applicant spoke with each of Mr Travis Wright and Mr Greg Power on Friday 1 July 2011 neither of those persons told him that Mr Mackenzie had seen Milly at the work site on the preceding day, nor did either of them say that Mr Mackenzie was looking for him or that he wished to speak with him specifically about his child’s presence at the workplace or at all. Nor was this their evidence in the proceedings. The Applicant himself was not aware on 1 July 2011 that Mr Mackenzie was looking for him at the work site, although he knew he was there. The Applicant did not seek to hide his daughter or to not disclose her presence at the workplace.
As to the events of Monday 4 July 2011, the Applicant confirmed under cross-examination that he spoke with both Mr Wright and Mr Power at around 7.30am to advise that he would not be attending work and to ensure everything was organised at the work site for that day. He was aware that Mr Mackenzie had tried to contact him by telephone a bit after 7.00am but he was concerned to see his wife off on her trip to Melbourne. He thus did not return the call until around 7.45am. In that telephone call Mr Mackenzie told him, amongst other things, that his employment was “finished”.
The Applicant agreed in evidence that when Cody (Mr Power’s young daughter) was at the work site she was not in the feedlot area where he had parked his vehicle and being where Mr Mackenzie alleged his daughter was running around but rather in the office; out in an area with the cattle; or in the pens riding her pony. He denied that she was at all times supervised and in the sight of Mr Power.
The Applicant’s further oral evidence was that:
a)over time Mr Mackenzie was not supportive of his need to take personal leave. He gave as an example that which occurred about a month before he was terminated, when the Applicant required a day off to accompany his wife to Melbourne after his father in law’s first operation. Upon his return, Mr Mackenzie queried him as to his taking the day off and in response to him advising that his wife’s father was in hospital Mr Mackenzie said “what, did you have to go down and give him fucking mouth to mouth did you?”; and
b)the first time he discovered that Mr Mackenzie was alleging that his child Milly was running around the yard and that this was the reason for his termination was after he filed proceedings. At no time prior to his termination was he informed by Mr Mackenzie or any other person that this was the reason for his termination.
Evidence of Travis Wright
Mr Wright is an employee of the Respondent. He is now the Feed Manager at the Bunaloo Feedlot and has been in the employment of the Respondent for approximately three years. His employment coincided in part with that of the Applicant. He was at work on 30 June 2011 and 1 July 2011. His evidence is that on Thursday 30 June 2011 he noticed that the Applicant had parked his vehicle on the truck wash bay area and that a child was sitting in it. He did not observe the child leaving the car. His evidence was further that on Monday 4 July 2011 he does not recall whether the Applicant told him in a telephone conversation that he would not be coming to work that day but he did recall that the Applicant asked him to have Mr Mackenzie call him back. Otherwise he gave evidence that the Applicant would generally arrive at the feedlot at 9.30am and leave at approximately 3.00 to 3.30pm. He observed the Applicant to work back late on one or two occasions and to work through the night with him when there was a breakdown. He also observed him to go to the feedlot as and when tasks were required to be done. He disagreed with the Applicant that the Applicant worked the number of hours he claimed but accepted that he performed the jobs required of him in his employment. I prefer the evidence of the Applicant as to the hours worked by him. He worked in a managerial capacity and took his responsibilities seriously. He had been so employed for a number of years. The manner of his given evidence was forthright and credible.
Evidence of Mr Gregory Power
Mr Power is an employee of the Respondent. He is employed as the Livestock Manager at the Bunaloo Feedlot and has been so employed for in excess of eight years. His employment and that of the Applicant coincided.
His evidence as to the events which occurred on 30 June 2011 and 1 July 2011 is as set out in his Witness Statement dated 31 May 2012 as follows:
“Thursday 30 June 2011
5. I am aware that on Thursday 30 June 2011 Darren attended work with his child and that he left his child in his vehicle while he continued to load the tractor and go out into the paddocks to feed the cattle. I recall checking and inducting cattle on the morning of that day. I returned from the paddocks to the office area at around lunch time and observed Darren’s vehicle parked over on the wash bay and observed a child sitting in the vehicle. At this stage, Darren was not in the immediate vicinity but was out in the paddock putting feed in the trough. I estimate that he could have been up to 1 kilometre away. He was certainly not able to see the vehicle from where he was.
6. I remained in the office area for approximately 30 minutes and at the end of my lunch break I observed Darren returning to the immediate vicinity and starting to load the feed tractor again.
Friday 1 July 2011
7. On Friday 1 July 2011 Darren arrived at the workplace at approximately 9.30am. At around lunch time he mentioned to me that he would be leaving work that day at around 2.00pm.”
The Applicant and Mr Power had a phone conversation on the evening of Sunday 3 July 2011, when Mr Power instigated a call to the Applicant. During the course of that conversation, the Applicant told Mr Power that he might not be able to attend work on the next day because his father in law was ill. The Applicant did not ask Mr Power to convey that information to Mr Mackenzie and nor did Mr Power in fact do so. Mr Power did not inform the Applicant that Mr Mackenzie was attempting to speak with him nor did he inform him that Mr Mackenzie had expressed any dissatisfaction with him. His evidence was the same as that of Mr Wright which was that although he saw Milly in the car, he did not observe her to leave the car during the period of his observation.
Mr Power has a young daughter Cody. He obtained permission from Mr Mackenzie to use one of the cattle pens for her to ride her horse in. She would also at times accompany her father to the induction area where cattle were being drenched or tagged. Mr Power’s evidence was that she was always supervised by him at these times.
Evidence of Mr Mackenzie
Mr Mackenzie is the director of the Respondent and operates the Bunaloo Feedlot. He was responsible for the employment of the Applicant in 2006. The Respondent now employs five full-time employees and each report directly to Mr Mackenzie. Mr Mackenzie’s evidence as to what occurred on 30 June, 1 July and 4 July 2011 was initially as set out in his Witness Statement dated 31 May 2012, relevant paragraphs of which are as follows:
“Thursday 30 June 2011
8. On Thursday 30 June 2011, I arrived at the Bunaloo Feed Lot Site at approximately 1.00pm. I noticed that Darren had parked his vehicle on the truck bay wash and that someone was sitting in his vehicle. I could see that Darren was loading the feed cart near to the feeding shed. He then proceeded to drive towards the paddock in the tractor to feed the cattle. As he was doing so, I noticed a small child get out of Darren’s vehicle and run around the front of the feed sheds. I then saw Darren return in the tractor and place the child back into his vehicle. Darren again loaded the tractor and proceeded to return to the paddock to feed the cattle.
9. Approximately five to ten minutes later the child again got out of the vehicle and was running around the feed shed area. I went over and put her back into the car and told her she needed to stay in the car “until Dad comes back don’t run around, it’s dangerous”, or words to similar to that effect.
10. I was extremely concerned about the child’s safety given the nature of the site and the high volume of industrial machinery and grain trucks. The area is extremely dangerous for children for a number of reasons and I do not permit children to be in this area at any time regardless of whether they are supervised. Darren is aware that children are not permitted on site unsupervised for occupational health and safety reasons and that the consequences could be fatal.
11. I decided that I would speak to Darren at the first opportunity to raise these matters. However, I did not wish to make a scene in front of his child. For the rest of the afternoon, I was working draughting cattle in the yards with an employee, Gregory Power. I decided that I would speak to Darren after I finished working in the yards but when I returned to the office area I noticed that Darren had already left for the day.
Friday 1 July 2011
12. As I viewed Darren’s conduct very serious and wanted to talk to him about the incident the day before, on Friday morning I went looking for him. He had driven somewhere in the tractor. I needed to see him so I removed his keys from his vehicle and placed them in the office drawer so that he would have to come and see me before he left work that day. I then went to draught cattle.
13. Darren did not come and see me before leaving work. He left early that day without telling me that he would be leaving early. I believe that Darren was avoiding me.
14. I was not, therefore, made aware by Darren at any stage why his child was at work or of any of his personal circumstances.
…
Monday 4 July 2011
18. When I arrived at work on the morning of Monday, 4 July, it was approximately 7.00am. Gregory Power informed me that he had spoken to Darren the night before and that Darren had told him he would not be coming to work that day. I then tried to call Darren on his mobile telephone just after 7.00am and there was no answer. Darren then returned my call on the office number at approximately 7.45am.
I told Darren that his employment was finished because he brought his child onto the worksite which could have had serious consequences. Darren then told me that he brought his child to work because his father in law was ill. This was the first time Darren had raised this with me. I told him that I would have preferred him to have the day off than bring your child to work as it puts the whole business in danger if the child had of been injured. I don’t recall making any comments to Darren about him costing the business money.
19. I believed, in my view on reasonable grounds that Darren’s conduct in bringing a child on to the Site was sufficiently serious to justify his immediate dismissal. I told him this during our telephone conversation, and that this was why his employment was terminated.
20. Occupational health and safety is a matter I take extremely seriously. I am regularly talking to individual employees about safety matters, including operating machines a certain way, maintenance etc. If Darren [had] approached me and not taken the risks he took on 30 June 2011, I would have arranged for his daughter to be looked after in the office, where she would be safe and not exposed to risk of trucks and other machinery in the area where Darren left her. I would have otherwise told Darren to take the rest of the day off and would have arranged for another employee to take over the feeding.”
Consideration
The Applicant brought these proceedings contending that the Respondent had taken adverse action against him, namely the termination of his employment, because of the exercise of the Applicant’s workplace right to take compassionate leave. It was also put that the Applicant seeking to assert his workplace right to take compassionate leave was the reason for the adverse action of termination. That is, the claim is founded on ss.340(1)(a)(ii) and 340(1)(a)(iii) of the Act. The issue before the Court is not that the termination of employment occurred, but rather whether such action taken against the Applicant was done relevantly in breach of s.340 of the Act. If it was not done for that reason and was done for a non-prohibited reason then there is no remedy available to the Applicant pursuant to the Act. The Respondent argued that the termination of the Applicant’s employment was very clearly because of the serious safety breach that the Applicant engaged in or permitted, in bringing a child into the workplace area which put both the business and child’s life at risk. The Respondent claimed that the Applicant engaged in serious misconduct as provided for in s.123 of the Act.
Section 12 of the Act is as follows:
“"serious misconduct" has the meaning prescribed by the regulations.”
Regulation 1.07 of the Fair Work Regulations 2009 (Cth) is as follows:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.”
Section 340 of the Act is a civil remedy provision, as defined by s.539 of the Act, and relief is sought for compensation pursuant to s.545(2)(b) of the Act. An ancillary claim is made for breach of contract, by reason of the fact that it is alleged that the termination was done in breach of the Applicant’s employment contract and an alternative claim of damages is made in relation to the termination of employment.
Section 340 of the Act relevantly provides:
“Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4‑1).”
Section 361 of the Act relevantly provides:
“ (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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
The general principles to be applied in an application of this type were set out in the decision of the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32. At paragraphs [42] – [45] of that decision, French CJ and Crennan J with whom Gummow J, Hayne J and Heydon J agreed said:
“[42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
[43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, [Industrial Relations Act 1988 (Cth) (as enacted), s 334] in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker [Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 220 [25].]
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that 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?" [Purvis v New South Wales (2003) 217 CLR 92 at 163 [236] per Gummow, Hayne and Heydon JJ; [2003] HCA 62].
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. 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 even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
The evidence of the Respondent in these proceedings has failed to displace the onus placed upon it by s.361 of the Act. I find that the Applicant, a person in the employment of the Respondent (which is not in issue in these proceedings), was proposing to exercise a workplace right to take compassionate leave to which he was entitled. Adverse action was taken against him. The Applicant’s employment was summarily terminated with no proper basis. Additionally, the Applicant received no warnings as to any of the performance of his employment duties or functions prior to that time.
On the evidence, I conclude that Mr Mackenzie’s evidence was in large part unreliable and what he proferred as his motivation at the time to take adverse action against the Applicant is not borne out by the evidence. The evidence that he gave in paragraphs 8 to 11 of his Witness Statement to form the basis of the relevant reasons was contradicted in numerous instances by his own oral evidence. His evidence was contradictory in the following respects:
a)in his Witness Statement Mr Mackenzie gave evidence that on 30 June 2011 he first noticed the Applicant’s daughter get out of the Applicant’s vehicle and run around the front of the feed sheds as her father was driving in the tractor away from his vehicle. Upon his return in the tractor he “placed the child back into the vehicle.” In his oral evidence he described the child to get back in the vehicle herself when she saw her father approaching in the tractor. He later gave evidence that he could have, at that point in time, gone over to the Applicant and spoke of his concerns as to the child being on site and told the Applicant to take compassionate leave. But he did not do so. Later again in his evidence, he said that would only have been the case if the Applicant had come to him at the start of the day and then further that the Applicant could have taken the day off without seeking his permission first;
b)in his Witness Statement, Mr Mackenzie gave evidence that he then saw the Applicant’s daughter get out of the vehicle a second time five to ten minutes later and run around the feed shed area. He claimed to go over to her and put her back into the car. In his oral testimony he “asked her to get back in the car.” She did not speak to him but got back into the car;
c)thereafter in his Witness Statement, Mr Mackenzie claimed that for the rest of the afternoon he was working drafting cattle in the yards with Mr Power. He intended to speak with the Applicant about his concerns as to his daughter being on site but did not wish to make a scene in front of the child. In his oral testimony, he claimed to have proceeded not to the cattle yards but to his office for a good hour and that he continued to “monitor the little girl”. His evidence in his Witness Statement was that he decided he would speak to the Applicant at the first opportunity that day which he considered to be after he had finished working in the yards, but he noticed that by then the Applicant had left for the day. In his oral testimony Mr Mackenzie claimed to have “told someone to go and get Travis or someone to take over from Darren” so that the Applicant could look after his daughter. No corroborative evidence was before the Court to this effect and such evidence was contrary to his own earlier evidence. Subsequently, he changed his evidence again claiming that he had not drafted the cattle on 30 June 2011 as claimed in his Witness Statement, but rather did so on 1 July 2011; and
d)initially in his oral testimony, Mr Mackenzie’s evidence was that he denied the Applicant’s assertion that in their telephone conversation of 4 July 2011 he said to him “where are you?” Instead, he said he had rung to tell him that he was “finished”. He then claimed the Applicant asked him why and he responded that it was because he had brought the child onto the feedlot on 30 June 2011. On more than one occasion he categorically denied saying to the Applicant “where are you?” or words to that effect. Subsequently, his evidence was that he might have said, could have said, such words to the Applicant as alleged by the Applicant in his evidence.
Mr Mackenzie was shown in evidence the Australian Government Centrelink Employment Separation Certificate completed by him as a director of the Respondent Company with regards to the Applicant’s cessation of employment. It is dated 15 July 2011 (Exhibit R5). The reason given on the form for the Applicant’s separation was “unsatisfactory work performance”, and not misconduct. It was put to Mr Mackenzie that this was his subjective reason for dismissing the Applicant which he denied. His explanation that he did not understand the different categorization and did not wish to indicate on the Certificate something akin to criminal conduct on the part of the Applicant was implausible. The document is persuasive evidence, in particular, when combined with the evidence of the Applicant and contradictory evidence of Mr Mackenzie which cannot be accepted. Further on many occasions Mr Mackenzie seemed to be rethinking his evidence in the witness box and tailoring it to advance his case. Mr Ross on the other hand was a credible witness whose evidence I accept in particular as to what occurred on 30 June 2011 and in the telephone conversation between he and Mr Mackenzie on 4 July 2011. The evidence establishes that the action of terminating the Applicant’s employment was taken because he was seeking to assert a workplace right. The adverse action was the Applicant’s dismissal from his employment.
The facts of this case do not support a finding that the Applicant was terminated because of redundancy and that part of the claim of the Applicant is dismissed. Likewise being satisfied as to the adverse action having occurred, there is no necessity to deal with the alternative claim for breach of contract.
In order to exercise the Court’s discretion under s.545(2)(b) of the Act, Counsel for the Applicant referred the Court to the decision in Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21 at page 28 where a similar assessment exercise was undertaken:
“Ross VP addressed the construction of the relevant provision through a detailed examination of decisions by Members of the Court. The substance of his decision is adequately summarised in the following passages:
"It can be seen that the approach taken in a number of cases in the Industrial Relations Court is to assess the appropriate amount of compensation in the light of all relevant circumstances, including the remuneration that the employee would have received, or have been likely to have received, if the employer had not terminated the employment and, if that amount exceeds the permissible figure, reduce the compensation to that figure. The following general principles regarding reinstatement and compensation may be extracted from the cases referred to:
(5) Lost remuneration is a fundamental element in assessing compensation though it is not the only matter that may be considered: Krupp-Geir v Open Family (Australia) Inc.
(6) In assessing the amount of compensation to be awarded the following approach has been adopted by the Court:
STEP 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment.
STEP 2: Deduct moneys earned since termination. Workers compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded.
STEP 3: The remaining amount of compensation is discounted for contingencies.
STEP 4: The impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
STEP 5: The legislative cap on compensation is applied. Section 170EE(3) limits the Court and the Commission to an amount not exceeding the amount of remuneration that the employee would have earned in the six months immediately following the termination, if the termination had not occurred. This is simply an arbitrary cap on the amount that may be awarded. It does not operate as a maximum amount to be awarded only in the most grievous or serious cases: [Perrin v Des Taylor Pty Ltd (1995) 58 IR 254; Bean v Milstern Retirement Services Pty Ltd (unreported, Industrial Relations Court of Australia 2 June 1995); Cox v South Australian Meat Corp (1995) 60 IR 293; Messervy v Maldoc Pty Ltd (1995) 63 IR 61; Slifka v J W Sanders Pty Ltd (1995) 67 IR 316 (see generally Slifka v J W Sanders Pty Ltd)]
In my view it is appropriate that, in the absence of any Commission decision to the contrary, I apply the principles developed by the Court in respect of the assessment of compensation in unlawful termination cases. The consistent application of such principles is necessary to promote certainty and avoid the arbitrary determination of compensation. "
In carrying out the assessment necessary in this case the following particulars are relevant:
a)the annual value of the salary package of the Applicant was agreed between the parties in the sum of $91,130 gross;
b)the salary earnt by the Applicant at the RSL Moama was in the sum of $28,515;
c)an appropriate discount for potential lawful dismissal is 25 per cent, being $15,653.75. This percentage discount was suggested by Counsel for the Applicant and no issue with it was taken by Counsel for the Respondent;
d)an appropriate deduction for a taxation amount is 30 per cent, being $14,088.38. Again, this percentage was proposed by Counsel for the Applicant without comment by Counsel for the Respondent; and
e)when looking to the period of further employment a period of 12 months, in all the circumstances is appropriate. The circumstances include the Applicant’s length of employment with his employer, a reasonable period of notice and the inclusion of a discount factor.
| The annual value of the salary package of the Applicant was agreed between the parties | $91,130 gross |
| Assuming one year further employment of $91,130, less salary from RSL Moama of $28,515 | $91,130 - $28,515 = $62,615 |
| Less discount for potential lawful dismissal 25 per cent, $15,633.75 | $62,615 - $15,633.75 = $46,961.25 |
| Less tax 30 per cent, $14,088.38 | $46,961.25 - $14,088.38 = $32,872.87 |
| Total | $32,872.87 |
The Court shall make the necessary declaration and order compensation be paid to the Applicant in the sum calculated herein.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date: 1 February 2013