Ruttley v Willis Brothers Installation (Qld) Pty Ltd
[2022] FedCFamC2G 430
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430
File number(s): BRG 479 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 9 June 2022 Catchwords: INDUSTRIAL LAW – Adverse action – whether adverse action taken because employee exercised a workplace right – whether employment terminated because employee suffered from a disability – whether employer discharged presumption imposed by section 361 (a) of the Fair Work Act 2009 (Cth) – whether employer contravened sections 340 and 351 (1) of Fair Work Act 2009 (Cth) – order for compensation Legislation: Anti-Discrimination Act 1991 (Qld)
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41
Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275
Hodkinson v The Commonwealth [2011] FMCA 171
Ingersole v Castle Hill Country Club Limited [2014] FCCA 450
Roohizadegan v Technology One Limited (No 2) [2020] FCA 1407
Division: Division 2 General Federal Law Number of paragraphs: 228 Date of last submission/s: 13 December 2021 Date of hearing: 11-14 October 2021 Place: Brisbane Counsel for the Applicant: Ms Blattman Solicitor for the Applicant: Shand Taylor Lawyers Counsel for the Respondent: Ms A-Khavari Solicitor for the Respondent: K & L Gates ORDERS
BRG 479 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIMOTHY JOHN RUTTLEY
Applicant
AND: WILLIS BROTHERS INSTALLATION (QLD) PTY LTD ACN 132 309 936
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
9 JUNE 2022
THE COURT DECLARES THAT:
1.The Respondent Willis Bros Installations (Qld) Pty Ltd contravened:
(a)section 351(1) of the Fair Work Act 2009 (Cth) in that the Respondent took adverse action by terminating the applicant’s employment because he was a person with a physical disability;
(b)section 340 of the Fair Work Act 2009 (Cth) in that the Respondent took adverse action in injuring the applicant in his employment because the applicant exercised his workplace right by making a worker’s compensation claim under the Worker’s Compensation and Rehabilitation Act 2003 (Cth); and
(c)section 340 of the Fair Work Act 2009 (FW Act) in that the Respondent took adverse action by terminating the applicant’s employment because he exercised a workplace right to make an inquiry in relation to his employment.
THE COURT ORDERS
2.Pursuant to section 545 of the FW Act the respondent shall pay to the applicant compensation in the amount of $162,631 in addition to interest as calculated pursuant to section 76 (3) of the Federal Circuit Court of Australia Act1999 (Cth) within 28 days of service of this order on Willis Bros Installations (Qld) Pty Ltd
3.The Court will hear the parties at 10:00am on 3 August 2022 regarding the imposition of pecuniary penalties (if any) upon the respondent with respect to the abovementioned contraventions of the Fair Work Act 2009 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
INTRODUCTION
The applicant Timothy Ruttley (“Timothy”) seeks compensation and pecuniary penalty orders against the Respondent, his former employer Willis Bros Installations Qld Pty Ltd (“Willis Bros”), for breach of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) which resulted in the applicant’s termination.
The applicant contends that adverse action was taken against him because he exercised a workplace right particularly his right to take leave to which he was entitled, or alternatively because of his physical disability (silicosis) or alternatively because of his mental disability (psychological injury).
The applicant contends that the Court should find that the adverse action was taken in breach of the general protections, having regard to the events which led to the applicant’s termination and asserts that the respondent has failed to discharge the statutory presumption. The applicant seeks a declaration that the respondent contravened sections 340 (1) and 351 (1) of the FW Act, compensation and pecuniary penalties.
The respondent seeks an order dismissing the application.
Documents relied on
The applicant relied on his Amended Form 2 claim filed 17 August 2021 and Amended Reply filed 23 August 2021, his affidavits filed on 30 November 2020, 17 February 2021, 31 August 2021 and 8 October 2021, affidavit of Simon Ruttley filed on 30 November 2020, 18 February 2021, 31 August 2021 and 8 October 2021, affidavit of Phillip Cole filed 17 February 2021, affidavit of Alanah Baulch filed 18 February 2021 and 31 August 2021 and affidavit Ruby Nielsen filed 31 August 2021.
The respondent relied on the Amended Response filed 11 August 2021, affidavits filed by Duncan Willis on 27 January 2021, 9 February 2021, 2 September 2021, affidavits filed by Renee Coleman on 27 January 2021, 2 September 2021 and 6 October 2021, affidavit of Justin Willis filed 27 January 2021 and 3 August 2021, affidavit of Siasaia Miltoni filed 27 January 2021, affidavit of Alexander Di Russo filed 27 January 2021 and 25 August 2021 and affidavit of Lisa Wilson filed 25 August 2021.
MATTERS NOT DISPUTED
The applicant (“Timothy”):
(a)was at all material employed by the Respondent as a Production Manager;
(b)was a National System Employee for the purposes of Part 3 -1 of the FW Act;
(c)was entitled to the benefit of the National Employment Standards as contained within Part 2 -2 of the FW Act;
(d)as an employee of the respondent had a workplace right being an entitlement to the benefit of a workplace law pursuant to section 341 (1) (a) of the FW Act;
(e)as an employee of the respondent was entitled to the benefit of a workplace law being the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (“WCR Act”) which provides for a worker’s compensation scheme for workers who sustain an injury in their employment;
(f)as an employee of the respondent was able to make complaint or enquiry in relation to his employment and the respondent’s compliance with a workplace law pursuant to section 341 (1) (c ) of the FW Act;
(g)was previously a director of the Respondent;
(h)was the Queensland Building and Construction Commission (QBCC) license nominee for the Respondent; and
(i)is a natural person with standing to sue pursuant to sections 539 and 540 of the FW Act; and
The respondent:
(a)is and was a “constitutional corporation” within the meaning of section 12 of the FW Act;
(b)is and was a “National System Employer” as that term is defined in section 14 of the FW Act;
(c)is and was an “employer” as that term is defined in section 335 of the FW Act;
(d)is and was at all material times one of Willis Group companies which include:
(i)Group Manufacturing Pty Ltd;
(ii)Willis Bros Installations (Qld) Pty Ltd;
(iii)Willis Bros Sydney Pty Ltd;
(iv)Willis Bros Victoria Pty Ltd;
(v)Willis Bros Holdings 2012 Pty Ltd; and
(vi)WB Holding Unit Trust
(e)trades as Willis Bros Marble and Granite;
(f)employed the applicant between 20 July 1997 until 11 May 2020 (“ the period of employment”); and
(g)is a corporation duly incorporated in accordance with law, capable of suing and being sued.
Duncan Willis (“Duncan”) is and was at all material times the majority shareholder and managing director of six of the Willis Group of companies but was not a director of the respondent.
Justin Willis (“Justin”) was appointed a director of the respondent on 16 December 2019.
Renee Coleman (“Renee”) is and was at all material times the Chief Financial Officer for the respondent.
On or about 6 October 2017 Work Health and Safety Queensland issued a prohibition notice which stated that Group Manufacturing Pty Ltd was to stop cutting or grinding stone without adequate controls to protect workers from being exposed to respirable crystalline silica.
The applicant was diagnosed with lymph node silicosis on 20 November 2018.
The applicant submitted a worker’s compensation claim to WorkCover Queensland in relation to his silicosis diagnosis which was accepted by Work Cover on 23 January 2019.
On or about 19 July 2019 Simon Ruttley (“Simon”) the applicant’s brother was made redundant from Willis Bros.
On or about 30 April 2020 the applicant was removed as a director of the respondent.
On or about 11 May 2020 the applicant’s employment was terminated.
Background
Willis Bros Installations (Qld) Pty Ltd was established by Duncan and Justin Willis on the Gold Coast in about 1997 and carries on the business of manufacturing and installing stone benchtops and is one of a group of companies that operates a business installing and manufacturing stone benchtops for kitchens and bathrooms. Willis Bros Installations (Qld) Pty Ltd is part of the Willis Group of companies which include Group Manufacturing Pty Ltd, Willis Bros Sydney Pty Ltd, Willis Bros Victoria Pty Ltd, Willis Bros Holdings 2012 Pty Ltd; and WB Holding Unit Trust. The controlling mind of the company group, including the respondent, is Duncan Willis.
Group Manufacturing Pty Ltd employs 22 employees, holds accounts for the entities’ creditors and receives the income and pays the expenses that are related to manufacturing and installation activities. Willis Bros employs 16 employees, and is the entity which holds the QBCC licence to undertake the work related to the manufacturing and installation of stone benchtops. Willis Bros. Holdings 2012 Pty Ltd owns the assets of the company including the vehicles used by Willis Bros.
Duncan Willis has held the position of managing director of Group Manufacturing since 3 September 2018 and has not held any executive or director position at Willis Bros since October 2012.
Justin Willis left Willis Bros in 2008 to join the fire brigade. He returned to work at Willis Bros at Duncan’s request and was appointed a director of Willis Bros on 16 December 2019.
Renee Coleman commenced employment with Willis Bros in about 2011, was appointed Chief Financial Officer of Willis Bros in around 2017 and is currently the general manager of the Willis Group.
The applicant commenced work for the respondent on 20 July 1997 at 18 years of age initially as an apprentice stonemason, cutting and installing stone products. In 2006 the applicant was promoted to foreman in 2006 and in 2007 to production manager. He remained production and installation manager until his employment was terminated. According to Duncan the applicant was employed by other associated companies of Willis Bros in various positions from 1997 and as production manager for Willis Bros from July 2008. He was a previously a director of entities within the Willis Group from 6 October 2008 to September 2018 and director of the respondent from 12 January 2016 until 30 April 2020.
The applicant and his brother Simon Ruttley acquired an interest in Willis Bros. Duncan is the majority shareholder for Willis Bros whilst Simon’s interest is 30% and the applicant’s interest 17%.
In about 2017 Work Health and Safety Queensland directed Willis Bros to have its workers screened for silicosis. Both Simon and the applicant were diagnosed with lymph node silicosis. The applicant contends that following that diagnosis Duncan had decided to exit both Simon and Timothy from Willis Bros.
On 19 July 2019 the applicant’s brother Simon’s employment with the respondent was terminated.
The applicant alleges that from July 2019 to January 2020 Duncan behaved in a bullying and aggressive manner towards him in an attempt to exit him from the business. He was removed as a director from Willis Bros on 30 April 2020 and his employment was terminated on 11 May 2020.
Applicant’s claim
The applicant contends that the respondent contravened sections 340 and 351 of the FW Act for the prohibited reason set out in the table below. If proved the Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision under the FW Act.
Reason Prohibited by Relevant Workplace Right Use of Personal Leave s. 340(1) FW ss. 96 and 97 FW Use of Annual Leave s. 340(1) FW ss. 87 and 88 FW Complaints and Inquiries about Employment s. 340(1) FW s. 341(1)(c)(ii) FW Disability s. 351 FW s. 4
Disability Discrimination Act 1992 (Cth)
The respondent does not contend that the applicant’s silicosis made him unable to perform the inherent requirements of his employment or that he was dismissed because of such a belief.
APPLICANT’S EVIDENCE
Timothy Ruttley
Timothy said when he commenced working for Willis Bros in 1997 as an 18 year old apprentice for the first 12 months of his employment he was not provided with personal protective equipment or a face mask. He used a T shirt around his face when grinding and cutting stone bench tops. After 12 months Duncan provided him with a face mask after his trade school advised him it was mandatory to wear a face mask. He worked 12 hours a day and was not paid any overtime. He completed his stonemason apprenticeship in mid - 2001.
He continued to work “on the tools” (grinding and cutting stone bench tops) working half the time in the factory shaping marble and half the time installing stone benchtop products. After he finished his apprenticeship Duncan installed industrial ceiling fans which helped suck the silica dust from the factory floor. The fans had no filters which meant airborne particles produced from the bench top products circulated overhead.
His brother Simon commenced working for Willis Bros in 2001 aged 16 years. In 2003 after Simon finished his apprenticeship Simon and Timothy discussed opening their own business. According to both Simon and Timothy, Duncan found out about their intention to open their own business and encouraged them not to leave Willis Bros. He offered each of them a 10% interest in Willis Bros which they accepted.
Timothy was promoted to foreman in 2006 and was responsible for supervising the Willis Bros factory. In 2007 he was promoted to production manager where he was responsible for scheduling Willis Bros jobs and ensuring that jobs were performed correctly, visiting and inspecting each job and tidying up the work that had been completed.
In 2008 Duncan’s brother Justin left Willis Bros and Simon and Timothy agreed to acquire Justin’s shareholding increasing their interest in Willis Bros to 17% each. On 6 October 2008 Timothy was appointed as a director of the respondent.
In 2013 Timothy said he, Duncan and Simon agreed that they would all be paid the same annual salary by Willis Bros. Before this he and Simon were paid an hourly rate for hours worked each week. From 2013 his and Simon’s salary comprised a weekly wage, allowances for a vehicle for personal and work use, a vehicle for their spouse and allowance for fuel, registration and telephone expenses. Simon confirmed this in cross examination and said there was nothing in writing however this was a verbal agreement between each of them including Duncan.
In 2013 it was agreed that Simon would receive an additional 13% interest in Willis Bros as he was assisting in managing the company with the result that Simon holds a 30% interest in Willis Bros, the applicant a 17% interest and Duncan a 53% interest and the majority shareholder.
In 2017 Work Health and Safety Queensland increased their site visits after multiple workers in the stone benchtop industry were diagnosed with silicosis due to exposure to silica dust particles. WorkCover directed all workers with silicosis to refrain from performing work in an environment containing silica dust. By the end of 2018 some 48 workers were unable to attend work.
Timothy agreed that in September 2018 he ceased being director of all entities in the Willis Group with the exception of the respondent in these proceedings. Duncan remained the managing director and was responsible for overseeing the company’s business operations, financial performance and performance generally and was required to ensure that company policies and legal guidelines were followed. During cross examination Timothy was asked whether he made that request because he was concerned about exposure to prosecutions by work health and safety due to the number of workers in the business being diagnosed with silicosis. He agreed he had concerns regarding the ramifications of the number of workers who were diagnosed and recognised there may be a significant financial impact on the business.
In October 2018 he was screened for silicosis and underwent a chest x ray. In November 2018 he underwent a CT scan and on 20 November 2018 saw Dr Deller. He was told by Dr Deller that he had “lymph node silicosis” and that dust had not entered his lungs yet but he had a “terminal disease which I was required to monitor and manage for the rest of my life.” He was told it was difficult to predict his prognosis and discussed treatment options with Dr Deller such as a lung transplant and flushing out the lungs to remove the silica dust. He said he found the diagnosis overwhelming and stressful and he was scared about his future. After seeing Dr Deller he returned to the factory and Duncan asked him how he went and he told him he had silicosis. Duncan then asked if he intended to go off work. He said he was not going off work just yet. Dr Deller provided a report confirming Timothy’s diagnosis and recommended that he continue to monitor his condition with clinical review each six to twelve months.
On 20 November 2018 Simon was diagnosed with lymph node silicosis.
On 26 November 2018 a worker’s compensation claim was registered for the applicant with WorkCover as a result of the health screening all Willis Bros workers were directed to complete. On 23 January 2019 WorkCover accepted Timothy’s claim.
Timothy said he continued to work long hours following the diagnosis with December 2018 a busy time. The absence of staff made it difficult to keep up with orders. He was required to reschedule jobs and extend installations due to the staff shortage. Duncan was unhappy about the rescheduling and in January 2019 when he was advising a customer about delay Duncan became irritated and told him to “get back on the tools” to finish the job off. The applicant said he told Duncan he could not do that “because of his silicosis.” This made Duncan angry and he yelled at Timothy to “get back on the fucking tools.” He said he refused and felt bullied by Duncan’s behaviour. Duncan was an experienced stonemason and could have assisted to complete the job himself as he did not have silicosis. Duncan told him on at least three occasions to “get back on the tools” in 2019 when finding out that he had to reschedule jobs because they did not have enough staff to complete the work. He felt pressured to work in an unsafe environment and felt uncomfortable and anxious.
In March 2019 Timothy said he met with Simon, Duncan, Renee and the respondent’s accountant regarding a shareholder loan ledger which had been ongoing since 2017. He said the existence of shareholder loans came as a surprise to him as he had not borrowed any money from Willis Bros and was unaware of the existence of the loans. Both he and Simon told Duncan they had never discussed any money which was allegedly loaned to them by Willis Bros and according to Timothy Duncan told them not to worry about the loans as they existed on paper for tax reasons and did not require repayment. He said he asked Duncan to confirm that in writing and he agreed to do so and asked Renee to contact a lawyer to have a shareholder agreement prepared about the non - repayment of the loans.
In June 2019 he and Simon were given a document titled “Shareholder Agreement for Willis Group Entities” however the agreement did not include a section which dealt with the non – repayment of the shareholder loans. Timothy said Duncan refused to include any reference to the non – payment of the shareholder loans and told both he and Simon “it was this agreement or nothing.” Duncan told Timothy and Simon that if they signed the agreement “he would add a bit of paper at the back which would address the shareholder loans.” He and Simon did not sign the agreement. Simon corroborated Timothy’s account.
Timothy said Simon attempted to find out more information about the shareholder loans and was advised that the accountant would not meet Simon and Timothy without Duncan and Renee being present. A series of emails were sent by Simon in an attempt to understand how the shareholder loans had come to exist. Timothy said there were multiple emails regarding this issue and nothing was resolved “because the accountant could not explain items on the shareholder loan ledger.” According to Timothy drawings were split evenly between Simon, Duncan and Timothy even though Duncan held a 53% interest in Willis Bros. He said Duncan became angry with Simon and Timothy for speaking with Renee about the issue and said to Timothy “I should never have asked her” and “keep that fucking thing out of it” because “she is only acting on my authority.” He was told by Duncan that he should have “come straight to the horse’s head.” Timothy said Duncan spoke in an aggressive manner and repeatedly interrupted Timothy when he tried to ask questions about the shareholders loans and spoke loudly over the top of him. When Timothy complained that the accountant was not giving Simon clear answers Duncan said “stop talking to our fucking accountant.” Timothy said he felt bullied by Duncan.
In about June 2019 Timothy, Simon and Duncan met to discuss the business including the employees off work due to silicosis and the following conversations occurred:
Duncan: So I think that as I said …have been said there is such much uncertainty I told you mate I was at a cross road the other week and I don’t know mate. I think now Luke’s gone I think that fucking …rattled me. You guys are sick. What are you’se going to do. I think the balls in your court really. Might be good and well for me to say I’m going to do that at the end of the day the ball’s in your court. What do you’se want to do. You’ve obviously spoken about it.
Applicant: the work needs to pick up.
Duncan: Well mate it’s all fucking …we couldn’t fucking ….more work or lose the money then mate.
Applicant: More work?
…
Duncan: I honestly think I’ve been thinking since the last time we spoke mate I want to fucking have sheds there mate at least one of them
Simon: well there is no reason why we can’t
Duncan: No there is not. And I’ll tell you I will be honest with you what worries me is fucking you guys with silicosis. I’m the only one here without it. Everyone is pointing their fucking finger at me. Fucking poor Luke’s got it. You guys have got it.
Simon: Yeah we’re not going to walk – like – that’s why we are here mate, we haven’t walked away from anything.”
Duncan: Yeah I know it needs to be spoken about mate, because the older you get both of you’s I don’t know mate what do we do because I don’t want to go back to the old days.”
Simon: What’s the old days?
Duncan: Working our fucking guts out mate
………..
Applicant: and then Simon’s credit cards have been cut…..sorry for the questions but we want to know obviously you must be thinking something
Duncan: I haven’t
Applicant: Put it on the table
Duncan: I want to buy Simon out.
Applicant: You want to buy Simon out of the business
Duncan: I want to buy him out yeah whatever
Applicant: Well can the business even afford that?
Duncan: I’ll buy it.
Applicant: You’ll buy it?
Duncan: Yeah
Applicant: Have you got anything in your funds to buy him out?
Duncan: Uhuh
Applicant: Have you already looked into it?
Duncan: Uhuh
Applicant: Well this obviously can’t keep going the way that it’s going. Everything’s happening around behind me
Duncan: If you are going to keep running like we are now, we will all be out of a fucking job mate
Applicant: Will can I see……..
Duncan: I’m not here to dog anyone or fucking shaft anybody
Applicant: Ok. What do you think about that?
Simon: Why…I want to know why?
Duncan: Well just I think that’s the next step in my business. I’m not happy with the way that the company is going
Simon: So I’m the …so you are pin pointing me because?
Duncan: Because you have got the most shares. By any means it’s nothing personal it’s just business. I’m not going to lie to you it is what it is so you can have a crack at me I’ve got silicosis up my arse I’m fucking worried I’ve been scared as we all have been..
Simon: you obviously have a figure in mind if you already know what it is
Duncan: I’ll talk more formal… have a think about it.
…
Simon: And then you just said that you were happy with the way it runs so obviously
Duncan: No mate I am not happy. If I think that the change that I’ve had like honestly I think the biggest thing is for me is that you guys you know well how long are you going to be here for mate? Like you know what I mean. Your health you know what I mean? I haven’t seen anything but you are both not sick. I’m fucking, I’m looking after me mate. It’s only business mate it’s nothing personal. If you are fucking sick and can’t be here what do I do mate? Shut it down? You know I’ll shut it down. I’ve got the shits, I’ve got to get organised. If I don’t start talking about it and to be honest with you mate. I don’t know. I’ve still got a million thoughts in my fucking head to be honest with you mate a million fucking thoughts. I haven’t been fucking sleeping since our first chat. The original chat. We have had a chat after that…
Simon: What chat? We haven’t had any chats about this
Duncan: No well this is where I was going in this direction right now mate. About a week ago. I thought about it I didn’t think it was doable.”
Timothy was cross examined about the conversations. He agreed that he and Simon were the two most senior members of Willis Bros in terms of working with the production and installation side of the business. Counsel suggested that the conversation occurred at a time when there was uncertainty in the business, employees had gone off work and there had been a significant financial downturn in the business. Timothy disagreed and said when the conversation occurred,
…all the restructure had happened. Because Luke, my brother, stayed on in the business, and then when Luke stayed on as long as he could, and kept postponing his appointment with Dr Deller, knowing that he would be put off. And then when he did eventually go off, that’s when the conversation happened…It was nearly 12 months later.
On 28 June 2019, Duncan emailed Timothy advising that he was being issued with a new salary package including a weekly wage and QBCC allowance however the email did not state exactly how much Timothy would receive. Timothy said Simon refused to sell his shares to Duncan and on 19 July 2019 Simon’s position with the respondent was made redundant. He was paid a sum of money in lieu of notice of termination of his employment.
Following Simon’s termination Timothy’s workload increased as he took on Simon’s duties which included liaising with the respondent’s suppliers and overseeing work on job sites. He said he estimated he took 200 calls a day and also trained new employees working in the factory. He asked Duncan for assistance with workers in the factory and Duncan refused to assist and told him to “get back on the tools” despite being aware that he had been diagnosed with silicosis. He said Duncan’s refusal to provide him with assistance caused him to suffer stress and he felt exhausted and overwhelmed.
Timothy said after Simon left Duncan became extremely antagonistic towards him. He complained that on occasion Duncan entered his office uninvited stood over him while he was on a call, stared at him and then left the office. On another occasion he entered the applicant’s office and stood so close that his leg touched his office chair and stood over him in silence. He walked out of the office without saying anything. A few times a week Duncan ate Timothy’s food without asking by picking up the food he was eating at his desk. On a few occasions Timothy said he told Duncan to “fuck off” however Duncan’s behaviour persisted. He said Duncan often referred to him as a “fuckwit” or “fucking idiot” and he felt belittled.
In November 2019, Timothy attended Dr Deller for review and was advised there had been no change in his diagnosis.
In late November 2019 Duncan advised Timothy that he intended to appoint Justin as a director of the respondent and told him he had two choices either sign the document consenting to the appointment on the spot or he would convene a meeting and “push the appointment through by ordinary resolution as he was majority shareholder.” He refused to sign the document. I am satisfied that Duncan having formed an intention to exit Timothy from the business sometime after July 2019 acted on that intention in requesting that Justin return to work for Willis Bros. Justin was appointed a director of Willis Bros on 16 December 2019.
Prior to Christmas 2019 Duncan requested Timothy attend his office to discuss the employees who had requested their holiday leave entitlements be cashed out because they had been diagnosed with silicosis. Duncan commented “how are these dogs sitting at home nothing wrong with them.” Timothy responded that the workers “did have something wrong with them” which Duncan ignored and continued to make derogatory remarks. He said he felt stressed at work at the way Duncan was treating him including the excessive workload he had at that time.
In late November 2019, Timothy said he asked Lisa Wilson the respondent’s payroll and administrative employee to check his leave entitlements. Lisa told him that Duncan told her that he was not allowed to have access that information. He asked Lisa to check his leave through the MYOB system and she brought up his records. He observed that he had no hours of accrued leave and took a photo of that record. He said he was concerned as he was aware that he had accrued a significant amount of leave. Previously he had had a conversation with a former employee responsible for payroll and administration in about 2015 and was told that he had accrued so much leave “he could take a year off and then some.” He said this was correct as he had not taken many holidays during his employment but would take two weeks off each Christmas each year when the factory closed down. In addition he took two weeks off for his honeymoon in 2017. I accept Timothy’s evidence that he had accrued leave entitlements in November 2019 and no record was kept of those entitlements. I am unable to quantify those entitlements on the evidence.
On 12 December 2019 Timothy was working late in the factory when Duncan came into his office and asked him where his money was. Duncan was aware that Timothy had recently sold his house and wanted to know what he did with the money. He told Duncan he had purchased a new home. Duncan then raised the issue of the shareholder loans and said that “I needed to get my house in order.” Timothy replied he did not owe any money on any shareholder loans and Duncan said “on paper you do.” He told Duncan the only evidence Duncan had was a ledger that he had concocted with Renee and his accountant and said that was “hocus pocus.” Duncan told him he could make the loans “stick.” He said that made him feel uneasy and uncomfortable particularly asking him questions about his personal finances.
From 23 December 2019 to 12 January 2020 the factory was closed. Timothy said he usually returned to work in the first week January however he felt overwhelmed and burnt out and returned to work later on 13 January 2020.
Events of 14 January 2020
On 14 January 2020, Timothy said Duncan entered his office at 7.30 a.m. and without greeting him said “I want my fucking shares back you hear me.” He slammed his hand on the desk loudly which shook the desk and startled Timothy and walked out of the office without saying anything further. At 10.00 a.m. on 14 January 2020 Duncan emailed Timothy a director’s resolution from Willis Bros Holdings Pty Ltd requesting that he surrender the BMW vehicle driven by his wife. The request required the vehicle be returned by 28 November 2019 or alternatively that the applicant purchase the vehicle for $58,862.60 plus GST before 31 January 2020. On receiving the email Timothy said he walked out to the yard where Duncan was and asked why the vehicle had to be returned and if Duncan’s wife was also returning her vehicle. Duncan asked why he needed to do that. Timothy said that his family would be without a car and told Duncan his email was a “fucking joke” to which Duncan replied “it is what it is.” Timothy told Duncan that he and Renee were making all the decisions and he (Duncan) needed to “take his nuts out of her handbag” because what he was doing was a “low act.” Duncan ignored him and walked towards Renee’s office and continued to ignore Timothy when spoken to.
Timothy said he walked out to the yard and rang Simon about the email. While on the phone he walked back into his office to get his wallet and keys to leave and as he walked out he said to Simon “I don’t know what Renee’s got over him.” He turned around and Renee was standing behind him so close they were almost touching and she said “how dare you.” Her voice was raised and she was pointing her finger at him. Timothy said he stepped back and said to her “how dare you come down here go back upstairs where you belong.” Renee turned and left and he drove home. He said he was shaken by the events of the morning and drove to see Dr Freeman and reported he had been under enormous stress at work and had been bullied by Duncan for months. He was given a mental health plan and referred to a psychologist. The medical certificate provided stated that he was “suffering from workplace stress and will be unfit for duty up to and including 14 February 2020.” He said after the appointment he called Duncan and told him he was taking the week off work. I am satisfied that the applicant suffered hurt, humiliation and distress as a consequence of Duncan’s conduct towards him over the previous few months
On 15 January 2020 Timothy emailed Duncan to advise that he had sought medical advice regarding the extreme stress he was under in the workplace. The email read “Due to yesterday’s events and the events of the last few months I have been under extreme stress and have now sought medical advice in regards to my mental health. It is my doctor’s opinion that I do not return to work at this stage. Please refer to the below medical certificate.” Late in the evening on 15 January 2020 Timothy received an email from Duncan accusing Timothy of bullying and intimidating Renee and advised him that he intended to seek legal advice. He stated “the restructuring had nothing to do with Renee.”
On 16 January 2020 Duncan emailed Timothy requesting he surrender the Landcruiser and advising him that he would be diverting his work phone to the office. Timothy responded by email advising that he needed the vehicle to drive to medical appointments. Duncan said he would arrange a replacement vehicle. On 16 January 2020 Timothy said he tried to use his fuel card which was declined. He said his health continued to decline and he attended his G.P. and psychologist. He was given a medical certificate up to and including 30 April 2020.
On 21 February 2020 the respondent’s solicitor’s O’Reilly Workplace Law sent an email to Timothy’s lawyer demanding the return of the Landcruiser and advising that his QBCC allowance would not be paid while he was on sick leave. The email was not received by Timothy’s lawyer until 27 February 2020. On 27 February 2020 Timothy said when he received his pay it was “short.” On 28 February 2020 his lawyer sent an email to the respondent’s lawyer in relation to his salary package seeking an explanation why his salary had been reduced. He received no reply.
On 2 March 2020 Nautilus Law Group for the respondent wrote to Timothy’s lawyer seeking payment of the shareholder loans claiming moneys were loaned to Timothy and Simon by Group Manufacturing Pty Ltd. On 3 March 2020 O’Reilly Workplace Law emailed Timothy’s lawyer demanding the return of the Landcruiser and advising that a replacement vehicle would be made available. Timothy returned the Landcruiser on the same day however no alternate vehicle was ever made available.
On 3 March 2020 Timothy’s lawyer wrote to O’Reilly Workplace Law advising that his wage had been reduced, his fuel card cancelled and his mobile phone disconnected and requested that his entitlements be re-instated in accordance with his salary package. On 5 March 2020 the Nautilus Group wrote to the Timothy’s lawyer disputing his entitlements.
On 2 April 2020 Timothy did not get paid his weekly wage. He emailed Renee asking why he had not been paid and asked when he was going to receive payment. In addition he enquired why his pay had changed on 27 February 2020 and requested his wage be back paid. Renee replied via email on 4 April 2020 directing him to contact the office because she had been on personal leave.
In early April 2020 Timothy received an agenda for a meeting of the company to be held at Nautilus Group’s office on 30 April 2020 the purpose being to remove him as a director of the respondent.
On 6 April 2020 Justin emailed Timothy advising him that he had exhausted his leave entitlements. Timothy replied by email that he disputed that and requested a reconciliation of his personal, annual and long service leave entitlements. On 9 April 2020 Timothy emailed Justin and Duncan requesting they provide him with the information he had asked for in the email of 6 April 2020. No response was received and no information was provided.
On 21 April 2020 Timothy attended the respondent’s factory to obtain bank records. He asked Duncan what his entitlements to sick leave, annual leave and long service leave were. Duncan told him to ask his lawyer to request that information and said “we do not accumulate leave entitlements.” Timothy said that was untrue as he had always accrued leave entitlements.
On 28 April 2020 Timothy attended Dr Freeman and was provided with a further medical certificate up to and including 31 May 2020.
On 30 April 2020 the respondent passed a resolution removing Timothy as director effective from 1 May 2020.
On 11 May 2020 Timothy received an email from Justin attaching a letter terminating his employment “because he had taken excessive leave and because his absence was not based on the Worker’s Compensation and Rehabilitation Act.”
Cross examination of the applicant
Timothy was asked questions about his salary package and said that his salary had been “verbally agreed between himself and the other directors.” He accepted there were “no written documents which set out the terms…” but an email existed sent to him by Duncan. He denied that in early 2019 there a discussion or agreement that he would be paid $130,000 plus super by way of salary. He denied there was an agreement he would be paid a QBCC licence allowance in the amount of $1243 a week and was unaware he was receiving any QBCC allowance. The only discussion that took place related to the financial circumstances of the business.
Regarding the email he received about his salary he said “I had to take a photo of it because Duncan or Renee deleted it out of my computer and then when I tried to rely on it Duncan said ‘what are you talking about? That doesn’t exist. There’s no such thing. I never sent that to you’ until I told him the date from my photo” confirming the existence of the document.” He denied that “if there was a stronger period of time that a higher salary would be provided”.
He was asked about the 2019 tax position for the Willis Group of companies and specifically about the “accounting profit and loss before reserves and distributions.” He said he had not seen any financial statements for the Willis Group and denied that he received $164,014 in salary. He agreed that he declared a total income for the 18/19 financial year of $193,478 and accepted that his salary was a combination of wages and dividends. He was shown a payslip issued by Willis Bros and said he never received any payslips other than one payslip which was “forwarded to me to give to the bank.” He agreed he had seen the payslip he provided to the bank but said he did not check it and only looked at the right-hand corner. He and Duncan had agreed that he would receive $2500 in the hand each week. The payslip was dated 19 December 2019. He accepted the figures on the payslip indicating an annual salary of $130,000 and a further amount for a QBCC licence. He did not accept that his salary as of December of 2019 was $130,000. He was asked whether for the period from 16 to 29 January 2020 his payroll advice indicated that he was in receipt of $130,000 by way of an annual salary. He did not accept that. He said he may have been paid a QBCC allowance in January of 2020 but that was without his knowledge. He said “after I found out – once they stopped paying it, that’s when I found out and found these payslips on the advice of my lawyer and I found the payslips and went back and had a look and realised there was a QBCC licence allowance on it and I never knew nothing about it. It was hidden from me.” He didn’t think he would be deceived in the manner he was by Duncan and Renee.
Counsel for the respondent suggested that in July 2019 Simon’s salary was $130,000. He did not think that was correct. He was shown a payslip for Simon and accepted the payslip stated $130,000 however he disagreed he or Simon were receiving that amount.
Timothy agreed that on 14 January 2020 he was involved in some discussions with both Duncan and Renee and spoke with Duncan about the email he sent requesting the surrender of the BMW. He had a conversation with Duncan that took about 15 or 20 minutes and then called his brother when Duncan wouldn’t answer him and told him “I can’t do this anymore.” He spoke with his brother for a couple of minutes and walked back into his office and was on the phone to Simon when Renee confronted him, yelling at him from behind his back. He was asked about the length of his phone call to Simon and denied he was not on the phone when Renee confronted him. He said Renee said “How dare you” and denied she asked “Timothy, can I talk to you for a moment.” Counsel for the respondent suggested that he “pointed his finger at her and started screaming words to the effect of, “Get out of my fucking face” and “You’re nothing but a cunt” He denied that.
Timothy agreed that Duncan previously confronted him about phone calls he made to Simon between July 2019 and December 2019 and accused him of speaking with his brother every day by phone. He told Duncan the reason for that and agreed he called Simon frequently as he had taken on his work. Prior to leaving Willis Bros Simon had looked after 50 per cent of the workload. There was no handover and he took on Simon’s workload. Duncan had nothing to do with production and as “he didn’t know where he was at with it so he called him in regards to ‘What’s going on with this job? What’s wrong with that job? What’s the story to do – do with this job?’” He agreed that some calls were personal. He agreed Simon had started at Dream Benchtops a business competitor and Duncan raised that as a concern.
Timothy agreed that on 15 January he received an email accusing him of behaving in a bullying and intimidating manner towards Renee. He denied that conduct.
He agreed that he used the Group Manufacturing line of credit to purchase an outdoor setting in or around 20 December 2019 but denied he did not have authority to do so. He could not recall if Duncan contacted him about that but then accepted he received an email from Duncan on 14 January 2020 which stated “Willis Brothers has lost a lot of money in the last 12 months, and you still want to put personal items on your drawings.” Counsel suggested that Duncan expressed concern about his conduct. He said “That email was hocus pocus. It was put together knowing what Duncan would do…because I had a conversation with Duncan the day before, and we – he never bought any of this up to me, and then all of sudden this email turned up, and I said, ‘We’ve worked together for 20 years. We would normally sit down and have a discussion. He didn’t reach out. He just sent an email.” He agreed he told Duncan to put the cost of the outdoor setting “on his drawings” and Duncan replied “this will not be happening” and he would need to let him know how it will be paid back and how it should be deducted from his wage in part or in full.
Timothy agreed that he made a number of allegations of bullying and harassment against Duncan and maintained those incidents occurred. Timothy denied that when he was on the phone Duncan would wait a while to see if the call was going to finish and stand at the door. He said “he stood so close to me…on another occasion, Duncan entered my office while I was completing scheduled paperwork. He stood so close to me that his legs touched my office chair.” Counsel suggested that the office lay out was such that it would not have occurred. He disagreed.
Regarding the request to surrender vehicles Timothy agreed that the vehicles and phone were company assets owned by Willis Bros Holding.
Regarding annual leave Counsel for the respondent suggested that there was a longstanding agreement between the directors that leave entitlements would be taken at the discretion of a director and as such there was no need for the respondent to keep track of leave accruals or records in the system. Timothy denied that. He agreed he did not submit an application for leave but said all leave was discussed face-to-face with Duncan and Simon. He agreed he had never checked whether his leave had been deducted from his accrual of leave in the system as he had no access to that system. He agreed that other employees of the Willis Bros that worked under his directorship applied for and had leave accrued in the system. Counsel for the respondent suggested that the reason Timothy made no formal application for leave or checked his leave balances was because he was a director of the company. He denied that and disputed that his leave was not recorded in the system. He said “I believe it was. Yes. Because I had a conversation with the pay clerk, and one of the guys asked how much leave he had and I went and checked, and asked, “How much would he have? He would have a fair bit, because he does a fair few hours.” And she gave me an indication of what he had there, so I could tell him. And she made a comment to me. She goes, ‘Well, you’ve got enough leave there to have a year off. Timothy agreed that he did not see the records in the system on that occasion.
Regarding the medical certificate that he provided to the respondent in January 2020, Timothy agreed that he had previously never provided a medical certificate to Willis Bros to indicate that he was sick from work. Counsel suggested that if he was sick from work he would just take the day off. He said he was very rarely sick, and even then he would go into work. If he was too ill to attend work he would inform work and then take the day off. Counsel asked if he was absent for more than two days or a longer period whether he provided a medical certificate. He said he was never away that long.
Regarding the diagnosis by Dr Deller in November 2018 of lymph node silicosis Timothy agreed that he made a claim with WorkCover. Counsel suggested that Dr Deller had reported that “there was no clear evidence of pulmonary parenchyma abnormalities.” He said
I don’t understand what that means, but I’m not sure. I just spoke to the specialist, and he said that, ‘You need to avoid silica at all extent.’ So I stopped going out to the workshop, and helping the guys onsite, for that reason. I don’t – I’m not sure about – what those words mean, but after speaking with the specialist, that’s what he said – that’s what he told me. And I had a conversation with Duncan after that, and told him, ‘I’m trying to not go out there’ for that reason, to avoid the silica.
He confirmed the he told Dr Deller that “between 2002 and 2006 he had been involved in shaping and installing equally and dry cutting techniques without a mask.” He agreed he told him that “over the last 11 years he spent most of his time in the office environment but on occasion he worked with shaping, shared mainly during busy periods, such as up to the lead up to Christmas.” He told Dr Deller during busy times he “got on the tools.” He said Dr Deller told him to stay away from the tools as much he could. Counsel suggested that Dr Deller had written in his first report “I do not think further investigations are required at this time, and I would agree with ongoing monitoring.” He agreed Dr Deller made no mention in his report recommending that Timothy avoid exposure to silica. Counsel suggested that in November 2018 when he told Duncan about his diagnosis and said he was not going off work he did not mention to Duncan that he was unable to be around silica dust. He said “Yes. I did. Yes. We had that conversation on more than one occasion.” He agreed that he didn’t provide Dr Deller’s report to Duncan at the time.
Timothy agreed that he had a further consultation with Dr Deller in November of 2019 who indicated that there had been no change in his capacity to work and his work was unrestricted. He maintained that Dr Deller told him “You need to stay away from the silica” and said to him “What do you want to do? Do you want to leave the industry” and he replied “Well, I can’t leave the business in turmoil. If you put down there that I have to leave the industry, what’s going to happen to the business?” He said after the involvement of Work Health and Safety wet cutting techniques were mandated, and the use of a respirator had become common practice in the factory.
In terms of his duties as a production manager when working for Willis Bros Timothy said he was expected to perform general factory tasks including forklift loading trucks, measuring, emptying bins, and giving workers a hand, from time to time and was required to have a presence on the factory floor. Counsel suggested that in performing these supervisory roles, as well as lending a hand he was not required to perform stone masonry work. He denied that and said Duncan would tell him that he needed to get back on the tools to finish jobs off due to a lack of resources and he put pressure on him to do that. Counsel suggested that Duncan never directed him to do stone masonry work and in doing that work it was his choice and he simply elected to do that. He said that was untrue.
Counsel suggested there was no medical reason or restriction on him working on the tools in 2019 as Dr Deller placed no restriction on him. She suggested that was consistent with an email dated 1 February 2021 from Dr Deller that “As you have enlarged lymph nodes only, returning to the industry is reasonable as long as there is a very high compliance with dust reduction avoidance, and use of respiratory protection.” He said Dr Deller didn’t have the air monitoring results from the shed which indicated there was silica in the air, even in the office, which was non-avoidable. He said “You can’t wear a mask and answer telephones.” He had discussed with Dr Deller in the consultation room that if silica had a role then he couldn’t work on the tools. Timothy accepted that he subsequently got an alternative medical opinion which verified that it was not safe for him to return to the industry.
He agreed that he found the news of his diagnosis quite overwhelming and stressful and since that time he has made a WorkCover claim in relation to psychological injury in relation to his silicosis diagnosis. He said “I did make a claim but withdrew it, because I started to seek my own health – looking after my own health, instead of going – so I withdrew it. But it wasn’t just to do with silicosis. It was with regards to Duncan bullying me.” He agreed he filed a WorkCover claim in relation to silicosis on 8 July 2021. He was asked whether he told Dr Freeman his G.P. that he had been under enormous stress at work and that he had been bullied by Duncan for months. He agreed. Counsel suggested that the medical certificate from Dr Freeman indicated that his incapacity commenced on 14 January 2020 and the cause of the workplace stress is unknown on his further two medical certificates. He said he explained to the doctor the cause of his illness but it was not written on the medical certificates.
Counsel suggested that the only discussion he had with Duncan about his alleged psychological condition due to Duncan’s conduct, was in an email to Duncan on 14 January 2020. He could not recall and agreed he withdrew his WorkCover claim about Duncan’s alleged conduct towards him because he was “embarrassed of it” He accepted he could have continued with that claim if he had wanted to.
He was asked about his new WorkCover claim dated 8 July 2021 (Exhibit R1) where it was written that he had sustained lymph node lungs respiratory symptoms and silicosis. The second injury alleged was a psychological injury including depression and anxiety. He agreed he had not indicated in the WorkCover claim that he had suffered a prior psychological injury due Duncan’s bullying conduct. He said he intends to rectify that.
He agreed that the medical certificate issued by his general practitioner, Dr Lynn Freeman related to a primary condition of silicosis and a secondary or related condition of anxiety and/mood disorder. He agreed the secondary condition related to the silicosis and was said to have commenced on 2 March 2020. Counsel suggested that he was absent from 14 January 2020 due to an anxiety or mood disorder created by his silicosis and not due to an alleged injury or psychological injury due to Duncan’s conduct towards him. He denied that.
He agreed that when silicosis “hit the stone benchtop industry it had a significant and very disruptive effect on the industry and significant impact on the Willis Group.” He accepted that changes in the production processes were implemented with a move towards wet puttying and the purchase of new equipment and a number of workers were directed to stop work. He agreed that a code of practice was implemented in relation to managing silica in the workplace. He was unsure whether that required the implementation and further monitoring of safe systems of work. He agreed that around this time there were a number of labour shortages as a result and many employees were unable to attend work.
He was asked about the financial structure of Group Manufacturing. He accepted that the company pays expenses in relation to the manufacturing and the installation work for the group of companies. He was aware for the year 2018/2019 financial year that Group Manufacturing experienced a loss and denied a figure of $780,000. He said the losses were due silicosis within the industry. He agreed there were redundancies but unaware how many. He agreed that assets such as company vehicle may need to be disposed of due to the financial pressure but disagreed that the removal of his car and fuel was a “cost cutting” measure.
He denied that he was advised about his QBCC allowance being stopped or being temporarily paused. He did not receive the email dated 21 February 2020 until 27 February 2020. The email stated “Due to your extended sick leave, you will be unable to meet the conditions of the company’s QBCC licence. For the duration of his absence he will be removed from the licence, and the payment of the QBCC licence allowance will be paused.” He agreed that as holder of the QBCC licence he was required to be able to supervise employees in the workplace. He accepted that the email indicated that once he returned to work the licence allowance would again be paid to him. In response he said “when Justin Willis was the QBCC licence holder, Justin was absent from the workplace for more than two years. So I don’t believe it has any effect.”
He agreed he had received money from Q Leave a scheme within the building industry that pays long service leave entitlements.
Regarding his leave entitlements Timothy said he took two weeks of holiday at the Christmas period when the factory closed and two weeks off for his honeymoon. He agreed he was involved in pig hunting and did that with his brother Luke as a recreational activity. He was required to go away from Brisbane to engage in that activity and had travelled to regional areas in Queensland and New South Wales. He denied he went for a week at a time but just went on weekends. He agreed he sometimes took time off work to do that activity and would coordinate that with work. He agreed he took a week off as a “one off” to go pig hunting, denied he was off work due to a bad back and denied he would simply take leave when he felt like it in response to a question about a text message exchange in October 2019 between the applicant and Duncan which read from Duncan at 9.06 a.m. “Are you coming in?” The remaining text was illegible. I accept the applicant’s evidence that he had accrued leave entitlements and was utilising those leave entitlements when he was dismissed from employment. Given the absence of any records I am unable to quantify his accrued leave with any precision suffice to say he had not exhausted his leave entitlements when he was dismissed. I find that the applicant suffered hurt, humiliation and distress as a result of Duncan’s conduct over the preceding months prior to 14 February 2020. I find that the applicant was discriminated against by Duncan because he had a physical disability and was treated less favourably than other employees. The medical certificate provided on 14 February 2020 indicated he was “suffering from workplace stress and will be unfit for duty up to and including 14 February 2020.” The certificate was extended to 30 May 2020 and covered the period during which the applicant was dismissed.
Counsel suggested that there was a disagreement between Timothy and Duncan, in relation to shareholder loans. He agreed and said Duncan alleged that shareholder loans were owing which he denied. He agreed that issue was the subject of other legal proceedings with Duncan seeking to enforce the loans against both himself and Simon. He confirmed that Duncan demanded that he wanted his shares back on 14 January 2020 when he entered his office.
He agreed that there were a series of emails that he sent from the company to his home, or to his wife’s email account and it was suggested he did not have authority to send those emails. He said he was a director at the time and sent them to his wife’s account so “Duncan and Renee wouldn’t delete them. Because that’s what they were doing. They were deleting my emails.” It was alleged that 34 emails were sent by the applicant to his wife’s email account and Duncan alleged this was a breach of confidentiality. The subject matter of the emails was not revealed in evidence.
Timothy denied that he had directed staff members to clean up dog poo.
He agreed that Duncan had told him that on his return to the company he was told the company intended to investigate him over the alleged incident with Mr Miltoni. Counsel suggested that Timothy had asked to speak to Miltoni at the Christmas party on 21 December 2019 and that during a discussion with Mr Miltoni Timothy said that Duncan was screwing with his brother and making his brother look like a “fucking idiot.” Counsel suggested that Timothy told Mr Miltoni he was not happy and that he wanted something to be done about Duncan and asked “do you know anyone that could fuck him up.” Timothy denied he made the alleged threat. He agreed he attended the Christmas party on 21 December 2019 and spoke to Mr Miltoni in a group setting. He denied any one on one conversation. He later lent Mr Miltoni money at his request.
He agreed that he obtained alternative employment on 26 August 2020 but did not apply for or seek employment anywhere other than with his brother. He started commencing discussions about employment at Dream Benchtops three or four weeks before he started on 26 August 2020. He denied he started before that date. He borrowed money from Simon to pay bills before commencing work with Dream Benchtops. He earned $2500 a week at Dream Benchtops and was working in the office assisting with scheduling jobs.
He was cross examined about signing an employment contract with Dream Benchtops Manufacturing in August of 2020 in response to the question “Do you have any disabilities, medical or physical conditions or pre-existing injuries that may affect your work ability?” he had answered “No.” The document indicated that his wage was $73.89 per hour for the job of production foreman reporting directly to the production manager. There was a second contract signed with Dream Benchtops Manufacturing where his wage was $52.63 an hour in the role of production foreman. He said he could not explain the reduction in the hourly rate given the offer was for the same position of “production foreman.” He said he needed work and was prepared to accept any offer. He had never applied for Centrelink benefits and needed money to support his children. He said he received gross pay of $2809 a week for the first contract and that he provided payslips for the period 27 August 2020 to 18 November 2020. (Exhibit R3)
Counsel asked whether Timothy had any involvement with C & C Saw Wet Polishing and Shaping. He agreed he did and performed some work on the tools on that job despite Dr Deller’s warning. He said he took the job for his family due to financial hardship.
He agreed that he had not lodged a tax return for the 2019/2020 financial year or the 20/21 financial year evidencing his wages between 11 May 2019 and 30 June 2020 nor for the period 1 July 2020 to 30 June 2021 however he had provided payslips.
He agreed after he went on leave on 14 January 2020, he had some initial discussion or email communication with Duncan and then had no contact until April 2020 nor did he have any contact with Renee or Justin in relation to his return to the workplace. He said “I think I sent an email to Justin and Duncan.” He said he received the letter regarding that after his employment was terminated from Willis Bros on 11 May 2020.
He ceased employment with Dream Benchtops on 25 May 2021.
I accept Timothy’s evidence and find that he was doing his best to provide a truthful and accurate account of what had occurred prior to his termination from employment. Until he was diagnosed with lymph node silicosis he had worked with Duncan in the stone bench top business for about 20 years. Neither he nor Duncan suggested there had been any animosity between them prior to November 2018. I accept that after Simon left in July 2019 Timothy made a request for assistance upon taking on Simon’s workload and no assistance was provided. I accept his evidence that he was bullied by Duncan and told to “get back on the tools” and finish jobs which involved being exposed to silica dust. I accept he received no notice that his QBCC allowance had been suspended or removed and he was not given advanced warning that his wages would cease. I accept he received no response to his inquiry about his wages and allowances and no response regarding his request for information including records of his leave entitlements. I accept his version of the incident on 14 January 2020 and that over a six month period he suffered significant workplace stress. I accept Timothy’s evidence that he had accrued leave entitlements prior to receiving notice that he had “exhausted his leave entitlements” on 6 April 2020 and was entitled to rely on that leave which was supported by medical evidence at least until 30 May 2020. I find that the applicant suffered distress, hurt and humiliation as a result of Duncan’s conduct towards him during the period following Simon’s termination in July 2019 until his employment was terminated.
Simon Ruttley
Simon gave evidence which largely corroborated the applicant’s evidence. In 2003 after Simon finished his apprenticeship Simon and Timothy discussed opening their own business. They agreed that Duncan found out about their intention to open their own business and encouraged them not to leave Willis Bros. Duncan offered each of them a 10% interest in Willis Bros which they accepted. When Justin left Willis Bros in 2008 Simon and Timothy acquired Justin’s shareholding interest in Willis Bros giving them 17% each.
He said in 2013 Duncan, Timothy and Simon agreed that they would all be paid the same annual salary by Willis Bros. The salary package comprised a weekly wage, allowances for a vehicle for personal and work use, a vehicle for their spouse and allowance for fuel, registration and telephone expenses. In 2013 it was agreed that Simon would receive an additional 13% interest in Willis Bros as he was assisting in managing the company giving Simon a 30% interest in Willis Bros with the applicant retaining a 17% interest. Duncan held the remaining interest and was the majority shareholder.
Simon was a director of Group Manufacturing Victoria from 25 October 2016 to 18 July 2019. Group Manufacturing held accounts for the entity’s creditors for the Willis Group and all financial accounts being moneys in and moneys out in relation to the manufacturing and installation work occurred through Group Manufacturing. He denied that Duncan was involved in the financial management of Willis Bros and said he was the one that paid the bills for Willis Bros or they were paid by the staff employed to manage the finances for the company. Counsel for the respondent suggested that “regarding the financial management of the company as Duncan was managing director of Group Manufacturing the buck stopped with him.” He agreed.
He accepted that his and Timothy’s salaries were verbally agreed between the directors and there were no written documents or contracts indicating what salary each of them would receive. He denied that from year to year those salaries were based on the financial performance of the business. He agreed that in July of 2019 he earned $130,000 but said “that’s not what we got paid. That’s not what we agreed to with part of our wage structure.” He said while working with Willis Bros he had a company vehicle that was owned Willis Bros Holdings. He disagreed that the vehicle was not part of his employment package however accepted there was no salary sacrifice arrangement and no arrangement for him to purchase the vehicle. He agreed the vehicle was a company asset.
Regarding leave entitlements he denied there was a longstanding agreement between the directors in terms of leave and denied that leave would be taken at the director’s discretion. He said “we would sit down with the three of us and let everyone know when we were going to go on leave.” He was unaware of any records being kept and said no one at Willis Bros applied for leave in writing. Leave would be written in the diary, “so that we knew when the guys were off. So if the guys were off on those days, it would be written at the top of the diary. For example, Barry worked in the shed, and there would be an entry ‘Barry off’ on each given day so that when the girls would organise pays and leave they would check the diary regarding who was off and who was on annual leave, who got paid sick pay.” He was responsible for organising workers to be paid and it was his job to know “who was on and who was off.” Counsel suggested that if he had that involvement he would have seen in the system whether leave was in fact accruing. He said he had no access to those files but only organised each persons’ pay and never sought to check how much leave he had accrued. Simon said he never took leave but was aware he was entitled to it. He worked six days a week every year throughout the year and said “We worked public holidays. So I didn’t need to check, because I already knew I had enough. Because I had been there for 20 years and never took leave other than Christmas Timothy, or applied for leave, which we would sit down and discuss to make sure that – you know, that the business could afford us not to be there.”
In June 2019 he was engaged in a conversation with both Duncan and Timothy regarding a dispute about a shareholders loan agreement now subject to separate legal proceedings. They were given a written shareholder’s agreement and told to sign it. He denied there had ever been any previous discussion or agreement regarding any shareholder’s loans. He and Timothy obtained legal advice about the shareholders agreement and told Duncan the changes they wanted to make and Duncan dismissed those changes and they did not sign the agreement.
He agreed they took time off during the Christmas shutdown period and were not required to be present at work during this period. Counsel suggested that the shaping work did not need to start in the business until after the shutdown, because installation work was delayed after coming back after the Christmas break. He disagreed and said
…every year at Christmas time, we worked right up until the end – until the last final day, which would be, like, 21/22 December, to make sure that we had – people had kitchens handed over. There was no work ready for the – the – for the coming year or our first day of January. So we always started back with a skeleton staff in the first week of January. So were up to date with cutting, installing, so – we had 100 and something staff in Queensland alone, and Melbourne and Sydney also. But we had 100 staff in Queensland alone, so if you have no kitchens ready to go, we’ve got 100 – 100 people, so you add up the value of that for that one day or two days or three days, is enormous. So we always come back with skeleton staff, so that all the people came back to work, to do work, not to start work. Otherwise, the business loses too much money.
After his employment was terminated on 19 July 2019 he was not physically present in the Willis Bros work environment. He agreed he had a phone call with Timothy on 14 January 2020 in the morning and overheard a conversation between Timothy and Renee and said Renee’s voice was raised.
When Timothy’s employment ceased with Willis Brothers in May of 2020 he loaned him money but was unable to recall the amount and said it had not been repaid.
Simon obtained work as the production manager at Dream Benchtops when he left Willis Bros. Dream Benchtops was not his company but agreed he was the QBCC licence holder. He denied he was secretary for the company. He was shown an ASIC record that indicated he was a former secretary and said he “never signed anything so he could not answer why the document recorded him as secretary." He denied he took a number of employees with him when he left Willis Bros. He was asked about his involvement in Dream Custodian Pty Ltd. He said this was a superannuation company and he was a director of the company from 1 July 2020. It was not related to Dream Benchtops at all.
He agreed he was involved with Timothy’s employment at Dream Benchtops and said Timothy started there in August 2020. He was shown Timothy’s contracts of employment with Dream Benchtops and said he did not produce those contracts.
Regarding his termination from Willis Bros he said he and Timothy met with Duncan in June 2019 to discuss the business and the employees who were unable to work because of their silicosis diagnoses. At that meeting, Duncan said he was concerned about both Simon and Timothy becoming symptomatic with silicosis and told them he was “at a cross- road the other week and I don’t know mate, I think now Luke’s gone, I think that fucking rattled me. You guys are sick. What are you’se going to do?... the ball’s in your court. I’ll tell you, I will be honest with you, what worries me is fucking you guys with silicosis. I’m the only one here without it. Everyone is pointing their fucking finger at me. Fucking poor Luke’s got it. You guys have got it.” Around this time Simon’s credit cards had been cut. Duncan told Simon he wanted to “buy him out” because he was not happy with the way the company was going. He said “…it’s nothing personal. If you are fucking sick and can’t be here, what do I do, mate? I’ve got the shits. I’ve got to get organised.” Simon’s employment was terminated on 19 July 2019. I found Simon to be a credible witness and accept his evidence.
Alanah Baluch
Alanah Baluch gave evidence that she worked for Willis Bros from April 2013 until October 2019 and now works for KBHI. She agreed she is in a relationship with Simon. She agreed that between 2014 and 2019 she was required to attend work in the first week of January of each year and to sign in and out of a time system when they had one. She returned to work in the first week in January each year. She was asked about various payslips she relied on to support that contention. Overall the cross examination of this witness regarding the fact that the pay slips she relied on did not cover the period she said she was working did not assist. I accept her evidence that she returned to work in the first week of January each year but did not necessarily work the entire week.
RESPONDENT’S EVIDENCE
Duncan Willis
Duncan gave evidence that he and his brother Justin established Willis Brothers Installations (Queensland) on the Gold Coast in 1997. The business manufactures and installs stone benchtops. Willis Bros is the entity which holds the QBCC licence. Duncan is the managing director of the Willis Group and has been since its inception. Renee Coleman commenced working for Willis Bros in 2011 and was appointed by Duncan as chief financial officer in around 2017. She is currently the general manager of the Willis Group. She and Duncan are in a relationship and have been so since about 2017. Justin left the Willis Bros in about 2010 to work elsewhere. From July 1997 Timothy was employed by other associated companies of Willis Bros in various positions and was a director of entities within the Willis Group until September 2018. He was a director of the respondent in the proceedings from 12 January 2016 until 30 April 2020.
Duncan said he found out about Timothy’s silicosis diagnosis when Timothy told him about it in November 2018. He agreed he was aware that Timothy was going to see Dr Deller to get the results from the silicosis screening test and on his return he asked him what happened and was told that he (Timothy) had silicosis. Duncan said Timothy was very vague about it however he agreed that he asked Timothy if he was going off work and he said he was not.
Counsel for the applicant asked Duncan about a statement in his affidavit that in June 2019 he was “not aware that Timothy or Simon had been formally diagnosed with silicosis.” When asked why he made that statement he said had not seen any doctors’ reports or anything from WorkCover. He agreed that he had a right as the employer to access any medical reports and agreed he did not do so. He agreed that Timothy told him he had silicosis in November 2018 and did not doubt that diagnosis. It is apparent from the conversation between Simon, Timothy and Duncan in June 2019 that Duncan confirmed was accurate that he was well aware both Simon and Timothy had been diagnosed with silicosis and was concerned that they may be unable to continue to work in the business. Duncan’s statement in his affidavit that he was “not aware” is patently false.
Counsel suggested that when Duncan found out that Timothy had silicosis he formed the belief that Timothy would become symptomatically sick and would not be able to continue to manage his part of Willis Bros. In response Duncan said “Well, that’s why we had insurance and he has income protection …” He agreed he was concerned that if Timothy’s illness progressed he might not be able to work the long hours he had done in the past and might not be able to be the QBCC nominee. He agreed that by the time Timothy had been diagnosed in November 2018 there had many other Willis Bros employees diagnosed with silicosis and a lot of them had gone off work throughout 2018. Those workers were instructed by WorkCover to leave the premises immediately and couldn’t continue to perform any stone masonry work. He agreed they went off work because continuing to perform stone masonry work exposed them to silica dust. He agreed when Timothy and Simon were diagnosed with silicosis that posed a liability for Willis Bros and they had several conversations about that. He claimed at that point he didn’t want to cut ties with either Simon or Timothy and denied he wanted to exit them from the business. He said changes needed to be made as the “silicosis issue” was a discussion across the whole group. He accepted that the conversation between Simon, Timothy and Duncan in June 2019 was accurately recorded and agreed he was “rattled” about their silicosis diagnoses and told them “The older you get, the both of yours – I don’t know, mate what do we do.” He agreed he thought their condition would get worse.
Duncan was asked what he meant when he said during the conversation in June 2019 he “wanted to buy Simon out.” He said that was a business decision. He agreed when Simon asked him if that was because he had silicosis he replied “I’m not going to lie to you; it is what it is. And you’ve been – you’ve got silicosis up your arse and you’re fucking worried and you’re scared.” He said he was scared for the whole group not just for the boys and was worried that Simon and Timothy may not be able to continue to work “because everybody else got told to march straight away.” He agreed that the business decision he needed to make was to cut ties with Simon and Timothy but then added “not Timothy at that point.” He denied that he decided that they would both cease to work in the business in June 2019.
Regarding whether he believed their silicosis diagnosis was likely to get worse he agreed. He accepted he told them in reference to his father’s emphysema “In my mind it’s all the same as my dad, like, it’s going to get worse”. Regarding his comment “I’m over it. I’m ready to go on my own, you know? I’m lined up. I’m ready to fucking go…I’m fucking done, mate, because you know what? My life won’t fucking change. It won’t; yours will.” He said he was “in a rage” when he made that comment. Counsel suggested that when this conversation occurred he had decided to cut ties with Timothy as well. He denied that and said “I hadn’t formally decided. No.” He said “Well, that’s where it was heading, but no, I hadn’t decided.” Duncan said he had not put anything to Timothy in writing “but they had many discussions.” Counsel suggested “so in your head at that time, you’re done, because Timothy’s life is going to change because he has got silicosis, correct?” He said “it wasn’t about silicosis it was about the money that they were taking out of the business… they had already lined up to go on their own and this was just a rage.” He agreed there was no evidence that they had anything lined up. He said Simon’s redundancy was a “different issue.” He agreed as far as Simon was concerned, part of cutting business ties with Simon included ending his employment. He did not recall whether he ended Simon’s employment at the same time he had the conversation with Timothy.
The reverse onus aims to assist employees overcome the difficult task of proving what is in the mind of the person alleged to have taken adverse action.[2] Further evidence that the decision maker acted for a non - prohibited reason may be rendered unreliable by the quality of their own evidence.[3]
[2] Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at 449
[3] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
Consideration
The adverse action about which the applicant seeks relief in these proceedings includes:
(a)Treating the applicant less favourably than other employees of the respondent due to his physical and mental disability despite the applicant’s diagnosis not inherently preventing him from performing his duties as an employee of the respondent there being no medical concerns to substantiate the respondent’s concerns about the applicant’s alleged incapacity;
(b)Unilaterally reducing the applicant’s wage, cancelling the applicant’s fuel card, re - directing the applicant’s mobile phone all of which formed part of the applicant’s salary package;
(c)Failing to pay the applicant his wage whilst on personal leave from 26 March 2020;
(d)Failing to pay the applicant’s accrued leave entitlements on termination of employment; and
(e)Terminating his employment by letter dated 11 May 2020, which (notwithstanding the applicant’s medical certificate stating he was suffering from workplace stress) the reason given for termination was “the excessive period of leave and your absence is not based on Workers Compensation and Rehabilitation Act 2003 as it is not a work-related incident.”
Who was the decision maker for the respondent?
I am satisfied that Duncan Willis as majority shareholder of Willis Bros and director of six of the companies that comprised the Willis Group, Willis Bros also being part of the Willis Group was the controlling mind of the respondent. He requested Justin Willis return to work for Willis Bros and prepared a company resolution as majority shareholder appointing Justin a director of Willis Bros on 16 December 2019 in circumstances where Timothy (who remained a director) refused to provide his consent. I am satisfied that Duncan made all the decisions for Willis Bros including recalling the vehicles, mobile phone and fuel card, reducing his wages, ceasing to pay Timothy any entitlements from March 2020 and terminating his employment on 11 May 2020. Each of those decisions impacted adversely on Timothy. I am satisfied that Renee had full knowledge of those decisions and acted under Duncan’s authority. I find that Justin who had recently returned to work with Willis Bros after a 10 year absence acted with Duncan’s authority in terminating Timothy’s employment contrary to his assertion that he alone made that decision.
Events leading to termination
The events leading to termination are discussed at length above and may be summarised as follows:
(a)On 20 November 2018 Timothy was diagnosed with lymph node silicosis. Duncan formed a view that he would not be able to continue as production and installation manager for Willis Bros due to his physical disability. Persons diagnosed with silicosis were unable to complete stone masonry work and were not to be exposed to silica dust. Simon who was also diagnosed with silicosis had his employment terminated in July 2019. He had refused to transfer his interest in Willis Bros to Duncan.
(b)In January 2019 Timothy made a workers compensation claim and WorkCover accepted the claim for compensation in relation to his silicosis diagnosis.
(c)In September 2019 Duncan attempted to obtain the QBCC nominee supervisor licence which was rejected. He became increasingly aggressive and intimidating towards Timothy but at that stage needed Timothy to continue to operate the production and installation side of the business.
(d)Sometime in November 2019 Duncan requested Justin return to work for Willis Bros. He had the requisite stone masonry qualifications and he obtained a QBCC nominee supervisor licence. At that point Timothy was no longer needed to continue to operate the production and installation side of the business. Justin was appointed a director of Willis Bros on 16 December 2019.
(e)In December 2019 Duncan made an offer to buy out Timothy’s interest in Willis Bros which was not accepted. Duncan acted on his intention to terminate Timothy’s employment on the basis that he remained a liability to the business because he was diagnosed with silicosis.
(f)On 14 January 2020 Duncan recalled Timothy’s two vehicles, diverted his phone and cancelled his fuel card leaving Timothy, his wife and children without a vehicle.
(g)Timothy forwarded the respondent a medical certificate which stated he was suffering from workplace stress from 14 January 2020 to 14 February 2020 and would be unfit for work.
(h)On 13 February 2020 Timothy forwarded the respondent a medical certificate which stated he was suffering from a medical condition between 13 February 2020 and 28 April 2020 and would be unfit for work.
(i)Whilst Timothy was on personal (sick) leave on 21 February 2020 Duncan ceased paying Timothy his QBCC allowance reducing the amount Timothy received in wages.
(j)On 16 March 2020 Duncan ceased paying Timothy his wages (or personal leave entitlements) notwithstanding Timothy had provided a medical certificate indicating he was unfit to work until 20 May 2020.
(k)On 6 and 9 April and 21 April 2020 Duncan ignored Timothy’s request when he made an inquiry about his personal and annual leave entitlements.
(l)On 6 April 2020 Duncan moved a resolution to remove Timothy as director of Willis Bros.
(m)On 28 April 2020 Timothy forwarded the respondent a medical certificate which stated he was suffering from a medical condition between 28 April 2020 and 30 May 2020 and would be unfit for work.
(n)On 30 April 2020 Timothy was removed as a director of Willis Bros.
(o)On 11 May 2020 Duncan terminated Timothy’s employment on the basis that he had exhausted his leave entitlements.
Was Timothy dismissed for a prohibited reason
The respondent’s reason for terminating the applicant’s employment is set out in the letter dated 11 May 2020 which states
“Due to the excessive period of leave and your absence is not based on Worker’s Compensation and Rehabilitation Act 2003 as it is not a work related incident we will unfortunately have to terminate your employment with Willis Bros Installations (Qld) Pty Ltd. We terminate under the FW Regulations 2009 3.01 which states if an employee’s total length of absence due to illness or injury is more than 3 consecutive months or a total of more than 3 months over a twelve month period and no paid entitlements it is fair and reasonable to terminate their employment. We regret your injury or illness we need to make arrangements to operate the business in your absence….”
Section 352 of the FW Act 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 FW Regulations (3.01)
The regulations prescribe as follows:
Temporary absence--illness or injury
REG 3.01 (1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Note: The Act defines medical certificate in section 12.
(3) A prescribed kind of illness or injury exists if the employ
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer's leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee's absence extends for more than 3 months
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation.
To satisfy this ground it is essential that the absence be one that is prescribed by the Regulations. All absences must be a lawful use of the employee’s relevant leave entitlements, absences must provide the required notice and the employee provide the relevant medical certificates for those absences. Timothy provided relevant medical certificates. He claimed and I accept that he had accrued leave entitlements over the twenty plus years of his employment with Willis Bros and was entitled to use that leave. No leave records were kept by the respondent and no investigation of Timothy’s leave entitlements occurred to ascertain what leave entitlements he had accrued. Further Timothy’s requests for a reconciliation of his leave entitlements prior to his termination were ignored. I draw the inference that no evidence was or could have been adduced to contradict the applicant’s claim that he had accrued personal and annual leave entitlements and was entitled to and did use those leave entitlements during his period of absence. I find that the applicant was on personal (sick) leave supported by medical evidence up to and including 11 May 2020 when his employment was terminated. I find that the applicant had accrued leave entitlements over the 20 years he was employed by Willis Bros for at least 12 months. I am unable to be more precise. I reject the reason stated for Timothy’s termination in the letter dated 11 May 2020 as contended for by the respondent and find that was not the real reason his employment was terminated.
In Ingersole v Castle Hill Country Club Limited [2014] FCCA 450 (11 March 2014) Judge Barnes discussed the approach to claims of adverse action at [127] - [129] and said as follows:
[127] Section 340 is in Part 3.1 of the Act. It proscribes taking action against a person “because” that person has or had a workplace right or for one of the other specified reasons associated with the exercise or proposed exercise of a workplace right by that person. An object of this Part of the Act is to protect workplace rights and to provide “effective” relief to those adversely affected by reason of holding or exercising such rights (see s.336). The Applicant must establish objectively that she had the asserted workplace right and that adverse action was taken against her (see Wolfe v Australia and New Zealand Banking Group Limited[2013] FMCA 65 at [72]). It is then presumed, unless the Respondent proves otherwise, that the alleged adverse action was taken for the asserted prohibited reason (see ss.360 and 361).
[128] The requirement that the applicant establish matters objectively means that she must first:
...prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason...It is not sufficient for [the Applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the Applicant] is able to prove these allegations, the burden is then cast on to [the Respondent] to prove that adverse action was not taken against [the Applicant] because of her workplace right for the purposes of s340 and s361 of the Act: Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (2010) 186 FCR 22; [2010] FCA 399 at [10] per Collier J).
[129] While the contraventions alleged are civil contraventions, the proceedings are penal in nature (see Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuit Ltd (2010) 188 FCR 221; (2010) 198 IR 143; [2010] FCA 770). As Logan J pointed out in Arnotts at [13], subject to the operation of ss.360 and 361, the Applicant carries the burden of proving the alleged contraventions on the balance of probabilities with due regard being given to the matters in s.140(2) of the Evidence Act 1995 (Cth).
219. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 which was confirmed by the majority in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41; 253 CLR 243 (BHP Coal) at [7] (French CJ and Kiefel J), [85] (Gageler J) the Court held that a proscribed reason for the adverse action must be a “substantial or operative factor” influencing the adverse action or alternatively the “operative or immediate” reason for acting in order for a contravention of the FW Act to be made out.
Adverse action
Subsection 351 (1) of the FW Act provides that an employer must not take adverse action against a person because of the person’s “physical or mental disability.” I am satisfied that the respondent took adverse action against the applicant in terminating his employment for a prohibited reason because of his “physical or mental disability.” In Hodkinson v The Commonwealth [2011] FMCA 171 at [140] – [141] the Court discussed the meaning of “disability” under section 351 of the FW Act as follows:
[140] Although s.351 is headed “Discrimination” this heading is not to be taken as part of the Act: s.13(3), Acts Interpretation Act 1901. The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s.351(1), such as a person’s disability, that a contravention is proved. The criteria found in s.351(1) rely in no way on the Disability Discrimination Act.
[141] Further, s.351 does not employ the word “discrimination” other than as a term by which to identify other Acts which provide exceptions to the operation of s.351(1). The absence of that word from the list of prohibited reasons for adverse action found in s.351(1) means that there is no grammatical link between that sub-section and ss.5 and 6 of the Disability Discrimination Act. There is, therefore, no term in s. 351(1) whose proper construction may be understood by reference to what is contained in ss.5 and 6 of the Disability Discrimination Act.
His Honour in Hodkinson (supra) observed at [143] that “conduct which contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the FWA.” Having analysed the meaning of “disability” His Honour said at [146]:
[146] Where it is used in s.351(1), I conclude that the word “disability” should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act. Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them.
The Court in Hodkinson (supra) observed that allegations that adverse action has been taken because of a person’s disability should be clearly particularised. At [147] the Court said:
[147] In proceedings under the Disability Discrimination Act, it has been held that the precise identification of the alleged disability is critical to an allegation of disability discrimination: Qantas Airways Ltd v Gama[2008] FCAFC 69; (2008) 167 FCR 537 at 567 [89] per French and Jacobson JJ; Stevenson v Murdoch Community Services Inc[2010] FCA 648 at [87]. The same requirement should apply to allegations under the FWA that adverse action has been taken because of an employee’s disability.
The applicant’s disability was a physical disability in the form of lymph node silicosis diagnosed and confirmed by Dr Deller in his report, accepted by WorkCover and not disputed by the respondent. I rely on my reasons set out above. Once Duncan became aware that Timothy had been diagnosed with silicosis he formed a view that he would be unable to continue to work for Willis Bros as production and installation manager. He formed an intention to exit or remove Timothy from the business and acted upon that intention between September 2019 and 11 May 2020. No evidence was adduced that the applicant was unable to perform the inherent requirements of the position of production and installation manager for Willis Bros. I find that the respondent contravened subsection 351 (1) of the FW Act.
I am satisfied that pursuant to subsection 340 (1) of the FW Act the applicant had a workplace right and was entitled to the benefit of a workplace law, was able to initiate or participate in a process of proceedings under a workplace law and was able to make a complaint or inquiry in relation to his employment. I am satisfied that the respondent contravened section 340 of the FW Act and took adverse action against the applicant in terminating his employment because the applicant exercised the following workplace rights:
(a)The applicant exercised his workplace right by making a worker’s compensation claim under the Worker’s Compensation and Rehabilitation Act 2003 (Cth) for an injury sustained in the course of his employment which was accepted by WorkCover. I am satisfied that the respondent took adverse action against the applicant following the lodgement of that claim and acceptance by WorkCover in January 2019 by injuring him in his employment by removing his work vehicle, mobile phone and fuel card, suspending his QBCC allowance and failing to pay his entitlements from 16 March 2020 whilst he was on personal leave. In Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473 Cameron J at [133] discussed the relevant authorities on this issue which I respectfully adopt. He said at [133]:
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 17-18 it was held that the phrase “injure an employee in his or her employment” covers injury of any compensable kind and that “alter the position of an employee to the employee’s prejudice” is a broad additional category which covers not only legal injury but also any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. In Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCR 482 Kenny J said at 499 [54] that before a provision such as item 1 of s.342(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them, that the deterioration has been caused by those acts and that the acts were intentional in the sense that the employer intended the deterioration to occur.
(b)The applicant was entitled to the benefit of a workplace law namely the right to make a complaint or inquiry about the failure to pay his leave entitlements under Part 2 – 2 of the FW Act. In late November 2019 the applicant requested information regarding his accrued leave entitlements from Lisa Wilson. On 3 April 2020 the applicant made an inquiry regarding non - payment of his accrued leave entitlements. On 6 April 2020 the applicant made an inquiry requesting details of his accrued leave entitlements. On 9 April 2020 the applicant made an inquiry requesting details of his accrued leave entitlements and on 21 April 2020 the applicant requested the respondent provide details of his leave entitlements. At no time was the applicant provided with any information in relation to his inquiry. I am satisfied that a reason the respondent took adverse action against the applicant was because he exercised a workplace right in making those inquiries. I find that the respondent contravened section 340 (1) of the FW Act.
Compensation
Pursuant to sections 545(1) of the FW Act the Court may make any order the court considers appropriate if the court is satisfied that a person has contravened a civil remedy provision. Subsection 545 (2) (b) provides that the Court may make an order awarding compensation for loss that a person has suffered because of the contravention.
Section 545 of the FW Act provides the Court with a broad discretion. In Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392 the Court said:
[441] The question arises, however, whether the Court may order compensation, that is to say the payment of a pecuniary sum on account of hurt and humiliation found to be a direct consequence of contravention of s 340 and s 346 of the FW Act. There is no direct authority under the FW Act concerning this question. However, approaching the question as a matter of first principle, it is plain that s 545(1) is intended to provide the Court with a very broad power to make appropriate orders where contravention is established. In this s 545(2) provides confirmation that certain types of orders – for example, an order awarding compensation for the loss a person has suffered because of a contravention – may be made. But s 545(2), in this regard, expressly states that it has effect “without limiting subs (1)”.
[442] As a matter of principle it is difficult to see why a compensatory financial order cannot be made in respect of hurt and humiliation (or “shock, distress and humiliation” as s 329(4) of the FW Act describes this head of loss) shown to be a direct consequence of a contravention. At common law, courts have been reluctant to provide damages for a breach of a contract which results in hurt and humiliation, unless the parties to the contract can be taken to have contemplated such damages for breach: Baltic Shipping Co v Dillon[1993] HCA 4; (1992) 176 CLR 344 (Baltic Shipping), for example at 365, Mason CJ. There are special reasons usually cited by courts as to why this common law position in respect of breach of contract should obtain. For example, in Baltic Shipping, at 369, Brennan J suggested that if a promisor in a usual commercial setting were exposed to such an indefinite liability in the event of breach of conduct, the making of commercial contracts would be inhibited.
[443] However, the power of the Court under s 545(1) and (2) to make appropriate orders following contravention including an order for compensation is quite divorced from this type of contractual consideration. As a matter of broad public policy, the Parliament of Australia has provided that the Court may give appropriate relief where contravention is proved. Relief in these circumstances helps to uphold the policy indicated in the FW Act that, amongst other things, contraventions of the freedom of association provisions should not occur and that appropriate orders should be made to remedy the contravention of such provisions. There is, therefore, in my view, no obvious policy consideration that militates against the making of a compensation order under s 545(1) or a compensation order under s 545(2), for the sorts of reasons that have inhibited the award of damages at common law for a breach of contract which is attended by shock, distress or humiliation.
[444] Indeed, there are other indications in the FW Act itself that suggest that s 545(1) and (2) should properly be construed to this effect. For example, s 392(4) of the FW Act expressly provides that compensation should not include compensation for shock, distress or humiliation in respect of a proceeding for unlawful dismissal. That provision does not apply in this case, but is in clear contrast to s 545 which contains no such limitation.
In Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 at [73] per Gilmour J observed:
[73] Both under the FW Act and the WR Act, the making of a compensation order is confined by the express purposes of such orders: compensation for loss suffered because of the contravention” (FW Act, s 545(2)(b)) and “compensation for damage suffered as a result of the contravention” (WR Act, s 807(1)(b)). In both cases, the statutory precondition to a compensation order is that there has been loss or damage suffered because, or as a result of, the contravention. There must be “an appropriate causal connection between the contravention and the loss claimed”: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [423].
Assessment
The applicant seeks compensation as per the amended claim as follows:
(a)Lost opportunity to continue with employment;
(b)Past economic loss for the period 11 May 2020 to 25 August 2020 the total loss being a total of $56,710;
(c)Past economic loss from 26 August 2020 to 5 May 2021 being the difference between the salary he earned at Dream Benchtops of $2500 per week and his previous salary of $3743 per week (36 weeks) being a total of $44,748;
(d)Past economic loss in the form of unpaid accrued leave entitlements owing to him on termination comprising:
(i)Unpaid personal leave between 26 March 2020 and 11 May 2020 for 7 weeks being a total of $26,201; and
(ii)Unpaid annual leave between 20 July 1997 and 11 May 2020 a period of 22 years, 9 months and 21 days less leave taken being a total of $170,900.88
(iii)Unpaid long service leave in the amount of $64,018.
(e)Future economic loss being one year out of the workforce in the sum of $194,636.
(f)The applicant suffered distress, hurt and humiliation and claims damages in the sum of $50,000.
Determination
Having regard to the evidence and my reasons discussed above I am satisfied that the applicant is entitled to be compensated for past economic loss as follows:
(a) For unpaid personal leave between 26 March 2020 and 11 May 2020 for 7 weeks in the amount of $26,201.
(b) For unpaid accrued personal and annual leave in the amount of $14,972;
(c) For loss of income for the period 11 May 2020 to 25 August 2020 in the amount of $56,710;
(d) For loss of income from 26 August 2020 to 5 May 2021 being the difference between the salary he earned at Dream Benchtops of $2500 per week and his previous salary of $3743 per week (36 weeks) in the amount of $44,748.
Total loss: $142,631
As set out in my reasons I am satisfied that the applicant suffered distress, hurt and humiliation and I award damages in the sum of $20,000.
The respondent is required to pay to the applicant total compensation in the amount of $162,631 within 28 days. I will hear the parties with respect to any pecuniary penalty to be imposed with respect to the contraventions by the respondent.
I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 9 June 2022
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