Saville v TPG Holdings Pty Limited
[2018] FCCA 3684
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAVILLE v TPG HOLDINGS PTY LIMITED | [2018] FCCA 3684 |
| Catchwords: INDUSTRIAL LAW – Substantive application alleging breaches of the Fair Work Act 2009 (Cth) and the Telecommunications Services Award 2010 – whether the employer took adverse action against the employee as the employee alleged that they were dismissed for making a complaint and seeking to initiate a dispute resolution procedure – whether the employer discriminated against the employee because of the employee’s age – whether the employer breached the contract of employment – application dismissed. |
| Legislation: Fair Work Act 2009, ss.45, 340, 341, 342, 351, 361 Telecommunications Services Award 2010, cl.8 |
| Cases cited: Re Bryant. Ex parte Guarino [2001] HCA 5; 75 ALJR 478; 178 ALR 57 |
| Applicant: | NEIL SAVILLE |
| Respondent: | TPG HOLDINGS PTY LIMITED |
| File Number: | SYG 1160 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 July 2017 |
| Date of Last Submission: | 12 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr A K Flecknoe-Brown |
| Solicitor for the Respondent: | Mr T. Moffatt |
ORDERS
The application made on 27 April 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1160 of 2015
| NEIL SAVILLE |
Applicant
And
| TPG HOLDINGS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to the Fair Work Act 2009 (Cth) (“the Act”) on 27 April 2015. Mr Saville (the applicant) filed a “Form 2” with his application on 27 April 2015, and a Statement of Claim (“SOC”) on 15 June 2015. Amongst other matters, he alleges that his employment with TPG Holdings Pty Limited (“TPG”) (the respondent) was terminated in breach of s.340 and s.351 of the Act. He also broadly alleges that the termination was in breach of his contract of employment and the Telecommunications Services Award 2010 (“the Award”).
Evidence before the Court
The evidence before the Court filed by Mr Saville is as follows:
a)The affidavit of Mr Saville made on 12 January 2017.
b)The first affidavit of Mr Saville made on 11 May 2017 (including the exhibit “M5-2015 02 16”).
c)The second affidavit of Mr Saville made on 11 May 2017 (including the exhibits, “YD-2010 08 11”, “YD-2011 02 11”, “SS-2017 02 24” and “TPG-2017-05 04).
d)The third affidavit of Mr Saville made on 11 May 2017 (including the exhibits, “MS-2017 05 10”, “LK-2017 05 08”, “LK-1” and “LK-2”).
e)The fourth affidavit of Mr Saville made on 11 May 2017 (including the exhibits, “TM-2015 03 03”, “LK-2015-05 08”, “LK-2015 05 10” and “TT-2010 07 23”).
f)The fifth affidavit of Mr Saville made on 11 May 2017 (including the exhibits, “TT-2010 07 30”, “TM-2017 05 02” and “OC-2017 05 08”).
g)The affidavit of Mr Saville made on 16 June 2017 (including the exhibits, “TT-2010 06 02”, “YD-2010 07 20”, “YD-2010 08 11”, “TT-2010 07 30”, “YD-2010 08 12”, “ASK HR – 2011 02 08, “JW – 2-11 03 30”, “TM-2015 03 03”, “MS – 2015 03 26”, “FED – 2016 10 05”, “HD – 2016 10 17”, “SS 2017 02 16”, “SS – 2017 02 24”, “2017 02 18 – iiNet”, “SS 2017 02 20”, “iiNet – 2017 05 22” and “FWC”).
h)The affidavit of Owen Catt, made on 8 May 2017. This was annexed to Mr Saville’s fifth affidavit of 11 May 2017 as “OC-2017 05 08”. TPG did not object to the affidavit being presented in this form.
Before the Court, Mr Saville, as an unrepresented applicant, explained that he did not understand the difference between an affidavit and written submissions. He stated that he “believed” the three affidavits, made by him, and filed on 19 June 2017, were his “written submissions”. These three affidavits were therefore treated as written submissions for the purposes of these proceedings.
The following documents were tendered by Mr Saville as exhibits:
a)A copy of Mr Saville’s academic transcript (“AE1”).
b)A copy of an email dated 10 August 2010 (“AE2”).
c)A copy of an email dated 23 July 2010 (“AE3”).
Mr Saville also attempted to tender into evidence, a backpack, which he said was, in 2010, holding his “tools” and was subsequently “broken into” and “vandalised”. The backpack was tendered into evidence (there was no objection by the respondents). I advised Mr Saville that the backpack would be marked as an exhibit and stored at the Court’s Registry until the finalisation of the proceeding. However, Mr Saville ultimately decided that he did not wish to tender the backpack.
The evidence before the Court filed on behalf of TPG is as follows:
a)The affidavit of David Hanly, Operations Manager, made on 13 March 2017, including annexures. Paragraphs [7] and [8] were admitted on a limited basis (that they are to be read only as evidence that a meeting involving Mr Hanly and Mr Saville took place on 17 September 2014).
b)The affidavit of Lisa Kokkila, Human Resources Manager, made on 13 March 2017, including annexures.
c)The affidavit of Marija Seput, Human Resources and Payroll Manager, made on 14 March 2017. Paragraph 10 was admitted on the basis that it was evidence of Ms Seput’s state of mind as at that time. [I note that by the time Ms Seput was cross-examined she had adopted a married name. It was convenient however to continue to refer to her as “Ms Seput”].
Mr Saville indicated that he “disagreed” with a number of the paragraphs in each of the affidavits filed on behalf of TPG. He did not make objections which could be said to relate to questions of the admission of the evidence. I explained to him that if he “disagreed” with any of the witnesses evidence, he could put that to them in cross examination.
The following witnesses gave evidence before the Court:
a)Mr Saville
b)Mr Catt
c)Mr Hanly
d)Ms Seput
e)Ms Kokkila.
Before the Court
It is necessary to set out the following matters.
One, I note the conduct of Mr Saville at the final hearing of this matter. He appeared at the final hearing in person. TPG was represented by counsel.
It is not unusual that litigants appear in this Court without any legal representation. In this circumstance, it is reasonable to accept that some applicants have difficulties in understanding Court procedures, and what is appropriate in the proper conduct of litigants during a hearing. Of course, the Court will endeavour to make allowances to ensure that all parties have an appropriate and fair opportunity to present their respective cases, while at the same time, ensuring the efficiency of the proceedings.
However, what was not a “common” feature in this case was, that unlike the overwhelming majority of other unrepresented applicants, Mr Saville was not amenable to, or appeared to be incapable of understanding, or accepting, the Court’s “assistance”, or explanations, of relevant practices and procedures.
It must therefore be said, that despite the “leeway” provided to Mr Saville in giving him ample opportunity to present his case, his failure to understand, or even to attempt to understand, basic concepts, and other conduct by him, caused the proceedings to be significantly protracted, and indeed occasioned unfairness to TPG’s witnesses.
The final hearing of this matter was set down for two days. It ultimately occurred over a period of four days, with written submissions provided by the parties after the conclusion of the hearing.
Considerable time was spent by the Court in explaining basic legal concepts and procedures to Mr Saville. For example, the difference between SOCs, affidavits and written submissions. On many occasions, I explained to Mr Saville the purpose of a SOC, being a document setting out the basis for any claims made by an applicant, compared to the purpose of an affidavit, being to provide evidence to support any claim, and submissions, being the arguments as to why the Court should find in a party’s favour.
Despite this explanation, which was given, as noted above, many times, numerous exchanges to the following effect occurred (Transcript of hearing (“T”) at pp.166-168):
“HIS HONOUR: Okay. So is it the case that your question is not a question that arises from or relates to the statement of claim? Is that the situation?
MR SAVILLE: No, I believe it is a question that relates to a statement of claim that I’ve put in earlier. But it is different, because it’s at a later date, to what you’ve deemed the statement of claim, as in the 15th of - - -
HIS HONOUR: No, sir. Sir, I’m not deeming anything. You have filed the document headed Statement of Claim. It’s your document.
MR SAVILLE: Yes.
HIS HONOUR: I’m not deeming it.
MR SAVILLE: Okay.
HIS HONOUR: That’s what you’ve called it.
MR SAVILLE: Okay. Can I ask, is my affidavit of fact not a statement of – considered a statement of claim?
HIS HONOUR: Your affidavit is potential evidence.
…
MR SAVILLE: It’s on my statement of claim from June 2017, which I’m - - -
HIS HONOUR: Yes. That’s an affidavit, sir.
MR SAVILLE: Okay. I believe that’s a statement of claim, sir.
HIS HONOUR: Well, where is it? Which document are you referring to?
MR SAVILLE: What I’ve written down, signed off on and has been entered into the Court as…standard of law.
HIS HONOUR: Yes. So which document - - -
MR SAVILLE: That was the - - -
HIS HONOUR: Which document are you referring to?
MR SAVILLE: I think that was my latest affidavit, sir. I just need to…
HIS HONOUR: Of 10 June 2017: one of the - - -
MR SAVILLE: That may be the one. I think that sounds familiar.
HIS HONOUR: One of those three, is it?
MR SAVILLE: Yes. Yes.
HIS HONOUR: Yes. Well, that’s not a statement of claim. That’s an affidavit.
MR SAVILLE: Okay. Well, I believe that – I – in my understanding, that’s a statement of claim: in my understanding….”
Mr Saville ultimately did not accept the Court’s explanation of the various documents used in proceedings of this type. He also objected to TPG’s reliance on its written submissions filed on 27 June 2017. These were filed pursuant to orders made by the Court on 2 November 2016.
Mr Saville did not file any written submissions pursuant to the Court’s orders of 2 November 2016, and despite his request for the Court to treat his three affidavits filed on 19 June 2017 as written submissions, he pressed his objection to TPG relying on their own written submissions. TPG suggested that its written submissions be put “to one side”, and that the Court make further orders for the filing of written submissions by both parties after the conclusion of the hearing. However, Mr Saville objected to this course, stating “I reserve my right to make written submissions at any time I see fit” (T 66).
Ultimately, the Court determined that it would not have regard to TPG’s written submissions filed on 27 June 2017. On 1 February 2018, orders were made that Mr Saville file, and serve, final written submissions on or before 1 March 2018, and TPG file and serve final written submissions or before 15 March 2018. Mr Saville filed written submissions on 1 March 2018 (“Mr Saville’s written submissions”) and TPG filed written submissions on 12 March 2018 (“TPG’s written submissions”).
Two, of note also are Mr Saville’s difficulties in understanding the concept that questions asked of a witness during cross examination must be relevant to an issue in the proceedings. Due to the number of “objectionable” questions put to the witnesses in cross examination, and to allow for the questioning to continue without considerable delay, counsel for TPG made a “global” and “prospective” objection to questions that could be deemed “unfair”, of which there were many.
Considerable allowance was given to Mr Saville in his questioning to ensure that he had ample opportunity to present his case. This unfortunately, led to the witnesses being questioned for significant lengths of time, and often were asked the same questions repeatedly. For example, the cross examination of Ms Seput went for approximately 6 hours. TPG’s description in its written submissions of 12 March 2018 (at [15]) was a fair and reasonable description of Mr Saville’s approach to cross examination:
“Each of the Respondent’s witnesses was cross-examined at considerable length, in a manner which was persistently repetitive, confusing, argumentative, irrelevant and unfair. The Respondent ultimately objected prospectively and globally to such questions, but, in order to enable the hearing to conclude and to ensure the Applicant had a full opportunity to present his case, the questioning was allowed to proceed. If this questioning produced evidence which was lacking in clarity (which was generally not an issue), it is submitted that this should not reflect adversely on the witnesses’ credit. The nature and manner of the questioning and the course taken in these respects should, it is submitted, be made clear in the Court’s reasoning, in order to assist in any appellate review.”
Three, considerable time was also taken by Mr Saville in his attempt to transcribe much of what was said during the hearing by hand. Mr Saville complained that he was unable to record the proceedings with his mobile phone. He referred to what he said was the decision in “Glik v Cunniffe” to assert his “right to record in a public space”. I understood that this judgment is not within the Australian jurisdiction, and Mr Saville did not have such a “right” in this Court.
However, I recognised the expense of purchasing a transcript from an official provider, and the benefit to the parties of being able to review a transcript of the hearing. In that light, I offered to make an order which would make a copy of the transcript available to the parties. However, Mr Saville rejected that proposal, stating (at T 298):
“I don’t believe the transcript satisfies Corinthians 13.1, in the eyes of two or three witnesses shall every word be spoken”.
I note the final paragraph of Mr Saville’s written submissions of 1 March 2018:
“This matter will now be a matter of public record as a matter of public health and as a matter of public interest due to a number of facts including but not limited to the fact the Court has a business arrangement with what has been described as a transcript provider to which the Court shall profit from the injuries the Respondent has bludgeoned the Applicant with to which the Applicant deem these threatening acts as a matter of public interest and as a matter of public safety for the people in the Applicant's community who may have and who may not have nominated the Applicant to represent them in parliament for The Australian Peoples Party.”
Four, the difficulties faced by unrepresented applicants before this Court are well known, and accepted, given the large number of persons who seek to press their application without legal assistance. However, this case presented with “additional” features, unreasonably of Mr Saville’s own making. The following two examples speak for themselves.
Mr Saville asserted, on the third day of the final hearing what he described as his right to a “trial by jury”. He stated (at T 409):
“Sorry, if you can take into consideration, sir, I’m – I believe I have inalienable rights to trial by jury as guaranteed by the constitutional enactment of the Magna Carta 1215, the Petition of Rights 1627, Habeas Corpus Act 1640, the Bill of Rights 1689, which are listed in the second schedule part 1 of the New South Wales Imperial Acts Application Act 1969 No 30 as having come into force on New South Wales 25 July 1928 by virtue of the Imperial Act 9 King George IV, Chapter 83. The Imperial Act Applications Act and the Bill of Rights are first substantiated confirmed and validated by the High Court of Australia ruling in Port of Portland Proprietary Limited v State of Victoria (2010) HCA 44 where all seven judges confirmed the Act’s validity.
Now, sir, I would like – I don’t believe that this Court – no disrespect, but I do not believe that this Court conforms to chapter 3 of the Commonwealth of Australia Constitution Act 1900 United Kingdom to which it has no jurisdiction and is deemed an unlawful Court and it cannot lawfully proceed. Any and all rulings made by – within this Court is deemed null and void as I have requested to be heard in a Court of competent jurisdiction pursuant to the Court – to the High Court of Australia rule in Forge v ASIC where it was determined that all Courts in Australia must conform to the Commonwealth of Australia Constitution, in specifically in chapter 3 which states that no less than two sitting judges shall be provided.”
Section 11(1) of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“11 Exercise of jurisdiction by single Judge
(1) For the purposes of the exercise of the jurisdiction of the Federal Circuit Court of Australia, the Federal Circuit Court of Australia is to be constituted by a single Judge.
(2) The Federal Circuit Court of Australia constituted by a Judge may sit and exercise the jurisdiction of the Federal Circuit Court of Australia even if the Federal Circuit Court of Australia constituted by another Judge is at the same time sitting and exercising the jurisdiction of the Federal Circuit Court of Australia.”
This is consistent with s.79 of the Australian Constitution 1900. As was said by Hayne J in Re Bryant. Ex parte Guarino [2001] HCA 5 at [8]: “…The constitutional reach of s.79 extends to the Federal Magistrates [as the judges of this Court were then known] appointed to serve in the Court created by the Parliament by the Act” [now the Federal Circuit Court of Australia Act].
As to the reference to “trial by jury”, it obviously escaped Mr Saville’s attention that this was a civil (and not a criminal) procedure which he himself instituted, and does not involve a jury. In the alternative this may have been part of Mr Saville’s erroneous belief (expressed elsewhere and variously in his submissions) that TPG (and others) were on “trial” in relation to the “theft” of his tools. (See further below at [32]).
Further, I note that at the point Mr Saville was called to give his oral evidence, he enquired as to whether he could “bring” his own bible. When asked what version of the bible he had brought, he replied, “King George V”.
Five, it became abundantly clear during the course of the hearing, and from the “objections” filed and made by Mr Saville that he had a fundamental misunderstanding of the nature these proceeding.
On the third day of the hearing, Mr Saville sought, and was refused, an adjournment. He appeared to seek the adjournment on the basis that he wanted to obtain some legal representation. He asserted that he had a “right” to legal representation in the proceeding. Mr Saville was advised that such a “right” existed in relation to criminal matters, not civil matters such as the current proceeding. Mr Saville responded, “I believe it is a criminal matter, sir. The theft of my property is a criminal matter.”
I also note the continued grievance Mr Saville has expressed with the Court’s Registry, both before, and after, the final hearing. On the final day of the hearing, orders were made giving the parties the opportunity to file further written submissions. Mr Saville expressed concern over his ability to file his written submissions. He claimed to have been “blacklisted” by the Court’s Registry’s IT services, and “blocked” from the Court’s Registry’s electronic lodging application. He also claimed to have been “abused” and “bludgeon[ed]” by staff at the Court’s Registry when attending there in person, and that he was therefore “not confident” attending at the Registry in the future. Mr Saville claimed to have referred this to the “New South Wales Sherriff” for investigation. I therefore directed that the Registrars of the Court use their “best endeavours” to facilitate the filing of Mr Saville’s written submissions. In any event, the written submissions were successfully filed by Mr Saville.
Background
Mr Saville was employed by TPG Internet Pty Ltd from 12 April 2011. On 6 May 2013 his employment was “transferred” to TPG (Ms Seput’s affidavit at [2] and annexure MS-1). Prior to this, he had been employed by a company known as AAPT Limited (“AAPT”). Mr Saville resigned from his position at AAPT in July 2010 (see Mr Saville’s second affidavit of 11 May 2017 at annexure “YD-20110211”).
On 28 February 2014, TPG Telecom Limited acquired the AAPT Limited group of companies, which became part of the TPG group (see Ms Seput’s affidavit at [3] and Mr Hanly’s affidavit at [5]).
Mr Saville’s “grievance” arises from events he claimed occurred in June 2010, while he was employed by AAPT. Mr Saville’s account of what occurred is at [7] of his affidavit of 12 January 2017.
Mr Saville sought to raise this “grievance” in 2014 with TPG. He sent an email to Ms Seput on 13 August 2014 in the following terms (see Ms Seput’s affidavit at annexure MS-4):
“…My tools have gone missing while working for AAPT at 55 Clarence st. I have reported the theft of my tools to my supervisor’s manager Tony Testa. After reporting the theft of my tools I purchased a new toolbag with a lock on it so my tools could be secured when left unattended at AAPT premises. After returning to work I found that my new toolbag had been broken into and vandalised and more of my tools had been stole. I have requested the AAPT grievance procedure to address this unwanted and unrequested behaviour. AAPT have not allowed me to complete the grievance procedure I was entitled to. Please provide me a copy of this grievance procedure mentioned. The behaviour of AAPT management has caused me loss and injury. I am still sickened by this unwanted, unrequested and unlawful behaviour AAPT have subjected me to. My doctor has warned me against pursing this matter as it has proved to be detrimental to my health. I have discussed this matter with Ryan and have been advised to seek your assistance. Please reply in kind to me at this email address within 7 days from the date of this letter and advise how you recommend this matter be best addressed.”
Mr Saville’s position at TPG was said to have been made redundant on 6 February 2015 (see Mr Hanly’s affidavit at [15] and annexure DH-6).
Mr Saville now claims that the termination of his employment was “adverse Action” (presumably within the meaning of that term in the Act). He claims that in raising his grievance regarding his tools and his “toolbox” with TGP, he was exercising a workplace right to make a complaint, and that the termination of his employment occurred because he made that complaint.
Relevant Law
The relevant law is as follows:
Section 340 of the Act:
“340 Protection
(1) A person must not take adverse Action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse Action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
Section 341 of the Act:
“341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.”
Section 342 of the Act:
“342 Meaning of adverse Action
...adverse Action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer...”
Section 351 of the Act:
“Discrimination
(1) An employer must not take adverse Action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to Action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the Action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the Action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
(aa) the Age Discrimination Act 2004 ;
(ab) the Disability Discrimination Act 1992 ;
(ac) the Racial Discrimination Act 1975 ;
(ad) the Sex Discrimination Act 1984 ;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.”
Consideration: Matters of Note
In light of what is set out above it is important to note the following.
One, on a comparative basis, of all of the documents filed by Mr Saville in these proceedings (however they are described, submissions, affidavits or otherwise), the only seemingly coherent expression, albeit at an impressionistic level, of a recognisable cause of action arising under the Act, is to be found in Mr Saville’s SOC.
Two, much of Mr Saville’s submissions were incomprehensible and certainly lacked any demonstrable relevance to any issue which could be said to arise from the SOC.
For example, the following from Mr Saville’s written submissions of 1 March 2018 (at [2]):
“The Applicant understand that he is not surety for the Court. The Applicant acknowledges Judge Nicholls in his position and duty as Trustee in the matter”.
(See also oral “submissions” or statements as referred to elsewhere in this judgment).
Three, Mr Saville appeared to approach the presentation of his case as an opportunity to make baseless allegations against various witnesses that, in any event, had no relevance to any matter arising from the SOC, and/or under the Act.
For example, in Mr Saville’s written submissions of 1 March 2018 (at [9]), he states:
“The Applicant submits that the alleged conduct of the Accused, as established on the evidence before the Court, is capable of constituting an Act done with the intention to pervert the course of justice.
CRIMES ACT 1900- SECT 319 GENERAL OFFENCE OF PERVERTING THE COURSE OF JUSTICE
A person who does any Act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.”
It appears that the subject of this “submission” was Ms Kokkila (and possibly Ms Seput) who gave evidence in these proceedings ([7]-[8] of Mr Saville’s written submissions of 1 March 2018):
“[7] Because Lisa Kokkila former AAPT Human Resources Manager has been presented by the Respondent to defend the Respondent's 2010 breach of contract by advising ‘I was not employed at that time’ or words to that effect and because Lisa Kokkila former AAPT Human Resources Manager has acted in wilful ignorance and wilful blindness to the NOTICE OF YOUR LAWFUL OBLIGATIONS to which the Respondent(s) have neglected in disrespect of the Court it is now incumbent upon the Court to understand what has caused the Respondent to ignore the Applicant's previous good work history with AAPT working in a team led by Jim McKeown and the surrounding circumstances known to the employer when AAPT Human Resources Manager Lisa Kokkila has rearranged and has advertised the position of TPG Field Operations Engineer the Applicant was promoted to due to his merit, technical ability and success in his different roles with the Respondent prior to when Lisa Kokkila in 2014 was advised of the name Saville and the word grievance. On first impression it appears that after the Applicant in August 2014 has contacted his Human Resources Manager Marija Seput that Marija Seput has then gone ahead and advised Lisa Kokkila of the name Saville and the word grievance. If there is any other way that Lisa Kokkila in August, September or October 2014 may have been advised of the name Saville and the word grievance the Respondent has neglected to prove otherwise.
[8] On first impression the behaviour of the Respondent's Human Resources Management teams hiding the Applicant's approved Industrial Mechanism grievance procedure appears to have been an act designed to pervert the course of Justice as described in the CRIMES ACT 1900 - SECT 319 - General offence of perverting the course of justice.”
The question of whether Mr Saville’s employment with TPG was terminated because he made a complaint, or complaints, or whether his employment ceased as a result of the reorganisation of TPG’s operations and subsequent redundancy of Mr Saville’s position, sits at the heart of what the Court is required to consider, and as that arises from the SOC.
Baseless (on the evidence), serious, and irrelevant (to a fact in issue), allegations, including those made against Ms Kokkila, do not assist Mr Saville’s case. Nor do his “beliefs” (even if genuinely but perversely held) further his case before the Court. Mr Saville’s “beliefs” masquerading as assertions of fact have no place in the proper conduct of his case under the Act.
Four, as set out above, TPG made submissions on the manner in which its witnesses were cross-examined. I accept TPG’s submission that any lack of clarity arising from the evidence of those witnesses does not reflect adversely on their credit.
Rather, any lack of clarity arose squarely from the often incomprehensible and irrelevant questions and the, it must be said, rambling manner of questioning by Mr Saville.
Five, in his written submissions of 1 March 2018 (at [17]) Mr Saville asserts that:
“The Applicant has not been permitted to complete his cross examination of his Human Resources Manager Marija Seput to which the Applicant has objected to and to which the Applicant understands may be seen as procedural unfairness. The Applicant understand that he should be allowed to run his case as he sees fit. The Court has not allowed the Applicant to run his case as the Applicant sees fit. The Applicant reserves all his rights with respect to the employment contracts with his employers.”
Ms Seput was subjected to over six hours of “cross examination” (in this context, the term is used loosely) by Mr Saville. Mr Saville was not denied a fair opportunity to cross-examine Ms Seput, or for that matter, any other witness.
As set out elsewhere in this judgment, Mr Saville, as an unrepresented applicant, was given certain “leeway” by the Court. However, it must be said, and I use the term advisedly, he “abused” the latitude given to him by the Court. At times, the “cross examination” could only be described as haranguing, harassment and, on occasions, if not bullying them, bordering on bullying. Mr Saville either ignored, or disregarded the Court’s attempts to assist him to focus his questions relevant to a fact in issue, or to modify his style of questioning and behaviour.
Mr Saville may assert a “right” to run his case as he sees fit. That does not mean he can “bully” witnesses and waste time, particularly with unfair and irrelevant questions to put to the witnesses. For example, he put to Ms Kokkila that she “molested” him. Ms Kokkila, understandably, replied that she was “offended” by that statement. [It appears Mr Saville either did not understand, or chose to ignore, the unsavoury connotation implied by the use of that word.]
Consideration: The 2010 Incident
It is abundantly clear that Mr Saville’s sense of profound grievance arises from, and concerns, a certain event in, or about, June 2010, while he was employed by AAPT. At that time, AAPT and TPG had no corporate relationship.
On the evidence before the Court, Mr Saville resigned his employment with AAPT in 2010. In 2011, he took up employment with TPG Internet Pty Ltd, an entity within TPG’s corporate group. On 6 May 2013, he commenced employment with TPG. In 2014, AAPT became a part of TPG’s corporate group.
Mr Saville’s account, as variously put before the Court, about the incident in June 2010 is as follows. Certain items of his property (at best, his “tools”) were stolen at the workplace. A Mr Andrew Petrakis, who was also an employee of AAPT, “advised that Mr Jim McKeown was [as at] 1 June 2010) in the same location…where the Applicant’s property was stolen…” ([1] of Mr Saville’s written submissions of 1 March 2018).
Mr Saville’s affidavit of 12 January 2017 sets out his account of the events of that incident (“the 2010 incident”). In short, he left his tools on the floor of the equipment room where he was working to go to the bathroom. When he returned, the tools were “missing”. Mr Petrakis then told him of Mr McKeown’s presence at that location, and that Mr McKeown had asked to use the tools. Mr Petrakis reportedly told Mr McKeown “to bugger off”. Mr McKeon did not return his call when Mr Saville tried to contact him. At some point subsequent to that, Mr Saville’s bag, or backpack in which he kept his tools, was damaged (it appears the zip was broken).
Mr Saville reported this incident to a Mr Testa. It is not clear what position, if any, Mr Testa occupied with AAPT at that time. [Though, I note exhibit “AE3” is a document that appears to have been signed by “Tony Testa Manager Field Operations NSW/ACT”, presumably of AAPT].
By 2014, Mr Saville was employed by TPG (as set out above), he became aware that Mr McKeown was also employed by TPG (following its acquisition of AAPT).
It is not clear what steps Mr Saville took as at June 2010 in terms of the alleged theft of his property. At best, it appears he raised the matter with Mr Testa. It is not entirely clear, on the evidence, whether he made a complaint to the police (at or near June 2010) or made any formal complaint about this incident to his then employer (AAPT).
In any event, even on Mr Saville’s own evidence, there is insufficient to say that the “tools” were “stolen” by Mr McKeown. At its highest, this is supposition on Mr Saville’s part. Even on Mr Saville’s evidence as to what Mr Petrakis told him, [at best], that Mr McKeown was in the vicinity when the tools “disappeared”. There is no satisfactory evidence as to how the zip on the bag came to be “broken”.
For current purposes however, that does not matter. Mr Saville resigned his employment with AAPT in 2010. At that time, and at the time of “the 2010 incident”, AAPT was an unrelated entity to TPG.
I pause here to note that before the Court, Mr Saville made a number of complaints to the effect that TPG should have brought Mr Petrakis to Court so that the “truth” of the 2010 incident could be revealed, or it appeared, to defend itself, and some of its employees (beyond those who appeared as witnesses) from Mr Saville’s “charges” of a conspiracy to “cover up” the theft of his tools and the damage to his bag.
These complaints were another example of Mr Saville’s misunderstanding of the nature and scope of these proceedings. In any event, there was no satisfactory explanation from Mr Saville as to why he could not have arranged to locate Mr Petrakis and ask him to provide evidence as he did with Mr Catt, or even to have compelled his attendance by subpoena.
Consideration: Understanding Mr Saville’s Case
In any event, it is at this point that the SOC provides the best understanding of the basis of Mr Saville’s case at law. In particular, to “translate” Mr Saville’s evidence, and his assertions, and even suppositions, into possibly a coherent legal argument capable of some recognisable reference to the Act.
The view of Mr Saville’s case, at best, that emerges from the SOC is as follows. During his employment with TPG, Mr Saville, in 2014, (about four years after the claimed 2010 incident) sought to raise the matter of the 2010 incident at AAPT, with his new employer, TPG. That is, his grievance over what he says was the theft of his “tools” by Mr McKeown (and the subsequent damage to his backpack). Further, that TPG did not respond, or did not adequately respond, to address this grievance.
The SOC asserts (at [7]) that Mr Saville notified TPG in August 2014 that he had developed a “disability” due to the 2010 incident, and that this “disability” was attributable to Mr McKeown, who was also now employed by TPG.
The actual contraventions of the Act as contended for in the SOC are as follows.
One, Mr Saville claims that he exercised a “workplace right” by notifying TPG that he had developed a disability, with reference to the events of June 2010, when employed by AAPT, because of the conduct of Mr McKeown, and “expressed concern” that his disability would be made worse if required to work with Mr McKeown. The disability was said to be an “anxiety disorder” (SOC at [7]).
Two, Mr Saville exercised a “workplace right” to “initiate and participate in a process under a workplace instrument, namely the Dispute Resolution procedure, under the Telecommunication Services Award 2010” (“the Award”) (SOC at [23]).
Three, in dismissing Mr Saville from his employment, TPG took adverse action against Mr Saville, because Mr Saville “exercised his workplace right” to complain and to seek to initiate a dispute resolution procedure (SOC at [24]).
Four, TPG discriminated against Mr Saville because of his age (SOC at [25]).
Five, TPG breached the contract of employment (SOC at [26]).
Six, TPG breached s.45 of the Act because TPG breached cl.8 of the Award (SOC at [27]).
Consideration
What can immediately be said is the following.
One, Mr Saville has variously made references to having a disability, and to “disability discrimination”. The difficulty for Mr Saville is that he has provided no explanation of substance, based on evidence, as to exactly what this “disability” was.
Suggestions from him in oral statements before the Court, and in written submissions, that he suffered from anxiety (said to be because of the incident of 2010), is not sufficient to establish, satisfactorily, that he suffered from an illness or any such disability. Importantly, it cannot be said, on the evidence that he has presented, that a factual basis, that is, a causal connection, existed between the suggestion of a disability and the termination of his employment, or the alleged breach of contract.
I pause here to note, again, that Mr Saville appeared unwilling to listen to the Court’s attempts to explain to him the difference between allegations, assertions, submissions, supposition, and evidence.
Two, as set out above, the SOC makes references to breaches of the Award and the contract of employment. Again, there are suggestions of this in Mr Saville’s written submissions. To the extent that breaches of the Award may have been a part of the allegations concerning termination of employment (and on the issue of redundancy) these are incorporated in the consideration below.
The particular difficulty here is that again no evidence was proffered to support these allegations. Indeed, and further, as TPG correctly submitted, the allegations concerning these matters lack specificity such as to be able to discern any particular contention requiring the Court’s consideration.
Three, to avoid doubt, it is important to note the following. Section 361 of the Act provides that for the purposes of Part 3 of the Act, the reason for the taking of any action, as in this case by TPG, is to be presumed to be for the reason alleged, as in this case by Mr Saville, unless TPG can prove otherwise. However, that does not mean that the person making the allegation (or in this case even the “suggestions” made by Mr Saville), is relieved of the need to establish the factual basis for the employer’s action (Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 321 ALR 305 and Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273).
Mr Saville has not addressed, let alone met, this requirement in relation to the assertions of disability discrimination, and breaches of contract, and of the Award.
As set out above, the overwhelming focus of Mr Saville’s grievance, as he demonstrated before the Court, was the matter of the alleged theft of his tools in June 2010, the related damage to his backpack, and the alleged connection [in Mr Saville’s mind] to the termination of his employment with TPG in 2015.
Mr Saville’s attempts to argue that this Court, in these proceedings, should make findings of “guilt”, in the criminal sense (see the many references to the “Crimes Act” variously spread throughout Mr Saville’s affidavits and written submissions), against certain persons, cannot be sustained for obvious reasons. This matter concerns the Act, not any state or federal “Crimes Act”. Mr Saville’s expectation that this Court could enable the return of his tools, or even “investigate” the circumstances of the alleged theft, and provide restitution or compensation for the damage to his backpack, cannot be met.
What Mr Saville has overlooked, or perhaps did not understand, is that the action he has initiated is an action under the Act against his former employer, TPG. This, of necessity, relevantly narrows the focus of these proceedings to what TPG has done, or not done.
Mr Saville’s assertion that the reason for the termination of his employment by TPG was for reason that he made a complaint about the June 2010 incident is a matter for consideration by this Court.
The “dispute” between the parties therefore, can be seen as being Mr Saville’s contention on the one hand, which must be taken to be the presumed reason for the termination of his employment (subject to some factual basis), unless TPG can prove otherwise.
In this context, TPG argues that the sole reason for the termination of Mr Saville’s employment was the redundancy of Mr Saville’s position with TPG, and not for the reason that Mr Saville made any complaint, or sought to initiate, or access, any complaint resolution process.
The circumstances involving the June 2010 incident are set out above. Mr Saville spent some time and effort before the Court in seeking to press his version of the events of June 2010.
However, as TPG correctly submitted, with reference to the Act (and indeed with reference to Mr Saville’s SOC), the claimed events of June 2010 are immaterial to the issues in these proceedings. That is, whether the events of June 2010, are as raised by Mr Saville by way of his assertions, or whether they were otherwise, is not relevant to the question of whether TPG contravened s.340 or s.351 of the Act, given the term of Mr Saville’s employment with TPG.
The relevant question in the context of termination of employment is whether Mr Saville made a complaint to TPG, and whether that complaint can be said to be the reason for the termination of his employment, or whether the termination was solely because of the redundancy of Mr Saville’s position within TPG.
In this light, the following factual matrix is of relevance to the disposition of the application before the Court.
As noted above, Mr Saville was employed by TPG Internet Pty Ltd on 12 April 2011. The contract of employment between Mr Saville and TPG was entered into on 6 May 2013, (after his employment was transferred from TPG Internet Pty Ltd) (see Ms Seput’s affidavit at [2] and annexure “MS-1”).
TPG later acquired AAPT (with whom Mr Saville had been formally employed and from whom he resigned in 2010).
On Mr Saville’s own account of relevant events, one of his concerns was that the person whom he believed was central to the 2010 incident (Mr Jim McKeown) had, as a result of the acquisition, become an employee of TPG, which caused Mr Saville distress, given the claimed psychological impact on him of the events of June 2010.
By way of background, the factual scenario to Mr Saville’s claimed attempt to complain to TPG about the 2010 incident is as follows (drawing also on TPG’s written (of 12 March 2018) submissions on the matter of the redundancy of Mr Saville’s position at TPG).
One, at the time prior to the acquisition of AAPT by TPG, both TPG and AAPT had their own field teams operations (Ms Seput’s affidavit at [5]).
Two, prior to the acquisition of AAPT, TPG’s operations team reported to Mr David Hanly (who gave evidence in these proceedings). He had a number of employees working under his authority. One of these, Mr Ryan Laurent, the “Data Centre Facilitator”, reported directly to Mr Hanly.
Three, in turn, Mr Laurent and had two employees reporting to him. These were Mr Saville and Mr Owen Catt, who also gave evidence in these proceedings [for Mr Saville]. At the relevant times, Mr Saville was responsible for cabling and making connections in data centres (Mr Hanly’s affidavit at [3]). Although initially not entirely clear, Mr Hanly in his evidence ultimately accepted that Mr Saville’s title, was the “Field Operations Engineer”. Mr Saville appears to accept that this is the closest description (see [73] of his written submissions of 1 March 2018).
Four, as set out above, prior to the acquisition in February 2014 by TPG, AAPT also had its own field operations team, and further, a large number of data centres for which it maintained operational responsibility (Ms Seput’s affidavit at [4] – [5]).
Five, on the evidence before the Court, which was not the subject of any satisfactory evidentiary challenge by Mr Saville, after the acquisition, the two operational units maintained a separate existence. On the evidence, AAPT, while a part of the TPG Group after the acquisition, remained a separate operational entity with national responsibility (Mr Hanly’s affidavit at [6] and Ms Seput’s affidavit at [6]).
Six, it is important to note, particularly given some of the assertions made variously by Mr Saville, and the assumptions he has drawn in these proceedings, that the operations unit in TPG reported to Mr Hanly, and the AAPT operations unit reported, separately, to Mr Gordon Holland (Ms Seput’s affidavit at [6]). Mr Hanly, on his evidence which was not satisfactorily challenged, did not have managerial responsibility for the AAPT unit (Mr Hanly’s affidavit at [5]).
Seven, on the evidence, after February 2014 some process of “consolidation” occurred throughout the TPG group (which from that date included the former AAPT) (Mr Hanly’s affidavit at [6]). From February 2014 to February 2015 (Mr Saville’s employment was terminated by notice given on 6 February 2015), Mr Hanly and Mr Holland continued to manage their teams separately and apart (Mr Hanly’s affidavit at [6]). No evidence was proffered by Mr Saville to challenge Mr Hanly’s evidence in this regard.
Eight, in its written submissions, TPG emphasised that while TPG had its own data centres before the acquisition they were far lesser in number than those of AAPT. This continued after the acquisition in terms of the focus of the respective managers (that is, Mr Hanly and Mr Holland) (and see Mr Hanly’s affidavit at [6]).
Mr Saville gave evidence that he raised the 2010 incident with various people. For current purposes, the following is relevant.
One, Mr Saville raised this issue with Mr Laurent. On Mr Saville’s evidence, this occurred in “early August 2014” (SOC at [7]). While the SOC makes reference to “oral discussions” and email communications with Mr Laurent, no copies of any emails between Mr Saville and Mr Laurent were annexed to any of his affidavits or submissions. His email to Ms Seput refers to “discussions with Ryan”.
Mr Hanly’s evidence does support Mr Saville’s evidence that he raised the 2010 incident with Mr Laurent sometime in, or before, September 2014. Mr Hanly’s evidence is that Mr Laurent told him that “Mr Saville had been talking to him [Mr Laurent] about the issue”. In context, this was the “alleged theft and vandalism that he said was done by AAPT staff” (Mr Hanly’s affidavit at [9]). Mr Laurent did not give evidence in these proceedings.
Two, Mr Saville raised this issue with Mr Hanly. Mr Saville’s evidence is that he did so orally and by email. Again none of the emails filed as annexures to Mr Saville’s affidavit, record any such event.
However Mr Hanly’s evidence is that Mr Saville did raise the 2010 incident with him, orally, at a meeting on 17 September 2014 (Mr Hanly’s affidavit at [9]).
Mr Hanly’s evidence, given orally before the Court, was that Mr Saville had raised this “issue” with both Mr Laurent and him, but that he did not know of the identities of the others said to be involved in the incident (presumably Mr McKeown and Mr Petrakis), until after the commencement of these proceedings. That is, after the termination of Mr Saville’s employment.
I note that this evidence is sufficient to find that Mr Saville did raise the 2010 incident sometime in August/September 2014, with his supervisor, Mr Laurent, and Mr Laurent’s supervisor, Mr Hanly. That is, the 2010 incident can be taken to have been raised with TPG around that time.
However, on the evidence set out above, what was raised was the 2010 incident in general terms, absent any detail.
Mr Hanly’s evidence was also that he was not in a position to do anything about the 2010 incident as it had occurred in 2010 “with a different employer”. In any event, his evidence was that he “understood” Mr Saville was dealing with (“working through”) this issue with the human resources team (“HR”) (Mr Hanly’s affidavit at [9]).
Three, details of the 2010 incident appear to have been given to Ms Seput prior to the meeting on 17 September 2014, referred to above. In his SOC (at [7]), Mr Saville states that he raised the 2010 incident with Ms Seput both orally and in emails. Ms Seput’s evidence confirms this.
The relevant email exchanges between Mr Saville and Ms Seput are in evidence before the Court as annexures to Ms Seput’s affidavit (see at annexure “MS-4”, pages 20 – 61). Ms Seput was, at the relevant times, employed in the human resources unit of TPG, as a “Human Resources and Payroll Manager” (Ms Seput’s affidavit at [1]).
On 13 August 2014, Mr Saville sent the following email to Ms Seput (Ms Seput’s affidavit at annexure “MS-4”, p.21) [Noting, again, that the claimed theft of tools and damage to property, on Mr Saville’s claim, occurred in June 2010 while he was employed with AAPT]:
“Hi Maria
My tools have gone missing while working for AAPT at 55 Clarence Street.
I have reported the theft of my tools to my supervisor’s manager Tony Testa.
After reporting the theft of my tools I purchased a new toolbag with a lock on it so my tools could be secured when left unattended at AAPT premises.
After returning to work I found that my new toolbag had been broken into and vandalised and more of my tools had been stolen.
I have requested the AAPT grievance procedure to address this unwanted and unrequested behaviour.
AAPT have not allowed me to complete the grievance procedure I was entitled to. Please provide me a copy of this grievance procedure mentioned.
The behaviour of AAPT management has caused me loss and injury. I am still sickened by this unwanted, unrequested and unlawful behaviour AAPT have subjected me to.
My doctor has warned me against pursuing this matter as it has proved to be detrimental to my health.
I have discussed this matter with Ryan and have been advised to seek your assistance.
Please reply in kind to me at this email address within 7 days from the date of this letter and advise how you recommend this matter to be best addressed…’”
What can be said therefore, for current purposes, is that, at least by 13 August 2014, Mr Saville raised a complaint with TPG.
On receipt of this complaint, Ms Seput requested “details” of the 2010 incident (Ms Seput’s affidavit at annexure “MS-4”, page 22):
“In the mean time, can you send me a list of the tools that went missing, their estimated value and roughly when you believe the theft would have occurred. Date/s and time/s…”
It is to be remembered that at this time (August 2014), AAPT had been acquired by TPG. Ms Seput’s request for details appears reasonable given that in his email containing his complaint regarding the 2010 incident, Mr Saville provided no details as to the occurrence of the incident.
Subsequently, on 18 August 2014, Ms Seput advised Mr Saville that she was unable to investigate the 2010 incident as Mr Saville was not an employee of TPG at the time of the incident (see Ms Seput’s affidavit at annexure “MS-4”, p.34).
For the purpose of s.341(1)(c) of the Act, Mr Saville may have had a “workplace right” to make a complaint, or inquiry.
However, as is clear in the language of s.341 of the Act, that complaint, or inquiry, is to be made by an employee: “in relation to his or her employment”.
Mr Saville was certainly an employee of TPG as from 6 May 2013 (after his employment was transferred from TPG Internet Pty Ltd). He was not an employee of TPG in June 2010. To the extent therefore that Mr Saville sought to make a complaint about the 2010 incident (involving Mr McKeown and AAPT) to his subsequent employer, TPG, then the exercise of any such a “right” he may have had in respect of AAPT, does not apply to his employment with TPG. This is in circumstances where he resigned from AAPT (in July 2010) and was separately, and independently, later recruited by TPG.
The lack of continuity in his employment, that is, the break in employment between AAPT and subsequently TPG (or rather, TPG Internet Pty Ltd) from July 2010 to April 2011 (notwithstanding the subsequent acquisition of AAPT by TPG) means that TPG, for current purposes, was a separate and independent employer in relation to the 2010 incident that occurred while employed with another, and previous, employer. In short, the exercise of any “right” he may have had in respect of AAPT (to complain about the 2010 incident), does not apply to his subsequent employment with TPG, in circumstances where he resigned from AAPT and was separately, and independently, later employed by TPG.
For the purposes of s.341(1)(c)(ii) of the Act, it is the case that in 2014, Mr Saville directed an inquiry to his employer, TPG. Further, it is the case that the complaint can be said, on the evidence, to be a direct complaint to TPG.
However, the difficulty for Mr Saville is that, even giving the words “in relation to his or her employment” a wide scope or import, there is still the requirement that there be a relationship between the subject matter of the complaint and the complainant’s employment (Trevena v Thiess Pty Ltd [2016] FCA 468 per Tracy J, especially at [81], Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [41]).
In the current case, the evidence does not support the proposition that Mr Saville’s complaint, or inquiry, was such as to fall within the protection available under s.341(1)(c)(ii) of the Act.
The “subject matter” of the complaint, arising from Mr Saville’s own evidence and submissions, was the 2010 incident. There is nothing on the evidence to be able to find that the 2010 incident was relevant to Mr Saville’s employment with TPG, as at the time of the making of the complaint to TPG (in August or September 2014).
While there is some suggestion in the SOC (at [7]) that Mr Saville expressed his concerns that his “disability would be made worse if required to work with Mr McKeown”, the complaint as made, with reference to the evidence before the Court is that Mr Saville’s concern was to seek redress for the 2010 incident, and the claimed subsequent impact on him. For example, see Mr Saville’s email to Ms Seput on 13 August 2014 (see above at [1222]).
In relation to s.341(1)(b) of the Act, the difficulty for Mr Saville is that on the evidence before the Court, which was not successfully challenged in any evidentiary context by Mr Saville, there was at the relevant time, no formal grievance procedure at TPG, or for that matter, a complaint policy, for Mr Saville to seek to invoke (see Ms Seput’s affidavit at [10]).
It is to be remembered that s.341(1)(b) of the Act is concerned with the meaning of “workplace right” for the purposes of the Act, and asserts that the meaning of “workplace right” is that a person “is able to initiate, or participate in a process or proceedings under a workplace law or workplace instrument”.
In circumstances where neither the Act, nor the Award, makes provision for any complaint or inquiry to be made about an allegation of theft and damage to property (particularly relating to a previous employer), then there was nothing in respect of which Mr Saville could “seek compliance” (with reference to s.341(1)(c) of the Act). While there is reference in the Award to dispute resolution, Mr Saville’s complaint or inquiry (his grievance) concerned an allegation of theft and damage to his property, not a dispute with his employer.
Further, and in any event, there is nothing in the Act, nor the Award, to enable Mr Saville to have made a complaint or inquiry about an incident that occurred with a previous, and separate employer, even if Mr Saville may have had such a right against that employer (AAPT).
What Mr Saville’s submissions, arguments and comments did not appreciate is that the he resigned his employment with AAPT. There is no dispute from Mr Saville about that fact. The fact that TPG acquired the business of AAPT subsequent to his resignation from AAPT, and his commencing work for TPG, does not override the circumstance that there was no continuity in his employment with AAPT.
In short, and I note this in particular for Mr Saville’s understanding now, whatever “right” to make a complaint or inquiry about the 2010 incident, that he may have had with AAPT, did not apply to his employment with TPG (Jeavons v Entram Pty Ltd [2015] FCCA 3457 (per Barnes J) at [232] – [235]).
That then, leaves the matter of Mr Saville’s termination of employment. Plainly, Mr Saville urges that the reason for the termination of his employment was that he had made a complaint. TPG argues that the termination was as a result of the redundancy of Mr Saville’s position.
Mr Saville’s response is that the redundancy was not “genuine”. At best, when the irrelevancies, hyperbole and his unsupported (by evidence) “beliefs”, are put to one side, what remains in support of this proposition is the claimed coincidence in timing between his making his complaint to TPG, with the timing of the redundancy and the timing of an advertisement for a certain position with TPG.
From Mr Saville’s SOC, the following sequence of events appears to underpin his position on the question of redundancy.
On 24 September 2014, Mr Saville requested that TPG provide him with TPG’s dispute resolution or grievance procedure. The SOC (at [9]) makes reference to his email of 13 August 2014 to Ms Seput and his email of 24 September 2014 also to Ms Seput.
The emails are in evidence before the Court as annexures to the affidavit of Ms Seput (pages 41 and 42 of annexure “MS-4”) (and see above at [122] in relation to the email on 13 August 2014). Mr Saville’s email of 13 August 2014 sets out the complaint as to the theft of his tools in 2010 and the damage to his tool bag (backpack). He requested the “AAPT grievance procedure”. His complaint was about a lack of response and the “behaviour” of “AAPT management”.
Mr Saville’s email to Ms Seput on 24 September 2014 makes reference to a conversation between them on 18 August 2014 and requests “access” to the “TPG Dispute Resolution Procedure or Grievance Procedure”.
Mr Saville’s sequence of events (in the SOC) then focused on events he said occurred in the first week of October 2014. It would appear Mr Saville’s concern was with what he described as the “unreasonable and unwelcome behaviour” of his then team leader Mr Laurent. This “behaviour” apparently included Mr Saville being moved from his “normal seating” to the “furthest spot away in the far corner of the office” and increasing his workload (SOC at [11]).
Mr Saville’s SOC links this behaviour to his having requested the dispute resolution procedure “to address the unwelcome behaviour of associated staff involved in the 2010 theft and later vandalism” of his “property” (SOC at [11]).
Mr Laurent did not give evidence in these proceedings. On Mr Hanly’s evidence Mr Laurent gave notice of his resignation on 23 January 2015 and his final day of employment was 6 February 2015 (Mr Hanly’s affidavit at [10] and annexure “DH-3”).
Mr Catt did give evidence (for Mr Saville). He confirmed that there had been a change in Mr Saville’s seating arrangements. However, there was nothing in his evidence to indicate that Mr Catt had any personal knowledge of the reason, or reasons for this, or the circumstances that led to the change in the seating.
He also gave some evidence about the quality of Mr Saville’s work. However this, at best, was of limited assistance, given that he was in a junior position to Mr Saville, and did not occupy a managerial or supervisory role in relation to Mr Saville. Further, on Mr Hanly’s evidence Mr Saville “generally performed his job acceptably from 2014 to 2015, although there was at least one instance that required some “management input” from himself and Mr Laurent (Mr Hanly’s affidavit at [7]). Again, there is no link to the termination of his employment.
Mr Hanly’s evidence was that he did not recollect the re-arrangement of the seating. However, as the person who made the decision to make Mr Saville’s position redundant, and terminate his employment, any changes to seating arrangements, or importantly the termination of employment, were not related to any complaint. Mr Hanly was cross-examined about this. His evidence was not shaken.
On the evidence, I cannot see that any link between the seating arrangement, and Mr Saville’s complaint, is established, or even objectively indicated.
As to Mr Saville’s concerns with Mr Laurent’s claimed behaviour, there is nothing to link that to the termination of his employment. Noting that Mr Laurent resigned from TPG by notice given on 23 January 2015. That is, before the termination of Mr Saville’s employment.
Mr Saville’s sequence of events, as set out in his SOC, then moves to 6 February 2015. Mr Saville again relies on emails with Ms Seput and a meeting held on 6 February 2015 with Mr Hanly (SOC at [12] to [13]).
Mr Saville claims that he was informed of this meeting by Mr Laurent. He asserts he held a “reasonable belief” that it “was a disciplinary meeting” (SOC at [14]). The basis for this “belief” was not satisfactorily explained before the Court with reference to any evidentiary basis.
In any event, on the evidence, a meeting did occur on 6 February 2015. Mr Hanly, Mr Saville and Ms Kokkila were present at that meeting.
Mr Hanly’s evidence was that the meeting was called so that he could advise Mr Saville of the redundancy of his position. His evidence was that Mr Saville “got up and left the meeting” once this was done (Mr Hanly’s affidavit at [14]).
Mr Saville’s evidence about the meeting, in effect, is simply to refer to the meeting as the “bogus redundancy meeting”. Mr Saville’s evidence was that the meeting was “cut short” due to his “shock”. He confirmed he “left the building” (Mr Saville’s affidavit of 12 January 2017 at [20]).
Ms Kokkila’s evidence was that at the relevant time, she was a Human Resources Manager for TPG, and had previously been in that role with AAPT (Ms Kokkila’s affidavit at [1] – [2]). She met Mr Saville for the first time on 6 February 2015 and had no role in relation to him up to that point. She had been asked to attend the meeting by Ms Seput who was her immediate superior. The purpose of her attendance at the meeting was to “support” Mr Hanly when he informed Mr Saville that his role was redundant and to ensure the relevant “paperwork” was “handed over” (Ms Kokkila’s affidavit at [6]).
Ms Kokkila supported Mr Hanly’s evidence that Mr Saville stood up and left the meeting upon being notified of the redundancy (Ms Kokkila’s affidavit at [7]).
Ms Kokkila was also subjected to a lengthy “cross examination” by Mr Saville. Again, I have referred to this in quotation marks because what occurred (as it was similar for Ms Seput) cannot be understood as an appropriate cross examination of any witness, even by a layperson conducting the cross examination. For example, the repeated questioning on matters entirely irrelevant to Mr Saville’s case at law. (See also above at [21], [57] – [59]57).
In any event, Ms Kokkila was not shaken on her evidence. There is no reason not to accept her evidence. This also includes her evidence that she took no role in the decision regarding the redundancy of Mr Saville’s position. Nor that she knew anything about the grievance concerning the 2010 incident until August 2014. Nor that she had met Mr Saville while working at AAPT.
Mr Saville did not satisfactorily address the following in his submissions. Nor did he weaken Mr Hanly’s evidence in relation to these matters.
Mr Hanly gave evidence that following Mr Laurent’s notice of his resignation (on 23 January 2015), he considered what action he should take. Specifically, he considered whether he should recruit someone to Mr Laurent’s position (as manager of the team involving Mr Saville and Mr Catt).
Mr Hanly also gave evidence that following TPG’s the acquisition of AAPT, he understood one of the management objectives was to achieve “staffing efficiencies”. In this light, he decided that the preferable course of action was to bring the management of both the former TPG data centres together with the former AAPT data centres (which TPG had acquired but were still, at that point, operating separately to the TPG data centres).
He decided that this should be done, and to make Mr Holland the responsible manager for the formerly two sets of data centres. I note also references in the evidence to a Mr Chris Smith, who appears to have been Mr Laurent’s “equivalent” in the “former AAPT” operation. Mr Hanly’s consideration appears to have included Mr Smith’s role. In any event, Mr Hanly’s evidence was that given this “consolidation” of the data centres, he concluded that there was no “ongoing role” for Mr Saville in the “new” structure (Mr Hanly’s affidavit at [6], [11]).
Mr Hanly has annexed to his affidavit (at annexure “DH-3”) an email dated 23 January 2015, concerning Mr Laurent’s resignation which also notified his last day at work being 6 February 2015. He also annexes (at annexure “DH-4”) his email to Ms Seput notifying her of the resignation of Mr Laurent.
Ms Seput’s email of 6 February 2015 (see annexure “DH-4” at p.18) to Mr Hanly confirms her understanding of Mr Hanly’s advice conveyed to her orally, that “the AAPT team… are taking over Ryan’s [Mr Laurent’s] area”. Mr Hanly’s response was that this work was to be done by “Chris Smith and his team here in NSW”.
Ms Seput gave evidence that she recalled a conversation with Mr Hanly “within a few days after Mr Laurent’s notice of resignation” which supports Mr Hanly’s evidence (see Ms Seput’s affidavit at [15]):
“Within a few days after Mr Laurent's notice of resignation, I recall having a conversation with David Hanly in which he said to me words to the effect that ‘I want to talk about Ryan's resignation. I don't want to replace Ryan. I want to move the Junction to AAPT under Gordon Holland because they are already looking after the Glebe and Clarence Street data centres and we can get them to look after the Kent Street data centre as well. So we don't have a role for Neil [Mr Saville] and we should make him redundant’. I understood that Mr Hanly had made a decision that he did not see a need to replace Mr Laurent, and he did not see a need for himself to continue to manage a field operations team separate from Mr Holland's team.
This was confirmed in her oral evidence before the Court and supported Mr Hanly’s evidence. Neither Mr Hanly nor Ms Seput were successfully challenged on any of this evidence in cross examination.
Some of Mr Saville’s questions in cross examination, and parts of his submissions, could be understood as an attempt to sustain, and argue, that his dismissal from his employment because of the claimed redundancy was not “genuine”.
Mr Saville’s SOC asserts that on 28 January 2015 (that is before the decision made by Mr Hanly that Mr Saville’s position was redundant), TPG advertised a vacant “Field Operations Engineer Position” (SOC at [16]). Mr Saville claimed in his SOC (at [17]) that the “role, responsibilities and expertise” for this position was similar to the position held by him up to 6 February 2015. Therefore, consideration should have been given to his redeployment into this position.
In particular, and further, the SOC asserts (at [18]) that the requirement that applicants for the advertised position should recently have “completed their tertiary qualifications had the effect of excluding older workers”. This appears to be an attempt to assert age discrimination. Most probably, although not specifically pleaded in the SOC, this appears to be a reference to s.351 of the Act and s.351(1) of the Act and with reference to s.351(3)(a) of the Act.
On the evidence before the Court, such a position was advertised by TPG. Ms Kokkila gave evidence that in late January 2015 she assisted the manager of the Field Operations Group at the time (Mr Gordon Holland) [in context, in the “former AAPT” part of TPG] to recruit a new employee for that group, after a “senior person” had resigned (Ms Kokkila’s affidavit at [3]).
Ms Kokkila’s evidence was that she understood that Mr Holland wanted to “put a junior person” into this role who could then be trained and “moulded” into the role. She was given a “general job description” (Ms Kokkila’s affidavit at [3]).
Ms Kokkila annexed a copy of the advertisement to her affidavit (see annexure “LK-1”). The evidence was that this advertisement which she prepared, was based on draft advertisements previously used by TPG for other similar roles (Ms Kokkila’s affidavit at [4]).
Mr Saville cross examined Mr Hanly, Ms Kokkila and Ms Seput extensively on this matter, including on his own qualifications. As set out above, their evidence is to be accepted.
On the question of redundancy and termination, Mr Hanly’s credibility was not successfully, or it must be said, effectively, impugned as a result of the cross examination. Nor did Mr Saville successfully attack the credit of Ms Seput or Ms Kokkila, generally, or with specific reference to evidence about the redundancy and termination.
Mr Saville has not provided any evidence that directly, or for that matter indirectly, bears factually on the reasons for termination. Again, Mr Saville’s unwillingness, or inability, to understand the difference between supposition and belief, and submissions probative of the evidence before the Court, is again demonstrated.
The following findings reasonably, and on balance, emerge from the evidence.
One, Mr Hanly was the decision maker in relation to the decision to make Mr Saville’s role redundant, and to terminate his employment with TPG (“the decision”). This was, on the evidence, consistent with TPG’s policy which was that such decisions are to be made by the relevant managers. During cross examination, Mr Saville attempted to establish some decision-making role on the part of Ms Seput and Ms Kokkila. He was unsuccessful in this regard. Ms Seput’s role was to provide administrative support to implement Mr Hanly’s decision. Ms Kokkila’s first involvement was to attend the meeting on 6 February 2015 by which time Mr Hanly had already made the decision.
I note that in his written submissions of 1 March 2018 (made after Ms Kokkila gave her evidence) Mr Saville alleges that Ms Kokkila was “dishonest” before the Court because she failed to provide any “logos” as to why she said she had not been involved in any discussion concerning the “McKeown complaint”, what steps were taken to “mitigate” his “enquiry”, and has not provided any “logos” as to her duty not to cause “injury” to Mr Saville ([30] – [33] of Mr Saville’s written submissions of 1 March 2018).
In relation to the termination of his employment, Mr Saville submitted that Ms Kokkila had “no right to terminate or to assist terminate his employment” ([37] of Mr Saville’s written submissions of 1 March 2018).
Ms Kokkila’s clear and consistent evidence was that she did not make the decision to terminate his employment. As set out above, that was Mr Hanly’s decision. Further, her assistance, which on the evidence before the Court was consistent with her duties, was to provide support to Mr Hanly in conveying the decision to Mr Saville at the meeting on 6 February 2015.
Mr Hanly’s evidence was that he sent an email to his superior, Mr Craig Levy, on 6 February 2015, about the redundancy of Mr Saville’s position. Mr Hanly had made the decision. He then sought approval from Mr Levy to incur the costs of the redundancy (Mr Hanly’s affidavit at [13] and see annexure “DH-5”). Mr Levy’s role, on the evidence, was limited to giving his approval to incur the costs of the redundancy. There is no reason, given Mr Hanly’s clear evidence, and the absence of any indication to the contrary in the evidence, not to accept his evidence on this point.
Two, I pause to note what Mr Saville may have meant by the constant use of the word “logos” in his written submissions. Its use was not confined to Ms Kokkila, but to “the respondent” generally. This provides another example of the difficulty in seeking to ascertain a coherent argument relevant to breaches of the Act, and as “indicated” in the SOC.
The word “Logos” (capital “L”) is defined in the Shorter Oxford Dictionary (6th edition, 2007) as: “The word of God, the second person of the Trinity”, and “A pervading cosmic idea or spirit of creativity or rationality”. The Macquarie Dictionary defines “logos” (lowercase “l”) as: “the rational principle that governs and develops the universe”.
For Mr Saville’s understanding, I note that there was no evidence before the Court that Ms Kokkila, or “the respondent”, ever professed any aspiration of divinity such as to make it necessary that they provide a “Logos” or “logos” in these proceedings.
If what Mr Saville meant by his submissions was to use the word “logos” in the sense that Ms Kokkila, or “the respondent”, and its other witnesses, did not provide any valid rational explanation for their conduct, than for the reasons set out elsewhere, and generally, in this judgment, that must be rejected.
Three, before the Court, Mr Saville claimed that he could have been redeployed to a position in another Field Operations Team which had become available elsewhere in TPG. The essence of Mr Saville’s submission here was to argue that the redundancy, and in particular the subsequent termination of his employment, was not “genuine”, given this other opportunity.
This immediately raises the question of whether any failure to provide this redeployment opportunity to Mr Saville, instead of terminating his employment, was a part of the decision made by Mr Hanly, and therefore giving some basis to Mr Saville’s criticism now. In turn, this question is based on whether any such opportunity for redeployment existed for Mr Saville in the first place. That is, was there a position into which he could have been redeployed?
On the evidence, it is clear that a position in the Field Operations Group managed by Mr Holland was the subject of an advertisement placed by Ms Kokkila, at Mr Holland’s direction (see as set out above).
Also on the evidence before the Court, when Mr Hanly made the decision as to Mr Saville’s redundancy on 6 February 2015, he was not aware that this advertisement had been made. There was no evidence from Ms Kokkila (who placed the advertisement), or anyone else for that matter, that the advertisement had been brought to Mr Hanly’s attention. Nor did Mr Saville give any such evidence, or indeed any satisfactory evidence he had sought redeployment in relation to this position.
I pause again, to note that had he stayed at the meeting of 6 February 2015, Mr Saville may have been able to raise this matter at a relevant time. However, his decision not to engage further, and leave the meeting suddenly, meant that any such opportunity was lost as a result of his own action.
In any event, and further, there is no reason not to accept Mr Hanly’s evidence that he was not aware of the advertisement. Mr Saville’s cross examination of Mr Hanly on this point did not give rise to any concerns about the efficacy, or credibility, of Mr Hanly’s evidence.
The evidence before the Court establishes that the advertisement related to a position in a different part of the management, and operational, structure of TPG to that relating to Mr Hanly’s area of managerial responsibility.
As noted above, a copy of the advertisement is annexed to Ms Kokkila’s affidavit at annexure “LK-1”. Some of Mr Saville’s cross examination of each of TPG’s witnesses did, variously, attempt to refer to his own duties, responsibilities and performance of his own role with TPG, and for that matter, previously with AAPT. Presumably, (although it was not made clear by Mr Saville), this was done with a view to then be able to argue that he was suitable to perform the duties of the advertised position.
However, the difficulty for Mr Saville is that on the evidence, Mr Hanly, who made the redundancy decision, was not aware, nor was he made aware, of the advertisement, at the time of making the decision. Nor do Ms Kokkila’s and Ms Seput’s views, to the extent that they were allowed [in cross examination] to express their evidence, without interruption, about Mr Saville’s duties and the duties of the advertised position, provide any basis to say that he was suitable for consideration for this position.
Four, before the Court, Mr Saville referred to the requirement in the advertised position that applicants for the position should have recent tertiary qualifications in “IT telecommunications”.
It would appear from the SOC (see at [18]) that the complaint here is that such a requirement in the advertised position: “had the effect of excluding older workers”.
Although not entirely clear from Mr Saville’s submissions, it would appear that the argument is that Mr Saville was denied the opportunity of redeployment because of the requirement for tertiary qualifications, which he did not have. Further, possibly, that Mr Saville’s termination of employment was because of the requirement for tertiary qualifications.
This argument, and its various iterations, is not made out.
One, Ms Kokkila’s evidence, which was not contradicted by any other evidence before the Court, was that the requirement for tertiary qualifications was a requirement which TPG had used previously for similar, previous, roles to that which was the subject of the advertisement.
Two, there is nothing in the evidence to indicate that any person of mature age, who had recently acquired tertiary qualifications, could not be a serious candidate for the position. Ms Kokkila’s evidence that she understood from Mr Holland that he was looking for a relatively “junior” person to “mould”, does not necessarily mean that a person of mature age could not meet such an expectation. For example, a person of mature age who had recently acquired tertiary qualifications, and was “junior” in terms of relevant experience.
Three, I should note that in this light, at the conclusion of the hearing Mr Saville handed up to the Court a bundle of documents, which included a document headed “Transcript of Academic Record” (see AE1).
As TPG submitted, the contents and provenance of this document “are unexplained and altogether unintelligible”. It does not establish that Mr Saville had relevant tertiary qualifications. To the extent therefore, that Mr Saville otherwise argues that the advertised position was similar to the requirements of his “current” role, this stands as at least one important difference.
Four, even if it was similar, there was no evidence before the Court (or for that matter any statement or submission from Mr Saville), to indicate that he sought to apply for this position and he was denied the opportunity of doing so due to his age, lack of tertiary qualifications, or for any other reason, including because he made a complaint.
Five, as TPG also submitted, this was not a case where tertiary qualification requirements, or age, were imposed as new conditions on Mr Saville’s continued employment in his then role with TPG. The advertisement referred to, and related to, a different role and as emphasised by TPG’s submissions, (and accepted by the Court on the evidence), a role of which the relevant decision-maker was not aware.
On the evidence, Mr Saville’s employment was not terminated due to his age, or any lack of tertiary qualifications. No breach of s.351 of the Act is made out.
Conclusion
As set out above, the most coherent expression of Mr Saville’s case is to be found in the SOC. The contraventions alleged against TPG, and as they are said to arise from Mr Saville having made a complaint about the 2010 incident, that is, that he had, or attempted to exercise a workplace right, is not made out. Mr Saville’s claims and complaints, can only succeed if they have some relevance to the provisions of the Act. For the most part, that relevance was not apparent. For the remainder, the claims were without evidentiary substance.
The application to the Court should be dismissed. I will make the appropriate order.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 December 2018
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