Short v Ambulance Victoria

Case [2015] FCAFC 55

FEDERAL COURT OF AUSTRALIA

Short v Ambulance Victoria [2015] FCAFC 55

Citation: Short v Ambulance Victoria [2015] FCAFC 55
Appeal from: Short v Ambulance Victoria [2014] FCA 3
Parties: DARREN SHORT v AMBULANCE VICTORIA
File number: VID 67 of 2014
Judges: DOWSETT, BROMBERG AND MURPHY JJ
Date of judgment: 24 April 2015
Catchwords:

INDUSTRIAL LAW – Employment – adverse action through refusal to appoint to higher duties, imposition of a formal warning, standing down from employment and dismissal – the onus of proof upon an employer in a claim of adverse action – the evidence necessary to discharge the onus pursuant to s 361 of the Fair Work Act 2009 (Cth) - whether findings of fact as to the employer’s reasons for the adverse action were against the weight of evidence – the test for overturning a finding of fact based on the credibility of the witness - whether the primary judge erred in finding that the employer discharged the onus – Award interpretation - whether the Ambulance Victoria Agreement 2009 required Ambulance Victoria to refer a disciplinary dispute to Fair Work Australia for resolution.
Legislation: Fair Work Act 2009 (Cth)
Cases cited: Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143
Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500
Commonwealth Bank of Australia v Barker (2013) 214 FCR 450
Commonwealth Bank of Australia v Barker [2014] HCA 32
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Devries and Another v Australian NationalRailways Commission and Another (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia and Others (1998) 195 CLR 1
Short v Ambulance Victoria [2014] FCA 3
Water Board v Moustakas (1988) 180 CLR 491
Date of hearing: 19 August 2014
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 142
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr S Moore
Solicitor for the Respondent: Lander & Rogers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 67 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DARREN SHORT
Appellant
AND:

AMBULANCE VICTORIA
Respondent

JUDGES:

DOWSETT, BROMBERG AND MURPHY JJ

DATE OF ORDER:

24 APRIL 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 67 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DARREN SHORT
Appellant
AND:

AMBULANCE VICTORIA
Respondent

JUDGES:

DOWSETT, BROMBERG AND MURPHY JJ

DATE:

24 APRIL 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. In this proceeding the appellant, Darren Short, appeals from a judgment of this Court on…

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AGLC
Short v Ambulance Victoria [2015] FCAFC 55
Case
[2015] FCAFC 55
Decision Date

CaseChat Overview and Summary

In the case of Short v Ambulance Victoria, the appellant, Mr Short, contested the decision of the primary judge regarding several adverse actions taken against him by his employer, Ambulance Victoria. The primary judge found that Ambulance Victoria had not contravened the Fair Work Act 2009 (Cth) in refusing Mr Short higher duties, issuing a formal warning, standing him down from employment, and ultimately dismissing him. The legal issues at hand involved whether Ambulance Victoria had engaged in adverse action under the Act, whether they had proven their reasons for such actions, and whether the Ambulance Victoria Agreement 2009 mandated referring a disciplinary dispute to Fair Work Australia. Mr Short argued that the primary judge had erred in his interpretation and application of relevant sections of the Act, particularly in relation to the burden of proof and the credibility of witnesses.

The court examined the reasoning of the primary judge and found that the judge had correctly applied the law in determining that Ambulance Victoria had not contravened the Act. The court held that the withdrawal of an offer for an interview, which was not required but offered in error, did not constitute adverse action as it did not result in any compensable injury, alteration of employment position, or discrimination. Furthermore, the court found that Ambulance Victoria had adequately justified their decisions regarding Mr Short's employment based on his conduct and behaviour, which had been consistently problematic. The primary judge's findings concerning the credibility of witnesses and the reasons for the adverse actions were consistent with the evidence presented.

Consequently, the appeal was dismissed, and the original decision of the primary judge was upheld. The court found no merit in the grounds of appeal raised by Mr Short, as they were either misdirected or not supported by the evidence. The court's decision confirms that the primary judge's interpretation and application of the Fair Work Act 2009 (Cth) were correct, and that Ambulance Victoria had not engaged in unlawful adverse action against Mr Short.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons we set out below we are not satisfied that the primary judge fell into error in respect of any of the appeal grounds alleged. Accordingly, the appeal must be dismissed.THE FACTS The essential facts are as follows. Mr Short was employed by Ambulance Victoria from March 1999 until the termination of his employment on 14 July 2011. From late 2006 he was employed as an Ambulance Paramedic at the Lakes Entrance branch.The Refusal of Higher Duties On 5 February 2010 Robert Standfield, an Ambulance Victoria Team Manager at the Lakes Entrance branch, sought expressions of interest from officers at Lakes Entrance to act in the higher duties position of Team Manager from 2 August 2010 for nine weeks. On 19 February 2010 Mr Short emailed Mr Standfield to advise him that he was interested in doing so. On 23 February 2010 Mr Standfield provided him with a position description and indicated that if more than one person was interested in the position then splitting the higher duties between them could be considered. On 15 April 2010 Mark Cooke, Gippsland Regional Manager, emailed a circular which requested any interested paramedic in the Gippsland region to lodge an expression of interest in performing higher duties for the remainder of 2010. The email stated that an expression of interest did not automatically entitle an employee to a higher duties position as final selection was based upon various criteria. Mr Short lodged an expression of interest on 9 May 2010. In late May 2010 Mr Short discussed with Mr Standfield the possibility that he could undertake a period of higher duties to commence on 2 August 2010, and another paramedic could perform an earlier period of higher duties. On 12 June 2010 Mr Short was involved in an altercation with the Acting Team Manager of the Bairnsdale branch, David Moors. Mr Moors informed Debra Ray, Group Manager for Gippsland, that he had seen Mr Short overfilling a dirty linen skip and that he told Mr Short to empty the skip rather than overfilling it (“the Linen Skip incident”). Mr Moors said that Mr Short refused to empty the skip, refused to discuss the issue, and walked off. Mr Moors followed him into other parts of the premises to discuss the issue but Mr Short continued to refuse to do so. On 16 June 2010 Mr Short submitted a Workcover claim in which he asserted a psychological injury claimed to have arisen from his being pursued, intimidated and harassed by Mr Moors. The claim was supported by a medical certificate which stated that he was unfit for work until 30 June 2010 because of an “acute stress reaction”. On 17 June 2010 Mr Standfield requested a meeting with Mr Short which took place the following day. Mr Short said that in the meeting Mr Standfield informed him that he assumed Mr Short would be unable to take up the higher duties role commencing on 2 August because he was off work on stress leave and was then scheduled to be on annual leave. Mr Short also said that he said he would be back at work before the higher duties commenced and he would be able to perform them.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Before the primary judge Mr Short claimed that Ambulance Victoria took adverse action against him for reasons that included that he had exercised a workplace right, and that he therefore had (and has) the benefit of the reverse onus in s 361.THE DECISION OF THE PRIMARY JUDGEThe refusal of higher duties The alleged contravention of s 340(1) of the Act Mr Short alleged that Ambulance Victoria’s decision refusing to permit him to perform higher duties in the nine week period from 2 August 2010 was taken in part because Mr Short had made an inquiry about his application to perform higher duties. That inquiry was accepted by Ambulance Victoria to constitute the making of a complaint within the meaning of s 341(1)(c) of the Act. Ambulance Victoria contended that there was no refusal to allow Mr Short to perform higher duties and that all that Ambulance Victoria had done was to withdraw an earlier proposal that Mr Short be interviewed for the higher duties position. This was said not to constitute “adverse action”. The primary judge considered that Mr Short had no “right” to be interviewed for the relevant higher duties positions (at [22]), and he described the earlier offer of an interview as having been made in error (at [23]). We assume that was a reference to the fact that an interview for a higher duties position was only required when the position being filled was for a duration of at least three months. His Honour held that the withdrawal of an opportunity to be interviewed for a higher duties position that Ambulance Victoria was not obliged to provide, did not constitute “adverse action” for the purposes of s 340 of the Act because it:(a)was not an injury to Mr Short in his employment under s 342(1)(b) not being an injury of a compensable kind (at [23]). His Honour said that “[i]t is difficult to see how the withdrawal of an offer for an interview which was not required but offered in error, can lead to a compensable injury. As there was no obligation on Ambulance Victoria to provide an interview, no injury of a compensable kind was occasioned by the withdrawal of an offer of an interview”; (b)did not alter Mr Short’s position to his prejudice under s 342(1)(c), as it did not constitute a deterioration in the advantages Mr Short enjoyed prior to that withdrawal (at [22]); and (c)did not discriminate between Mr Short and other employees under s 342(1)(d) as no other employees received an interview (at [24]). However, in case he was in error as to whether the withdrawal of the offer of an interview constituted adverse action, his Honour went on to consider whether the decision not to appoint Mr Short to a higher duties position was taken because he had made a complaint or inquiry in relation to his employment. His Honour accepted Ms Ray’s evidence (at [26]) that:(a)her decision not to offer Mr Short the higher duties role had nothing to do with his previous complaints or inquiries in relation to his employment; and(b)Mr Short’s mental disability played no role in the decision.The primary judge accepted that Ms Ray considered Mr Short was not suitable for the Acting Team Manager role because he had been on sick leave, because of his often-explosive behaviour and because his communication style was a problem.

Ratio Decidendi

Legal Principle Established

His Honour accepted the evidence of Mr Sassella, Mr Walker and Ms Pettitt (and insofar as was necessary Ms Sadler) that only one reason actuated them in terminating Mr Short’s employment, namely Mr Short’s unprovoked and unreasonable personal attack on Mr Standfield in circumstances where he had previously been given the Formal Warning for his unacceptable behaviour towards management (at [90]). Accordingly his Honour found no contravention of s 340 of the Act.CONSIDERATION By his Amended Notice of Appeal, Mr Short raised 11 grounds of appeal. Those grounds lacked clarity, as did the submissions made in support of them. In relation to each ground we have attempted to distil from the grounds and Mr Short’s submissions the essence of the challenge to the findings of the primary judge. Appeal grounds 1, 2 and 3: The refusal of higher dutiesGround 1 Under this ground of appeal Mr Short alleged that in finding that Ambulance Victoria’s decision not to appoint him to the higher duties role was not taken for a reason which included that he made a complaint or inquiry in relation to his employment, the primary judge erred by not properly construing or applying s 361 in relation to his claim that Ambulance Victoria had contravened s 340(1). Mr Short contended, first, that contrary to the primary judge’s approach as revealed by his Honour’s reasons, he did not submit that Ambulance Victoria’s withdrawal of the offer of an interview was the adverse action on which he relied. He argued that by wrongly addressing that non-issue, the primary judge did not deal with his contention that the relevant adverse action was the decision not to appoint him to the higher duties role. We do not agree. We accept that the primary judge unnecessarily considered the withdrawal of the offer of an interview. However, the primary judge also dealt with the allegation that the decision not to appoint Mr Short to the higher duties position was in contravention of s 340. His Honour made this clear when he said (at [25]):… the next question which arises is whether the withdrawal of the interview and the decision not to appoint Mr Short to a higher duties position was taken because Mr Short had made a complaint or inquiry in relation to his employment.(Emphasis added.) Secondly, Mr Short contended that the primary judge’s failure to properly construe or apply s 361 can be seen in a number of matters, including that:(a)some Ambulance Victoria employees who were involved in the decision not to appoint him to the higher duties role were not called to give evidence;(b)he had performed higher duties at the Lakes Entrance branch previously;(c)Ambulance Victoria had failed to discover relevant documents;(d)no issues concerning his suitability to perform higher duties had been raised when he initially submitted his expression of interest for that role; and(e)when Ms Ray made the decision to refuse him higher duties there had been no negative findings about his behaviour, which is inconsistent with Ms Ray’s evidence that the reason for her decision was because of his behaviour and communication style.