Sidhu v Aldi Stores (A Limited Partnership)

Link copied
Case Copied 37 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sidhu v Aldi Stores (A Limited Partnership) [2022] FedCFamC2G 239

File number(s): MLG 1 of 2021
Judgment of: JUDGE MCNAB
Date of judgment: 5 April 2022 
Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action claim – whether employer took adverse action against employee – whether employer took adverse action against employee because the employee exercised a workplace right – employee had made complaints about being required to attend on an occupational therapist – employee had made complaints in relation to bullying by employees – claim for workers’ compensation for work related stress and anxiety – whether the employer had taken adverse action for by dismissing the employee – whether the employer engaged in adverse action by instructing an employee to attend a further assessment of capacity – where there was a sufficient reason to ask the employee to attend a examination in relation to employee’s capacity to work – application dismissed.
Legislation:

Evidence Act 1995 (Cth) s 144.

Fair Work Act 2009 (Cth) ss 340, 341, 342, 344, 351, 361, 546.

The Accident Compensation Act 1985(Cth).

Workers Compensation Act 1958 (Cth).

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 1.04.

Occupational Health and Safety Act 2004 (Vic) s 121.

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 588.

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41.

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451.

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.

X v Commonwealth [1999] HCA 63.
Division: Division 2 General Federal Law
Number of paragraphs: 92
Date of last submission/s: 15 March 2022
Date of hearing: 13 & 14 December 2021 
Place: Melbourne
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms J Zhou
Solicitor for the Respondent: Hentys Lawyers

ORDERS

MLG 1 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

GURPREET SIDHU

Applicant
AND:

ALDI STORES (A LIMITED PARTNERSHIP)

Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

5 APRIL 2022

THE COURT ORDERS THAT:

1.The application filed on 4 January 2021 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge McNab

INTRODUCTION

  1. This matter comes before the Court by way of an initiating application filed by the Applicant on 4 January…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Sidhu v Aldi Stores (A Limited Partnership) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 239
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Sidhu, brought a claim against Aldi Stores (A Limited Partnership) before the Federal Circuit and Family Court of Australia, alleging that the respondent took adverse action against him for exercising his workplace rights and due to his physical and mental conditions. Sidhu claimed that the respondent terminated his employment because he refused to attend a psychological assessment of capacity and made complaints against the unreasonable demands. The respondent, represented by Mr Peters and Mr Katz, argued that Sidhu's employment was terminated due to his failure to comply with a lawful and reasonable direction to attend a psychological assessment. The court had to determine whether the respondent took adverse action against Sidhu for a reason prohibited by Part 3-1 of the Fair Work Act 2009 (FW Act).

The court considered the evidence presented by both parties and the legal principles established in previous cases. The central question was whether the adverse action was taken for a prohibited reason, specifically whether it was due to Sidhu's exercise of workplace rights or his physical and mental conditions. The court found that there was no direct evidence that the decision-makers were influenced by any proscribed reason when terminating Sidhu's employment. Instead, the decision was based on Sidhu's failure to comply with a lawful and reasonable direction to attend a psychological assessment. Therefore, the court concluded that the respondent had not taken adverse action for a prohibited reason.

The court dismissed all of Sidhu's applications, finding that the respondent had not taken adverse action for a reason prohibited by Part 3-1 of the FW Act. The court relied on the principles established in Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, which emphasised that the central question is to determine the actual reason or reasons which motivated the decision-maker. In this case, the court accepted the respondent's evidence that the decision to terminate Sidhu's employment was based on his failure to comply with a lawful and reasonable direction, and not due to any proscribed reason.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Respondent relied on the evidence of the following employees of the Respondent who each filed outlines of evidence and gave oral evidence to the Court: (a)Mr Travis Peters who has been the Logistics Manager of the Respondent since January 2019 and who reported to Mr Katz. Mr Peters is one of the people who made the decision to terminate the Applicant’s employment;(b)Mr Tahl Katz who has been the Logistics Director of the Respondent since May 2015 and was the person to whom Mr Peters reported. Mr Katz was one of the two decision makers decided to terminate the Applicant’s employment on the ground that the Applicant had repeatedly refused to obey what was said to be a lawful and reasonable direction to attend a Psychological Assessment of Capacity[2] to be conducted by an external occupational therapist engaged by the Respondent; and(c)Ms Belinda Truong who has been employed by the Respondent as a Logistics Manager since January 2016. She took notes of meetings and telephone conversations between the Applicant and Mr Peters on 5 February 2020 and meetings on 12 August 2020 and 2 October 2020. She was also responsible for sending correspondence to the Applicant reminding him of the Respondent’s requirement that he attend a Psychological Assessment of Capacity (with an occupational therapist). [2] This term was referred to in Mr Katz’ witness statement dated 8 October 2021. BACKGROUND There is no real controversy in this matter regarding the factual background leading to the termination of employment. The controversy is about whether Mr Peters and Mr Katz decided to terminate the Applicant’s employment because he made complaints about being required to see Mr Marsh. I have drawn on the Respondent’s closing submissions as to the background of the factual setting as they are an accurate account of same. On 3 April 2018, the Applicant commenced as a casual truck driver. On 6 August 2018, the Applicant was offered a full-time position as a truck driver, commencing 13 August 2018. In his role, the Applicant’s duties included driving heavy combination vehicles on public roads. In or about September 2019, the Applicant lodged a WorkCover claim in respect of mental health issues, namely anxiety and depression, caused by work-related stress and alleged workplace bullying. The Applicant says that his mental health issues were caused by bullying by the Store Manager at a branch of the Respondent business. At [1(b)] of the Further and Better Particulars claim (“FBP claim”) filed on 22 March 2021, the Applicant says that those bullying incidents were as follows:(i)on or about 30 June 2019, when the applicant was unloading the delivery items at the respondent‘s Sanctuary Lakes store, the store manager behaved aggressively and rudely towards the applicant (first bullying incident); (ii)in or about early September 2019, the Sanctuary Lakes store manager turned his back on the applicant when he Sanctuary Lakes Store, and the store manager’s husband who was also present with her looked at the applicant in a way that made him feel unsafe (second bullying incident occurred); (iii)on or about 22 September 2019, while the applicant was unloading the delivery items at the Sanctuary Lakes store, he requested the store manager 2 to provide a clear unloading dock, but the store manager behaved aggressively towards the applicant and refused to provide any help (third bullying incident).

Evidence

Evidence Before The Court

The Applicant’s employment was terminated on 5 October 2020. APPLICANT’S CLAIMS AND EVIDENCE At the final hearing, the Applicant gave oral evidence before the Court on 13 December 2022. He was unrepresented. The Applicant pleads that:(a)the Respondent took adverse action against him because of his exercise of workplace rights by making complaints against unreasonable and unlawful demands; and(b)the Respondent took adverse action against him because of his physical and mental conditions pursuant to section 351 of the FW Act. In the FBP claim filed on 22 March 2021, the Applicant claims the Respondent’s actions constituted unlawful discrimination against the Applicant on the basis of his previous mental health condition by reason of the Respondent:(a)refusing to execute the Applicant’s return-to-work plan and insisting that the Applicant attend a Psychological Assessment of Capacity; and(b)in circumstances where the Applicant had already attended the assessments and received the certificate of capacity to work. The Applicant states that:(a)he made several complaints against the Respondent’s unreasonable demands that he attend a Psychologist Assessment of Capacity;(b)the complaints were in writing and contained in emails from the Applicant to Mr Peters and Ms Truong, the Respondent’s executive managers of logistics between 17 September 2020 and 23 September 2020; and(c)such complaints constituted an exercise of the Applicant’s workplace right to be treated equally and without discrimination on the basis of his previous mental health conditions. The Applicant claims that the Respondent’s actions in insisting that the Applicant attend a further assessment otherwise his employment would be terminated, constituted undue pressure in breach of section 344 of the FW Act. The Applicant states that:(a)the Respondent purported to dismiss the Applicant because of his refusal to comply with the Respondent’s demands that he attend a further Psychological Assessment of Capacity;(b)such demands were unreasonable in circumstances where:(i)a full certificate of capacity had been issued on 16 September 2020 which provided that the Applicant had no incapacity and was able to perform the same work duties performed prior to his mental injury; and(ii)the Respondent was provided with recent report from the Applicant’s treating psychologist and psychiatrist respectively which provided that the Applicant no longer suffered from his previous mental health condition by no later than September 2020.(c)in the premises, the Applicant was dismissed because he sought to exercise his workplace right to be treated equally and without discrimination on the basis of his previous mental health conditions. A clear expression of the Applicant’s views on why he did not believe that he should be required to attend on Mr Marsh is set out in the notes of a meeting conducted between the Applicant and Ms Truong on 24 September 2020: (see CB536-537):GS (the Applicant): I read on Mr Marsh and he is not a phycologist. He is corporate friendly.I suggest to go to a different group so I can get a fair opinion hence I offer Aldi at that time I went to the assessor who prepared the report by EML. Why you want me to go to Mr Marsh? I am in the process of finding out whether you can request this and the answer in NO. I believe that EML are like Aldi. I have injury when I worked with Aldi. And Aldi had obligation to deal with it.Whether they used EML or did it themselves and it was my obligation to participate in all attendances and meetings. EML has given me clearance, which means Aldi has accepted that I have a clearance and has a full capacity to return to work.Back to Mr Marsh, I don’t believe the insurance broker (sic. meaning to refer to an occupational therapist) I don’t think he can do a psych assessment if they are not a phychologist.Dr Barker gave the report which was really good. The other lady did an ok report but Mrs Barker was more in depth and clinical. There is still doubt based on examples aldi are referring too and I know what you are referring too in the email. I want to know what the sources were for the specific examples.BT (Ms Truong): I will need to get clarification on the examples.Thank you for expressing your thoughts on Mr Marsh and providing your thoughts on him. Aldi believe he is independent. Unfortunately, If we can’t use the EML report we will need a new assessment.Aldi are still of the belief that it needs to be independent assessor and we will be sending you to Mr Paul Marsh.

Decision

Reasons for decision

Given that none of the conduct that has been raised in this proceeding by either party relates to any of the matters in section 344 of the FW Act, this claim must fail. CONCLUSION For these reasons the Court will make an order dismissing all applications.

Ratio Decidendi

Legal Principle Established

In considering whether the Respondent has displaced the presumption in section 361 of the FW Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ state at [32]:As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41. Relevantly, these authorities establish that:•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”•That question is to be answered having regard to all the facts established in the proceeding.•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.CONSIDERATION The primary issue in this matter is whether the Applicant was dismissed from his employment for a reason prohibited by part 3-1 of the FW Act. For the Applicant to obtain judgment in his favour, the Court must be satisfied that:(1)the Respondent took adverse actions against the Applicant; and(2)the Respondent took adverse action for a prohibited reason(s). There is no dispute that the Respondent took adverse action against the Applicant in terminating his employment. The question for the Court is whether the decisions makers made the decision maker made the decision to terminate the Applicant’s employment because he had made complaints about attending on the OT. Mr Peters’ gave evidence of the reason for terminating employment: And what was your reason, finally, for terminating employment?---Just essentially failing to comply with a – with a legal request. We had attempted to, on several occasions over a – over a few weeks – or more than a few weeks to get to this stage. And at each step I felt frustrated at a barrier put up to try and just to prevent ..... being able to take the step and get some information we could act on. And so I felt that there was no – there wasn’t going to be a positive outcome with continuing the employment relationship.[8][8] Transcript page 58, line 30.