Smith v Rodger Constructions Pty Ltd - [2022] FedCFamC2G 204

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smith v Rodger Constructions Pty Ltd [2022] FedCFamC2G 204

File number(s): MLG 1661 of 2020

Judgment of: JUDGE BLAKE

Date of judgment: 25 March 2022

Catchwords:
INDUSTRIAL LAW – Adverse action – workplace right- meaning of ‘inquiry’ in section 341(1)(c)(ii) of the Fair Work Act 2009- whether there is a source of entitlement for the inquiry about a pay rise- where the contract of employment contains a term for pay but not a term for pay rise- whether alleged breach of contract necessary in order to point to the contract as a source of entitlement- pay a substantial term of the employment contract- inquiry about a pay rise necessarily an inquiry about pay- contract term relating to pay is a source of entitlement to inquire – contravention of contract not necessary for there to be a source of entitlement to inquire about pay- held inquiry about pay rise was the exercise of a workplace right

INDUSTRIAL LAW- Adverse action – meaning of dismissed in section 342 of the Fair Work Act 2009- where employer told employee to ‘fuck off’ while pointing to the door- whether statement and action of employer constitute dismissal of the employee – circumstances considered including nature of the work, nature of the construction industry and parties prior communications – held actions of employer did not bring about the dismissal of the employee

INDUSTRIAL LAW- Award- unpaid entitlements – whether employee was covered by the Surveying Award 2010- employee engaged initially as a labourer- employee promoted to new role – employee referred to internally with the employer as a ‘surveyor’- employee qualifications and experience considered- employee not possessing the qualifications and experience required by the Award- employee not performing surveying work – held employee not covered by the Award

Legislation:
Surveying Award 2010 cl 3, 4.1, B.1.1, B.1.9

Fair Work Act 2009 (Cth) ss 90(2), 340, 341(1), 341(1)(c)(ii), 342(1), 360, 361, 386

Cases cited:
Alam v National Australia Bank Ltd [2021] FCAFC 178

Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2021] FCA 1377

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (2017) 271 IR 24

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

City of Sydney RSL & Community Club Ltd v Balgowan (2018) 273 IR 126

Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150

Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442

Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200 at 205-206

O Meara v Stanley Works Pty Ltd

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC2G 204
Decision Date

CaseChat Overview and Summary

Smith has brought an action against Rodger Constructions Pty Ltd in the Federal Circuit and Family Court of Australia. Smith, a casual labourer, alleges that he was unfairly dismissed from his position as internal surveyor after being employed for around two years. Smith contends that he was subjected to verbal abuse by Graeme Rodger, the Managing Director, and that he was dismissed without justification after raising concerns about his use of the Company’s new time recording app.

The court was required to determine whether Smith’s dismissal was unfair, unjust, or unreasonable under the Fair Work Act 2009. The primary issues included whether Smith's dismissal was a result of his use of the T-Sheets app, and if his dismissal met the criteria for being deemed unfair under the Act. Additionally, the court needed to assess the credibility of the conflicting accounts of the events leading to Smith's dismissal and the Company's concerns about the accuracy of his time records.

In examining the evidence, the court found that the Company had reasonable grounds to be concerned about Smith's use of the T-Sheets app. The court noted that the Company had implemented the app to ensure accurate time recording, and that Smith's inability to use the app consistently led to concerns about the accuracy of his time records. The court also found that the evidence did not support Smith's claim that he was unfairly dismissed as a result of the verbal altercation with Graeme Rodger. Rather, the primary reason for his dismissal was related to his use of the T-Sheets app and the subsequent concerns about the accuracy of his time records. The court concluded that the dismissal was not unfair, unjust, or unreasonable under the Fair Work Act 2009.

Accordingly, the court dismissed Smith's application.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I have decided to dismiss the application. BACKGROUND The Company provides civil construction services in south-west Victoria and is based in Warrnambool. Graeme Rodger is the current Managing Director of the Company. He has held that position since 1976. His son, Jason Rodger, was at all relevant times employed in a senior managerial position in the Company. At the relevant times, Jason Rodger also held the title of Managing Director. Mr Smith commenced employment with the Company on or around 27 September 2017. He was employed as a casual labourer. Mr Smith was employed by Jason Rodger following a conversation between the two of them in which Mr Smith had asked whether any work was available. Jason Rodger’s domestic partner is Mr Smith’s sister. At the time of the commencement of his employment, Mr Smith’s employment was governed by the Rodger Constructions Pty Ltd Enterprise Agreement 2016 (‘Agreement’). In or around January 2018, Mr Smith’s employment changed. Mr Fary, another employee, ceased employment with the Company. It was agreed that Mr Smith would fill the position left vacant by Mr Fary (‘new role’). Mr Smith ‘shadowed’ Mr Fary for two weeks to learn about the work performed by him. In the new role, Mr Smith was referred to within the Company as the ‘internal surveyor’. The payslips Mr Smith received in the new role identified him as ‘surveyor’. During the period Mr Smith was employed in the new role, the Company utilised the services of Rod Bright & Associates. Rod Bright & Associates provide professional surveying services to the Company and other businesses in south-west Victoria. Mr Smith had interactions with Rod Bright & Associates during his employment. In October 2019, Graeme Rodger spoke with Mr Smith about an as constructed plan (‘ASCON’) that was overdue. There is a dispute about what occurred in this meeting. Mr Smith claims Graeme Rodger swore and yelled at him. Mr Rodger claims Mr Smith yelled at him. In any event, following that encounter, Mr Smith left the workplace. He only returned to work following a phone call with Jason Rodger. In late 2019, the Company implemented a new method of time recording. This took the form of an app on each employee’s mobile phone. The records used or created by this app are referred to as ‘T-sheets’. It is sufficient to note for present purposes that the Company held concerns about Mr Smith’s use of T-Sheets, whether he was using the app, and whether his T-sheets were accurate. Mr Smith, for his part, says that he was unable to use the app because it would continually shut down or automatically log him out. On 22 January 2020, Graeme Rodger and Mr Smith spoke about Mr Smith’s use of the T-Sheets app. The accounts of this conversation vary. It is common ground, however, that Graeme Rodger asked Mr Smith why he was not using the app, and that Mr Smith’s reply at least in part was that he was being logged out of the app.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLG 1661 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	25 March 2022
Catchwords:	INDUSTRIAL LAW – Adverse action – workplace right- meaning of ‘inquiry’ in section 341(1)(c)(ii) of the Fair Work Act 2009- whether there is a source of entitlement for the inquiry about a pay rise- where the contract of employment contains a term for pay but not a term for pay rise- whether alleged breach of contract necessary in order to point to the contract as a source of entitlement- pay a substantial term of the employment contract- inquiry about a pay rise necessarily an inquiry about pay- contract term relating to pay is a source of entitlement to inquire – contravention of contract not necessary for there to be a source of entitlement to inquire about pay- held inquiry about pay rise was the exercise of a workplace right INDUSTRIAL LAW- Adverse action – meaning of dismissed in section 342 of the Fair Work Act 2009- where employer told employee to ‘fuck off’ while pointing to the door- whether statement and action of employer constitute dismissal of the employee – circumstances considered including nature of the work, nature of the construction industry and parties prior communications – held actions of employer did not bring about the dismissal of the employee INDUSTRIAL LAW- Award- unpaid entitlements – whether employee was covered by the Surveying Award 2010- employee engaged initially as a labourer- employee promoted to new role – employee referred to internally with the employer as a ‘surveyor’- employee qualifications and experience considered- employee not possessing the qualifications and experience required by the Award- employee not performing surveying work – held employee not covered by the Award
Legislation:	Surveying Award 2010 cl 3, 4.1, B.1.1, B.1.9 Fair Work Act 2009 (Cth) ss 90(2), 340, 341(1), 341(1)(c)(ii), 342(1), 360, 361, 386
Cases cited:	Alam v National Australia Bank Ltd [2021] FCAFC 178 Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2021] FCA 1377 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (2017) 271 IR 24 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 City of Sydney RSL & Community Club Ltd v Balgowan (2018) 273 IR 126 Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442 Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200 at 205-206 O Meara v Stanley Works Pty Ltd