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 [2006] AIRC 496

PIA Mortgage Services Pty Ltd v King [2020] 274 FCR 225

Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534

Division: Division 2 General Federal Law

Number of paragraphs: 131

Date of hearing: 7, 8, 9 & 11 February 2022

Counsel for the Applicant: Mr Mckenney

Solicitor for the Applicant: Taits Legal

Counsel for the Respondent: Ms Preston

Solicitor for the Respondent: Maddens Lawyers
ORDERS

MLG 1661 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
LUKE SIDNEY SMITH

Applicant

AND:
RODGER CONSTRUCTIONS PTY LTD

Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:
1.The Application filed 20 May 2020 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 BLAKE:

Luke Smith was employed by Rodger Constructions Pty Ltd (‘Company’). Mr Smith claims that he has not been paid all of the entitlements due to him under the Surveying Award 2010 (‘Award’) during his employment. Mr Smith also claims he was dismissed from employment for making two inquiries of the Company. The first inquiry was about the use of a mobile phone application called ‘T-Sheets’. The second inquiry was about receiving a pay rise due to his ability to draft as constructed plans (‘ASCON’). Mr Smith claims that his dismissal for making these inquiries contravenes section 340 of the Fair Work Act 2009 (‘Act’).
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.
On 23 January 2020, Mr Smith approached Jason Rodger. According to Mr Smith, he said ‘Jason I would like a pay rise as I feel that by learning how to draft ASCON’s I can save the company money as we don’t need to use an external survey any more’. Jason Rodger queried why Mr Smith was asking for the pay rise. In reply, Mr Smith told him that he did not like asking for more money, but asked Jason Rodger to consider the matter further. It is Mr Smith’s evidence that he then started comparing himself to other employees. Following some further discussion, Jason Rodger subsequently arranged for Graeme Rodger to attend the office to speak to Mr Smith.
The subsequent conversation that occurred between Graeme Rodger and Mr Smith is a matter to which I will return. It is relevant to note for present purposes that a discussion ensued about Mr Smith’s request for a pay rise, and his use of T-sheets. The discussion became heated. It is agreed that the conversation ended with Graeme Rodger pointing to the door and telling Mr Smith to ‘fuck off’. It is also common ground that Mr Smith responded by referring to the prospect of an unfair dismissal claim though there is a dispute as to precisely what was said. Mr Smith says that he said ‘That’s not what I wanted to hear. Have fun with the unfair dismissal claim’. Graeme Rodger says Mr Smith stated ‘unfair dismissal, thanks very much. That’s what I wanted’.
Mr Smith never returned to work. Subsequently on 28 January 2020, Mr Smith asked for a separation certificate. The Company replied by stating among other things that it ‘accepts this request as your resignation’.
Mr Smith swore two affidavits in the proceeding. He also relied on an affidavit from Jason Rodger. The Company relied on affidavits from Graeme Rodger, Angela Hodgett, Martin Ruane, Anthea Selway and Rod Bright. All witnesses were cross examined. Various exhibits were tendered. Each party filed an outline of submissions prior to trial. I have considered all of this material.
THE PLEADINGS
During her opening, Ms Preston for the Company drew my attention to the pleadings in this matter. Among other things, she contended that claims for non-payment of annual leave on termination, and notice of termination of employment, had been pleaded as breaches of the Award. No claim had been advanced for contravention of the National Employment Standard in the Act. Further, Ms Preston pointed to the outline of submissions filed by Mr Smith. Ms Preston stated that the outline sought to expand the workplace rights claimed by the Applicant to include matters not stipulated in the Statement Claim. The workplace rights included in the Applicant’s outline, but not in the Statement of Claim, included that the Applicant enjoyed the benefit of the Award and the Agreement. Ms Preston said her client had come prepared only to meet the claim set out in the Statement of Claim.
I indicated to the parties that I intended to proceed to deal with the matter on the basis of the pleaded claims. Having heard Ms Preston’s submissions, however, I invited the parties to make any application arising from the matters raised by Ms Preston. None was forthcoming.
THE UNPAID ENTITLEMENTS CLAIM
Mr Smith claims that from the time he commenced in the new role until his dismissal, his employment was governed by the Award. In particular, Mr Smith claims that having regard to the duties he performed, his classification under the Award was ‘Level 6 – Surveyor Level 1’. The Company denies these claims. It contends that in the new role Mr Smith was employed either as a Construction Worker Grade 1 under the Agreement or a Construction Worker Level 1/Engineering Construction Worker Level 1 under the Building and Construction General On-Site Award 2010 (‘Building Award’).
There was not any dispute as to the principles to be applied when construing the Award. Those principles are well settled. A recent summary of the authorities was undertaken by Wheelahan J in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2021] FCA 1377 at [39], and I respectfully adopt Wheelahan J’s observations and references in that respect.
Clause 4.1 of the Award provides as follows:
This occupational award covers employers throughout Australia who employ professional surveyors and other employees in the classifications listed in Schedule B—Classification Structure and Definitions and their employees to the exclusion of any other modern award.
Clause 3 of the Award contains definitions of the terms ‘Graduate surveyor’, ‘Licensed Registered Surveyor’ and ‘Professional surveyor’. These definitions are as follows:
…Graduate surveyor means a person who possesses a bachelor degree in a relevant spatial discipline and who is eligible for admission as an Associate Member - Graduate of the Surveying and Spatial Sciences Institute…
…Licensed Registered surveyor is an employee who is required to be registered in accordance with the provisions of relevant legislation, and/or endorsed (if required), and qualified to carry out surveying duties…
…Professional surveyor means an employee qualified to carry out professional surveying duties as defined. The term Professional surveyor will include Graduate surveyor and Licensed/Registered surveyor and other Professional Surveyors whose field of surveying does not require formal registration…
‘Professional surveying duties’ is relevantly defined in the Award to mean:
duties carried out by a person in a particular employment the adequate discharge of any portion of which duties requires Graduate qualifications of the employee acceptable to Surveying and Spatial Sciences Institute for admission to the grade of Associate member.
Schedule B to the Award sets out an extensive definition of the term ‘surveying’ as follows:
Surveying means the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of the earth’s surface, whether on land or water or of any natural or artificial features on, below or above any part of that surface or planning the position or the length and direction of the bounding lines of any part of that surface, or of any such natural or artificial features thereof and includes the making or obtaining of a plan of plans thereof.
It includes the acquisition, management, interpretation and analysis of data; the portrayal and dissemination of derived information in written, graphical, numerical, digital, photographic or magnetic media; and associated consulting, design, and plan preparation. In addition and when performed by employees in the classifications listed in Schedule B – Classification Structure and Definitions, Surveying also includes administration, management and technical support activities.
Clause B.1.9 contains the classification descriptors for the ‘Level 6 – Surveyor Level 1’ classification as follows:
Level 6 – Surveyor Level I (135% relativity)
Surveyor Level I is a surveyor who works above and beyond an employee at Level 7 – Surveying Technician Level III, and whose duties may include document research, field and office work and checks on their own work and the leading of groups carrying out field or office work under controlled supervision. Work is carried out under prescribed methods and standards and is reviewed for validity, adequacy, and methodology.
(a) Minimum training and requirements
A Surveyor Level I (including a Party Leader (Supervised/Technical) Surveyor) means an employee who:
•has completed 80% of an Advanced Diploma; or
•is a Professional Surveyor who has completed a degree and experience; or
•equivalent.
(b) Duties
Indicative duties include:
•whilst working under controlled supervision, gathering or setting out field data and collating the resultant or separate information using computer techniques;
•preparing work sheets for engineering surveys and applying all relevant checks to ensure quality of computed work;
•preparing plans to an acceptable standard;
•clearly setting out all computations and checks to surveying work for checking by a Professional Surveyor;
•assisting in the training of staff, maintenance of equipment and office records; and
•assisting in the development of new techniques and procedures
Clause B.1.1 provides a definition of the meaning of 'or equivalent' as follows:
The words or equivalent where they appear in these definitions mean:
•A qualification recognised as equivalent by a State Training Authority or by a Registered Training Organisation registered by that Authority; or
•Equivalent skill and knowledge gained through on-the-job experience and/or relevant training which can be assessed using relevant competency standards and assessment procedures.
A number of initial observations may be made about the construction of the Award. First, the Award is titled the ‘Surveying Award 2010’. The definition of ‘surveying’ set out in clause B1.1 is therefore critical to understanding the context and coverage of the Award. Second, the Award identifies with a high degree of precision whom it is intended to cover. Three distinct types of ‘surveyors’ are identified within the ‘Definitions’ section of the Award. These are Graduate Surveyors, Licence Registered surveyors and Professional Surveyors. The Award also identifies with precision ‘other’ types of employees whose employment may be covered by the Award. Such employees must be ‘employees in the classifications listed in Schedule B- Classification Structure and Definitions’. A review of Schedule B identifies, in addition to ‘surveyors’ these other employees as being ‘Survey Technicians’ and ‘Survey Assistants’. The Award further contemplates how the classifications listed within it are to apply to each type of employee. The Award makes plain that a ‘surveyor’ is a person classified at Level 6 or above. A ‘survey technician’ is an employee classified at Levels 7-9. A ‘survey assistant’ is an employee classified at levels 10 – 12.
It is apparent from the way in which classification levels attach to particular types of employees that the Award contemplates employee progression through the classification structure as the employees acquire the relevant skills and qualifications. This is reinforced when one considers each of the classification descriptors. For example, in so far as formal qualifications are concerned, a ‘Level 12 Survey Assistant Level 1’ is a position where an employee holds no relevant qualification but is capable of assisting the surveyor or survey technician. At the other end of the spectrum, ‘Level 1 Surveyor Level IV’ applies to senior level employees who have completed a 3 to 4 year degree to qualify as a professional surveyor, or completed accredited education and training, or equivalent.
Another relevant feature of the Award is the emphasis on employees completing some form of formal education. All of the levels contained within Schedule B (except the lowest level, Level 12) require an employee to have completed some form of formal training, be it at Certificate, Diploma or Degree Level. This is not to say that the Award will only cover and apply to employees who have completed formal training. For example, various levels in the Award will apply to employees who are in the process of completing some form of formal training. Furthermore, an employee may be classified at a particular Level if he or she has obtained an ‘equivalent’ to the formal qualifications identified at each Level. What is meant by the term ‘equivalent’ is set out in clause B.1.1. The term ‘equivalent’ means not only training through a State Training Authority or Registered Training Organisation, but also ‘equivalent skill and knowledge gained through on-the-job experience’.
Mr Smith contends that he is covered by the Award, and the Award applies to him. Mr Smith pointed to clause 4.1 of the Award which expressly contemplates that ‘other employees in the classifications listed in Schedule B - Classification Structure and Definitions’ may be covered by the Award. He says he is one of those ‘other employees’ and that he performed work captured by the indicative duties referred to in the Level 6 classification. He also says that the work he performed falls within the definition of ‘surveying’ in the Award. Mr Smith also pointed to the fact that Mr Fary was referred to within the Company as the ‘internal surveyor’ and that he took over the same role, that his payslips identified him as performing the role of ‘surveyor’ and that none of the other potentially applicable industrial instruments (the Agreement or the Building Award) apply to him.

In order to properly assess the submissions above, it is necessary to consider the evidence.
There is no evidence before the Court that Mr Smith holds a degree or diploma. According to his resume, he holds a Certificate III in Mechanical Engineering. There is no evidence that he was undertaking studies at any time he was employed by the Company. There is no evidence before the Court that Mr Smith had any experience prior to joining the Company working as a surveyor, or in any role relating to surveying.
It is then necessary to consider the experience Mr Smith gained with the Company. Mr Smith commenced with the Company as a labourer or construction worker. He commenced in the new role in January 2018. Prior to commencing in that role, he ‘shadowed’ his predecessor in the role, Mr Fary, for two weeks. The extent of Mr Smith’s training for the role therefore did not extend beyond this two week period. Mr Smith said in cross examination he could do most things after three weeks.
During the period he shadowed Mr Fary, Mr Smith says he learned to use a ‘Total Station’, how to ‘back sight’, how to check locations and height and identify errors, data entry, use of AutoCAD, how to read and manipulate drawings and how to record information using a Total Station. A Total Station is positioning equipment that is used to measure distance and horizontal/vertical angles. A GPS Rover is another piece of positioning equipment used by Mr Smith in his work. Both of these pieces of equipment are also used by surveyors as well as construction workers.
Once in the new role, Mr Smith deposed that he undertook a variety of tasks and duties. This included correspondence with councils and water authorities, drafting ASCONs, using an AutoCAD to view and edit plans and extract data and performing set out work on each site. Mr Smith deposed that he operated both a Total Station and a GPS Rover. Mr Smith says he also performed other duties including acting as OHS officer, inducting new employees and acting as the Training Liaison Officer.
A part of Mr Smith’s role involved pegging out areas on a construction site. Mr Smith described this task as hitting pegs into the ground to give direction to where all services, footpaths, and roads are to be installed throughout the site. As part of his evidence, Mr Smith acknowledged in his affidavit that he did not ‘put in title pegs or do any cuts as this was done by a licensed surveyor’. Mr Smith also acknowledged that ‘the licensed surveyor also sets the level marks within the boundaries of the block’. Mr Jason Rodger deposed that Mr Smith used construction pegs to peg out the power supply.
Mr Smith was cross examined about the content of his affidavit and the nature of his role. Under cross examination, Mr Smith:
(a)accepted that he would not have the knowledge, qualifications or experience to decide where services should go or to divide plans accordingly;
(b)accepted his role was not to preserve survey data or survey plans and that such tasks were performed by a professional surveyor;
(c)accepted that he needed survey data from the external surveyor to do most of his work;
(d)accepted that he was not a licensed surveyor but stated that he could ‘have a good crack’ at doing their job;
(e)accepted he would not know how to account for movement in the earth in the production of survey data which leads to changes in survey coordinates and agreed that a licensed surveyor would know how to do that;
(f)stated that he knew how to determine the particulars of the Earth’s surface, its contour, area and form. Two aspects emerged from this evidence. First, when asked to explain how he did it, he gave what could only be described as a superficial and generalised account of how that might be done. Second, he conceded that he did not determine contour, area or form when setting out construction pegs, or when working out where services were installed (which he described as the two main aspects of his job). Third, he stated he only determined contour, area or form of the Earth when asked to do so by a supervisor;
(g)agreed that it was an engineer’s responsibility to determine the form of the land and that he would provide coordinates to the engineer for that purpose on particular jobs;
(h)agreed that he did not produce survey plans;
(i)agreed that preparing ASCON’s on his part involved working out where services were installed;
(j)agreed that what he did was use survey control data and engineering plans to mark the places that services should be installed according to those plans and that the information he was using was provided by engineers and external surveyors;
(k)explained the process of preparing an ASCON as being recording information into the CAD, which then identifies a point on the screen, from which he would draw the pipeworks from point to point;
(l)agreed that he prepared three to four ASCONs during his employment, and helped to correct a few previous ones.
The following observations may be made about Mr Smith’s evidence. First, nowhere in his affidavit did he depose that he knew how to determine, or determined when asked to do so, particulars of the Earth’s surface, contour, area or form. In cross examination, however, he stated (unconvincingly in my view) that he had those skills, and did those things. Second, a central feature of Mr Smith’s case was that he drafted ASCONs. His own evidence, however, is that he only did this three or four times and that the process involved him inputting data into a CAD which then determined the point of reference. That falls short of ‘drafting’. Third, as noted above, he made a number of what can only be described as concessions in relation to the role engineers and surveyors played, and how he needed their data to do his job. When these matters are considered along with the other evidence before me, I formed the view that Mr Smith tended to overstate the nature and importance of the work he performed. Not only that, but in my view he either formed a grander view of his own skills than was warranted, or utterly failed to comprehend the technical nature of surveying work. So much can be seen from his comment he could ‘have a good crack’ at undertaking the work of a licensed surveyor.
Mr Martin Ruane, Civil Construction Superintendent, gave evidence for the Company. Mr Ruane was the person to whom Mr Smith reported once he commenced in the new role. Mr Ruane gave a detailed explanation of Mr Smith’s role - see for example, paragraphs [22] – [26], [34] – [37] of Mr Ruane’s affidavit. I accept Mr Ruane’s evidence. It bears a close resemblance to what Mr Smith says his role was once the evidence given by Mr Smith in cross examination is taken into account.
The other aspect of Mr Ruane’s evidence is that Mr Ruane places the work Mr Smith performed in context. That context is important to understand. In summary, the Company works on large civil construction projects and in the last few years has been working on large subdivision projects. In order to perform its work, the Company uses survey control plans provided by an external licensed surveyor (Anthony Bright of Rod Bright & Associates) and engineering designs provided by external engineering consultants. Mr Ruane describes how the survey control plans are provided to engineering designers who draft engineering plans for the location of all services (stormwater drains, roads, electricity, foot parts, sewage, etc.). These plans, referred to as Project Plans, are then used by the Company to establish and mark the exact on-site location at which the construction team will install services under a supervisor’s direction. Set out (part of the work performed by Mr Smith) involves an employee attending site with positioning equipment and plans to mark out the location where services are to be installed in accordance with the Project plans prepared by the licensed surveyors and engineers.
Mr Ruane then describes how the person who performs the set out function (Mr Smith in this case) is required to enter data into the Company systems so that the Company can ensure that the locations marked for the installation of services, and the location at which the services are actually installed, align with the engineering plans. Then, once installed, plans are created using computer programs to show where the services have actually been installed, by reference to the survey control plans. These plans are ASCON’s. ASCON’s are construction plans, not surveyor plans, though survey control plans are a necessary input for the creation of ASCON plans. ASCON plans are created by uploading data into the ASCON template program to plot the sites of services that have been installed. This process changed in 2019 when a different program was used to create ASCONS. The ASCON plans are sent to engineers for checking before being submitted to the necessary authorities.
I accept Mr Ruane’s evidence in relation to the matters above.
Mr Anthony Bright gave evidence in the proceeding. Mr Bright is a licensed surveyor and the Managing Director of Rod Bright and Associates. Mr Bright’s evidence was significant in the following respects.
Mr Bright deposed that survey work is ‘the observation of the Earth’s surface in three dimensions and accordingly the interpretation, analysis and mapping thereof’. In his Affidavit, Mr Bright also gave evidence in some detail around the extent of the services that his company provides to the Company. Those services included the following:
(a)the initial surround survey of the property;
(b)placing initial title pegs into the ground to identify title boundaries;
(c)provision of a digital survey control file to assist in construction works;
(d)preparing abstracts of field records;
(e)attending to plans of subdivision, final pegging of subdivision title boundaries;
(f)placing semi-permanent pegs within the development site (for example, eastings, northings and elevations) within the development site;
(g)drafting of permanent survey marks plans; and
(h)provision of an updated digital survey control file.
Of significance, neither Mr Bright nor his company are involved in the preparation of ASCONs.
Mr Bright gave evidence of his dealings with Mr Smith. Mr Bright deposed that Mr Smith was not involved in any act or process to determine the form, contour, position, area, height or depth of land. Mr Bright stated those tasks are performed by his staff. Mr Bright also deposed that there were errors in the work performed Mr Smith and that Mr Smith was unable to properly explain techniques and processes. I am prepared to accept that evidence on the basis that Mr Bright did from time to time have personal dealings with Mr Smith and that he has the requisite technical expertise to assess those matters in his dealings with Mr Smith.
Having regard to the matters above, I make the following findings:
(a)Mr Smith did not perform work that involved the process of determining the form, contour, position, area depth or other similar particulars of the Earth’s surface. He did not produce survey plans;
(b)Mr Smith did not place title pegs or do any cuts, nor set the level marks within the boundaries of a block;
(c)Mr Smith does not know how to account for movement in the Earth in the production of survey data which leads to changes and survey coordinates;
(d)Mr Smith needed information provided by engineers and surveyors to do his job;
(e)Mr Smith did not decide where services were to be installed;
(f)Mr Smith’s principal role was the setting out of construction pegs in accordance with plans that were provided to him. In undertaking this work, he operated a Total Station and a GPS Rover to measure distances and height;
(g)Mr Smith entered data that was used to produce ASCONs. He did this on only 3 – 4 occasions, and I am of the view it was not one of his main tasks. His work with ASCON’s did not extend beyond this;
(h)An ASCON is, in any event, not a survey plan; and
(i)Mr Smith performed a variety of other roles including in the OHS area and dealing with external parties from time to time.
There is then the question of whether the Award covers Mr Smith and applies to him in his employment.
Clause 4.1 of the Award refers to ‘other employees’. The ‘other employees’ to which the Award applies are only those employees specified in Schedule B. That is, surveyors, survey technicians and survey assistants within the levels specified. The reference to ‘other employees’ does not extend to employees that fall outside the boundaries identified above.
Mr Smith was not undertaking ‘surveying’ work as that term is defined in clause B.1.1. He was not determining the form, contour, position, area, depth or other similar particulars of the Earth’s surface. He was pegging out ‘bounding lines’ and in doing that needed to measure distance, but critically, he was not planning the position or length of the ‘bounding lines’. He was not creating survey plans, or deciding where services should go. He needed survey plans and other information to do his job, but he was not doing surveying work. He did assist in the preparation of ASCONs, but only did so on a few occasions, and his role in the preparation of those plans was limited. ASCON’s are in any event construction plans, and not survey plans. Mr Smith was acquiring and managing data, but that is insufficient in the circumstances of this case to mean that Mr Smith was engaged in ‘surveying’. Many roles involve the acquisition and management of data. The fact that Mr Smith was using equipment also used by surveyors, or that he was labelled internally within the Company as a surveyor, or that his payslips referred to him internally as a surveyor does not advance his case.
Mr Smith did not meet the minimum training or experience requirements for Level 6 surveyor. He has not completed 80% of an Advanced Diploma. He is not a ‘professional surveyor who has completed a degree and experience’. His submission that he holds or has the ‘equivalent’ of the above requirements must be rejected. Nothing in Mr Smith’s employment history indicates that he had previously performed a role such as the new role he was asked to perform. His experience therefore amounts to two weeks training with Mr Fary, two years of employment with the Respondent where he was not supervised by any licensed or professional surveyor, and where on his own evidence, he did not perform any of the key tasks expected of a surveyor, for example, the placement of title pegs. On no view can that reasonably limited on the job experience be regarded as equivalent to the minimum training requirements for a Level 6. It is not equivalent to the completion of 80% of an Advanced Diploma and it is certainly not equivalent to a Professional Surveyor who has completed a degree and experience, particularly when one has regard to the definitions of ‘Professional surveyor’ and the definition of ‘professional surveying duties’ contained within the Award.
A level 6 employee must be a ‘surveyor’, and not a Survey Technician or Survey Assistant. Mr Smith was not a surveyor - he is not a ‘graduate surveyor’, a Licensed Registered surveyor or a Professional surveyor as those terms are defined in the Award. As noted, he did not have the equivalent experience to the required professional training requirements. He was not carrying out ‘professional surveying duties’ as that term is defined in the Award. Further, I observe that it is a requirement of a person working at Level 6 that the person is a ‘surveyor who works above and beyond an employee at Level 7’. The Level 7 classification duties require, among other things, providing technical guidance or advice within the scope of this level, preparing reports of a technical nature on specific tasks or assignments, the carrying out of surveys, preparation of plans, and the carrying out of survey computations. Apart from the limited preparation of ASCON’s, (which is arguably caught by the description of ‘preparing plans’), Mr Smith does none of these things. Mr Smith is not a level 6 employee, in part, because he is not a person working above and beyond an employee at Level 7.
It is a requirement that a person working at Level 6 perform work under ‘controlled supervision’. ‘Controlled supervision’ in the context of this Award given the minimum training requirements, and the technical nature of the work, can only mean supervision by a person at a superior level who holds or has superior qualifications or equivalent experience as a surveyor. Mr Smith was not supervised by any other surveyor. He certainly was not supervised by Mr Bright. Mr Ruane was the person that Mr Smith reported to, but Mr Ruane did not closely supervise Mr Smith. Furthermore, while the evidence shows the Mr Ruane is a qualified civil engineer, there is no evidence that he holds the qualifications of a surveyor necessary to supervise Mr Smith.
In assessing this matter, I have also considered the terms of the Agreement and the Building Award. The Agreement applies to ‘any existing or future employee’ of the Company ‘employed in the grade set out in clause 6.1’. Grade 5 in clause 6.1 refers to employees who work in the field. The Building Award relevantly applies to the civil construction industry and has contained within it a civil construction stream. Among the classifications set out within the Building Award is identified a person known as a ‘marker-set out’. It is not necessary for me to determine conclusively whether Mr Smith is covered by either the Agreement or the Building Award in the new role. I simply observe, however, that while I have found that Mr Smith is not covered by the Award and the Award does not apply to him, there are other industrial instruments that may well cover and apply to him and seem to more accurately cover the work he performs.
Finally, it is necessary to consider one other aspect of the claim for unpaid entitlements. Mr Smith pleaded in the alternative at paragraph [5] of the Statement of Claim that it was an agreed term of his employment that his employment would be governed by the Award. No evidence was placed before the Court of any agreement between Mr Smith and the Company that his terms of employment would incorporate the Award, or that the Award terms would operate as terms of his contract of employment. Accordingly, there was not any agreement that the terms of Mr Smith’s employment would incorporate the terms of the Award.
For all of the above reasons, Mr Smith’s employment was not covered by the Award and the Award did not apply to him. He does not fall within the Level 6 classification.
The finding above is sufficient to dispose of Mr Smith’s claims for underpayment of minimum wages and overtime. It is necessary, however, to consider further his claims for annual leave, annual leave loading, and notice of termination. In respect of annual leave and notice of termination, Mr Smith pleaded that failure to provide these entitlements constituted a breach of the Award. The Award, however, does not set out these entitlements. The Award merely refers to the National Employment Standards. Mr McKenny for Mr Smith sought to persuade me that the terms of the National Employment Standards were incorporated into the Award. That does not advance Mr Smith’s case in light of the finding I have made that the Award does not cover or apply to Mr Smith. In circumstances where no breach of the National Employment Standards is pleaded, Mr Smith’s claim that he did not receive annual leave loading and notice of termination must fail. These claims also fail for other reasons. In respect of payment of accrued annual leave, the evidence before the Court is that Mr Smith was paid his outstanding accrued annual leave. Further, for reasons that I will come to below, Mr Smith’s employment was not terminated by the Company and he therefore is not entitled to notice of termination.

The claim for failure to pay annual leave loading on termination of employment was also pleaded by Mr Smith as a breach of the Award. No alternative claim was pleaded. Given my findings above, this claim must fail. I note that even if the Award had applied, it seems Mr Smith may not have been entitled to annual leave loading because the Award provides annual leave loading only to be paid during a period of annual leave. That provision, however, seems to run counter to section 90(2) of the Act which provides that when employment ends, an employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. This may have provided a basis for Mr Smith to claim an outstanding entitlement to annual leave loading. Such a claim was not, however, pleaded and I was not addressed on this issue by Mr Smith.
For all of the above reasons, Mr Smith’s claims for unpaid entitlements under the Award must fail.
THE ADVERSE ACTION CLAIM
The statutory provisions
Mr Smith claims the Company contravened section 340 of the Act when it dismissed him from employment. In summary, section 340 of the Act relevantly provides that a person must not take adverse action against another person because the person has exercised a workplace right, or to prevent the exercise of a workplace right. The term ‘adverse action’ is defined in section 342(1) of the Act and relevantly incudes the dismissal of an employee from employment. The parties agreed that the meaning of the word ‘dismissed’ in section 342 is to be informed by section 386 of the Act. Further, section 341(1) of the Act identifies the circumstances in which a person has a ‘workplace right’. It relevantly provides that a person has a ‘workplace right’ if the person is able to make an ‘inquiry’ in relation to his or her employment.
Section 360 of the Act provides that a person takes action for a particular reason if the reasons for the action include that reason. Section 361 of the Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging conduct was engaged in in contravention of Part 3‑1 of the Act, it is alleged that a person took or is taking action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Part 3-1 of the Act, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Inquiries a person is able to make in relation to employment
Unlike many cases in this area, this matter concerns inquiries Mr Smith made, rather than complaints. In PIA Mortgage Services Pty Ltd v King [2020] 274 FCR 225 at [136] (‘PIA’), Snaden J referred to the Macquarie Dictionary definition of ‘inquiry’ as being ‘2. the act of inquiring, or seeking information by questioning, interrogation. 3. a question; query. – phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office’.
Not all complaints and inquiries that an employee makes in connection with his or her employment are complaints or inquiries made in the exercise of a workplace right or rights. In Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346 (‘Shea’) at [625], Dodds- Streeton J stated, inter alia, ‘the ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument such as a contract of employment, award or legislation’.
The observations of Dodds–Streeton above have been the subject of endorsement and clarification by recent Full Courts. In PIA at [12]–[13], the majority (Raniagh and Charlesworth JJ) agreed with the reasoning of Dodds-Streeton J set out above, but considered that the phrase used by Dodds–Streeton ‘must be underpinned by an entitlement or right to make a complaint’ to be ambiguous. Raniagh and Charlesworth JJ concluded that the phrase properly meant ‘must be underpinned by an entitlement or right to make a complaint’, while noting that whichever view was taken of what the phrase meant, it made no difference to the case before them. Snaden J in separate reasons at paragraph [164] of PIA also endorsed the view expressed by Dodd-Streeton in Shea.
In PIA at paragraph [26]-[27], the majority stated that an employee is able to complain about an alleged breach of the contract of employment, that an employee is able to complain about an employer’s alleged contravention of a statutory provision relating to employment (including in circumstances where the statute does not expressly or directly confer a right to bring proceedings or complaint) and that the complaint must be genuinely made, in good faith and for a proper purpose. In making those statements, the majority stated expressly nothing was intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint.
The reasoning in PIA was considered by Steward J in Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442 (‘Maric’). Maric is a case of some significance in this matter because it concerns the making of an ‘inquiry’ rather than a ‘complaint’. Steward J had little difficulty in following PIA and finding that an inquiry must be founded upon a legal source of entitlement” see paragraphs [27] and [55] of the judgment in Maric.
In Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (‘Whelan’), a Full Court at [28] (Greenwood, Logan and Derrington JJ) stated that the types of complaints that might qualify for the purposes of section 341(1)(c)(ii) include not merely those that were made in the exercise of rights and entitlements, but also complaints about entitlements that a contract of employment confers upon an employee. The Court stated
[28]We are quite unable to see how any of this follows. The relevant clauses from Mr Whelan’s contract of employment are set out at para 36 of the primary judge’s reasons for judgment. It is not necessary again to reproduce them. They made provision for the annual fixing of a bonus plan and, at the very least, contemplated the payment to him, as a matter of discretion, of bonuses. He was entitled to make complaint or inquiry on these subjects. The following discussion of principle by the primary judge (at [33]–[34]) is, with respect, unremarkable and correct:
33Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
34As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
The pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by her Honour, the exercise of a workplace right for the purposes of the FW Act.
The statements above need to be contrasted with statements of Bromberg J (in obiter) at [45] –[67] with whom Mortimer J agreed, Anastassiou J contra, in Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 (‘Cummins’). There, Bromberg J after considering the various authorities, stated that the reasoning in PIA, Whelan and Shea was wrong and expressed the view that any employment related complaint, whether or not made as an exercise of some right or entitlement, would be enough to fall within the scope of section 341(1)(c)(ii) of the Act.
The apparent divergence between PIA, Whelan and Cummins to which I have referred above has been discussed most recently by a Full Court in Alam v National Australia Bank Ltd [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ) (‘Alam’). The Full Court in that matter made the following important statements. First, the Court did not accept it had a choice available to it between the approaches set out in PIA Mortgage and Cummins. The Full Court pointed out that the reasoning of Raniagh and Charleworth JJ was part of the ratio decidendi of that case whereas the reasons of Bromberg J were obiter. Accordingly, it was not a matter for the Court to choose between two equally available alternatives (at [93]). Second, the Court considered the different approaches set out in PIA Mortgage and Whelan. The Court noted that while there was some difference between the principles endorsed in each of these decisions, that difference is unlikely to be significant (at [94]). The Full Court proceeded on the understanding of section 341(1)(c) as indicated by the Full Court in Whelan (at [97]) before reiterating that it doubted the approach preferred by the majority in PIA will produce different outcomes in practice than the approach stated in Whelan.
In reaching the conclusion above, it is important to note two other matters to which the Full Court in Alam referred. First, at paragraph [75] of Alam, the Full Court also stated after quoting paragraphs [33] and [34] from the trial judgment of Collier J in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534:
[75] It is evident that, in applying the approach of Dodds-Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c). [emphasis added]
Second, the Court expressed some reservations about the reasoning from PIA that it considered it was required to adopt, particularly in respect of the ‘inquiry’ limb of section 341(1)(c)(ii).
[95]It does seem to us, with respect, that, in some of the decisions construing s 341(1)(c), the ability of an employee to make an “inquiry” has not been given the same prominence as has the ability of the employee to make a “complaint”. Section 341(1)(c) should be construed having regard to both limbs. It is not uncommon for instruments, whether they be an industrial award, a collective agreement such as an enterprise agreement, an order of an industrial body, or a contract of employment, to make provision for the making of complaints. It is, however, much less common for instruments of these kinds to make provision for the making of inquiries. This is a matter to which Jessup J referred in Murrihy at [143] (set out above), as did Bromberg J in Cummins South Pacific at [46] (also set out above). It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an “inquiry” in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source. In our view, this may point against a requirement that the ability to make a complaint or inquiry must itself have an instrumental source.
[96]Several authorities have emphasised that an object of Div 3 in Pt 3-11 of the FW Act is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint or inquiry in relation to their employment: Shea v TRUEnergy at [619]; Cummins South Pacific at [14]. As Jessup J noted in Murrihy, the inquiry may involve a request for legal assistance, for example, as to whether an employee is receiving his or her proper entitlements. Such an inquiry may be made to the Fair Work Ombudsman, to the employee’s union, or to a lawyer retained by the employee. It may result in the employee being advised that he or she does have a claimed entitlement, or does not, and in the employee being advised as to the way in which a claim may be pursued. It would be a curious consequence, and seemingly inconsistent with the protection which the FW Act affords to those engaged in the orderly conduct of industrial affairs, if an employee making such an inquiry does not have the protection of s 340 because he or she does not have a right or entitlement, bestowed by a relevant instrument, to make that inquiry.
[97]We consider that, irrespective of our own views concerning the proper construction of s 341(1)(c), this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in Whelan. Doing so gives effect to the important principle of comity to which we have referred.
The reverse onus
In order to rebut the presumption in section 361 of the Act, an employer must typically lead evidence to show that the proscribed reason or circumstance that is alleged did not factor in any substantial or operative way as a reason for the conduct that an applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. It falls to the Court to determine ‘the actual reason of the decision-maker, in his or her own mind’: Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 at [32] (Jessup J, with whom Perram J agreed at [77], Bromberg J dissenting).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (’Barclay’), the High Court considered how an employer might rebut the presumption contained in section 361 of the Act. In this respect, I refer to and adopt the reasons from the judgment of French CJ and Crennan J at [44]-[45].
Where an employer gives evidence of why it engaged in the conduct the employee complains about, the inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for an employer to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [33] (Gray, Cowdroy and Reeves JJ). A claim under Part 3‑1 of the Act ‘…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome’: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
The Full Court in Alam also recently summarised the principles bearing upon the application of section 361 of the Act to section 340 of the Act: see paragraph [14] of Alam.
THE EXERCISE OF WORKPLACE RIGHTS IN THE PRESENT MATTER
The Statement of Claim identifies two workplace rights (inquiries) Mr Smith claims to have exercised.
The alleged inquiry on 22 January 2022
Mr Smith pleads that on 22 January 2020, he exercised a workplace right by making an inquiry with the Company about the use of TSheets to track and monitor employees location outside of working hours.
The first matter to note about this claim is that Mr Smith’s own evidence does not support the pleaded case. In his evidence, Mr Smith deposes to a conversation on 22 January 2020 that was initiated by Graeme Rodger about why Mr Smith was not using the TSheets app. A conversation then ensued about TSheets, why Mr Smith was not using it, and the problems he was having. Mr Smith’s account of the conversation was supported by Jason Rodger and Mr Smith effectively confirmed this account of the conversation during cross examination. That being the case, I find that when Mr Smith spoke to Graeme Rodger, he did not make an inquiry of the type alleged in the Statement of Claim. He did not make any inquiry at all. He was not in the act of inquiring, or seeking information by questioning or interrogation. The proper characterisation of what occurred is that Mr Smith was responding to queries from Graeme Rodger as to why he was not using the TSheets app. No inquiry was made in the sense contemplated by Snaden J in PIA or Steward J in Maric.
Having regard to Alam and the other cases referred to, the next question that arises is what the source of the entitlement, whether instrumental or otherwise, is to enable Mr Smith to make the inquiry. Mr Smith says the source is his contract of employment. His submission was that the introduction of the TSheets system and associated application became a term and condition of employment that was imposed on employees, including himself.
The evidence in relation to the terms of Mr Smith’s employment contract is sparse. There is no of a written contract before me. Any contract was oral. The evidence in relation to the introduction of TSheets is also sparse. Among other things, Jason Rodger in his affidavit stated simply that TSheets was introduced to try and maintain movement of workers, and that Mr Smith had to utilise this app on his personal mobile phone. Graeme Rodger deposed that Mr Smith had the TSheets application on his mobile phone and that he was required to record his time, as were all staff. Ms Selway deposed that the mobile telephone application was introduced to enable employees time to be recorded electronically. Mr Ruane deposed that Jason Rodger told him TSheets was introduced in 2019 to review or monitor Mr Smith’s work.
In my view, whatever the terms of the contract might be between the Company and Mr Smith, those terms did not include a term relating to TSheets or the use of an associated application. Mr Smith first commenced employment in September 2017. His employment terms were changed by agreement in around January 2018 when he took on the new role. Self-evidently, there could be no term of the contract relating to TSheets in either 2017 or 2018 because the TSheets system was not in place at those times. Nor it seems was there any other contractual requirement to record time.
The evidence is that the TSheets system was introduced in late 2019. There is no evidence before me, however, of how TSheets might have become a term of Mr Smith’s contract in late 2019 or indeed whether Mr Smith’s contract was amended in 2019. I accept that Mr Smith was required to use the TSheets application. Employers commonly issue instructions or directions to employees to undertake certain tasks, or do certain things, in connection with employment. There is nothing before me that suggests that the requirement to use TSheets was anything other than an instruction or direction to use the system. There is no evidence before me of a discussion about altering employment terms when Mr Smith accepted the new role. There is no evidence of Mr Smith receiving any form of consideration in exchange for agreeing to use TSheets. In these circumstances, I find there was not a term in Mr Smith’s employment contract relating to the use of TSheets.

There does not appear to be any other basis upon which it can be said that there is an instrumental source for Mr Smith to make an inquiry in relation to the use of TSheets.
For all of the above reasons, Mr Smith did not make an inquiry of the type contemplated by section 341(1)(c) of the Act and therefore did not have or exercise a workplace right within the meaning of section 341(1)(c) of the Act on 22 January 2020.
The alleged inquiry of 23 January 2020
Mr Smith’s pleaded case is that on 23 January 2020, he exercised a workplace right by making an inquiry with the ‘Respondent’ about receiving a pay rise due to his ability to draft as constructed plans which resulted in business efficiency in the ‘Respondents business activities’.
The Company submitted that the Court should find that the alleged inquiry did not constitute a workplace right, or the exercise of a workplace right for the following reasons. First, that the evidence did not establish the pleaded case. In this respect, it was submitted that while Graeme Rodger was aware that Mr Smith wanted a pay rise when he met with him on 23 January 2020, Graeme Rodger was not aware that Mr Smith had sought the pay rise on the basis of his drafting of ASCON’s. Second, what occurred was not an inquiry - if anything it was a complaint (which is not pleaded) or the negotiation of workplace terms. Third, it is not an inquiry Mr Smith was ‘able to make’ - there is not an underpinning source or the entitlement to make the inquiry.
Mr Smith deposed that on 23 January 2020, he approached Jason Rodger and told him that ‘I would like a pay rise as I feel that by learning how to draft ASCON’s I can save the company money as we don’t need to use an external surveyor any more’. Mr Smith deposes that he then had a discussion with Jason Rodger about whether he should get a pay rise before being told to wait while Jason Rodger obtained payroll information. The only other party to this conversation, Jason Rodger, confirms this account of events, and I accept it.
Jason Rodger deposes that after he asked Mr Smith to wait, he called Graeme Rodger and asked him to attend the office. In his affidavit, he says he ‘explained the situation’ to his father.
Graeme Rodger says that he received a call from Ms Selway telling him to come to the office immediately to have a meeting with Mr Smith and Jason Rodger because Mr Smith had asked Jason Rodger for a pay rise and Jason Rodger did not want to deal with it alone because of his personal relationship with Mr Smith.
Graeme Rodger ultimately attended the office and met with Jason Rodger and Mr Smith. The content of that meeting is important, and I will return to it later. For present purposes, it is sufficient to note that while there was discussion about Mr Smith and a pay rise, there is no evidence before the Court that Graeme Rodger knew the pay rise was being sought because Mr Smith was drafting as constructed plans which resulted in business efficiencies for the Company. Graeme Rodger did not know that Mr Smith was seeking a pay rise on the basis of his ability to draft as constructed plans which resulted in business efficiency for the Company.
Notwithstanding the finding I have made above, I am unable to accept the Company’s submission that the evidence does not establish the pleaded case. The pleaded case is that Mr Smith made the inquiry about a pay rise on business efficacy grounds with the ‘Respondent’. The inquiry was clearly raised with Jason Rodger. Jason Rodger was at the time the Managing Director of the Company. I accept Jason Rodger preferred not to deal with the issue raised by Mr Smith given his personal relationship with Mr Smith’s sister. It was Jason Rodger’s role, however, to undertake human resource responsibilities, deal with employee issues and conduct wage negotiations with personnel. In these circumstances, when Mr Smith raised the issue with Jason Rodger, he was raising it with the Respondent. Whether Graeme Rodger knew that the pay rise was sought on business efficiency grounds might well be relevant to assessing his reasons for allegedly dismissing Mr Smith from employment, but it is not relevant to the present issue. The evidence led does meet the pleaded case. The purpose of pleadings is to put a party on notice of the case he or she is required to meet. In my view, the Company has not suffered any prejudice. The evidence meets the pleaded case, and the Company had the benefit of affidavit material filed in advance of the hearing.
The Company next contends that when Mr Smith asked about a pay rise, it was not an ‘inquiry’ for the purposes of section 341(1)(c)(ii). The Company also contended that Mr Smith’s statement to Jason Rodger was part of a wages negotiation. This latter submission has its genesis in the judgment of Steward J in Maric.
I have set out earlier what Mr Smith said to Jason Rodger on 23 January 2020. Mr Smith stood by that account in cross examination. Mr Smith said he ‘would like a pay rise’ because he was drafting ASCONS and thereby saving the Company money. This statement of iteself is not an ‘inquiry’. It is not a request or statement made for the purpose of acquiring knowledge or information, to use the words of Steward J in Maric or Snaden J in PIA. Mr Smith, however, went on to make clear that he wanted an increase and was seeking a response from the Company. He told Jason Rodger that he hated asking for money, it had taken him two weeks to ask for a pay rise, and could Jason Rodger think about what the role is worth and let him know. Taken together, in my view, the statements made by Mr Smith constitute an ‘inquiry’. Further, each of participants to that conversation and the conversation that followed understood Mr Smith was asking for ( inquiring about) a pay rise.
The next question is whether the inquiry is one that Mr Smith is able to make. Mr Smith and the Company were parties to an employment contract under which Mr Smith received remuneration. The Company submits, however, that Mr Smith was not able to make the inquiry that he did. The Company points to cases such as PIA and Whelan and what was said in Alam. It submits, inter alia, that the authorities focus on identifying the source of the entitlement and in particular the source of the right to make the complaint or inquiry. The Company submits that in those cases, the source of the entitlement was the trespass or contravention of terms and conditions in the employment contract. It was submitted that in this case, no such trespass or contravention arose. Mr Smith’s inquiry was whether he could receive a pay increase. His inquiry was not one that raised a trespass or contravention of his existing terms of employment, in part, because there is not a contractual term dealing with pay rises. Accordingly, the inquiry was not one Mr Smith was able to make.
The submission of the Company requires careful analysis of the existing authorities and the circumstances of this case. The first matter to observe is that in my view, each of the relevant elements of section 341(1)(c)(ii) (other than the issue presently under consideration) is satisfied. Mr Smith is an employee. There is an inquiry. The inquiry relates to Mr Smith’s employment. The only issue is whether Mr Smith ‘is able to make’ the inquiry.
Next, I accept that employees are not possessed of an ability to inquire in relation to their employment merely because they possess a capacity to communicate an inquiry. I accept, as Dodds-Streeton said in Shea at [625], and Snaden J said in Wong v National Australia Bank [2021] FCA 671 at [69] that the right to inquire must be underpinned by a right or entitlement.
It may be accepted that PIA and Whelan arose in circumstances where the employee was complaining about a contravention of a term of an employment contract. The following matters, however, need to be borne in mind.
First, the description or parameters of what is needed for there to be a source of entitlement to inquire is not confirmed and extends beyond there being a contravention or trespass of contractual rights. I have set out paragraph [75] of Alam earlier in these reasons. In that paragraph, the Full Court state ‘it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision’. Collier J made a similar statement at [33] of her reasons in Whelan which I have also set out earlier.
Second, the Full Court has made clear that the variety of employment cases is wide and nothing said in the various judgments has been intended to foreclose argument as to other circumstances that might give rise to an ability to make a complaint or inquiry: PIA (Raniagh and Charlesworth JJ) at [27].
The Company’s submission invites the Court to draw a distinction between a provision dealing with an employee’s pay, and a provision dealing with a pay rise. In effect, the Company’s position is that the contract contains a provision about pay, and no breach is alleged of that provision. Therefore, there is not a source of entitlement that means Mr Smith ‘is able to make’ the inquiry. In making that submission, it seems to me that Company also makes the following submissions: there is not a provision in the contract dealing with a ‘pay rise’ and therefore no breach can be alleged of any term relating to a ‘pay rise’.
In my view, the submission above should be rejected. Mr Smith may have in terms asked for consideration to be given to his pay being increased. In substance, however, this was an inquiry, or encapsulated an inquiry, about his current rate of pay. It is artificial in my view, to attempt to distinguish in a case such as this between an inquiry about pay, and an inquiry about a pay rise. An inquiry about a pay rise can only arise because an employee is inquiring about the appropriateness or otherwise of his or her current rate of pay.
It is plain that Mr Smith’s pay is a matter about which his contract makes provision. Not only that, it is the substantial consideration that he receives under the contract for the performance of his work. Absent a provision for an employee to be paid, no employment relationship would subsist. The matter raised by Mr Smith related not just to any term of his contract, but the substantial and principal term of his contract.
The views I have expressed above do not mean that any inquiry an employee might make about or in relation to pay is an inquiry that the employee ‘is able to make’. For example, an employee making an inquiry about what other persons earn may not be able to make such an inquiry. An employee making an inquiry about an incentive scheme that is not referred to in a contract of employment and sits over and above ordinary salary or the base rate of remuneration may not be able to make such an inquiry. These circumstances, however, are removed from this case. Here, the inquiry was about Mr Smith’s existing pay rate and whether that pay rate might be increased.
When these matters are considered, in my view the inquiry made by Mr Smith was one he ‘is able to make’ for the purposes of section 341(1)(c) of the Act. Mr Smith therefore exercised a workplace right when he made the inquiry.
DID ADVERSE ACTION OCCUR BECAUSE OF THE EXERCISE OF WORKPLACE RIGHTS?
Adverse action includes dismissal from employment. An issue in this case is whether Mr Smith was dismissed from employment by the Company, or whether he left employment of his own choice.
Section 386 of the Act sets out the meaning of ‘dismissed’ for the purposes of the unfair dismissal provisions in the Act. Both parties accepted that the definition should be drawn upon for the purposes of identifying whether an employer ‘dismisses’ an employee as contemplated by section 342 of the Act. In summary, the definition sets out two limbs, one dealing with termination of employment ‘on the employer’s initiative’ and the other dealing with a situation where a person has resigned from employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer. There are many authorities dealing with the concepts set out in these provisions: see Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200 at 205-206; O Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [19]-[23]. See also, in more recent times, Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (2017) 271 IR 24 at [47]-[49] and City of Sydney RSL & Community Club Ltd v Balgowan (2018) 273 IR 126 at [9] – [13].
Critical to answering the question above is the assessment of what occurred at a meeting between Mr Smith, Jason Rodger and Graeme Rodger on 23 January 2020.
In his affidavit, Mr Smith gave the following account of the meeting:
j.When Graeme entered the office he immediately started asking me about the Tsheets app in a very angry and aggressive manner. I don't recall the exact words he used be [sic] he said words to the effect: "Why aren't you using the app correctly? You're lying about your location and you have it turned off." Jason then interjected and said "Graeme calm down and speak politely."
k.I then pulled out my mobile phone and showed Graeme the screenshots I had taken of my location services being on the day before. Graeme looked at the screenshots I had taken then said "I don't believe you, you can make those messages appear." I then responded by saying "The message is directly from the app software. I cannot make them appear."
l.Jason then interjected and said "Hey, let's not talk about that as Luke is in here for a pay rise." Graeme then yelled "What, more money? You don't do any bloody work anyway. Every time I look at you, you look like you're half asleep in your office." I was very offended by Graeme's remark and responded by saying ''Well try sitting in front of a computer screen 8 hours a day, 5 days a week and you would probably look tired too as it hurts your eyes." Graeme replied "It's your job, I couldn't care less how you looked." I replied "Well obviously you do as you just said I look half asleep."
m.Graeme then said "This is my business. I started it 54 fucking years ago. If I want people to use the app then they will use the app". At this point I was really offended by his remarks and that we had already discussed the app the day before. I said to Graeme "Congrats, do you want a medal? I'm in here asking for a pay rise and not to listen to you grand stand about how you can make people do what you want." Graeme, whilst pointing towards the door, responded by yelling at me: "And I want you to fuck off' to which I replied "That's not what I wanted to hear. Have fun with the unfair dismissal." I then walked out the door to go home as I believed that Graeme had just fired me.
In cross examination, Mr Smith gave an account that was different in some important respects from that contained in his affidavit. Mr Smith agreed that Jason Rodger introduced or started the meeting between the three of them by identifying the issue as being Mr Smith’s request for a pay rise. Mr Smith acknowledged that when the issue of the pay rise was raised, Graeme Rodger did not tell him to ‘fuck off’ and point to the door. Mr Smith also acknowledged that the conversation then turned to TSheets following Graeme Rodger’s refusal to give him a pay rise, with Graeme Rodger, saying following the request for a pay rise, that ‘you had better do some work first’ and Mr Smith responding with ‘show me where I haven’t been working’. Mr Smith acknowledged Graeme Rodger then stated that he couldn’t tell where he (Mr Smith) was because he kept turning TSheets off and that in response, Mr Smith showed him his phone. Mr Smith acknowledged that Graeme Rodger then told him words to the effect of ‘you are the only one with this problem’. Mr Smith acknowledged that the conversation moved on with him asking Mr Rodger whether he happened to be out yesterday. Mr Smith denied that he smirked or half smiled at Mr Rodger during the conversation. He does, however, recall saying to Graeme Rodger that he (Mr Smith) did not think Graeme Rodgers drive past his home was an accident.
In his affidavit, Graeme Rodger gave the following account of the meeting:
23.When I got to the office I went straight into a meeting with Luke and Jason in Jason's office. Jason told me, in front of Luke, that the meeting was being called because Luke wanted a payrise and thought he should get as much as other employees. Luke mentioned the names of these employees but I don't remember who was named.
24.I told Luke that he didn't deserve a payrise. That he was always away without a reason and without telling anyone.
25.I told Luke in the meeting that he was always absent and that he never got his work done and that I wouldn't give anyone a payrise based on that. The conversation turned to Luke's absences from work and that Tsheets was not recording his time as it should have been. I said that he had disappeared from work the day before and that I couldn't tell when he was or wasn't at work because he kept turning Tsheets off. Luke said that he didn't turn off Tsheets, that it switched itself off. When I asked why no-one else had that problem Luke said that it was probably an issue with his phone. Luke said that the day before he had gone home for lunch and that Tsheets had shut itself down.
26.I said that I had been out to a site and seen him at home, to which Luke responded with words to the effect that I had gone out deliberately to look for him. I had not gone out deliberately to look for him. I said that I asked him to switch on Tsheets, by which point Luke was smiling, which infuriated me. I asked him whether he thought it was funny. He said that he thought it was a "coincidence" (ie that I had been out the previous afternoon) to which I responded "I don't give a fuck what you think". Luke responded "Want a medal?", to which I said "No I want you to fuck off'.
27.I wanted him out of the office that second. That is why I pointed at the door. The reason was because Luke had just insulted me and there was no way I was going to give him a payrise. He was treating the whole discussion as a joke. He knew he was out of order. He appeared to be deliberately trying to rile me. It is true I was angry and this was certainly not the first time I had been angry, or had heated interactions with Luke. But I absolutely did not dismiss Luke. I never said that he was dismissed or anything of the sort. Despite this, Luke responded by saying "Unfair dismissal, thanks very much. That 's what I wanted".
Under cross examination, Graeme Rodger said he knew Mr Smith was looking for a pay increase, but had decided to let him introduce the topic. He acknowledged rejecting the pay rise and saying words to the effect of ‘no way… You want to try doing some work first’. He denies that the voices were raised during the discussion about the pay rise, but says they became raised during the following discussion about TSheets, and that he used a raised voice when telling Mr Smith to ‘fuck off’ when pointing toward the door. Graeme Rodger denied instigating the yelling in the meeting, and said he raised his voice in self-defence because of the way he was spoken to by Mr Smith. He also stated it was never his intention to dismiss Mr Smith from employment.
In his affidavit, Jason Rodger gave the following account of the meeting:
17.When my father arrived he came into the office and started complaining to Luke about the Tsheets app and why Luke wasn't using it correctly and was lying about his location.
18. I tried to step in and tell my father to settle down and keep the discussion civil.
19.My father said to Luke "What more money, you don't do any bloody work anyway and every time I see you, you look like you are half-asleep in your office.”
20.After this I felt quit sick in the stomach and the conversation between Luke and my father became very heated. I didn't look up at either of them while they were yelling at each other but they were very angry with each other.
21.They were both seated and it was like a blur in my eyes because I was disappointed how both of them responded to each other. I recall that Luke just got up and left and as he was leaving said "That's what I wanted and see you in Fair Work." After saying this Luke walked out of the office.

Jason Rodger was cross-examined on his recollection of the meeting. It is fair to say that his answers did not further illuminate that which is set out in his affidavit. It is also fair to say that his evidence about what occurred is brief at best. Jason Rodger found himself in a difficult position in the meeting and indeed in this litigation. On the one hand, his domestic partner is Mr Smith’s sister, and Mr Smith is effectively his brother-in-law. On the other hand, his father is the one who is said to have terminated Mr Smith’s employment. In the ordinary course, a third-party witness to a critical conversation between two persons might be expected to provide reliable evidence. Regrettably, that is not the situation in this case. Jason Rodger was clearly uncomfortable giving evidence in the witness box. He has clearly not given, or been unable to recall or give, a full account of what occurred at the meeting.
There is some degree of commonality between the evidence of Mr Smith and Graeme Rodger. There is no dispute, for example, that voices were raised, or that the meeting ended with Graeme Rodger telling Mr Smith to ‘fuck off’ while pointing to the door. There is also no dispute that immediately leading up to that, Mr Smith said to Graeme Rodger words to the effect of ‘want a medal’.
Clearly, there are also differences in the accounts given by Graeme Rodger and Mr Smith. That is to be expected given the passage of time, and the fact that the conversation was heated. In my view, to the extent that there are differences in the accounts and sequence of events between Mr Smith and Graeme Rodger, I prefer Graeme Rodger’s account. I do so because Mr Smith confirmed under cross examination many of the matters deposed to by Graham Rodger which he failed to mention in his affidavit. For example, Mr Smith confirmed that the first topic of discussion was his request for a pay rise, and not TSheets, contrary to what he said in his affidavit. He also confirmed that there was a conversation on 23 January 2020 about Graeme Rodger driving past his house the previous day. Given these matters and the manner in which each witness gave evidence, Graeme Rodger is the more reliable witness.
When all of these matters are considered, I find as follows:
(a)Mr Smith met with Jason Rodger and asked him for a pay rise;
(b)following a discussion between Mr Smith and Jason Rodger, Graeme Rodger was asked to attend the office. Graeme Rodger was aware that he was being asked to attend the meeting because Mr Smith had asked for a pay rise;
(c)Graeme Rodger met with Jason Rodger and Mr Smith. The first topic of conversation between them was Mr Smith’s pay rise. Jason Rodger introduced the topic. Graeme Rodger rejected a pay rise for Mr Smith by saying words to the effect of ‘you might want to try doing some work first’. Mr Smith replied with words to the effect ‘show me where I haven’t been working’.
(d)The conversation then turned to the use of the TSheets app, and what had occurred the day prior. The conversation became heated and Mr Smith’s use of the app was discussed. There was a discussion about what occurred the previous day. Mr Smith described the drive past his home by Graeme Rodger as a ‘coincidence’.
(e)Graeme Rodger told Mr Smith to use the app and in all likelihood referred to the fact he had started the business years ago and if he wanted employees to use the app, they must. Mr Smith then made the remark ‘want a medal’.
(f)At some point, either at the time the previous days events were referred to, and certainly by the time he made the comment ‘want a medal’, Mr Smith gave the impression of ceasing to take the conversation seriously. The comment ‘want a medal’ and the circumstances in which it was made supports such a conclusion. I accept Graeme Rodger’s evidence that Mr Smith was smiling by this time.
(g)Given the above, and given what I say further below, Graeme Rodger was infuriated with Mr Smith’s attitude and behaviour. Graeme Rodger told Mr Smith that ‘I don’t give a fuck what you think’ and then told Mr Smith to ‘fuck off’.
There is a dispute between the parties as to what Mr Smith said when he headed toward the door. There is no doubt Mr Smith referred to unfair dismissal and bringing a claim. There is some doubt as to whether he said words to the effect of ‘that’s what I wanted’ or ‘that’s not what I wanted’. In the circumstances where Mr Smith was already responding to Mr Roger in a facetious and disrespectful manner, it is more likely that Mr Smith responded with ‘that’s what I wanted’ when told to ‘fuck off’. I accept Graeme Rodger’s version of what was said by Mr Smith.
It is apparent when reviewing the authorities that a number of matters need to be considered in deciding whether a particular set of facts leads to a conclusion that an employee has been dismissed. The Court in Mohazab refers to the need to have regard to all of the circumstances. One of those factors is the intention of the employer. Another factor is whether the action by the employer has the probable result of bringing the employment relationship to an end.
Mr Smith contends that he was dismissed from employment when Graeme Rodger told him to fuck off while pointing to the door. At one level, that submission is understandable, but the circumstances need to be considered. This was a heated conversation. It was always going to be heated given the events of the previous day. Indeed, it is somewhat surprising that Mr Smith chose this moment to ask for a pay rise given the conversation he had had with Graeme Rodger the day before.
Further, this was not the first time these parties had had a heated conversation which resulted in Mr Smith leaving the work premises. Such a conversation occurred in October 2019. It had occurred the day before, though Mr Smith says that on 22 January, he left to clean his boat. There had been yelling and abuse on each of these occasions. On each occasion, Mr Smith had left the premises.
There is then the employment context to consider. These two individuals regularly disagreed. Abuse between them was a feature of their communications. They worked in a construction business in the construction industry. Profanity may be said to be more regularly used in that industry than in other industries, and these two used that language regularly. The use of that language had not previously severed the employment relationship. These were not office workers sitting in Melbourne where a different outcome may be expected if profanity had been used.
I have found above that Graeme Rodger was infuriated with Mr Smith. Graeme Rodger stated in his affidavit and maintained in cross-examination that he was insulted by Mr Smith’s behaviour. He had every reason to be insulted. He had expressed his concerns to Mr Smith the previous day about the use of TSheets and observed him at home in the middle of the day. The next day, he was confronted with a request for a pay rise, which he rejected. Then, after all of this, Mr Smith behaved in a facetious manner, smiling at Graeme Rodger and seemingly mocking him. It was this conduct of Mr Smith’s that led to Graeme Rodger telling Mr Smith to ‘fuck off’ while pointing to the door.
It is in this setting that it is necessary to consider whether Graeme Rodger’s actions constitute termination of employment at the initiative of the Company or whether Mr Smith’s resignation was forced because of conduct, or a course of conduct, by the Company. In my view, when the matters above are considered, the answer to each of these questions is no.
There are other matters that support a conclusion that it was not the actions of Graeme Rodger that had the probable result of bringing the employment to an end. Graeme Rodger did not use the language of dismissal. No notice was given. Mr Smith was at no time asked to collect his belongings. Graeme Rodger gave evidence that given his experience in running the Company, he would never dismiss anyone in the manner which occurred, and having observed him I accept his evidence.
I have considered whether Mr Smith’s statement as he was leaving to the effect that he would pursue a claim against the Company alters anything. In my view, it does not. The emphasis in the definition of ‘dismissal’ and the authorities is on the conduct of the employer and whether that conduct has the probable result of bringing the employment relationship to an end. That Mr Smith said he would bring a claim does not alter the conduct of Graeme Rodger. Moreover, it would be unsafe to place too much emphasis on the words of Mr Smith said in the heat of the moment, when Mr Smith was in any event behaving facetiously. Doing so would produce the result that the actions of the employer can be coloured by a simple statement made by an employee in anger on the way out the door..
I have considered whether Mr Smith’s subsequent request for an employment separation certificate alters anything. In my view it does not. The Company responded to that request by noting that it regarded the request as a resignation. The Company is entitled to take that view given what occurred, and Mr Smith’s decision not to present for work on the days after 23 January 2020.
Finally, while the authorities make clear that the focus is on whether the conduct of the employer produces the probable result that the employment may end, I find it difficult to accept Mr Smith’s evidence that he considered the employment relationship to be at an end. As I have noted, heated discussions were a feature of the relationship between Mr Smith and Graeme Rodger. Despite that, the employment relationship had continued. The one difference between this conversation and the earlier ones was that Mr Smith had asked for a pay rise. That issue, however, had been raised and addressed in the early part of the meeting and the conversation had moved on. Indeed, the conversation had returned to a topic familiar to both of these parties, being Mr Smith’s movements and his non use of the T-sheets app. Heated conversations on this topic had occurred in the past. Given that fact, I do not accept Mr Smith genuinely believed his employment was terminated on this occasion.
For all of the above reasons, I am of the view that Mr Smith was not dismissed from employment by Company. He left his employment. He was not subjected to adverse action within the meaning of section 342 of the Act.
In view of the findings above it is strictly not necessary to consider the matter further. In the event, however, I am wrong in any of the conclusions I have reached above, I have nevertheless considered Graeme Rodger’s reasons for telling Mr Smith to ‘fuck off’. Graeme Rodger deposed that he told Mr Smith to fuck off, and pointed toward the door, because ‘Luke had just insulted me and there was no way I was going to give him a pay rise’. Challenged on this in cross-examination, he stated he took these actions because Mr Smith had insulted him and he was responding in kind. I accept Graeme Rodger’s evidence that these were the reasons he told Mr Smith to ‘fuck off’. The surrounding evidence including my findings as to what occurred at the meeting supports Graeme Rodger’s reasons for speaking to Mr Smith in the manner he did, including Mr Smith’s behaviour toward him in the meeting by not taking matters seriously.
In his explanation above, Graeme Rodger also says he wanted Mr Smith out of the office because there was ‘no way’ that he was going to give him a pay rise. No challenge was made to that evidence and I accept it. Graeme Rodger’s evidence is important. His evidence is not that he told Mr Smith to ‘fuck off’ because he inquired about a pay rise. Rather, the evidence is that there was no way Mr Smith was going to receive a pay rise. Put another way, the conversation was over. On that basis, it cannot be said Graeme Rodger dismissed Mr Smith from employment because he inquired about a pay rise. He told Mr Smith to fuck off because he wanted him out of the office.
For the above reasons, had it been necessary to do so, I would have found that the Company has discharged the reverse onus cast upon it by section 361 of the Act.
DISPOSITION
Mr Smith has been unsuccessful in his application. Adverse action was not taken against him as he was not dismissed from employment. He exercised a workplace right within the meaning of section 341 of the Act, however his employment was not ended because he inquired about a pay rise.
The application before the Court must therefore be dismissed for all the reasons above.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.
Associate:
Dated: 25 March 2022

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 [2006] AIRC 496 PIA Mortgage Services Pty Ltd v King [2020] 274 FCR 225 Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534
Division:	Division 2 General Federal Law
Number of paragraphs:	131
Date of hearing:	7, 8, 9 & 11 February 2022
Counsel for the Applicant:	Mr Mckenney
Solicitor for the Applicant:	Taits Legal
Counsel for the Respondent:	Ms Preston
Solicitor for the Respondent:	Maddens Lawyers

MLG 1661 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	LUKE SIDNEY SMITH Applicant
AND:	RODGER CONSTRUCTIONS PTY LTD Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	25 MARCH 2022