Spears v South Australian Wine Group Pty Ltd
[2023] FedCFamC2G 1031
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031
File number(s): ADG 367 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 10 November 2023 Catchwords: INDUSTRIAL LAW – alleged adverse action – letter concerning conduct -– family and carer’s responsibilities –illness – whether adverse action for prohibited reason - requirement to return of laptop – whether prejudicial alteration to position - whether coercion with respect to workers compensation claim - advertisement of position – alleged failure to consult over redundancy - dismissal on the basis of alleged redundancy
INDUSTRIAL LAW – redundancy payment – whether employer a small business employer with fewer than 15 employees – whether other companies were associated entities
INDUSTRIAL LAW – alleged failure to provide payslips – whether proof of alleged failure
INDUSTRIAL LAW – admitted failure to provide Fair Work Information Statement
INDUSTRIAL LAW – alleged breach of award – no award put into evidence
Legislation: Corporations Act 2001 (Cth) ss 50AA, 50AAA
Fair Work Act 2009 (Cth) ss 12, 23, 44, 119, 121, 125, 340, 341, 342, 343, 351, 352, 361, 536, 557C
Fair Work Regulations 2009 (Cth) reg 3.01
Return to Work Act 2014 (SA) s 202
Work, Health and Safety Act 2012 (SA)
Return to Work Regulations 2015 (SA) Sch 4, cl 2
Cases cited: Amcor Ltd v Barnes [2016] VSC 707
Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Community and Public Sector Union v Commonwealth [2006] FCAFC 176; (2006) 157 IR 470; (2006) 59 AILR 100-598
Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238
Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; (2000) 106 IR 158
General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
Hancock v Rinehart [2015] NSWSC 646; (2015) ACSR 207; (2015) 13 ASTLR 1
Kape v The Golden Mile Railway Society Inc [2019] FCA 2063
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20
National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Vink v LED Technologies Pty Ltd [2013] FCA 443
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (219) 290 IR 41
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of last submission/s: 16 and 17 November 2022 Date of hearing: 16 and 17 November 2022 Place: Adelaide Applicant: In person Counsel for the Respondent: Mr B Austin Solicitor for the Respondent: DW Fox Tucker Lawyers ORDERS
ADG 367 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALANA SPEARS
Applicant
AND: SOUTH AUSTRALIAN WINE GROUP PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT DECLARES AND ORDERS THAT:
1.Declares that the Respondent contravened s 125(1) of the Fair Work Act 2009 (Cth) by failing to give the Applicant a Fair Work Information Statement, but otherwise orders that the application filed 1 December 2020, as amended by an amended application filed 15 February 2021, be dismissed.
2.The parties are to confer forthwith with respect to penalty and a penalty hearing.
3.The matter otherwise be adjourned to a directions hearing at 12:00pm on 2 February 2024.
4.Costs, if any, reserved, with liberty to apply prior to the directions hearing referred to in order 3.
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 LUCEV
INTRODUCTION
This application relates to various claims made in an amended claim Form 2 filed 15 February 2021 under the Fair Work Act 2009 (Cth) (“FW Act”) by the applicant, Ms Alana Spears (“Ms Spears”) in relation to her former employment by the respondent, South Australian Wine Group Pty Ltd (“SAWG”). Ms Spears seeks orders for compensation and interest from SAWG, and for the imposition by the Court of pecuniary penalties upon SAWG.
SAWG, based in Adelaide, sells wine on behalf of grape growers who have that wine processed at what SAWG’s website describes as its “sister company”, Riverland Vintners Pty Ltd (“Riverland Vintners”, which has since changed its name to Winemasters South Australia Pty Ltd (“Winemasters”))
THE MATERIAL BEFORE THE COURT
The Court has before it:
(a)the following affidavits:
(i)Affidavit of Alana Spears dated 9 August 2021 (“First Spears Affidavit”);
(ii)Affidavit of David Harris affirmed 27 September 2021 (“Harris Affidavit”);
(iii)Affidavit of Alana Spears affirmed 9 August 2021 (“Second Spears Affidavit”); and
(iv)Affidavit of Julie Fay Spears (Ms Spears mother) sworn 12 November 2021 (“JF Spears Affidavit”);
(b)the parties’ written submissions; and
(c)the transcript of the hearing on 16 and 17 November 2022 (“Hearing Transcript”), which the Court has read and referred to for the purpose of preparing these Reasons for Judgment.
Only Ms Spears and Mr Harris gave oral evidence. The Court finds that both were generally credible in the testimony they gave. Ms Spears had a slight tendency, however, to overreact and perceive things as they were not intended to be, and in the Court’s view this affected the reliability of her evidence in some respects. Mr Harris came across as a blunt, no-nonsense type of person, who would act decisively in relation to matters affecting his business interests, and who had a good grasp of the organisational and operational details of his businesses (of which SAWG was one) and the wine industry in which they operated. Insofar as there was conflict between the evidence of Ms Spears and Mr Harris as to matters concerning the organisational and operational details of Mr Harris’ businesses the Court has preferred the evidence of Mr Harris. Otherwise, the determination of factual issues was made having regard to, and considering, the evidence given.
BRIEF CHRONOLOGY
A brief chronology of significant events in this matter is as follows:
(a)on 20 April 2016 Ms Spears was employed by SAWG as Training and Compliance Manager;
(b)in or about September 2016 Ms Spears was employed by SAWG as a part-time Training and Compliance Manager, but became full-time with effect from about December 2016;
(c)at some point prior to December 2019 Ms Spears became the Sales Manager at SAWG;
(d)on 23 December 2019 Ms Spears met with Mr David Harris, the Managing Director of SAWG (“Mr Harris”) and Mr Peter Hourigan, the Chief Financial Officer of SAWG (“Mr Hourigan”), to discuss a pay rise, which Ms Spears was granted, but at which she says she became upset at the manner in which she was spoken to by Mr Harris and Mr Hourigan;
(e)in or about June 2020 Ms Spears working week was reduced to 4 days because of the impact of COVID-19;
(f)on 29 July 2020 Ms Spears request to work a seven-day fortnight was granted;
(g)on 13 August 2020 Ms Spears was issued with a letter (“August 2020 Letter”) concerning her conduct in speaking to a person outside of SAWG;
(h)following receipt of the August 2020 Letter Ms Spears obtained a medical certificate for workplace stress indicating she was unfit for work from 13 to 23 August 2020;
(i)on 14 August 2020 SAWG advertised a position on seek.com.au (“Seek”) for a full time Wine Broker and Sales Assistant;
(j)between 20 and 25 August 2020 Mr Harris and Mr Hourigan formulated a strategy (“Business Impact Analysis”) to deal with the possible effects of a foreshadowed Chinese Anti-Dumping Enquiry (“Anti-Dumping Enquiry”) into the Australian wine industry;
(k)on 23 August 2020 a further medical certificate was obtained by Ms Spears indicating she was unfit for work due to workplace stress from 23 to 30 August 2020;
(l)on 24 August 2020 Ms Spears (accompanied by a support person) met (“24 August 2020 Meeting”) with Mr Harris and Mr John Van Heurck (a Consultant to SAWG) to discuss Ms Spears concerns arising from the August 2020 Letter, and at this meeting Ms Spears alleges that Mr Harris threatened to lodge a worker’s compensation claim on her behalf under the Return to Work Act 2014 (SA) (“RTW Act”). The 24 August 2020 Meeting was recorded and a transcript (“Meeting Transcript”) was produced: see First Spears Affidavit, Annexure AS9;
(m)on 31 August 2020 a further medical certificate was obtained by Ms Spears indicating she was unfit for work due to workplace stress from 31 August to 8 September 2020;
(n)on 2 September 2020 SAWG sent a letter to Ms Spears advising that her position had been made redundant (“Redundancy Letter”);
(o)on 11 September 2020 SAWG sent a letter to Ms Spears advising that her employment would be terminated, on the basis of redundancy, on 11 September 2020 (“Termination Letter”); and
(p)on 11 September 2020 Ms Spears employment with SAWG terminated.
ISSUES
Ms Spears alleges that the following actions constitute adverse action and are contraventions of the general protections provisions of the FW Act:
(a)the sending to her of the August 2020 Letter in which Mr Harris counselled Ms Spears about her conduct in the workplace;
(b)a request made by Mr Harris on 13 August 2020 that Ms Spears return her laptop (provided by SAWG for work purposes) during a period that Ms Spears took personal leave;
(c)the advertisement posted by SAWG on Seek on 14 August for a fulltime wine broker and sales assistant position;
(d)a statement made by Mr Harris to the effect that, having been advised by Ms Spears that she had become ill because of events in the workplace, a worker’s compensation claim may need to be lodged under the RTW Act; and
(e)a decision made by SAWG to dismiss Ms Spears on the basis of redundancy.
In addition to the above claims, Ms Spears also alleges that SAWG failed to:
(a)make a redundancy payment to her in accordance with s 119 of the FW Act;
(b)consult with her concerning her redundancy contrary to the terms of the “Wine Industry Award” (“Award”);
(c)provide her with a Fair Work Information Statement (“FW Information Statement”) pursuant to s 125(1) of the FW Act; and
(d)provide her with payslips within one working day of paying an amount to her, in contravention of s 536(1) of the FW Act.
Other matters related to JobKeeper stand down directions and workplace health and safety legislation were raised in Ms Spears’ submissions in relation to her workplace rights even though they were not pleaded in the amended Claim Form 2 prepared by her then lawyers.
GENERAL PROTECTIONS CLAIMS
Legislation
Relevant to the alleged contraventions of the adverse action general protections under the FW Act, ss 340, 341, 342, 343, 351, 352 and 361 of the FW Act provide as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) …
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) …
Exceptions relating to prospective employees
(4) …
(5) …
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b) a law of a State or Territory prescribed by the regulations.
(4) …
343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) …
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) …
(3) Each of the following is an anti‑discrimination law:
(aa) …
(ab) …
(ac) …
(ad) the Sex Discrimination Act 1984;
(a) …
(b) …
(c) …
(d) …
(e) the Equal Opportunity Act 1984 of South Australia;
(f) …
(g) …
(h) …
352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4‑1).
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction
In relation to s 352 of the FW Act, reg 3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”) provides as follows:
3.01 Temporary absence—illness or injury
(1)For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note:Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Note: The Act defines medical certificate in section 12.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4)A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
Note:Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i)the employee’s absence extends for more than 3 months; or
(ii)the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b)the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6)In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.
It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
In the context of adverse action proceedings it is for an applicant to assert and establish that:
(a)they exercised the workplace rights pleaded in their statement of claim;
(b)the conduct complained about in fact occurred; and
(c)that conduct constitutes adverse action under s 342(1) of the FW Act.
If Ms Spears proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for SAWG to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s 361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 at [221] per RD Nicholson J (“Geraldton Port Authority”).
In Barclay the High Court said:
(a)the task of a court in a proceeding alleging a contravention by reason of adverse action “…is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J (and see also State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 (“Grant”) at [32] per Tracey and Buchanan JJ);
(b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
(c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
(d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
In relation to the evidence bearing upon the decision made by an employer:
(a)French CJ and Crennan J in Barclay said:
(i)at [41] that “…why an employer took adverse action against an employee is a question of fact…”;
(ii)at [44] that “…direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
(iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s 361 of the FW Act was to place on the respondent employer the onus of proving that which lies peculiarly within the employer's own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Under s 360 of the FW Act a prohibited reason need only be one of the reasons for the adverse action for a contravention of the general protections provisions to arise. However, a prohibited reason must be a “substantial or operative factor” in influencing the adverse action or “an operative or immediate reason for acting”: Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J; Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J.
A decision-maker's reasons are to be determined from all of the facts and circumstances and inferences properly drawn from them. This ordinarily includes positive evidence from the decision-maker that the action was not taken for a prohibited reason. It also includes evidence of the actual reason or reasons why the adverse action was taken: Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (219) 290 IR 414 at [117] per O'Callaghan and Thawley JJ.
If the decision-maker’s evidence is accepted as being reliable, the onus under s 361 of the FW Act will be discharged. This involves an assessment of the evidence given by the decision-maker: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 (“Dawson Services”) at [28] per Jessup J. The Court is not, however, bound to accept the decision-maker’s evidence. It may be unreliable if there is contradictory evidence or other objective facts that undermine it. Where a decision-maker is believed it is difficult to undermine that evidence: Grant at [49] and Barclay at [45] per French CJ and Crennan J.
It follows then, and it is important to observe that, the decision-maker's subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
Finally it is necessary to observe that these claims are general protections claims to be determined by the Court under the FW Act, where the Court is required to determine the real reasons for alleged adverse action, and whether the adverse action, which must be in relation to a workplace right, was for a prohibited reason, and not whether the reasons for the alleged contravention were fair or unfair or soundly based: Kape v The Golden Mile Railway Society Inc [2019] FCA 2063 at [36]-[37] per Colvin J; Vink v LED Technologies Pty Ltd [2013] FCA 443 at [45] per Tracey J; Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457 at [38] per Marshall J.
Claims made by Ms Spears
Decision-maker
There is no doubt on the evidence that Mr Harris was the decision-maker for SAWG in relation to the claims made by Ms Spears under the general protection provisions of the FW Act.
August 2020 Letter
The terms of the August 2020 Letter from Mr Harris to Ms Spears are as follows:
Dear Alana,
It has come to my attention, that you have expressed some negative personal opinions regarding the Riverland Vintners Winery, to people outside of the Company.
Whilst differences of opinion do arise within the working environment, we do not want to have them expressed to others who are not within the Harris Group of Companies, which include the SAWG and Riverland Vintners Winery.
You can bring any issues to myself or to Peter if you feel we can help with their resolution.
Kind regards
[signed]
David HarrisDirector
Ms Spears submissions
In relation to the August 2020 letter Ms Spears submitted that:
(a)prior to August 2020 Ms Spears had had her hours of work reduced on two occasions due to:
(i)her family/carer’s responsibilities; and
(ii)her illness as a result of workplace stress;
(b)Mr Harris had openly expressed his dislike concerning Ms Spears’ request to reduce her hours of work and stated that he wanted a fulltime broker/sales person;
(c)Ms Spears had not made any formal express complaint about workplace stress, but Mr Harris was aware (in August 2020) that Ms Spears was suffering from workplace stress, and acknowledged this fact during the 24 August 2020 Meeting;
(d)on 13 August 2020 Mr Harris took adverse action by subjecting Ms Spears to aggressive and intimidating conduct and issuing her with the August 2020 Letter, which was perceived by Ms Spears to be a warning letter and which caused her to experience an anxiety related panic attack as a result of which she had to immediately leave the office;
(e)it was only later that Mr Harris advised Ms Spears that the August 2020 Letter was not a warning letter but merely a letter of advice;
(f)the August 2020 Letter was issued to Ms Spears by reason of:
(i)her need to reduce her hours of work on account of her family/carer’s responsibilities; and
(ii)her complaint or inquiry concerning her pay,
and the August 2020 Letter constitutes adverse action for the purposes of s 351 of the FW Act;
(g)the reasons given by Mr Harris for issuing the August 2020 Letter were the result of deliberate exaggeration by Mr Hourigan to Mr Harris in an attempt to cause trouble for Ms Spears;
(h)Mr Harris did not discuss the reasons for issuing the August 2020 Letter with Ms Spears, or get her side of the story prior to its issuance;
(i)the August 2020 Letter constitutes adverse action for the purposes of s 342 of the FW Act;
(j)the August 2020 Letter was issued because of Ms Spears’ need to reduce her work hours on account of:
(i)her family/carer’s responsibilities; and/or
(ii)her illness;
(k)Ms Spears’ family/carer’s responsibilities and her illness are protected attributes for the purposes of s 351 of the FWAct; and
(l)by issuing the August 2020 letter, SAWG contravened ss 340 and 351 of the FW Act;
SAWG’s submissions
In relation to the August 2020 Letter SAWG says that:
(a)in, or about, early August 2020, Ms Spears made unconstructive and derogatory comments to customers of SAWG, about the staff at the Riverland Vintners winery;
(b)on becoming aware of the comments made by Ms Spears, Mr Harris directed that a letter be sent to Ms Spears in respect of the conduct;
(c)the August 2020 Letter was given to Ms Spears at a meeting on 13 August 2020, and advised Ms Spears that:
(i)her expression of negative personal opinions had come to Mr Harris’ attention;
(ii)whilst differences of opinion do arise within the working environment, Mr Harris did not want to have those differences expressed to others associated with SAWG’s business; and
(iii)if Ms Spears was unhappy with the performance of the laboratory at Riverland Vintners, that she could raise these concerns with Mr Harris or her manager, Mr Peter Hourigan (“Mr Hourigan”) (who is the “Peter” referred to in the August 2020 Letter);
(d)the August 2020 Letter was not a formal written warning and did not result in any change of Ms Spears’ terms and conditions of employment;
(e)the August 2020 Letter offered Ms Spears a resolution by reminding her that, if Ms Spears was unhappy with staff and the performance of the laboratory at Riverland Vintners, she could raise her concerns with the Director (Mr Harris) or her Manager (Mr Hourigan);
(f)SAWG denies that the August 2020 letter constitutes “adverse action” within the meaning of the FW Act; and
(g)in the alternative, if the Court finds that the August 2020 Letter does constitute adverse action, then SAWG asserts the action was not taken for a prohibited reason.
Consideration – August 2020 Letter
Ms Spears claims that the giving of the August 2020 Letter constitute adverse action under s 342, and that under s 351 of the FW Act, the adverse action was taken for a prohibited reason.
The tenor of the August 2020 Letter is not that of a letter which seeks to discipline, warn, alter the terms of, or otherwise prejudice Ms Spears in relation to her employment. It is addressed to: “Dear Alana” and is signed off by Mr Harris with “Kind regards”.
The terms of the August 2020 Letter do not expressly indicate that it is a written warning to Ms Spears. Further, it terms do not support any implication that the August 2020 Letter was intended to be a written warning to Ms Spears. At hearing Ms Spears conceded that the letter was not a warning letter: Hearing Transcript, p 36-37.
On its face the August 2020 Letter was a communication about a particular incident which included a suggestion from Mr Harris as to how such an incident might be handled in the future by Ms Spears.
The August 2020 Letter did not indicate that it would give rise to any immediate or portended future adverse consequences for Ms Spears, and there was no evidence that any such adverse consequences did arise, either for the purposes of s 342 of the FW Act, or otherwise.
The August 2020 Letter is a request, or a direction, to bring issues or differences of opinion to Mr Harris or Mr Hourigan, and not to express them outside of SAWG. The August 2020 Letter is thus no more than a lawful direction to perform work, or to act in the course of employment, in a particular lawful, and it must be said, seemingly sensible manner.
In the Court’s view this aspect of the claim falls at the first hurdle because the August 2020 Letter was not adverse action as defined in s 342(1), Item 1 of the FW Act.
Ms Spears asserted that the August 2020 Letter was a consequence of Ms Spears:
(a)reducing, or requesting a further reduction in, hours of work; or
(b)family/carer’s responsibilities; or
(c)her medical condition (stress).
In this respect, SAWG had an onus to prove, if the August 2020 Letter was adverse action, (which the Court has found it was not) that the August 2020 Letter issued for a prohibited reason.
The reason given by SAWG for the issuing of the August 2020 Letter was that Mr Harris had had reported to him, by Mr Hourigan, that Ms Spears made unconstructive and derogatory comments to customers of SAWG, about the staff at the Riverland Vintners. Mr Harris’ response to this report was to write the August 2020 Letter. Mr Harris wrote the August 2020 Letter because he did not, in effect, want such issues discussed outside of SAWG: Harris Affidavit at [5]-[6]; Meeting Transcript p 6. The reason given by Mr Harris, which the Court accepts, does not fall foul of any prohibited reason.
Ms Spears disputed the nature of the comments made, and the interpretation put on them by Mr Harris. A large part of the 24 August 2020 Meeting was taken up with exchanges, often turgid and sometimes acrimonious, about the comments said to have been made by Ms Spears, and Ms Spears complaints about Mr Hourigan’s motives in dealing with the matter, and whether others (particularly those at Riverland Vintners) engaged in similar conduct. Those arguments are irrelevant for present purposes because what the Court looks to is whether the August 2020 Letter was issued for a prohibited reason. Likewise, as part of what can only be said to be a general overreaction to, or misperception of, the August 2020 Letter Ms Spears thought it was a warning letter when plainly, as she would subsequently concede, it was not: see [27]-[31] above.
In relation to the specific reasons advanced by Ms Spears as to why the issuance of the August 2020 Letter might have been for a prohibited reason the evidence does not support those reasons. In relation to reductions in working hours the evidence shows that Ms Spears hours were reduced by moving to a:
(a)four day week in June 2020 at the request of SAWG due to the impact of COVID-19, a move which Ms Spears enjoyed because it allowed her to spend more time with her children; and
(b)seven day fortnight on 29 July 2020, so as to maximise her income derived from both SAWG and Centrelink payments. This move was at Ms Spears’ request, but critically was approved, seemingly without demur, by Mr Harris and Mr Hourigan.
There is nothing in the evidence which would suggest that the two reductions in hours, one at the behest of, the other with the approval of, SAWG, were any part of the reason for the issuance of the August 2020 Letter. Likewise with Ms Spears’ carer’s and family responsibilities.
In relation to illness the Court accepts that the evidence indicates that Mr Harris (and Mr Hourigan) were not aware of Ms Spears’ workplace stress at the time the August 2020 Letter was sent. Rather, they became aware of it, for the first time on 13 August 2020, but after the August 2020 Letter was issued, when Ms Spears provided a medical certificate indicating that she was suffering “a medical condition related to workplace stress and anxiety”. It follows that the issuance of the August 2020 Letter could not have been by reason of Ms Spear’s illness.
Finally, so far as hours, carer’s/family responsibilities and illness are concerned, there is no logical connection between those matters and the issues raised in the August 2020 Letter.
Even if the issuing to Ms Spears of the August 2020 Letter constituted adverse action, this allegation would fail because the evidence establishes that the August 2020 Letter was not issued by SAWG, through Mr Harris, for a prohibited reason.
In the Court’s view SAWG has discharged the prohibited reason evidentiary onus under s 361(1) of the FW Act.
For the above reasons the Court is not satisfied that the giving of the August 2020 Letter to Ms Spears was adverse action by SAWG under s 342(1) of the FW Act, or that it contravened the prohibited reason in s 351 of the FW Act as alleged.
Return of work laptop
Ms Spears’ submissions
As to the return of the work laptop Ms Spears submitted that:
(a)after the meeting on 13 August 2020, she went to her medical practitioner and was certified unfit for work due to an illness of a kind prescribed by the FW Regulations for the purposes of s 352 of the FW Act;
(b)Ms Spears was issued with a medical certificate for the period from 13 to 23 August 2020 which stated that she was suffering from workplace stress and anxiety and that she was to be provided with all support, including access to an employee assistance program (“EAP”);
(c)when Ms Spears got home after sending the 13 August 2020 medical certificate to Mr Harris she “took my work laptop out and put my “out of office” message on, so that all clients would automatically be notified to contact Kirsty and Ang in my absence”; First Spears Affidavit at [64] (Kirsty and Ang were two of Ms Spears co-workers at SAWG);
(d)on presentation of the medical certificate Mr Harris asked Ms Spears to return her laptop and any work-related files, and Mr Hourigan came to Ms Spears’ house to collect these items; and
(e)Ms Spears did not have time to extract her payslips or personal files from the work laptop before returning it to SAWG.
SAWG’s submissions
As to the return of the work laptop SAWG submitted that:
(a)after receipt of the August 2020 Letter, Ms Spears provided a medical certificate to Mr Harris by text message which stated that she was unable to work between 13 and 23 August 2020 inclusive. It also stated that she had been “suffering from a medical condition related to workplace stress and anxiety”;
(b)Ms Spears then sent Mr Harris a follow up text message at, or about, 3:00pm that afternoon. Ms Spears asked Mr Harris if she could have wine samples which Mr Harris suggested she get posted out to her; and
(c)Ms Spears had said that she was suffering from workplace stress and anxiety, so Mr Harris asked her to drop the work laptop (which was the property of SAWG) and any work-related files back to the office. If that was not convenient, Mr Harris suggested that Mr Hourigan could collect them from her. Mr Harris made this direction because Ms Spears was on personal leave because of an illness or injury which rendered her unfit for work, and Mr Harris did not consider it appropriate that Ms Spears be doing work from home.
Consideration – return of work laptop
This claim was not one made in the amended claim Form 2, but in submissions from Ms Spears, to which SAWG fully responded. It is not apparent what workplace right is relied upon in relation to this claim, but even assuming in Ms Spears favour that there is a workplace right under s 341(1) of the FW Act, it does not assist her for the reasons set out hereunder.
Having regard to what relevantly constitutes adverse action under s 342(1), Item 1 of the FW Act, the request to return the work laptop:
(a)does not involve dismissal (para (a) of item 1);
(b)does not amount to injury in employment (para (b) of Item 1), as that is confined to legally compensable injury: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339, which does not arise from the return of the work laptop; and
(c)does not constitute discrimination between Ms Spears and other employees of SAWG (para (d) of Item 1) as there is no evidence to sustain a claim of such discrimination.
The only relevant form of adverse action which remains is whether there was adverse action by way of alteration of the position of the employee to the employee’s prejudice (para (c) of Item 1) by reason of the request to return the work laptop. The evidence is very limited in relation to Ms Spears rights with respect to the laptop. Ms Spears bears the onus of proving that adverse action was taken. Ms Spears gave no evidence of a contractual or other entitlement to use of a work laptop at any time, let alone when absent from work due to illness. Mr Harris gave evidence that the laptop was the property of SAWG.
Generally, an employee may be injured in their employment or suffer from a prejudicial alteration to their employment position where the employer acts in a manner that is inconsistent with the employee’s contractual rights: Community and Public Sector Union v Commonwealth [2006] FCAFC 176; (2006) 157 IR 470; (2006) 59 AILR 100-598 at [32] per Branson, Tamberlin and Madgwick JJ. There is no evidence in this case that SAWG acted in a manner contrary to Ms Spears’ contractual rights, or any other legal right, in requesting that she return the work laptop whilst absent from work due to illness.
In the circumstances, Ms Spears has not fulfilled the onus on her to establish that the request that she return the work laptop whilst absent from work due to illness was an alteration of her position to her prejudice and has therefore not established that the request to return the work laptop was adverse action. This aspect of Ms Spears claim must therefore fail on this basis alone.
This aspect of Ms Spears claim would however fail in any event even if it were, contrary to the Court’s finding above, adverse action. That is because, for reasons which follow, the request to return the work laptop whilst absent from work due to illness was not a request made for a prohibited reason. Although not pleaded it appears to be common ground that the alleged prohibited reason is discrimination on the basis of physical or mental disability contrary to s 351(1) of the FW Act.
Mr Harris’ evidence as to the reason for the request to return the work laptop was clear and not disturbed by cross-examination: in the Harris Affidavit at [13] he said “Given that she was on stress leave, I didn’t think it was appropriate that she be doing work from home”. It would, moreover, appear that Ms Spears did not consider she should be working during this time either as she put her “out of office” message on as soon as she got home after sending the 13 August 2020 medical certificate to Mr Harris: see [44(c)] above. There can be no doubt that, as Ms Spears was absent from work due to illness, she should not be working during such a period.
On the evidence before the Court the real reason for the request to return the work laptop was that Mr Harris did not consider that Ms Spears should be working from home whilst absent from work because of illness. In other words, the request was made because Ms Spears should not have been working, not because of her illness. The mere fact that Mr Harris was aware of the illness by the time the request was made is not enough to establish the requisite connection. As has been observed by both the High Court and the Federal Court it is not a breach of s 340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.
It follows that even if the request to return the work laptop constituted adverse action, this allegation would fail because the evidence establishes that the reason for the request was not for a prohibited reason.
In the Court’s view SAWG has discharged the prohibited reason evidentiary onus under s 361(1) of the FW Act.
For the above reasons the Court is not satisfied that the request to return the work laptop was adverse action by SAWG under s 342(1) of the FW Act, or that it contravened the prohibited reason in s 352 of the FW Act as alleged.
Advertisement of position
Ms Spears’ submissions
As to the advertisement of a position on Seek Ms Spears submitted that:
(a)on 14 August 2020 SAWG advertised a position on Seek for a fulltime Wine Broker and Sales Assistant;
(b)the request to hand in her laptop and work-related files, together with the advertising of what Ms Spears’ perceived was her position, constitutes adverse action for the purposes of ss 341 and 342 of the FW Act and caused Ms Spears to suffer stress, hurt and humiliation, and indicated to Ms Spears that she would be subsequently terminated from her position;
(c)the position was advertised on Seek because of:
(i)Ms Spears’ need to reduce her hours of work due to her family/carer’s responsibilities;
(ii)her illness; and
(iii)her complaint about SAWG’s decision to issue her with the August 2020 Letter;
(d)Ms Spears’ family/carer’s responsibilities, her illness, and her ability to make a complaint are protected attributes for the purposes of ss 340 and 351 of the FW Act.
SAWG’s submissions
As to the position being advertised on Seek, SAWG submitted that:
(a)on 14 August 2020 SAWG advertised a position on Seek. This was a new position related to a new marketing initiative that it was taking in response to the decline in sales suffered because of the effects of the COVID-19 pandemic, and the developing situation in China, and was for a new sales position to work with the Australian supermarkets. The position that was advertised did not include any duties that were being performed by Ms Spears at that time;
(a)prior to the position being advertised it had been discussed with SAWG’s sales staff, which included Ms Spears, and that the intention was to try to move into supplying and building brands for Australian supermarkets. Ms Spears, during this consultation, said words to the effect “that’s good because I don’t have time to work up programs for supermarkets”;
(b)Ms Spears did not apply for this position; and
(c)the Chinese Government subsequently made an announcement that ten companies in Australia were going to be investigated and banned for dumping wine. SAWG was one of the ten companies that was named by China as a company that was going to be investigated and potentially banned from the Chinese market as a result of the Anti-Dumping Enquiry. Following its Business Impact Analysis (at some stage between 20 and 25 August 2020) it was decided that the business should refocus its operation from expansion to survival. The advertisement on Seek was withdrawn and people who had applied for the position were notified on 25 August 2020.
Consideration – advertisement of position
The evidence of Mr Harris: Harris Affidavit at [16] establishes that for some time prior to August 2020 SAWG had been considering the establishment of a full-time position focused on obtaining sales in the Australian supermarket sector in which SAWG did not have any real presence. The new position advertised on Seek was a manifestation of that consideration, and although it was intended to be a new position focusing on supermarket sales the advertisement did not seek to limit the pool of applicants only to persons who had previously worked in wine sales in the supermarket sector. The new position was intended to be a full-time stand-alone position separate from the part-time position of Sales Manager then occupied by Ms Spears. And, even if the new position was not to be one in the supermarket sector (as is alleged by Ms Spears), it is clear that SAWG had no intention of the new position replacing Ms Spears part-time position of Sales Manager, a scenario which, when it was explained to Ms Spears at the 24 August 2020 Meeting, she described as “perfect”: Meeting Transcript, p 11.
What subsequently happened, as a result of the Anti-Dumping Enquiry and the concurrent consideration and development by Mr Harris and Mr Hourigan of the Business Impact Analysis, was that it became evident, seemingly on 25 August 2020, that SAWG’s sales into China, which comprised about 80 percent of its total sales, might almost immediately drop to nothing, and that immediate steps were required to “re-focus the businesses strategy from diversification and growth to survival” and to reduce SAWG’s costs in order for it to survive: Harris Affidavit at [18] and Annexure DH5 (Business Impact Analysis). That resulted in at least two decisions being made: one was to cancel the new position and the other was to make Ms Spears’ position of Sales Manager redundant. Those decisions are reflected in the Business Impact Analysis. On 25 August 2020 applicants for the new position were advised that SAWG would not be proceeding to fill the position.
Ms Spears says that the new position was advertised because of her complaint about the decision to issue her with a “warning letter” (that is, the August 2020 Letter): Amended Claim Form 2 at [17.3]. For reasons set out above, the August 2020 Letter was not a warning letter: see [27]-[31] above, and the subject matter of the August 2020 letter was wholly unrelated to the new position. Further, the evidence of Mr Harris, which the Court accepts on this issue, establishes that SAWG’s consideration of the new position preceded the issuance of the August 2020 letter by many weeks. And, as set out at [59] above, the new position was a separate stand-alone position. As such, the new position had no impact on Ms Spears’ position as Sales Manager, and nor was its being created and advertised influenced in any way by Ms Spears carer’s/family responsibilities or her illness (noting that the latter was not known to Mr Harris until the day before the advertisement appeared on Seek). Rather, the reason the new position was created and advertised was wholly to endeavour to fill a perceived gap in the supermarket sales market which SAWG, prior to realising the effects of the Anti-Dumping Enquiry, thought they might exploit.
In the circumstances Ms Spears assertions as to the advertisement of the new position constituting adverse action and the reasons for it being advertised being based on prohibited reasons under s 351 of the FW Act are wholly misconceived. The advertising of the new position met none of the requirements to constitute adverse action under s 342(1), Item 1 of the FW Act, and even if the advertising had been adverse action, the advertising of the new position was not, on the evidence of Mr Harris, which the Court accepts and which discharges the onus under s 361(1) of the FW Act, because of a prohibited reason, and therefore did not contravene s 351 of the FW Act as alleged.
RTW Act claim
Ms Spears’ submissions
In relation to the RTW Act claim Ms Spears submitted that:
(a)at the 24 August 2020 Meeting Ms Spears made a verbal complaint concerning the aggressive and intimidating conduct of Mr Harris, and raised health and safety concerns about the effect that his conduct was having on her mental health and personal wellbeing at work, and she pleaded with him to treat her with respect and dignity and be kind;
(b)as a result of Ms Spears’ complaint concerning Mr Harris’ conduct, Mr Harris threatened to lodge a workers’ compensation claim under the RTW Act on Ms Spears’s behalf and against her will, in an attempt to coerce her not to exercise a workplace right, namely, to take personal leave and accordingly contravened s 343 of the FW Act;
(c)Mr Harris told Ms Spears that she could not continue to utilise her personal sick leave for a work-related injury, and by making this statement Mr Harris contravened s 352 of the FW Act; and
(d)Mr Harris told Ms Spears that she needed to return to work the following week on Monday, 1 September 2020.
SAWG’s submissions
As to the RTW Act claim meeting on 24 August 2020, SAWG submitted that:
(a)Ms Spears approached Mr Harris on, or about, 21 August 2020 and said that she wanted to come in and discuss her employment, but that she didn’t want Mr Hourigan to be present. Mr Harris suggested they meet 24 August 2020 instead, and that he would bring his accountant, Mr Andrew Veitch of RA Veitch & Co (“Mr Veitch”) with him to the meeting. Mr Veitch was not available so Mr Harris asked Mr John Van Heurck (“Mr Van Heurck”) a consultant to SAWG and Riverland Vintners to join the meeting. Ms Spears was also going to bring a support person. The meeting was set for the morning, but then rescheduled for 2:30pm;
(b)on 24 August 2020 at 2:25pm, Ms Spears contacted Mr Harris to say that she couldn’t attend SAWG’s office, and suggested meeting at a nearby pub. Mr Harris said that the meeting was arranged to take place at the office and he was not going to discuss the matter at the pub. Ms Spears’ support person (who did not identify himself to Mr Harris) grabbed the phone and threatened to “see [Mr Harris] in court”. Ms Spears and her support person then arrived at the office ten minutes later;
(c)at the meeting, Mr Harris and Ms Spears discussed the comments the subject of the August 2020 Letter. Ms Spears was concerned that Mr Harris hadn’t spoken to her about the comments prior to giving her the August 2020 Letter. Ms Spears considered that her comments had been a “light hearted joke” and was not intended to be disrespectful. Mr Harris disagreed and said words to Ms Spears to the effect of “that if the boot was on the other foot you would not find what you said amusing”;
(d)Mr Harris then raised with Ms Spears the medical certificate dated 13 August 2020 that Ms Spears had sent to him by text message. Mr Harris noted that this was the first time that he had heard that Ms Spears was suffering from workplace stress;
(e)Mr Harris did not threaten to lodge a worker’s compensation claim on Ms Spears’ behalf. Mr Harris did, however, tell Ms Spears that if she had sustained an injury as a result of her employment with the SAWG it would be necessary for a claim to be lodged under the RTW Act; and
(f)Mr Harris was not threatening to put Ms Spears on worker’s compensation, but he considered it inevitable in circumstances where Ms Spears had sustained a work-related stress injury and that it would become a matter for SAWG’s workplace insurer.
Consideration – RTW Act
The factual context in which this claim arises is that at the 24 August 2020 Meeting Mr Heurck asked Ms Spears “what will happen next from your perspective”, following which the following exchange as recorded in the Meeting Transcript, pp 28-29 took place occurred between Ms Spears (“AS” in the Meeting Transcript) and Mr Harris (“DH” in the Meeting Transcript):
AS:I don’t know, I will be going back to the doctor tomorrow, I think I need a bit more time.
DH: So what we’ll have to do here is we’ll have to put you on work cover,
AS: No,
DH: Well you’ve run out of sick leave.
AS: No I have plenty if sick leave.
DH:Well, we’re going to make awork cover claim because um, we can’t let this run on, so,
AS: How can you make a work cover claim?
DH:Because you made a claim against the company, you’ve got a medical condition,
AS: Alright, fine, put the work cover claim in.
DH:So we have to start, so I’ll speak to Pete, but we’re going to have to, er, when someone gets injured, you don’t wait until their sick leave’s over until you notify your insurer that there’s a claim.
Ms Spears support person, a Mr Abela, then moved the meeting to a different topic by asking Mr Harris “Do you think your intimidating or aggressive?”: Meeting Transcript, p 29.
The Return to Work Regulations 2015 (SA) (“RTW Regulations”) are made pursuant to s 202 of the RTW Act. Sch 4 of the RTW Regulations provides the terms and conditions for insurance of employers, and cl 2 provides as follows:
If the employer becomes aware of the occurrence of a work injury that is likely to give rise to a claim against the employer, the employer must, within 5 business days, forward to the Corporation written notice of the injury.
Ms Spears alleges that what occurred at the 24 August 2020 Meeting constituted coercion for the purposes of s 343 of the FW Act.
Coercion requires conduct that is compulsive, in the sense that the pressure in a practical sense, negates choice, and is unlawful, illegitimate or unconscionable: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; (2000) 106 IR 158 at [18]-[38] per Gyles J; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373 (“Qenos”) at [128] per Weinberg J. The entire circumstances of a case may be evaluated to find coercive intent, rather than immediate proximate conduct: Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444. Coercion itself requires that a person not be left with a realistic choice as to whether or not to comply: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20 (“NTEIU v Commonwealth”) at [103] per Weinberg J. In order to prove coercion, proof of the requisite intent to coerce is necessary: NTEIU v Commonwealth at [65] per Weinberg J. The mere communication of an intention to make employees redundant in a spill and fill process, communicated generally to the workforce, was held in Qenos at [119] per Weinberg J, not to be a threat.
There will not be a threat of proscribed conduct for the purposes of s 343 of the FW Act unless SAWG or Mr Harris communicated to Ms Spears that proscribed action would be taken, and that required that Ms Spears be menaced or warned beforehand of an intention to inflict harm: CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238 at [19] per Finkelstein J.
Having read the Meeting Transcript in its entirety there is no other contextual background (aside from the extract from the Meeting Transcript set out above) which would or could found an allegation or a finding of coercion in this matter. As is revealed by the extract from the Meeting Transcript set out above all that occurred here is that Mr Harris, quite properly and in accordance with the law as set out in cl 2 of Sch 4 of the RTW Regulations, made it known to Ms Spears that because of her illness a claim would be notified to the relevant statutory body, the Return to Work Corporation of South Australia. In so acting Mr Harris was not negating choice, but acting lawfully, and it is not apparent on the evidence that any threat or menace or intention to inflict harm was involved on the part of Mr Harris (or anyone else on behalf of SAWG). Mr Harris evidence discharges the onus under s 361(1) of the FW Act.
In the above circumstances, Ms Spears allegation of coercion contrary to s 343 of the FW Act is not made out.
Ms Spears also made a claim that Mr Harris’ conduct during the 24 August 2020 Meeting was contrary to s 352 of the FW Act. That claim cannot succeed because s 352 of the FW Act requires a termination of employment because of a temporary absence from work because of illness or injury of a kind prescribed by the FW Regulations. There was nothing in the conduct of Mr Harris at the 24 August 2020 which suggested that Ms Spears was going to be dismissed, either because of a temporary absence or at all, and as such there was no adverse action by SAWG in relation to Ms Spears in this respect. Mr Harris’ statement at the 24 August 2020 Meeting that “we can’t let this run on”: Meeting Transcript, p 29, was plainly a reference to the need to resolve the inter-related sick leave and possible workers compensation issues, and was not a reference to termination of Ms Spears employment. Finally, it is necessary to observe that, when Ms Spears’ employment was terminated by SAWG (some 18 days after the 24 August 2020 Meeting) it was not by reason of any temporary absence from work because of illness or injury, but rather, as the Court has found at [81] below, by reason of redundancy.
In the above circumstances, Ms Spears allegation of contravention of s 352 of the FW Act is not made out.
Dismissal for and alleged failure to consult with respect to redundancy
Ms Spears’ submissions
In relation to her dismissal and the alleged failure to consult with respect to redundancy Ms Spears submitted that:
(a)she was certified unfit to work from 1 to 8 September 2020 as a result of illness and provided a medical certificate;
(b)Mr Harris took adverse action by issuing the Redundancy Letter on 2 September 2020 terminating her employment;
(c)the Redundancy Letter was issued the day after she was instructed by Mr Harris to be back at work;
(d)Mr Harris did not engage in a consultation process with her with regard to her redundancy, and it was a complete shock for her;
(e)SAWG has a primary duty of care to identify risks for prevention of an injury and as far as reasonably practicable, minimise, mitigate or eliminate risks, and Mr Harris failed to identify risks associated with her stress and subsequent surprise redundancy;
(f)the dismissal constitutes adverse action that was instituted by Mr Harris with malice and demonstrates intentional infliction of emotional stress and negligence in circumstances where Mr Harris was aware that her mental health condition was already fragile due to stress;
(g)Mr Harris terminated her employment for failure to comply with his coercive orders to return to work on a particular day regardless of the status of her illness or injury, and thereby contravened s 352 of the FW Act;
(h)the Redundancy Letter stated that SAWG did not require part-time sales staff, and this statement contravenes s 351 of the FW Act;
(i)the Redundancy Letter also stated that one of the reasons for the termination was due to COVID-19, but at that time the job-keeper payments provided by the Australian Government were covering approximately 95 percent of her wages;
(j)Mr Harris failed to consult with her about the redundancy and did not give her an opportunity to discuss or consider a job-keeper enabling stand-down or a further reduction of work hours;
(k)Mr Harris made no attempts to consider options to minimise the risks associated with her work-related or financial stress and he did not take the necessary steps required in order to prevent a psychological injury from occurring;
(l)if Mr Harris had considered the options referred to and consulted with Ms Spears he would have been able to mitigate the hurt and stress that she suffered as a consequence of her shock termination;
(m)a job-keeper enabling stand down would have assisted Ms Spears to transition out of the workplace in a safe and timely manner, when she was feeling well enough to do so, and would also have provided her with adequate time to seek alternative employment, and she would have been able to continue to receive job-keeper benefits at no cost to SAWG;
(n)any other reason listed in the Redundancy Letter with regard to the termination of her employment, such as the Anti-Dumping Enquiry, should be disregarded as SAWG could have easily maintained her employment for a further period of three months at no additional cost;
(o)the termination of her employment was due to:
(i)her need to reduce her hours for family/carer’s responsibilities;
(ii)her illness;
(iii)her complaint regarding the aggressive and intimidating conduct of Mr Harris; and
(iv)her failure to comply with the coercive attempt made by Mr Harris to try to force her to return to work;
(p)at all times during her temporary absence from work on account of her illness or injury a medical certificate was provided, and she accessed her personal leave entitlements, and the termination of her employment therefore contravened ss 340, 342, 343, 351 and 352 of the FW Act;
(q)SAWG had always employed a person in the position of a Sales Manager as its primary source of income was generated through sales of wine. The main duty of Ms Spears’ role was to sell wine and these duties were always required to be undertaken by a SAWG staff member. Ms Spears had extensive knowledge and experience in the wine industry and in particular, sales, and was far more qualified than the other two staff members to undertake and manage those duties;
(r)there was no reference to Ms Spears’ position as a Sales Manager mentioned in the Redundancy Letter, only a reference to SAWG not requiring any part-time sales staff;
(s)there are no notations or records on file to demonstrate that consultation took place with the other two staff members in regard to the potential redundancy within the workplace prior to Ms Spears being terminated from her employment on 2 September 2020;
(t)there are no notations or records to show that SAWG discussed a potential reduction of work hours with the other two staff members to share the workplace duties. The management of shared duties and reduced work hours would have negated the requirement for SAWG to terminate Ms Spears’ employment;
(u)neither of the other two staff members have been called to participate in these proceedings in order to verify on behalf of SAWG that a redundancy consultation process took place between them and SAWG prior to Ms Spears’ termination;
(v)there are numerous inconsistencies with SAWG’s reasons and responses to the claims alleged by Ms Spears for instigating the termination. The inconsistencies are evident in the documented statements made by SAWG and demonstrates that SAWG’s submissions are not reliable, and its witnesses are not credible, and that the contraventions alleged by Ms Spears are accurate; and
(w)there are matters of deliberate invention in order to defeat the claim before the Court. The Court should find that no consultation occurred.
SAWG’s submissions
As to Ms Spears’ redundancy SAWG submitted that:
(a)the Redundancy Letter advised Ms Spears that in light of the deteriorating trading conditions and an increasingly uncertain business outlook due to COVID-19 and the Anti-Dumping Enquiry, it had determined it was necessary to restructure its operations. As a result of that restructure, Ms Spears’ role had become redundant effective immediately;
(b)the Termination Letter dated 11 September 2020 advised Ms Spears that the date of termination of her employment by reason of redundancy was 11 September 2020. Ms Spears was advised that as SAWG was a “small business employer” she had no entitlement to redundancy pay, but that SAWG was considering making an ex gratia payment to her and that the basis, timing and amount of that payment was under review and would be communicated to her as quickly as possible. It was reiterated that the termination of Ms Spears’ employment resulted from a genuine redundancy brought about by the very recent, unexpected, and rapidly changing market trading conditions;
(c)the decision to make Ms Spears’ position redundant was brought about by the sudden and unexpected naming of SAWG by the Chinese authorities in relation to the Anti-Dumping Enquiry, and not because of COVID-19. The Anti-Dumping Enquiry effectively destroyed SAWG’s Chinese wine export business overnight. Chinese exports comprised approximately 80% of SAWG’s business at that time;
(d)SAWG at the time projected a significant trading loss, because of the reduction in trading income from Chinese clients who immediately started deferring wine purchases and shipments until a clearer picture emerged on the duties to be paid on wine entering China. On 7 November 2020 Australian wine exports to China were effectively shut down by the imposition of tariffs of 212 percent;
(e)following the Business Impact Analysis review by SAWG (which was conducted between 20 and 25 August 2020) in the context of the Anti-Dumping Enquiry it was decided that one of SAWG’s three roles with respect to sourcing, sales, administration, and compliance for marketing and packaging needed to be made redundant to reduce costs. Ms Spears’ role was selected because the other two roles included duties that were still required to be performed for SAWG’s business;
(f)the decision to make Ms Spears’ position redundant was one of a number of measures taken by SAWG in response to the sudden losses that it suffered in turn over. This included the two remaining roles referred to being changed, and a reduction in their hours of work; and
(g)SAWG was not able to identify any other suitable roles within the business for Ms Spears. As such, the decision was made by SAWG to dismiss Ms Spears from her employment for the following reasons:
(i)the Anti-Dumping Enquiry Enquiry had caused an immediate and significant decrease in its profitability, such that business overheads needed to be reduced;
(ii)it no longer required Ms Spears’ role to be performed by anyone; and
(iii)it was not able to identify any alternative roles that could have allowed it to redeploy Ms Spears within the business.
Consideration - dismissal for and alleged failure to consult with respect to redundancy
Dealing first with the dismissal by reason of redundancy it is plain that the dismissal constitutes adverse action: FW Act, s 342(1), Item 1(a). The question for determination is therefore whether the dismissal was for a prohibited reason. The onus falls on SAWG to establish that the dismissal was not for a prohibited reason: FW Act, s 361(1).
Mr Harris gave evidence as to the reasons for the dismissal of Ms Spears on the basis of redundancy. In essence those reasons were that the announcement by the Chinese Government of the Anti-Dumping Enquiry in relation to Australian wine sometime in the week or so before 20 August 2020 was foreshadowed to result in an extraordinarily dramatic decrease in the amount of wine exported to China, with those exports accounting for approximately 80 percent of SAWG’s business as at August 2020: Harris Affidavit [30] and [32] and Annexure DH5; Hearing Transcript, p 75. On 24 August 2020 SAWG was specifically named by the Chinese Government as one of 10 exporters in Australia to be investigated by the Anti-Dumping Enquiry: Harris Affidavit, Annexure DH5. The foreshadowed decrease in turnover consequent upon the Anti-Dumping Enquiry was on top of a decrease caused by the COVID-19 crisis in the 2019/2020 which saw SAWG’s turnover drop from $8.9m in 2018/2019 to $6.7m in 2019/2020 (a decrease of just under 25 percent): Harris Affidavit at [38]. Ultimately, the foreshadowed decrease in turnover came to pass, with a decrease from $6.7m in 2019/2020 to just $1.4m in 2020/2021 (a decrease of just under a further 80 percent). It is fair to observe that the adverse effects upon the Australian wine industry of the Anti-Dumping Enquiry and the subsequent tariff increases are notorious.
In response to the Anti-Dumping Enquiry Mr Harris undertook the Business Impact Analysis with Mr Hourigan between 20 and 25 August 2020. It was on 24 August 2020, during the course of undertaking the Business Impact Analysis and on the day of the 24 August 2020 Meeting, that SAWG was named as one of 10 Australian exporters to be specifically investigated by the Anti-Dumping Enquiry. The Business Impact Analysis (Harris Affidavit, Annexure DH5):
(a)identified by way of background the severe effect of COVID-19 on the business, and that a need had been identified for an additional full-time salesperson, with retail experience, to be employed to develop and grow the retail sales market;
(b)said that on 24 August 2020 SAWG was named as one of 10 Australian exporters to be specifically investigated by the Anti-Dumping Enquiry;
(c)said that 80 percent of SAWG’s business was preparing wines for the Chinese market;
(d)observed that a mooted Chinese tariff of 200 percent on wines “would obviously put the company out of business”;
(e)said that the effect of SAWG being named as one of those being investigated “effectively stopped inquiries for wine shipments dead”;
(f)noted that customers were deferring orders whilst it remained unclear as to whether tariffs were going to be imposed on Australian wine exported to China;
(g)observed that “[c]urrent financial year projections are for a drop in turn-over and gross profit of around 50%, resulting in a significant and unsustainable trading loss”;
(h)identified the need to re-focus the business strategy “from diversification and growth to survival”;
(i)noted that the likelihood of increasing or maintaining turnover in the current financial had “evaporated, with no immediate prospect of recovery”;
(j)noted that the Seek advertisement for an additional staff member had been cancelled and applicants notified accordingly;
(k)observed that 60 percent of SAWG’s costs were staff related expenses; and
(l)identified that it was immediately necessary to eliminate one of the three staff positions, and in that regard observing that:
· Must retain Chinese language skills given the critical importance of securing maximum sales success and rebuilding of relationships in the dominant market
· Must maintain the accounting function, debtor and creditor control with access to the company’s accountancy software and bank accounts.
· The role that does not encompass either of these pre-requisites is filled by Alana Spears. Alana and our Chinese staff member do not currently have access to the company’s bank accounts. There are no plans to change this situation.
Unfortunately, because Alana’s position it is a part-time role, the impact of making it redundant will be reduced. Nevertheless, it is the only immediate option to reduce costs
Mr Harris was cross-examined as to these reasons, and under cross-examination at Hearing Transcript pp 81-82 said that:
(a)SAWG did not want Ms Spears managing its finances, which meant that another employee, Kirsty had to stay, and that it did not want Ms Spears to have access to its bank accounts because of her “constant financial difficulties”;
(b)that Chinese language skills would still be necessary in the business; and
(c)Mrs Harris (Mr Harris’ wife) could fill any relationship roles with customers “for no expense”,
and hence Ms Spears “was the only staff member we could spare”.
The reasons provided by SAWG are clear, cogent and comprehensible reasons for making Ms Spears position redundant. The Court accepts that SAWG was forced by the Anti-Dumping Enquiry and its immediate effects and anticipated long term effects to make Ms Spears position as Sales Manager redundant so as to immediately reduce costs. The reasons thus provided by SAWG positively establish that Ms Spears was not dismissed for a prohibited reason, and discharge the evidentiary onus under s 361(1) of the FW Act.
It is fair to observe that much else was happening in the context of Ms Spears employment with SAWG at the same time as the Anti-Dumping Enquiry issues developed and SAWG reacted by developing its Business Impact Analysis, with Ms Spears taking sick leave on multiple successive occasions to deal with workplace stress.
In relation to s 343 of the FW Act there is nothing in the decision to make Ms Spears’ position redundant which constitutes coercion for the purposes of s 343 of the FW Act (as to which see the law set out at [69]-[70] above), least of all because it was a decision made without ever conversing or corresponding with her about it until the decision to make her position redundant was made by SAWG.
In relation to s 351 of the FW Act it appears that Ms Spears asserts that the decision to make her position redundant was made by SAWG because of discrimination based on her carers or family responsibilities, but there is no evidence which would suggest that this was the case, and that these responsibilities formed any part of the reason for her dismissal. Ms Spears seems to suggest that the fact that the Redundancy Letter says that “there are no current requirements for additional part-time wine sales staff” in associated companies is indicative of discrimination based on her carers or family responsibilities, but all that phrase does is reflect the actuality of Ms Spears then employment status as a part-time member of staff (and a status which was a consequence of her request, acceded to by SAWG, to work a seven day fortnight).
In relation to s 352 of the FW Act there is no doubt that Ms Spears was absent from work because of illness for approximately two and a half weeks prior to the issuance of the Redundancy Letter and four weeks prior to the date of her dismissal on 11 September 2020. But as indicated above the reasons for dismissal on the basis of redundancy do not relate at all to Ms Spears taking sick leave, but to the effects, both immediate and forecast, of the Anti-Dumping Enquiry: see [81] above.
In the above circumstances SAWG have positively established that Ms Spears was not dismissed for a prohibited reason, and the claimed contraventions of ss 340, 342, 343, 351 and 352 of the FW Act in relation to Ms Spears dismissal by reason of redundancy are not made out.
JobKeeper enabling stand down
With respect to consultation with respect to redundancy Ms Spears submissions appear to suggest that she had a workplace right to be given the opportunity to discuss or consider a JobKeeper enabling stand-down with SAWG. The matter was not pleaded in the Amended Claim Form 2 (prepared by Ms Spears’ the lawyers) and was not the subject of any oral submissions by Ms Spears. There is nothing in the submissions, either written or oral, by Ms Spears which identifies the source of any alleged workplace right based on a JobKeeper enabling stand down, or what was the actual right based on a JobKeeper enabling stand down, or the nature or content of a JobKeeper stand down. In the circumstances the Court cannot be satisfied that there is a workplace right of whatever kind it was that Ms Spears was trying to argue might exist, and without an identified workplace right it is not necessary to deal further with the matter.
Alleged breach of Work, Health and Safety Act 2012 (SA)
Ms Spears also made a written submission that the adverse actions taken by Mr Harris following the discovery that Ms Spears was injured at work during her employment with SAWG were deliberately negligent and malicious and constituted a breach of the Work, Health and Safety Act 2012 (SA) (“WHS Act”) which requires that a person conducting a business or undertaking must consult with an employee with regard to major workplace changes affecting the employee’s health and safety. Ms Spears says that due to financial constraints and the fact that she has been required to become her own investigative legal representative she has been too physically and mentally exhausted and time poor to follow up these incidents with Safe Work SA. She says that she does not intent to take any further action, but requests that the Court order SAWG be subjected to a workplace investigation by Safe Work SA concerning their company policies and procedures for managing employee complaints and in particular with regard to workplace bullying and harassment, including procedures for managing an employee who is suffering from a mental health condition such as workplace stress.
SAWG’s written submissions were filed prior to those of Ms Spears, and so no written submission, nor any oral submission was made by SAWG on this issue.
The Court notes that Ms Spears has not submitted that there is a contravention of the general protections provisions of the FW Act in relation to this issue, and none was pleaded in the Amended Claim Form 2 prepared by her former lawyers, and it is not therefore necessary nor appropriate for the Court to deal with the issue as if it were pleaded as a contravention of the general protections provisions of the FW Act.
This Court is a court of limited statutory jurisdiction. It has no jurisdiction to order a South Australian State authority, which is not a party to the proceedings, and which has played no part in the proceedings, to undertake an investigation into an alleged breach of the WHS Act by SAWG. If Ms Spears wishes such an investigation to be undertaken by the person or body responsible for such matters under the WHS Act she must make her own complaint to that person or body.
REDUNDANCY PAYMENT
Legislation
Section 44(1) of the FW Act provides that an employer must not contravene a provision of the National Employment Standards (“NES”). Section 119 of the FW Act is a provision of the NES.
Section 119 of the FW Act provides as follows:
Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2)The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
(3)A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.
Section 121(1) of the FW Act relevantly provides as follows:
121 Exclusions from obligation to pay redundancy pay
(1)Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) …; or
(b) the employer is a small business employer.
Section 23 of the FW Act defines “small business employer” as follows:
(1)A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2)For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3)For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4)To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
Ms Spears’ submissions
Ms Spears submitted that:
(a)following her termination by SAWG, SAWG took various steps to prepare to demonstrate to the Court that there are sufficient differences between SAWG and Riverland Vintners that would satisfy the Court that the two companies are not associated entities in accordance with the Corporations Act 2001 (Cth) (“Corporations Act”), and that SAWG could evade its legal obligations and responsibilities to pay her redundancy entitlement of eight weeks’ severance pay by adequately disguising itself as a small business;
(b)these steps included, but are not limited to, changing the companies operating banks, changing the companies’ registered addresses, and changing the companies name from Riverland Vintners to Winemasters, although she acknowledges that the company name change had already been planned prior to her termination;
(c)the name of the ultimate holding company for Riverland Vintners, whose company registration and address are based in Hong Kong, was also changed;
(d)in the 24 August 2020 Meeting Mr Harris asserted that he owned both SAWG and Riverland Vintners, and that the two companies worked together and are part of one team;
(e)the websites for both SAWG and Riverland Vintners describe and refer to the other company as “sister companies” and form part of the informative alliance that the two companies have together;
(f)the August 2020 Letter states that the companies are all part of “The Harris Group of Companies”;
(g)the Court should find that by piercing the corporate veil through investigative research it will be able to find sufficient evidence to support the facts mentioned above and to determine that SAWG and Riverland Vintners should be considered to be associated entities in accordance with the Corporations Act and therefore the FW Act; and
(h)for the purposes of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
SAWG’s submissions
SAWG submitted that:
(a)it did not make a redundancy payment to Ms Spears as SAWG employs less than fifteen people, and is a small business employer for the purposes of the FW Act, and Ms Spears therefore had no entitlement to redundancy pay;
(b)SAWG and AgriPartners are associated entities for the purpose of s 50AAA of the Corporations Act;
(c)at the date of Ms Spears’ termination from employment, SAWG had three employees and AgriPartners had three employees. Currently, SAWG has two employees and AgriPartners has two employees;
(d)AgriPartners owns SAWG;
(e)the parent company of Riverland Vintners is Riverland Vintners HK Limited (“Riverland Vintners HK”), a company registered in Hong Kong;
(f)whilst AgriPartners holds a small share (approximately 3 percent) in Riverland Vintners HK, this is held in trust for Mr Harris’ three children who have no control over the operation of either business. Accordingly, despite AgriPartners holding a small share in Riverland Vintners HK, there is no element of control, practical influence, or significant influence of AgriPartners over Riverland Vintners HK or vice versa;
(g)SAWG does not hold any shares in Riverland Vintners or Riverland Vintners HK; and
(h)SAWG and Riverland Vintners have never been grouped for taxation purposes, workers compensation purposes, payroll tax, or Wine Equalisation Tax purposes. Neither company receives dividends, fees, or interest from the other. There are no intercompany loans between these two businesses, and this was also the case as at the date of Ms Spears’ redundancy.
At hearing SAWG submitted that the unchallenged evidence was that SAWG employed three to four people, a fact confirmed in the First Spears Affidavit at Annexure AS1, but otherwise there was no evidence as to the numbers of employees of SAWG and its associated entity AgriPartners, or the alleged associated entity, Riverland Vintners: Hearing Transcript, pp 105-106.
Consideration – redundancy payment
There is no dispute in this case that SAWG and AgriPartners are associated entities for the purposes of s 50AAA of the Corporations Act. The issue as to whether SAWG and Riverland Vintners are associated entities for the purposes of s 50AAA of the Corporations Act is not one, for reasons which follow, the Court specifically needs to determine. That is because Ms Spears, who bears the onus of proof on this issue, has failed to prove that SAWG, either on its own, or in conjunction with any associated, or allegedly associated, entity, employed 15 or more employees at the time of Ms Spears redundancy.
Ms Spears evidence, so far as it went, was that SAWG employed four people as at September 2018: Ms Spears’ First Affidavit at Annexure AS1 listing those people as herself, Mr Hourigan, Kirsty Kerrison (Administration Officer) and Ang Shi (Sales and Marketing Assistant (Chinese language)), and based on a reading of Ms Spears oral evidence in the Hearing Transcript the same four people were still employed at the time of her redundancy. Ms Spears gave no evidence as to the number of employees employed by AgriPartners or Riverland Vintners.
In the Meeting Transcript at pp 17-18 Mr Harris is recorded as saying the following:
… in 2013 … we bought Riverland Vintners and since that day, SA Wine group has taken off.
….
But, the absolute fundamental reason that SA Wine Group is becoming one of the better brokers in South Australia, is because it is attached to a bloody great big winery and all of the other brokers as I’ve been discussing in the last week or two with them, is that if you think that in a time of wine shortage you can make a broking business work by ordering samples from a winery and giving them to your customers without doing what we do, and it’s not Alana, it’s not Ang, it’s not Kirsty, there are 20, nearly 30 people in the team, it goes back to the guys that are doing the despatches, it goes to Rob Ogle, it goes to Leela, Cindy and so you’re part of a team,
That evidence says nothing about who actually employs the people in the “team”, or, at the very least, whether they are employed by Riverland Vintners, or what was the number of persons employed at the time of Ms Spears redundancy. That evidence is therefore not especially helpful, and certainly capable of being relied upon as a basis for determining by whom the persons concerned are employed, or whether they were employed by Riverland Vintners.
In the Meeting Transcript at p 29 Mr Harris is also recorded as saying that “we employ about, during the summer we employ nearly 60 people”. That does not assist Ms Spears as, first, it is not apparent who the “we” is that is being referred to, and, second, the employees are not employees employed at the time of Ms Spears dismissal on 11 September 2020, that is, in early spring.
Mr Harris’ evidence was that SAWG and AgriPartners each had three employees at the time of Ms Spears redundancy: Harris Affidavit at [42]-[43]. That evidence was not challenged in cross-examination.
The evidence which can be relied on therefore goes no further than demonstrating that SAWG and AgriPartners had a combined total of six employees. There is an absence of any reliable evidence as to the number of employees of Riverland Vintners. It is therefore unnecessary to determine whether Riverland Vintners is an associated entity of SAWG for the purposes of the FW Act because there is no evidence as to how many employees they have, and the evidence otherwise does not establish that SAWG and AgriPartners had 15 or more employees at the time of Ms Spears redundancy.
Because it has not been established that SAWG (or any associated entities) have more than 15 employees there was no obligation on SAWG to pay redundancy to Ms Spears because it was not proven that SAWG was anything other than a “small business employer” for the purposes of s 23 and s 121(1)(b) of the FW Act.
Although it is probably strictly unnecessary to do so in light of the finding made in the previous paragraph the Court will consider whether Ms Spears has established that Riverland Vintners is an “associated entity” for the purposes of s 23(3) of the FW Act.
Pursuant to s 12 of the FW Act “associated entity” has the meaning given by s 50AAA of the Corporations Act. Section 50AAA of the Corporations Act provides as follows:
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
Section 50AA of the Corporations Act defines “control” as follows:
(1)For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.
(2) In determining whether the first entity has this capacity:
(a)the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b)any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
(3)The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.
(4) If the first entity:
(a)has the capacity to influence decisions about the second entity’s financial and operating policies; and
(b)is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;
the first entity is taken not to control the second entity.
In Hancock v Rinehart [2015] NSWSC 646; (2015) ACSR 207; (2015) 13 ASTLR 1 at [152]-[153] per Brereton J the New South Wales Supreme Court said:
The concept of ‘control’ of an entity is concerned with the ability to determine the outcome of decisions of the entity … In the context of a company, this ordinarily means the ability to carry a resolution by majority at the general meeting — and thus to determine the composition of the board of directors …
Control is concerned with decision-making, rather than proprietorship, and control, like ownership, can be indirect: there are circumstances in which those who have the ability to carry a resolution may become bound to act on the direction of another (for example, a mortgagee). The ‘control’ requirement is directed to the ultimate power to decide how an entity acts, as distinct from beneficial ownership, and also as distinct from the delegated power of directors or officers. Although typically those who wholly own a company will control it, that is not necessarily so: it is not unknown for those entitled to exercise voting power to become bound or accustomed to exercise their voting rights in accordance with the direction of another (as would be the case, for example, if under her settlement with Mrs Rinehart, Hope were bound to vote in accordance with Mrs Rinehart’s direction). In such a case, that other person will ‘control’ the company if he or she has a sufficient accumulation, directly or indirectly, of voting power to carry the general meeting.
In Amcor Ltd v Barnes [2016] VSC 707 at [1282] per Sloss J the Victorian Supreme Court said:
… one does not discern or ascertain whether there is a change of control by simply looking at the number of shares held at any particular time, or to strict legal rights, or to the rights of directors etc Rather one must look to see whether the entity has the capacity, in a real and practical sense, to determine the important decisions of the company that set the framework for the operation of the business, in meeting its legal and regulatory obligations and in achieving its financial and other corporate objectives, as distinct from the day to day decisions made within that framework.
The evidence established that SAWG, based in Adelaide, sells wine on behalf of grape growers who have that wine processed at what SAWG’s website describes as its “sister company”, Riverland Vintners: First Spears Affidavit, Annexure AS17. That indicates no more than that there is a commercial relationship between the two companies, and the wine growers who deal with SAWG have their wine processed by Riverland Vintners.
Mr Harris gave evidence (Harris Affidavit at [44]-[49]) that:
(a)Riverland Vintners parent company is Riverland Vintners HK, a company registered in Hong Kong;
(b)AgriPartners holds a small share (approximately three percent) in Riverland HK, which is held in trust for Mr Harris’ three children who have no control over the operation of the business;
(c)AgriPartners owns SAWG;
(d)SAWG does not hold any shares in Riverland Vintners or Riverland HK; and
(e)SAWG and Riverland Vintners:
(i)have never been grouped for the purposes of taxation, workers compensation, payroll tax or wine equalisation tax;
(ii)do not receive dividends, fees or interest from the other; and
(iii)there are no intercompany loans between them,
and that the above position was that which pertained at the time of Ms Spears redundancy.
There was also evidence from the accountants for SAWG, Agripartners and Winemasters (formerly Riverland Vintners) by way of a letter dated 16 February 2021, annexed to both the Harris Affidavit and the Second Spears Affidavit, which confirmed the above evidence from Mr Harris, and also indicated that:
(a)Winemasters (formerly Riverland Vintners) and Riverland HK held no shares in SAWG or AgriPartners;
(b)SAWG brokers and trades wine from Winemasters, but also from other wineries across South Australia;
(c)SAWG does very little business with Winemasters as Winemasters does not buy fruit and trade wine, but rather operates a wine contract processing business;
(d)any intercompany transaction (between Winemasters and SAWG) relate to the preparation of samples and provision of services such as loading tankers, and all occur at rack rates and are arms length transactions; and
(e)SAWG and AgriPartners share an office in Port Adelaide, while Winemasters operates from an office in South Australia’s Riverland.
There was also evidence that Mr Harris was a director of each of SAWG, AgriPartners, Riverland Vintners (now Winemasters) and Riverland HK.
Having considered the evidence the Court does not consider that Ms Spears has proven that SAWG or AgriPartners had, at the time of Ms Spears redundancy, any element of control or practical influence or significant influence, in a real and practical sense, to determine the important decisions of Riverland Vintners that set or determined the operational framework for the Riverland Vintners business, in meeting its legal and regulatory obligations or achieving its financial and other corporate objectives, and vice versa. It follows that Riverland Vintners was not an “associated entity” of SAWG or AgriPartners as defined in s 12 of the FW Act or for the purposes of s 23(3) of the FW Act. It further follows that, even if the Court had been persuaded that SAWG, AgriPartners and Riverland Vintners employed a total of 15 or more employees between them, SAWG would still be a “small business employer” for the purposes of ss 23(3) and 121(1) of the FW Act, and Ms Spears would not be entitled to a redundancy payment.
FAILURE TO PROVIDE PAYSLIPS
Section 536(1) of the FW Act provides that:
536 Employer obligations in relation to pay slips
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
Ms Spears submissions
Ms Spears submitted that as to payslips:
(a)an employee is entitled to receive a pay slip within 24 hours of being paid;
(b)although SAWG claims to have complied with this obligation, this is not true;
(c)this is a contravention attracting a penalty;
(d)SAWG did not provide Ms Spears with a pay slip on numerous occasions despite her request to receive them;
(e)Ms Spears has sought to obtain copies of all of her payslips in order to ensure that correct entitlements were allocated to her during her employment with SAWG. Ms Spears’ accountant has made several requests to obtain copies of Ms Spears’ payslips and SAWG has still failed to provide them;
(f)in addition, the failure to provide appropriate payslips gives rise to a reversal of the onus of proof pursuant to s 557C of the FW Act; and
(g)if accurate records are not kept, then it is for the employer to disprove the allegations made by the employee that her leave entitlements were not maintained accurately.
SAWG’s submissions
SAWG submitted that Ms Spears had provided no evidence that any payslip was not provided within a day of payment of wages being made, and therefore this claim must fail.
Consideration – failure to provide payslips
Ms Spears submitted that this was a contravention to which the reverse onus of proof in s 557C(1) of the FW Act applied. That is not however the case because this contravention is not a contravention of a kind specified in s 557C(3) of the FW Act.
Ms Spears provided only one pay slip and a statement of payment on termination in support of this aspect of her case: First Spears Affidavit, Annexures AS21 and AS22. The payslip is not dated but indicates that it is for a pay period ending 6 September 2020, and that the payment date was 7 September 2020. The statement of payment on termination is also not dated. There is therefore no evidence from Ms Spears that on any particular date on which a payslip was required to be provided within one day of payment of wages being made, that such a payslip was not provided. Mr Harris gave evidence that, to his knowledge, there was only one occasion that Ms Spears was not provided with her payslip within one working day of an amount of her wages being paid to her: Harris Affidavit at [52]. No detail as to when that was provided by Mr Harris, nor was there any documentary evidence thereof. There is, therefore, no, or no sufficient, evidence of the possible contravention which would allow the Court to conclude that in relation to payment on a particular day that there was a failure to provide a payslip within one day of the payment. It follows that the alleged contravention of s 536(1) of the FW Act has not been made out.
FW INFORMATION STATEMENT
Ms Spears submissions
As to the FW Information Sheet Ms Spears submitted that:
(a)in accordance with s 125(1) of the FW Act, SAWG had an absolute obligation to issue an employee with the FW Information Sheet setting out the employee’s rights and obligations at the commencement of an employee’s employment;
(b)SAWG failed to comply with the obligation to provide Ms Spears with a FW Information Sheet; and
(c)the failure to comply with the obligation to provide Ms Spears with a FW Information Sheet is a contravention attracting a penalty.
SAWG’s submissions
SAWG admits that it failed to provide Ms Spears with a FW Information Statement in accordance with s 125(1) of the FW Act.
Consideration – FW Information Statement
It follows from SAWG’s admission that there should be a declaration that there has been a contravention of s 125(1) of the FW Act by SAWG by reason of its failure to give Ms Spears a FW Information Statement.
ALLEGED BREACHES OF THE AWARD
Ms Spears submissions
In the course of the hearing (see especially Hearing Transcript at pp 22-23) it emerged that Ms Spears also alleged that there were breaches of the Award. Two types of breaches were alleged, namely:
(a)a failure to ensure that a copy of the Award was available on notice boards; and
(b)that there was a failure to consult with respect to Ms Spears’ redundancy.
SAWG’s submissions
SAWG submitted that neither allegation of a breach of an award can succeed for the simple reason that the Award was not put in evidence.
Consideration – alleged breaches of the Award
Neither the Award nor any extracts from the Award (agreed or otherwise) were tendered into evidence. This was despite the Court’s admonitions concerning the necessity to put any award relied upon in evidence, and that the onus was on Ms Spears to do so: Hearing Transcript, p.23. Without the Award being tendered and in evidence it is not possible to determine:
(a)the scope of the Award alleged to apply;
(b)whether the Award in fact applies to the industry concerned;
(c)whether the Award in fact applies to the geographic area in which Ms Spears worked;
(d)whether Ms Spears was covered in relation to the type of work which she performed; and
(e)what obligations, if any, as to the placement of the Award on notice boards, or as to redundancy and consultation with respect to redundancy, might be imposed upon SAWG.
It follows from the above reasons that no breach of the alleged Award has been made out.
CONCLUSION AND ORDERS
The Court has concluded that SAWG contravened s 125(1) of the FW Act by failing to give Ms Spears a Fair Work Information Statement, but that Ms Spears has otherwise failed to make out any of the other alleged contraventions of the FW Act by SAWG. There will be a declaration and order accordingly.
The parties are to confer forthwith with respect to penalty and programming for a penalty hearing.
The matter will otherwise be adjourned to a directions hearing at 12:00pm on 2 February 2024.
Costs, if any, will be reserved, with liberty to apply prior to the directions hearing referred to in order 3.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 November 2022
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