Strydom v CBD Refrigeration and Air Conditioning Pty Ltd
[2019] FCCA 1444
•29 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STRYDOM v CBD REFRIGERATION & AIR CONDITIONING PTY LTD & ORS | [2019] FCCA 1444 |
| Catchwords: INDUSTRIAL LAW – Allegation of adverse action – whether employee resigned from employment – whether employment terminated for reason other than exercising of workplace right – whether employee paid notice in lieu of termination – whether employee provided with payslips within prescribed period. |
| Legislation: Electrical, Electronic and Communications Contracting Award 2010, cll.26.3, 26.4 |
| Cases cited: Australian Building & Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28 |
| Applicant: | IVAN STRYDOM |
| First Respondent: | CBD REFRIGERATION & AIR CONDITIONING PTY LTD |
| Second Respondent: | IAN WOOTEN |
| Third Respondent: | DARYL WOOTEN |
| File Number: | PEG 63 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 6 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Heathcote |
| Solicitors for the Applicant: | Steven Heathcote Barrister and Solicitor |
| Counsel for the Respondents: | Ms H Millar |
| Solicitors for the Respondents: | MDC Legal |
THE COURT DECLARES THAT:
The first respondent has contravened:
(a)section 45 of the Fair Work Act 2009 (Cth) by not paying the applicant the amount of pay prescribed by cl.26.3 of the Electrical, Electronic and Communications Contracting Award 2010 for work he performed on Sunday, 11 October 2015;
(b)section 323(1)(a) of the Fair Work Act 2009 (Cth), by, without lawful authorisation, withholding the sum of $300 from the applicant’s pay; and
(c)section 44 of the Fair Work Act 2009 (Cth) by not making payment in lieu of notice to the applicant as prescribed by s.117(3) of the Fair Work Act 2009 (Cth).
Pursuant to s.550(1) of the Fair Work Act 2009 (Cth), the second respondent and the third respondent were knowingly involved in each of the contraventions by the first respondent identified in the declaration at 1.
THE COURT ORDERS THAT:
The matter be listed on a date and time to be fixed for directions concerning any compensation and penalty orders to be made in light of the above declarations.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 63 of 2016
| IVAN STRYDOM |
Applicant
And
| CBD REFRIGERATION & AIR CONDITIONING PTY LTD |
First Respondent
| IAN WOOTEN |
Second Respondent
| DARYL WOOTEN |
Third Respondent
REASONS FOR JUDGMENT
Introduction
On 12 February 2016, the applicant, Mr Ivan Strydom (“Mr Strydom”), filed an application under the Fair Work Act 2009 (Cth) (“FW Act”). alleging that:
a)the first respondent, CBD Refrigeration & Air Conditioning Pty Ltd (“CBD Refrigeration”), contravened the following sections of the FW Act:
i)section 340(1)(a)(ii) in terminating his employment by virtue of his exercising a protected workplace right;
ii)section 44 by failing to provide written notice of termination or make payment in lieu of notice upon his termination (under s.117 of the FW Act) in accordance with the National Employment Standards (“NES”);
iii)section 45 in failing to pay the minimum rate applicable under the Electrical, Electronic and Communications Contracting Award 2010 (“Award”);
iv)section 323(1)(a) in withholding payment of $300 without authorisation; and
v)section 536 in failing to provide payslips within one working day of payment; and
b)the second respondent, Mr Ian Wooten, and the third respondent, Mr Daryl Wooten, the managing director and director of CBD Refrigeration respectively were knowingly concerned in any contraventions and accessorily liable under s.550 of the FW Act.
Background
CBD Refrigeration is a National System Employer under s.14 of the FW Act. Mr Strydom was employed by CBD Refrigeration as a refrigeration mechanic on a full time basis from 10 January 2005 to 1 December 2015.
An issue arose in the course of Mr Strydom’s employment concerning the hours he worked on 10 and 11 October 2015. The respondents’ evidence is that:
a)on Saturday 10 October 2015 Mr Strydom commenced work at 2:46am and finished at 7:11pm, inclusive of breaks; and
b)on Sunday 11 October 2015 Mr Strydom commenced work at 12:32pm and finished work at 1:28pm;
Mr Strydom’s account of the hours he worked on these days was recorded by him in his timesheet as follows:
a)on Saturday 10 October 2015 he commenced work at 2:30am and finished at 7:30pm; and
b)on Sunday 11 October 2015 he commenced work 12:15pm and finished work at 1:45pm.
The background to the events occurring after these dates is as follows:
a)on 15 October 2015, Mr Strydom was paid for the work he performed on 10 October 2015;
b)between 19 November 2015 and 24 November 2015, Mr Strydom:
i)was provided with payslips for payments made to him in the period 13 October 2015 to 18 November 2015;
ii)queried with Ian Wooten why he had not been paid for work performed on 11 October 2015; and
iii)was informed by Ian Wooten that the issue of non-payment would be investigated;
c)on the morning of 1 December 2015, Mr Strydom met with Ian Wooten (“First Meeting”). At this meeting, Mr Strydom complained that he had not received payment for overtime he had worked on 11 October 2015. Mr Strydom was told by Ian Wooten, amongst other things, that the query was being investigated, however, Ian Wooten needed to discuss the matter with Daryl Wooten, and that Mr Strydom should go home for the rest of the day. Mr Strydom made an audio recording of the First Meeting without Ian Wooten’s knowledge;
d)immediately following the First Meeting, Mr Strydom, without instruction to do so, drove to a client site to wait for Daryl Wooten to arrive. Later that morning, Mr Strydom met with Daryl Wooten (the “Second Meeting”). At this meeting, Mr Strydom again stated, amongst other things, he had not received payment for overtime worked on 11 October 2015. Mr Strydom was told by Daryl Wooten that the issue of non-payment would be looked into but was unable to be resolved at that time due to other urgent matters requiring attention. Daryl Wooten told Mr Strydom to wait in the technicians room (colloquially known as the “boys’ room”) until Daryl Wooten had completed the urgent matters, at which time he would address the issue of non-payment. Mr Strydom made an audio recording of the Second Meeting without Daryl Wooten’s knowledge;
e)later the same day, on or around 2:00pm, Daryl Wooten met with Mr Strydom in the boys’ room (the “Third Meeting”). At the Third Meeting, Mr Strydom was told by Daryl Wooten that the times he had recorded on his timesheet did not match other data and he had been paid for one hours’ work performed on 11 October 2015. Mr Strydom was presented with paperwork relating to the work he had performed on Sunday, 11 October 2015. This included GPS tracking data, a service report and an amended timesheet. The Court does not need to resolve what happened with that paperwork other than to say it was presented to Mr Strydom as the reason for only paying him one hours’ work performed on Sunday 11 October 2015;
f)the conversation between Mr Strydom and Daryl Wooten became heated, at which time Ian Wooten entered the boys’ room. The facts that are not in dispute are that:
i)Mr Strydom indicated that he was going to take CBD Refrigeration’s van home to remove his personal work tools;
ii)Ian Wooten replied with words to the effect that Mr Strydom was not permitted to take the van home and would have to find another way to take his tools home;
iii)Mr Strydom said words to the effect “this will go to arbitration”; and
iv)Daryl Wooten replied, with words to the effect, “you do what you need to do and we will do what we need to do”;
g)on 2 December 2015, Mr Strydom did not attend work and did not contact the respondents to advise that he would not be at work. Likewise, the respondents did not attempt to contact Mr Strydom to ask why he was not at work;
h)on the same day, Ian Wooten approved payment of Mr Strydom’s final pay inclusive of, amongst other things, his accrued entitlements and an additional week of pay in the sum of $1,386.62 (“Final Pay”). This additional week of pay was referred to as “Termination” in Mr Strydom’s Final Pay payslip; and
i)the respondents withheld the sum of $300 from Mr Strydom’s Final Pay until Mr Strydom returned an iPad provided to him by CBD Refrigeration. Mr Strydom returned the iPad and, subsequently, on or around 15 December 2015 $300 was paid to Mr Strydom.
On 12 February 2016, Mr Strydom commenced these proceedings seeking compensation, pecuniary penalties and damages under the FW Act. Subsequent to the filing of the application, on 31 March 2016 the respondents paid Mr Strydom the sum of $100.63, being the difference between what he was owed and what he had already been paid, inclusive of interest, in relation to work he performed on 11 October 2015. The respondents conceded that Mr Strydom was underpaid by that amount on 11 October 2015.
Evidence
The evidence before the Court included:
a)the affidavit of Ivan Strydom sworn 29 August 2016 (“First Strydom Affidavit”);
b)the affidavit of Ivan Strydom sworn 30 May 2017 (“Second Strydom Affidavit”);
c)the affidavit of Ian Wooten affirmed 30 November 2016 (“Ian Wooten’s 2016 Affidavit”);
d)the affidavit of Ian Wooten affirmed 22 December 2017;
e)the affidavit of Daryl Wooten affirmed 30 November 2016 (“Daryl Wooten’s 2016 Affidavit”)
f)the affidavit of Daryl Wooten affirmed 22 December 2017;
g)the affidavit of Alisha Marie Wooten sworn 29 November 2016 (“Ms Wooten’s 2016 Affidavit”);
h)the affidavit of Alisha Marie Nobre (nee Wooten) sworn 22 December 2017;
i)the affidavit of Gordon McMeikan sworn 13 January 2017 (“McMeikan Affidavit”); and
j)the affidavit of Keith Cooper affirmed 29 November 2016.
Mr Strydom, Ian Wooten, Daryl Wooten and Alisha Wooten each gave oral evidence at the hearing.
Exhibits tendered during the hearing were marked as follows:
a)Exhibit 1, a bundle of four pages comprising two PAYG payment summaries and two Centrelink documents relating to Centrelink payments received by Mr Strydom;
b)Exhibit 2, a bundle of five documents consisting of Mr Strydom’s SEEK resume and four subsequent job applications in the period 20 August 2016 to 23 June 2017;
c)Exhibit 3, a transcript of the audio recording of the First Meeting referred to at [4(c)]; and
d)Exhibit 4, a transcript of the audio recording of the Second Meeting referred to at [4(d)] above.
The Court has also read and reviewed the transcript of the proceedings (“Transcript”) prior to finalising these Reasons for Judgment.
The Parties’ Contentions
Contravention of s.340 of the FW Act
Mr Strydom alleges that CBD Refrigeration contravened s.340 of the FW Act by terminating his employment because he exercised his right to make an enquiry in relation to his employment. Mr Strydom alleges he made enquiries concerning his pay to both Ian and Daryl Wooten and adverse action, his termination, was made because of these enquires, and that the payment enquiries are a protected workplace right conferred by s.341(1)(c)(ii) of the FW Act.
Conversely, the respondents submitted that Mr Strydom’s employment was not terminated. Rather, he resigned. They say the Court ought to find that Mr Strydom did not intend to return to work based on:
a)the comments made by Mr Strydom at the three meetings, in particular, that the matter was going to “go to arbitration”;
b)his failure to turn up to work on 2 December 2015 or notify the respondents of his non-attendance at work that day; and
c)his removal of his tools from CBD Refrigeration’s work van.
Ian Wooten and Daryl Wooten conceded that they had become angry with Mr Strydom during the meetings but not because he was raising the issue of non-payment for work performed on 11 October 2015. Instead, they say that it was the manner in which Mr Strydom was acting which caused them to become upset with him.
Contravention of ss.44 and 117 of the FW Act
Section 44(1) of the FW Act stipulates that an employer must not contravene a provision of the NES and Mr Strydom alleges that CBD Refrigeration contravened s.44 of the FW Act by not giving him written notice of the termination and payment in lieu of notice prescribed by s.117(3) of the FW Act. Relevantly, s.117 of the FW Act imposes a requirement for written notice of the day of termination and a requirement for the minimum period of notice or payment in lieu.
Mr Strydom claims that the payment of $1,386.62, labelled “Termination” in the Final Pay payslip, was pay in lieu of notice of his employment being terminated.
In response, the respondents maintain that at no point did they terminate Mr Strydom’s employment. Therefore, they could not have breached s.44 of the FW Act. The respondents’ evidence is that the additional week of wages in the Final Pay was a goodwill ‘ex gratia’ payment made in response to Mr Strydom’s threat to take the respondents to arbitration.
Contravention of s.536 of the FW Act
Mr Strydom alleges CBD Refrigeration contravened s.536 of the FW Act by not providing him with payslips within one working day of his being paid for the period 8 October 2015 to 19 November 2015.
Mr Strydom’s evidence is that he had not been provided with payslips for a period of approximately six weeks and that he had received six payslips at one time or payslips covering six pay periods at the same time. It was Mr Strydom’s position that for the pay period finishing 11 October 2015 he would have received payment on or around 15 October 2015 but did not receive a payslip until approximately five or six weeks later: First Strydom Affidavit at [29]. However, Mr Strydom was unable to articulate exactly for which pay dates he was not provided with a payslip within one day of the pay date.
It was submitted by counsel for Mr Strydom that if Mr Strydom was given six payslips at the same time, then it was self-evident that since he was paid on a weekly basis that at least some of those payslips were late.
Conversely, the respondents deny this claim, relying on the evidence in Ms Wooten’s Affidavit at [8]-[11] which can be summarised as follows:
a)the pay period for technicians employed by CBD Refrigeration is from Wednesday to Tuesday with pays processed every Wednesday;
b)upon processing payroll the weekly payslips are printed out and placed on a clip which is hung on the wall in Ian Wooten’s office each Wednesday;
c)Ian Wooten will then hand the weekly payslips out or the technicians will collect them from him, the technicians know they can collect their weekly payslips from Ian Wooten and most of them do; and
d)when Ian Wooten is unavailable on payday, the technicians occasionally approach Ms Wooten for their weekly payslip.
Contravention of ss.45 and 323(1) of the FW Act
Mr Strydom alleges that CBD Refrigeration contravened:
a)section 45 of the FW Act by not paying him the amount of pay prescribed by cll.26.3 and 26.4 of the Award for work done on Sunday, 11 October 2015; and
b)section 323(1)(a) of the FW Act, by, without lawful authorisation, withholding from his pay the sum of $300, thereby not paying him in full.
It is not in dispute that the respondents withheld the sum of $300 from the Final Pay until Mr Strydom had returned an iPad provided to him by CBD Refrigeration, and that on or around 15 December 2015 the sum of $300 was paid to Mr Strydom after he returned it. Mr Strydom says the withholding of that sum was not authorised by s.324 of the FW Act and thereby contravened s.323(1)(a) of the FW Act.
Mr Strydom alleges that the respondents breached the Award by paying him for one hours’ work on 11 October 2015 when he should have been paid for four hours’ work. Initially, Mr Strydom was paid for one hours’ work on 11 October 2015 at the rate of $72.98, being double time, calculated by reference to his contractual base hourly rate of pay. In correspondence dated 31 March 2016, Ian Wooten conceded that the applicant should have been paid for four hours’ work at a minimum rate of $21.36 an hour in accordance with the Award and the Fair Work Ombudsman Pay guide for the Award published on 21 October 2015: Ian Wooten’s 2016 Affidavit, Annexure IS-8.
The respondents admit contravening ss.45 and 323 of the FW Act. They assert that this breach was unintentional and was rectified by a back payment, inclusive of interest, made to the Mr Strydom on 31 March 2016.
There is no admission of a contravention of s.323 of the FW Act in relation to the iPad payment withholding, but there is an admission that the sum of $300 was withheld from Mr Strydom’s final pay in respect of a CBD Refrigeration iPad that was not returned by Mr Strydom upon termination of employment, but which upon return, resulted in the paying to him of the amount of $300: Amended Response at [17].
Issues
As noted above, the respondents do not dispute, and the Court accepts that, they contravened ss.45 and 323 of the FW Act in underpaying Mr Strydom for work completed on 11 October 2015. It is further accepted that these contraventions have been remedied by way of payments made to Mr Strydom. In light of this, the balance of these reasons for judgment will determine if the alleged contraventions of ss.44, 340 and 536, and the other alleged contravention of s.323, of the FW Act are established.
It is also not in dispute that Mr Strydom had a workplace right and exercised that right by making complaints in relation to his pay: see Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [178] per Bromberg J. Hence, the issues for the Court to determine are as follows:
a)whether Mr Strydom’s employment was terminated or he resigned;
b)if Mr Strydom’s employment was terminated, was it in contravention of s.340 of the FW Act or for another reason;
c)whether Mr Strydom was not provided with payslips in compliance with s.536 of the FW Act; and
d)whether the $300 withheld from Mr Strydom’s Final Pay was done without authorisation in breach of s.323 of the FW Act.
It was conceded by counsel for the respondents at hearing that it was not challenged that if contraventions were found, Ian Wooten and Daryl Wooten were accessorily liable under s.550 of the FW Act: Transcript, p.77 at [25]-[28].
Legal principles – termination because of the exercise of a workplace right
In order to address these issues it is necessary to refer to the applicable legal principles to be considered in determining the application.
As noted above, Mr Strydom alleges that CBD Refrigeration, in terminating his employment, contravened s.340(1)(a)(ii) of the FW Act which provides that a person must not take adverse action against another person because the other person has exercised a workplace right.
Section 341 of the FW Act defines a “workplace right” and as noted above it is also not in dispute that Mr Strydom exercised a workplace right by making complaints in relation to his pay.
Section 342 of the FW Act defines the meaning of adverse action. Relevantly, s.342(1), item 1, column 2(a) of the FW Act provides that adverse action is taken by an employer against an employee when an employer “dismisses” the employee.
The word “because” in s.340 of the FW Act requires a causal link between the applicant’s workplace right and the adverse action: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [60]. The meaning of “because” is not defined in the FW Act. Its meaning, albeit in relation to s.346 of the FW Act (which is similar terms to s.340), was discussed in Board of Bendigo Regional Institute of Technical & Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”) at [100] to [104] per Gummow and Hayne JJ:
100.The application of s 346 turns on the term “because.” This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101.The use in s 346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.
102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability”. Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
“Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3- 1.”(emphasis added)
The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling.
104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
An applicant must establish that any alleged adverse action was taken “because” of the circumstances alleged and needs to “establish the existence of the circumstances as an objective fact…”: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J.
If an applicant can establish, on the balance of probabilities, that:
a)he or she has a “workplace right”; and
b)the employer took “adverse action”,
the onus then shifts to the employer to prove that the adverse action was taken for a reason unrelated to any workplace right held or exercised by the applicant: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [368]-[369] per Barker J.
This reverse onus is created by operation of s.361(1) of the FW Act:
(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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The Court notes the qualification of the reverse onus articulated in Australian Building & Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28 at [25] per Flick J:
Third, in order to invoke the reverse onus of proof, an applicant need only establish that “the evidence is consistent with the hypothesis” that a respondent was actuated by a proscribed reason: Bowling (1976) 51 ALJR at 241. When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded:
Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
(References omitted).
In relation to the rebuttable presumption created by s.361 of the FW Act, the following comments made by a majority of the Full Court of the Federal Court in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ are relevant:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3–1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
• The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
• That question is to be answered having regard to all the facts established in the proceeding.
• The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
• It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
• Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
• If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
(References omitted).
As it relates to discerning the reason for a decision-maker’s action, in Barclay at [140] per Heydon J it was stated that:
140. …Examining 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.
Finally, s.536 of the FW Act refers to the obligations of an employer to “give a payslip” to the employee within one working day of payment. Mr Strydom bore the onus of proving he was not provided with payslips within the requisite period.
Findings of fact – termination because of the exercise of a workplace right
There is disagreement between the parties as to what brought about the cessation of Mr Strydom’s employment with CBD Refrigeration. Ultimately, this will turn upon the Court’s findings, particularly in relation to what occurred at the Third Meeting and beyond.
Mr Strydom’s evidence
Mr Strydom’s evidence is principally contained in the First Strydom Affidavit and the Second Strydom Affidavit. Broadly, in the First Stryom Affidavit he deposed as to what he alleges occurred during the First, Second and Third Meetings (the “Meetings”). In the Second Strydom Affidavit he responded to the affidavit evidence of the respondents.
Mr Strydom gave an account of what occurred during the First and Second Meetings, effectively by reproducing the audio recordings of those meetings: First Strydom Affidavit at [35] and [41]. The First Strydom Affidavit continues at [45]-[56] to provide his version of the Third Meeting (which was not recorded). Relevantly, at [50] of the First Strydom Affidavit he states that during the Third Meeting Ian Wooten yelled: “Get out. Go take your things and go. I told you already you’re sacked.”
During cross-examination it was put to Mr Strydom that in the Form F8 (filed in the Fair Work Commission, but not formally tendered in these proceedings) he said that he was sacked during the First Meeting, quoting Ian Wooten as saying “piss off out of my office NOW. I am sacking you and you will not be working on my sites”. Counsel for the respondents noted that this was inconsistent with the First Strydom Affidavit at [35] in that nowhere in that paragraph does he claim that Ian Wooten sacked him. Mr Strydom was unable to explain this inconsistency other than to say:
My understanding was I knew for sure I was sacked, dismissed, fired, at the third conversation. The first conversation, I was threatened with being sacked. That is the truth of the matter.
(Transcript, p.17 at [25]-[27]).
Mr Strydom was then asked why in his Form F8, dated 7 December 2015 and only six days after the Third Meeting thus relatively fresh in his memory, he only made one reference to being sacked in the First Meeting. Relevantly, Mr Strydom responded that if there was a difference in the account given in the Form F8 and the First Strydom Affidavit it was “not meant to deceive” and “wasn’t a matter of changing my story”: Transcript, p.17 at [35]-[39] and p.18 at [1]-[8]. Mr Strydom was otherwise unable to account for the difference in his accounts.
Mr Strydom gave evidence that he secretly recorded the First and Second Meeting to ensure there was a record of what was said. He deposed that the recordings were “absolutely accurate from beginning to end, word for word, nothing added, nothing removed, nothing tampered with, nothing edited”: Transcript, p.12 at [11]-[15] and denied making alterations to the recordings after they had been made.
It was put to Mr Strydom that he had edited the recordings. In this regard, counsel for the respondents relied on the expert evidence of Gordon McMeikan (“Mr McMeikan”) in the form of the 48 page expert report marked as Annexure GM-1 to the McMeikan Affidavit (“GM-1”).
GM-1 is a detailed summary of the analysis Mr McMeikan performed on the audio recordings of the First and Second Meetings. Mr McMeikan’s evidence was that both recordings showed signs of “anomalies” and were not “authentic”. Mr McMeikan, in the Executive Summary at GM-1, pp.1-4, concluded in relation to both of the audio recordings:
The lack of authenticity, combined with the high probability of a lack of integrity, led to the conclusion that the recoding is not a true copy of the original and was most likely subject to one or more forms of post-recording processing and editing.
Mr Strydom denied this, saying that he did not have the requisite knowledge to alter or edit the secret recordings.
Observing Mr Strydom in the witness box, the Court was struck by the inconsistencies in his evidence. He appeared to “shut down” and became less responsive to counsel when propositions that he disputed were put to him. The Court has concerns about Mr Strydom’s evidence relating to his recording of the First and Second Meeting noting the expert evidence of Mr McMeikan.
It was submitted by Mr Strydom’s counsel that GM-1 does not go so far as to say that Mr Strydom was the person who altered the recording, if they were in fact edited. Counsel for Mr Strydom relied on Mr Strydom’s own evidence that he did not know how to, amongst other things:
a)access the file on the phone;
b)manipulate the recordings in any way;
c)move the recordings from one folder to another; or
d)manipulate timestamps.
It was further submitted that even if Mr Strydom was able to manipulate the recordings by moving them, it was done so for an innocent purpose and that any editing which took place was unintentional.
The Court finds that GM-1, produced by the expert Mr McMeikan, was a comprehensive and detailed analysis of the audio recordings and that any findings made in that report carry significant weight. Somewhat unusually, given the seriousness of the allegations, Mr McMeikan was not cross-examined during the proceedings. His evidence was thus unchallenged.
In circumstances where Mr Strydom’s evidence is inconsistent with the expert and unchallenged evidence of Mr McMeikan, the Court prefers Mr McMeikan’s evidence in relation to the authenticity of the audio recordings.
This raises a number of concerns about the weight to be given to Mr Strydom’s evidence in relation to the Meetings. It is noted that counsel for the respondents did not press the issue of Mr Strydom’s credibility other than a submission as to the possible adverse credibility and character finding which may be made in relation to the secret taping of the Meetings. This is a submission the Court will address later in these reasons.
In preferring the evidence of Mr McMeikan the Court finds that Mr Strydom did alter, or caused the alteration of, the audio recordings.
This finding is diametrically opposed to Mr Strydom’s denial that he did not edit the audio recordings of the First or Second Meetings. The Court, having found that Mr Strydom did alter, or caused the alteration of, the audio recordings, is then left to find, as a consequence, that Mr Strydom’s denials are to be given very little weight. This conclusion also goes to the weight of Mr Strydom’s evidence as a whole.
This conclusion is strengthened by the secretive context in which the recordings were made. It was submitted by counsel for the respondents that secretly taping the conversations and then refusing to provide them until he was so ordered to do so six months later must lead the Court to question Mr Strydom’s credibility and his character. The Court agrees. It rejects Mr Strydom’s claim that he made the recordings to ensure he had a record of what occurred and instead finds that it is more probable that he recorded the Meetings for the self-serving purpose of using them against the respondents at a later date.
The effect of finding that Mr Strydom secretly recorded the First and Second Meetings for his own benefit and then altered, or caused the alteration of, the audio recordings leads the Court to conclude that Mr Strydom is a person who is willing to act and give evidence in a manner intended to achieve an outcome that he is desirous of.
The Court has formed an unfavourable impression of Mr Strydom as a witness of truth and his evidence is, unless corroborated, to be afforded very little weight.
Ms Wooten’s evidence
At all material times, Ms Wooten was employed by CBD Refrigeration as an administrator and was responsible for tasks such as processing payroll.
Relevantly, Ms Wooten was cross-examined about the payment of one weeks wages made to Mr Strydom on or around 2 December 2015. This sum was described in the Final Pay payslip as “Termination”. Ms Wooten said that nothing turned on the label applied to the sum and that it was not a termination payment but merely a description of a payment.
Her evidence was that upon Mr Strydom not showing up to work she queried how to process his pay for the week. It was put to Ms Wooten that the fact Mr Strydom had not shown up that day should not result in the generation of a payroll query from her. She agreed but said she was directed by Ian Wooten to make the payment.
Ms Wooten also deposed that she had amended the timesheet that Mr Strydom had rendered for the work on 11 October 2015. She said that she had done this because what Mr Strydom had recorded on his timesheet was inconsistent with the GPS tracking information they had which indicated that he had only been onsite for one hour. She explained that in her role with CBD Refrigeration she had the authority to do this.
Counsel for Mr Strydom asked whether there were ever circumstances where an employee might be paid for travelling time, and not just time onsite. Ms Wooten responded, “If they’re working in the country.” This evidence was consistent with Ian Wooten’s evidence.
Whilst giving her evidence, Ms Wooten appeared as a confident and honest witness. She answered questions directly and logically. The Court assessed Ms Wooten to be an entirely credible witness.
Ian Wooten’s and Daryl Wooten’s evidence
The oral evidence provided by Ian Wooten and Daryl Wooten was consistent with their affidavits. They were forthright and direct in their responses to questions from counsel under cross-examination and struck the Court as a generally honest and credible witnesses.
Ian Wooten and Daryl Wooten’s evidence is examined in greater detail later in these reasons for judgment as it relates to specific issues in dispute.
The Meetings
There is disagreement between the parties as to what brought about the cessation of Mr Strydom’s employment with CBD Refrigeration. Mr Strydom argues that he was “sacked” because Ian Wooten and Daryl Wooten were angry with him for continually raising the issue of non-payment for work performed on 11 October 2015. Mr Strydom claims that Ian Wooten threatened to sack him during the First Meeting and then terminated his employment at the Third Meeting, saying “Piss off. I told you already you’re sacked.” Conversely, the respondents submitted that Mr Strydom’s employment was not terminated, rather, he resigned. They say the Court ought to find that Mr Strydom resigned and did not intend to return to work based on:
a)the fact that neither Ian Wooten or Daryl Wooten expressly sacked Mr Strydom;
b)the comments made by Mr Strydom at the Meetings;
c)Mr Strydom’s failure to turn up to work on 2 December 2015 or notify of his non-attendance at work that day; and
d)Mr Strydom’s removal of his tools from CBD Refrigeration’s work van.
Ultimately, if the Court finds that Mr Strydom’s employment was not terminated, but that he resigned, then there can be no adverse action as alleged. Any such finding requires an evaluation of the evidence in relation to what happened during the Third Meeting and, given that this meeting was the last in a series of interactions between Ian Wooten, Daryl Wooten and Mr Strydom, an appreciation of the relevant history prior to that meeting.
The First Meeting
In response to Mr Strydom’s contention that Ian Wooten threatened to sack him during the First Meeting, Ian Wooten’s evidence can be summarised as follows:
a)Mr Strydom was a difficult employee: Ian Wooten’s 2016 Affidavit at [22];
b)he had become angry with Mr Strydom during this meeting: Transcript, p.31 at [10]-[15], admonished Mr Strydom about his poor attitude and performance: Ian Wooten’s 2016 Affidavit at [61]-[62] and warned Mr Strydom that there would be consequences if he did not address these issues, though he never threatened to fire Mr Strydom: Transcript, p.31 at [1]-[10]; and
c)he never had any intention of firing Mr Strydom: Ian Wooten’s 2016 Affidavit at [65].
In relation to this issue, the following is an extract from the transcript of the First Meeting (Exhibit 3):
(Ivan):Now that’s what I call attitude, telling me to piss off.
(Ian):Go now, before I sack you because that’s right [muffled noise] where [indistinct] going to come from.
(Ivan):You can’t sack me because I’ve got a query
(Ian):I’m not sacking you because you’ve got a query I’m sacking you because you’re being inbordinate [sic] to me.
(Ivan):I…I…
(Ian):And I’m not putting up with it
(Ivan): Well, I’m not ready to be sacked
(Ian):Well I’ve got news for you. You need to pull your head in or that’s going to happen.
(Ivan):No
(Ian): Ivan, go home please
(Ivan): I can "t go home yet, I've come to work, to work
(Ian): Not for me today I’ve just told you that
Mr Strydom deposed that his perception of this exchange was that Ian Wooten had threatened to sack to him: First Strydom Affidavit at [37]; Transcript, p.15 at [35]-[40]. If considered in isolation this exchange may rightly be understood in that way, however, the above exchange was not an isolated incident. While Mr Strydom denies that his performance and attitude deteriorated from around 2013 or that he had been spoken to about it: Second Strydom Affidavit at [6(a)] and [7(a), (h) and (i)], the Court accepts the respondents’ evidence that:
a)Mr Strydom had a history of poor attitude and poor work performance and he had been given several verbal warnings about his performance, attitude and aggressive behaviour: Daryl Wooten’s 2016 Affidavit at [11]-[19] and Annexure DGW3-10; Transcript, p.30 at [13]-[27];
b)Mr Strydom was at times difficult to deal with: Ian Wooten’s 2016 Affidavit at [22], Ms Wooten’s 2016 Affidavit at [16]-[17]; and
c)during the First Meeting Mr Strydom provoked Ian Wooten: Transcript, p.38 at [25]-[30]; Exhibit 3, pp.4-5.
This goes a long way to explaining why the conversation became heated and leads the Court to form the view that Mr Strydom is a person who becomes frustrated and aggressive when confronted. Framed in this context, the exchange is best characterised as Ian Wooten giving Mr Strydom some warning as to what might occur if he did not address his work related issues. This warning was one of many verbal warnings given to Mr Strydom.
While Ian Wooten did use the word “sack” and “sacking”, the Court finds that these words were not used as a premonition of things to come as suggested by Mr Strydom, and it accepts that it was never Ian Wooten’s intention to threaten Mr Strydom, but that the words he used were poorly chosen during a heated conversation with a difficult employee. In any event, it is contextually significant that they were used in relation to what Ian Wooten perceived as insubordination, and not in relation to a workplace right.
The Court therefore rejects Mr Strydom’s contention that Ian Wooten’s conduct during the First Meeting amounted to threatening him with termination of his employment. But, even if Ian Wooten did so threaten Mr Strydom, it was not in relation to a workplace right.
Second Meeting
The Second Meeting was effectively a continuation of the conversation Mr Strydom had had with Ian Wooten about his pay during the First Meeting. What occurred at the Second Meeting is largely uncontroversial with much of the content of this conversation being transcribed in Exhibit 4. Little of Daryl Wooten’s evidence about this meeting was challenged: Second Strydom Affidavit at [7(m)].
It is not in dispute that when Daryl Wooten spoke with Mr Strydom at the Second Meeting, Mr Strydom had been asked to go home, a direction he did not comply with. Mr Strydom had also travelled to a client site without permission. The Court accepts this evidence is consistent with Mr Strydom being a difficult employee. In those circumstances, Ian Wooten and Daryl Wooten’s reactions to Mr Strydom’s conduct are understandable.
Third Meeting
As noted above, the Third Meeting was not recorded.
In relation to the Third Meeting, it was submitted by counsel for Mr Strydom that Ian Wooten and Daryl Wooten were angry with Mr Strydom and when the interaction between Ian Wooten, Daryl Wooten and Mr Strydom got heated, Ian Wooten sacked Mr Strydom, saying “Piss off. I told you already you’re sacked.”
In relation to the Third Meeting Ian Wooten’s evidence is that upon seeing Mr Strydom arguing with Daryl Wooten about something he had advised Mr Strydom was being resolved, and in circumstances where he had already told him to go home, he said words to the effect of “I told you to go home this morning and you are still here disrupting the company” and “I told you I would deal with your pay query this morning, didn’t I”. Ian Wooten says that at no time during the Third Meeting did he tell Mr Strydom that he was sacked. This is consistent with Daryl Wooten’s recollection of the Third Meeting: Daryl Wooten’s 2016 Affidavit at [75]. The Court finds that during the Third Meeting Ian Wooten and Daryl Wooten did become angry with Mr Strydom, but not because of his pay query. Ian Wooten and Daryl Wooten were angered by the way Mr Strydom was conducting himself which, on the evidence, was a confirmation of his poor attitude and aggressive nature.
Having made an adverse credibility finding against Mr Strydom and there being no corroborative evidence to support his version of events, the Court prefers Ian Wooten and Daryl Wooten’s evidence in relation to what transpired at the Third Meeting. It follows that the Court does not accept that Mr Strydom was told by Ian Wooten (or anyone else) at the Third Meeting that he was “sacked”.
Consideration
Did Mr Strydom resign?
Ultimately, the respondents relied on the following evidence cumulatively to assert Mr Strydom had resigned:
a)the tools which Mr Strydom removed from the work van on 1 December 2015 were essential for him to perform his role as a refrigeration mechanic: Transcript, p.38 at [9]-[12], and it was unusual for Mr Strydom to want to take his tools home: Transcript, p.53 at [1]-[12] and p.32 at [25]-[28];
b)it is usual practice for employees of CBD Refrigeration who are unable to work to telephone and advise of their non-attendance. There had never been a situation where someone had not shown up for work and also not contacted CBD Refrigeration: Ian Wooten’s 2016 Affidavit at [89]; Transcript, p.37 at [39]-[45] and p.55 at [30]-[45]; and
c)Mr Strydom’s words to the effect of “this will go to arbitration” said during the Third Meeting: Daryl Wooten’s 2016 Affidavit at [76].
During cross-examination Ian Wooten conceded that Mr Strydom not showing up for work and saying that the matter would go to arbitration were, individually, insufficient to raise a belief that Mr Strydom had resigned: Transcript, p.33 at [26] and p.37 at [39], and at no time did Mr Strydom advise the respondents he had resigned: Transcript, p.36 at [15]-[16] and p.55 at [10]-[11]. It is not in dispute that Mr Strydom did not provide the respondents with a resignation letter nor did he expressly state that he was quitting, resigning or did not intend to return to work. There is nothing that Mr Strydom did or said which, on its face, indicates a resignation in the formal sense.
The interactions between Ian Wooten, Daryl Wooten and Mr Strydom at the Meetings are best described, on the evidence, as heated arguments. The Court does not consider Mr Strydom’s words to the effect that “this will go to arbitration” to be an unambiguous indication that he intended to resign.
Mr Strydom was entitled to take his tools home regardless of whether he required them for his employment. The respondents never queried with Mr Strydom why he intended to take his tools home and in this context it is unclear whether he sought to remove his tools because he intended to resign, or because he thought he had been terminated.
Mr Strydom failed to show up for work on 2 December 2015 and did not inform the respondents of his intention not to work that day. Consequently, Ian Wooten instructed Ms Wooten to pay Mr Strydom his entitlements and termination pay early in the afternoon of 2 December 2015.
In the circumstances Mr Strydom’s conduct and words did not amount to a clear and unambiguous resignation and, accordingly, the Court finds that Mr Strydom did not resign from his employment with CBD Refrigeration.
Was Mr Strydom’s employment “terminated” for reasons that constitute a prohibited reason?
Having determined that Mr Strydom did not resign the Court must determine if Mr Strydom’s employment was terminated and, if so, was that termination for an improper purpose under s.340 of the FW Act.
On the evidence, the Court finds that Mr Strydom’s employment ceased when there was a payment of his accrued entitlements on 2 December 2015. The payment of Mr Strydom’s accrued entitlements on the direction of Ian Wooten directly, or consequentially, terminated Mr Strydom’s employment with CBD Refrigeration.
During the proceedings counsel for Mr Strydom said that:
… there was a workplace right that was the subject of discussion between the parties. And that subsequently, the employer dismissed the employee.
We therefore have the workplace right and the adverse action and the onus of proving the reason for the dismissal then flicks to the respondent
(Transcript p.75 at [26]-[31]).
Counsel for respondents addressed this proposition during the proceedings saying:
Then the question will arise, how was the employment relationship ended? And reluctantly the respondents in those circumstances may well need to concede – and I will do so if necessary in closing – that the employment relationship is perhaps ended by the administrative actions they took in making the payment of the note – of the accrued entitlements. And if all of those things take place, we say that the evidence will also bear out – and this is where the resignation and the belief in the resignation finally becomes relevant – we say that that payment – that administrative action of the payment of accrued entitlements was made with the belief on bona fide basis that the applicant had resigned. It was not made in any way in relation to the prohibited reasons that the workplace rights had been raised that pay had been queried.
(emphasis added).
(Transcript, p.25 at [21]-[30]).
In this regard, the Court notes the following comments made in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [149]-[150] per Bromberg J:
[149] What for present purposes is important to notice is that the s 361 presumption is only engaged “if … it is alleged” that the action was taken for “a particular reason or with a particular intent”. In the context of s 340, in order to take the benefit of the s 361 presumption an applicant must allege that adverse action was taken for a particular prohibited reason. That requires an allegation to be made that the particular adverse action alleged was taken because of a particular prohibited reason or reasons. Without the specific allegation being made the respondent would not know what it is that it must prove to rebut the presumption.
[150] This is a case in which multiple acts and multiple workplace rights were relied upon by Ms Celand to establish contraventions of s 340. It is not necessary to traverse the detail, but it is not apparent to me that Ms Celand did allege that any particular action that she alleged to be “adverse action” was taken for a “particular [prohibited] reason”. Subject to one possible qualification which would involve a generous reading of [31] of the ASOC, the ASOC does not make the requisite allegations which identify the asserted nexus between each particular action impugned and a particular prohibited reason. It would not suffice for that to have been done in the evidence given at trial as at one point counsel for Ms Celand submitted had been done. The requisite allegations needed to have been made clearly and with sufficient time to have provided Skycity due notice of the case it was required to meet. They needed to have been pleaded (CFMEU v BHP Coal at [63]–[64]) or at least “treated by the parties during the trial as being ‘in the ring’”: Miba Pty Ltd v Nescor Industries Group Pty Ltd [1996] FCA 834; 141 ALR 525 at 543 (Merkel J) and CFMEU v BHP Coal at [65].
The Court notes that while the proposition that Mr Strydom’s employment was terminated by the respondents when they paid his accrued entitlements was not articulated in Mr Strydom’s statement of claim, and nor was any evidence adduced on this point in his affidavits, both parties made submissions on the issue at hearing and the Court is satisfied that the issue was “treated by the parties during the trial as being ‘in the ring’”: Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525; [1996] ATPR 41-534, ALR at 543 per Merkel J.
The Court finds that paying Mr Strydom his accrued entitlements “terminated” his employment with CBD Refrigeration. That much was effectively conceded by the respondents counsel during the proceedings: Transcript, p.25 at [21]-[25], p.67 at [31]-[47] and p.68 at [1]-[15]. However, the Court also accepts Ian Wooten and Daryl Wooten’s evidence that they legitimately thought Mr Strydom had resigned. This belief was, despite being objectively wrong and acted upon very hastily, honestly held and motivated the payment of Mr Strydom’s accrued entitlements. This is what is relevant to these proceedings.
The Court finds that the termination of Mr Strydom’s employment did not therefore take place because he exercised a workplace right, rather, it was the genuinely held belief that Mr Strydom had resigned which motivated the termination of Mr Strydom’s employment.
Accordingly, Mr Strydom’s claim that the respondents contravened s.340(1) of the FW Act is dismissed.
Contravention of s.44 of the FW Act
Having found that the respondents terminated Mr Strydom’s employment, but not for an improper purpose, the respondents were required to provide Mr Strydom with appropriate notice of termination or payment in lieu of notice pursuant to s.117 of the FW Act.
The respondents did not notify Mr Strydom that they were going to make payment of his accrued entitlements, nor did they advise him that they intended to terminate his employment by so doing, and thereby the respondents failed to provide him with notice. The respondents assert Mr Strydom did not receive any payment in lieu of notice, and was only paid an ‘ex gratia’ payment of one week’s wages: Transcript, p.24 at [27]. On this assertion, it is clear that no payment in lieu of notice has been made.
The Court, therefore, finds that the respondents contravened s.44 of the FW Act by contravening a provision of the NES when they did not provide payment in lieu of notice to Mr Strydom pursuant to s.117 of the FW Act.
Contravention of s.536 of the FW Act
In relation to whether Mr Strydom was given his payslips over a six week period as alleged, the Court notes the findings made in Fair Work Ombudsman v Ballina Island Resort Pty Ltd [2011] FMCA 500; (2011) 207 IR 312 at [119] per Lloyd-Jones FM which relevantly provides as follows:
[119] …there is no submission supported by relevant authorities that indicate that payslips must be given to an employee in any particular way. Section 536 of the Fair Work Act states that “an employer must give” the relevant payslips to employees, but the method is not defined. Common experiences demonstrate that there may be different methods of distribution adopted by different work environments. In some cases this may involve a department supervisor handing the payslips to each individual employee while others may involve payslips being left in pigeon holes through to postal delivery, particularly when the employee seldom visits the employer’s place of business. The distribution of payslips has changed significantly with the introduction of electronic transfer of wages and salary.
The Court accepts the evidence in Ms Wooten’s 2016 Affidavit at [8]-[11] that at all material times Mr Strydom had access to his payslips within one day of being paid his weekly wage. In any event, Mr Strydom was unable to articulate exactly which particular pay dates he was not provided with a payslip within one day of the pay date, and in these circumstances the Court cannot be sufficiently satisfied in order to make a declaration as a matter of law that Mr Strydom was not given a payslip on a particular date.
On the evidence before the Court, the Court is unable to find that the respondents did not provide Mr Strydom with payslips in accordance with s.536 of the FW Act. Accordingly, Mr Strydom’s claim that the respondents contravened s.536 of the FW Act is dismissed.
Deduction of $300 for iPad
There is no dispute that $300 was deducted by CBD Refrigeration from Mr Strydom’s Final Payment in relation to a CBD Refrigeration iPad which Mr Strydom had not returned, nor that, once Mr Strydom did return the iPad, he was paid the $300 (on or about 15 December 2015).
The issue arises as to whether the withholding of the $300 was done by CBD Refrigeration without authorisation, and therefore in breach of s.323 of the FW Act.
Section 323(1)(a) of the FW Act provides that an employer must pay an employee amounts payable in full, except as provided by s.324 of the FW Act. Section 324(1) of the FW Act provides than an employer may deduct an amount from an amount payable to an employee where the deduction is authorised in writing by the employee and is principally for the employee’s benefit, or is authorised by an enterprise agreement, modern award or order of the Fair Work Commission, or otherwise authorised by law or an order of a court.
There was no evidence in these proceedings of an authorised deduction of the type prescribed by s.324(1) of the FW Act in relation to Mr Strydom, and it therefore follows that there was a contravention of s.323(1)(a) of the FW Act by reason of the unauthorised deduction of the sum of $300 from Mr Strydom’s final termination payment.
Conclusions and orders
The Court has concluded, and will make declarations to the effect that, CBD Refrigeration has contravened:
a)section 45 of the Fair Work Act 2009 (Cth) by not paying the applicant the amount of pay prescribed by cl.26.3 of the Electrical, Electronic and Communications Contracting Award 2010 for work he performed on Sunday 11 October 2015;
b)section 323(1)(a) of the Fair Work Act 2009 (Cth), by, without lawful authorisation, withholding the sum of $300 from the applicant’s pay; and
c)section 44 of the Fair Work Act 2009 (Cth) by not making payment in lieu of notice to the applicant as prescribed by s.117(3) of the Fair Work Act 2009 (Cth).
The Court has also concluded that pursuant to s.550(1) of the FW Act, Ian Wooten and Daryl Wooten were knowingly involved in each of the contraventions referred to above and a declaration should be made accordingly.
Finally, the matter will be listed on date and time to be fixed for directions concerning a hearing with respect to the quantum of compensation and pecuniary penalty orders.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 May 2019
2
14
3