Swan v King

[2017] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWAN v KING [2017] FCCA 214

Catchwords:
INDUSTRIAL LAW – Dismissal – adverse action – whether for a prohibited reason – application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 342, 361

Cases cited:

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

Applicant: IAN MAXWELL SWAN

Respondent: PHILLIP ARTHUR KING

File Number: BRG 1060 of 2015

Judgment of: Judge Vasta

Hearing date: 2 and 3 February 2017

Date of Last Submission: 3 February 2017

Delivered at: Brisbane

Delivered on: 9 February 2017

REPRESENTATION

The Applicant appearing on his own behalf.

Counsel for the Respondent: Mr Farren

Solicitors for the Respondent: GO TO COURT LAWYERS

ORDERS

1. The Respondent pay the Applicant the sum of $207.10 within 28 days of the date of this Order.

2. Otherwise all outstanding applications pertaining to Mr Swan’s claim be dismissed.

3. The Respondent file and serve any written submissions in relation to costs within fourteen (14) days of the date of this Order.

4. The Applicant file and serve any written submissions in reply in relation to costs fourteen (14) days after receipt of the Respondent’s submissions

5. The matter be adjourned for hearing of the costs application to 9:15am on 23 March 2017 in the Federal Circuit Court of Australia sitting at Brisbane.

6. The Applicant be at liberty to appear by telephone link on 23 March 2017 provided that he notifies the Court by email ([email protected]) or by telephone [phone]) of an appropriate contact number by no later than 4.00pm on 16 March 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1060 of 2015

IAN MAXWELL SWAN

Applicant

And

PHILLIP ARTHUR KING

Respondent

REASONS FOR JUDGMENT

Introduction

1. In December 2013, the Applicant, Ian Maxwell Swan, began working as a trolley collector at the Woolworths shopping centre at Gympie. Integrated Trolley Management (ITM) have the contract for trolley collection. They, in turn, have subcontracted the Respondent, Philip Arthur King, to collect the trolleys at the Woolworths at Gympie. The Respondent employed the Applicant.

2. The Applicant was a part-time employee who worked 5 hours a day for 5 days a week. He was on some occasions also rostered to work weekends, however this was outside of his core hours.

3. The Applicant alleges that the Respondent has committed acts of unlawful adverse action against him. Although he has not specifically asked for this in his originating application, I infer that he is asking the court to declare that the Respondent has breached the FW Act. The Applicant has asked for compensation and pecuniary penalties.

The Claims of the Applicant

1. The Applicant contends that he exercised his workplace rights on a number of occasions much to the consternation of the Respondent.

2. The Applicant claims that his first pay was deficient. He claims that he brought this to the attention of the Respondent who told him that he (the Respondent) had forgotten to record the proper hours of the Applicant. From then on, the Applicant also kept timesheets and submitted them to the Respondent each pay cycle.

3. It was not in dispute that the business of the Respondent still paid their employees in cash. The Applicant said that he asked the Respondent (and the wife of the Respondent who was responsible for organising the payment of salaries) to pay him in the highest denominations possible; $100 notes were his main preference.

4. The Applicant also gave evidence that while the Respondent and his wife were away for a short time, the daughter of the Respondent was responsible for the salary payments. The Applicant said that the daughter overpaid him and that he returned the overpayment to the Respondent. The Respondent did not have any memory of this incident.

5. The wife of the Respondent gave evidence that she told the Applicant that he did not need to submit timesheets to her because the Respondent already gave her timesheets.

6. She also testified that she had received the request by the Applicant about the denominations in his pay but that she paid him in the same denominations that she received from the bank. Sometimes the pay was in large numbers of $20, $10 and $5 notes but this was because of the circumstances in which she was given money by the bank. She denied that she gave the Applicant smaller denominations simply out of spite.

7. The Respondent could not recall whether there was any error in the first pay of the Applicant but denied that he had needed the timesheets of the Applicant as his (the Respondent’s) timesheets were accurate.

8. I note that there is no allegation that there has been any issue with the correct recordings of the hours worked by the Applicant.

The First Incident

1. On 11 April 2014, there was an incident involving the Applicant and a female shopper. On the Applicant’s version of events, he was moving a number of trolleys and was trying to go forward. A female shopper was blocking his path with her trolley. The Applicant said that he called out to get her attention and she did not respond. The Applicant called out again, even louder, and again there was no response.

2. The Applicant was of the view that the female shopper had heard him and was deliberately ignoring him. He then “bumped” his trolleys into her trolley. As the female shopper was holding onto her trolley at the time, there was a physical force applied to her person. The Applicant said that this woman then told him that he was rude and she made a complaint.

3. The Respondent was made aware of this incident. The Applicant expressed, both then and now, no regret or remorse over this incident and cannot see that he has done anything wrong or acted inappropriately. The Respondent assessed the situation and testified that he was worried about the incident because it involved physical contact between one of his employees and a member of the public.

4. The Respondent said that he was even more worried because it appeared to him that the Applicant did not understand the safety risks involved in him causing trolleys controlled by him to collide with other people’s trolleys. The Respondent then summarily terminated the employment of the Applicant on the basis of serious misconduct.

5. The Applicant was aggrieved by this action. He disputed that there was any physical contact, however, his understanding of what constitutes “physical contact” is somewhat lacking. Whilst the Applicant did not use his own physical body to apply force to the physical body of the female shopper, nevertheless he was in control of the shopping trolleys which he deliberately bumped into the shopping trolley of the woman who felt the impact. Such action would constitute an assault under the Criminal Code of Queensland.

6. It is therefore not surprising that the Respondent took such a serious view of what had occurred. The decision to summarily dismiss the Applicant may have been somewhat harsh but it was neither unfair nor unjust. In any event, I do not have to do concern myself with the propriety of this action. There is no allegation that such an action was adverse action for a prohibited reason.

7. The Applicant contacted the head office of ITM and the Gympie store manager of Woolworths. This led to a meeting between the Applicant, the Respondent, Mr Hills of ITM and Mr O’Mara, the Woolworths manager.

8. Mr O’Mara did tell Mr Hills and the Respondent that he was, in all other respects, happy with the Applicant but did not make a recommendation that the Applicant be reemployed. Mr O’Mara noted that it was the Respondent who decided to re-employ the Applicant but the Respondent did say during the meeting that “if he (the Applicant) came back, he can’t make any more mistakes with customers”.

9. The Applicant has claimed that he was reinstated by Woolworths who effectively overrode the decision of the Respondent.  The evidence of Mr O’Mara illustrates that there is no substance to this claim.  The decision to reemploy the Applicant was a decision made solely by the Respondent.

10. The Applicant was reemployed after that meeting. The Applicant claims that he should have been paid for the time between the dismissal and the re-employment. He claims that this period should be treated as if he were suspended without pay. As there is no allowance for a suspension without pay, he should therefore be paid for that period.

11. I reject that argument. It is clear on the evidence that he was summarily dismissed and then reemployed. There is no justifiable claim for any payment for that period.

Suggested reduction of hours

1. The Applicant claims that he became aware that the Fair Work Commission had ruled that there would be a pay increase to the minimum wage workers soon after 1 July 2014. The Applicant said that on 2 July 2014, he gave a note to the Respondent noting that there would have to be a pay rise.

2. On 4 July 2014, the Respondent told the Applicant that there was a downturn in activity during the colder months and he would be reducing his hours. The Respondent was going to reduce the hours of the Applicant from 25 hours to 20 hours. As a result of this, the Respondent decided that it would be easier for the Applicant to only work four days a week instead of five days a week.

3. The Applicant was very distressed at this suggestion. He was concerned that he would not be able to meet his own personal budget if such a suggestion were to come to fruition.

4. The Applicant was of the view that this was a “threat”. He was of the view that this threat to reduce the hours was made simply because the Applicant raised the fact that the Respondent would have to give him a pay rise.  He also felt that this was a delayed “payback” for being forced by Woolworths to reinstate him, for pointing out the timesheet discrepancies and for requesting to be paid with $100 notes. 

5. Without telling the Respondent, the Applicant wrote a letter of complaint to Woolworths directly. He detailed how he would be worse off with this arrangement than in his current arrangement. He accused the Respondent of threatening this action simply to avoid having to pay the increased wages.

Is this suggestion adverse action?

1. The Applicant contends that the mere suggestion by the Respondent of a reduction in hours is adverse action. Under s.342 of the Fair Work Act 2009 (Cth) (“the FW Act”), adverse action is taken by an employer against an employee if the employer “alters the position of the employee to the employee’s prejudice”. The mere suggestion of a reduction in hours does not, of itself, alter the position of the employee.

2. In my view, unless the position of the employee is actually altered, there can be no basis for concluding that there has been adverse action.

3. The Respondent testified that there was a downturn in the activity at shopping centres in the cooler months. The Respondent said that it was not just the Applicant who was to have the hours reduced but two other employees as well.  Mr Hills, in his affidavit, spoke of the peaks and troughs of shopping centre activity and, in broad terms, agreed with the reasoning of the Respondent in wishing to reduce the hours of some of the employees.

4. Mr O’Mara did not support that there was any true reduction in “traffic” but did talk about the types of “traffic” that occur during the year and the subsequent impact on profits.

5. As I have already deemed that this particular aspect of the complaints of the Applicant cannot, of itself, constitute adverse action, I need not proceed any further.

6. However, even if it could constitute adverse action, I accept the explanation of the Respondent, corroborated by Mr Hills, that such a decision was not made for a prohibited reason.

The complaint to Woolworths

1. The Applicant made his complaint to Woolworths around 8 July 2014. It would seem that Woolworths passed on the complaint to ITM. Soon after, the Respondent received a call from Mr Hills who informed him that Woolworths had sent ITM a notice about a pay dispute with one of the employees of the Respondent. The Respondent said to Mr Hills that he thought that it was probably the Applicant who complained.

2. The Applicant puts great store on a conversation that occurred on Friday 11 July 2014. The Applicant had the foresight to surreptitiously record this conversation by video and audio. I have had the advantage of watching this video in my Chambers after I reserved my decision.

3. The Applicant claims that the Respondent was very angry at him. He surmises that such anger was a result of being informed of the complaints he had made to Woolworths. If this were so, it was anger directed at the Applicant because he had exercised a workplace right.

4. The Respondent, in his affidavit, said that he had a conversation in which he told the Applicant that Mr Hills would be coming to Gympie next week to speak about the pay issue. This is clearly false. The recording does not show any such conversation. In his evidence, the Respondent could not recall the substance of the conversation.

5. Having viewed the recording, I am of the view that there is some sternness in the manner of the Respondent however there was nothing intimidatory about the manner in which the Respondent spoke. It is clear that the Applicant has done something which has upset the Respondent but the Respondent is still reasonably calm during this exchange. I also note that the Applicant was collecting his pay during this conversation and was counting out a number of $50 notes.

The Second Incident - 11 July 2014

1. Around three hours after the conversation between the Applicant and the Respondent, an incident occurred between two female shoppers and the Applicant in the underground car park. The Applicant produced a number of photographs he had taken around October 2016 and used these in explaining his version of what occurred in this incident.

2. Without descending into minute detail, I will summarise the contentions of the three witnesses who speak about this event.

3. The Applicant claims that he left a number of trolleys in an area beside an underground: He calls that area “no man’s land”. He said that the female shopper would have seen those trolleys when she got into her car. She reversed her car and hit the trolleys. He said that she then moved forward and parked parallel to the trolleys but some distance away so that cars could still travel in that roadway.

4. The Applicant claims that he walked to the trolleys as the woman and her friend were trying to take photographs. He claims that they were saying things to him but that he was not responding. He claims that he started to move the trolleys and both of the women put their hands on him and grabbed him physically trying to stop him from moving the trolleys.

5. The Applicant claims that one of them deliberately dropped to the ground so as to feign an injury to put the Applicant in a worse light. The Applicant said that he was then approached by two other women who asked him if he was all right and he told them that he was not all right.

6. The Applicant said that he had done nothing wrong in this incident and the two women had “attacked” him for absolutely no reason. He finished work for the day a few minutes later.

7. Taryn O’Kane was a witness whom the Applicant subpoenaed to Court but she was not given sufficient conduct money to travel to Court. The Court contacted Ms O’Kane by telephone and she gave her evidence in this way. She testified that she had little memory of the event. She said that she and her friend were walking to the shops when their attention was drawn to yelling. That caused her to turn around and she saw a struggle between the two women and the Applicant.

8. Ms O’Kane saw one of the women fall down but did not see the Applicant do anything to the woman to make her fall down. She did not see the beginning of the incident and could not provide much detail other than, from what she saw, the Applicant was not the aggressor.

9. Heidi Edwards was the woman who reversed her car into the trolleys. She was given the same photographs that the Applicant had produced. She disagreed with the Applicant as to where he had positioned the trolleys in the photographs. The position that she described the trolleys was a position in which the Applicant knew trolleys should not be left. As she reversed and hit the trolleys, she then moved forward slightly and got out of her car to inspect the damage.

10. She said that she then retrieved her mobile phone so as to take photographs for insurance purposes. She said that the Applicant then tried to stop her from taking photographs saying words to the effect of “you cannot take photographs as the trolleys are not supposed to be in this position”. As he tried to move the trolleys, Ms Edwards and her friend tried to keep the trolleys where they were so as to take the photographs.

11. Ms Edwards claimed that the Applicant started to move the trolleys whilst the friend had her arm caught within the bars of the trolley. This meant that as the trolleys were moved the friend was dragged with them. This caused the friend to fall down.

12. I do not have to come to any concluded view about every aspect of this incident. However, I was very impressed with the evidence of Ms Edwards. She gave her evidence in a forthright and honest manner. She had nothing to gain from her evidence and had no reason to lie about the actions of the Applicant. I therefore accept her evidence.

13. I do not find that her evidence is inconsistent with that of Ms O’Kane. Ms O’Kane was some distance from this incident and she had not seen the beginning of the incident. Ms O’Kane’s evidence that she did not see the Applicant do anything to the woman who fell is consistent with the evidence of Ms Edwards. It was indirect force that caused the friend to fall and, unless Ms O’Kane was at the proper angle, the reason for the fall would not be obvious.

The Aftermath

1. Apparently, Ms Edwards made a complaint to Woolworths and Centre Management who asked ITM and Mr King to suspend the Applicant pending an investigation.

2. The Applicant was told of his suspension on 14 July 2014 (as he did not work on 12 or 13 July). On 16 July 2014, Mr Hills came to Gympie and he and the Respondent interviewed the Applicant and Ms O’Kane. Mr Hills said that Ms O’Kane made a comment that she believed that the other women had dropped to the ground and feigned an injury. I note that Ms O’Kane did not repeat this in her evidence before me.

3. The Respondent testified that he had made the decision to dismiss the Applicant but Mr Hills advised him to wait for a report that Mr Hills would compile. Mr Hills also advised that they should enquire of Woolworths whether they had any outstanding issues before the final decision would be made.

4. On 21 July 2014, the Applicant turned up for work and was told that he was still under suspension. He offered to work for no money but the Respondent would not allow it. On Wednesday 23 July 2014, the Applicant went to see the Respondent. Again, he surreptitiously recorded the conversation. I have had the advantage of viewing the video and audio recording of this conversation.

5. The Applicant advised the Respondent that he was going away for a couple of weeks and would be able to return to work, if he was allowed to work, on Monday, 11 August 2014. The Respondent is extremely noncommittal in every response that he gives to the Applicant about the work situation. The Applicant did tell the Respondent that he was not leaving until the weekend.

6. I have seen a number of email communications between Mr Hills and Woolworths. The Respondent gave evidence that once he received the draft letter of termination from Mr Hills, he posted this to the Applicant.

7. The Applicant claims that he did not receive this letter and I accept his evidence on that point. He turned up for work on Monday, 11 August 2014 and was informed of his dismissal and given the notice of termination.

Is this dismissal Adverse Action?

1. There is no question that there has been adverse action by the Respondent in dismissing the Applicant. The question is whether the adverse action was done for a prohibited reason.

1. In his first affidavit, the Applicant contends that the Respondent dismissed him for the following reasons:-

   a)giving the Respondent a copy of his record of hours that he worked;

   b)asking for his salary in $100 notes;

   c)telling the Respondent that his daughter had overpaid him and his subsequent repayment of that money;

   d)the Respondent resenting the fact that he had to reinstate the Applicant after the summary dismissal in April;

   e)the writing a letter of complaint to Woolworths about the threat to cut back the hours to be worked.

2. Because of the effect of s.361 of the FW Act, it is for the Respondent to prove to me that he did not dismiss the Applicant for any of the above reasons.

3. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 the High Court said at paragraph [45]

   “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 employer23. 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-maker24 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.”

4. The Respondent has given clear and unequivocal evidence that he dismissed the Applicant because of his misconduct. Consistent with what the High Court has said, this would be sufficient to discharge the onus.

5. The Applicant (I infer) contends that there is plenty of other evidence which would tend to undermine, if not completely destroy, such evidence.

6. This is not a trial about “unfair dismissal”. This is a case solely about whether the Respondent has proven to me that he has not dismissed the Applicant for a prohibited reason.

7. The Applicant is fixated on the notion that the evidence of Ms O’Kane proves that he did nothing wrong. His reasoning is that “if it is proved that I did nothing wrong, then I could not have been properly dismissed for that reason”.  The Applicant claims that the Respondent knows that the Applicant did nothing wrong to Ms Edwards but is using the incident as an excuse to dismiss the Applicant.

8. However, the evidence of Ms O’Kane does not illustrate that the Applicant did nothing wrong.

9. Consistent with my acceptance of the evidence of Ms Edwards, it seems to me that the Applicant did leave the trolleys in a position where they were not supposed to be. This caused Ms Edwards to reverse into the trolleys.  As Ms Edwards was commencing to take photographs, the Applicant attempted to stop her by trying to remove the trolleys.

10. The friend of Ms Edwards tried to stop the trolleys being moved and got her hand caught between two trolleys.  This caused her to fall when the Applicant started to push the trolleys.

11. More importantly, this incident would not have occurred if the Applicant had not left the trolleys where he did and had not tried to cover up his mistake.

12. But the only matter of which I have to be convinced is that the Respondent did not dismiss the Applicant because the Applicant exercised a workplace right.  The Respondent testified that the dismissal was because of the misconduct of the Applicant. 

13. I accept that evidence.  All the collateral evidence supports that decision.  The onus has been discharged.

Conclusion

1. I am satisfied that the Respondent dismissed the Applicant because of his misconduct. I am therefore satisfied that the dismissal was not for a prohibited reason or because the Applicant exercised a workplace right.

2. I dismiss the application as it pertains to contraventions of s.340 of the FW Act.

Other considerations

1. The Applicant claims that he was not paid his full annual leave or his full wages. Those claims were given to the Fair Work Ombudsman. In a letter addressed to the Respondent by the Fair Work Ombudsman dated 27 April 2015, the Fair Work Ombudsman details the results of their investigation as to the correct payments owed to the Applicant.

2. I agree with those calculations except in one respect. There was no power to suspend a person without pay. The Applicant did not work for the Respondent after 11 July 2014. I find that he was not dismissed until 11 August 2014.

3. I find that, because of the conversation of 23 July 2014, the Applicant did not make himself available for work from Saturday 26 July until Monday, 11 August 2014. This means that he was suspended without pay from 14 July 2014 until 25 July 2014 inclusive.

4. As there was no mechanism by which this could occur, I find that the Applicant is owed for 50 hours of work at an hourly rate of $20.71. I am satisfied by reference to the annexures to the affidavit of Mrs King that the Applicant has been paid all of his outstanding payments. With respect to the suspension without pay, I am satisfied that he has been paid for 40 hours.

5. This leaves 10 hours at the hourly rate of $20.71 still owing to the Applicant.

6. I order that the Respondent pay to the Applicant the sum of $207.10 and I dismiss all other applications.  The Respondent has asked to be heard on the issue of costs.  I will hear the parties on that issue.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 February 2017.