FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thomas v Blakai Trust [2022] FedCFamC2G 551
File number(s): ADG 300 of 2020 Judgment of: JUDGE BROWN Date of judgment: 7 July 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – allegation of breach of general protection provisions – workplace right – adverse action – casual employee – allegation applicant has workplace right to be nominated to receive JobKeeper payments – allegation employee subject to adverse action because she was neither nominated nor informed employer had applied for JobKeeper – matters to be considered Legislation: Coronavirus Economic Response Package (Payment and Benefits) Rules 2020, ss 5, 6, 7, 9, 10A
Evidence Act (1995) ss 140, 144
Fair Work Act 2009 (Cth), Pts 3-1, 6-4C, ss 12, 323, 340, 341, 342, 536, 539, 546, 550, 789GDA
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Fox v Percy (2003) 214 CLR 118
Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227
Qantas Airways Ltd v ALAEA (2012) 202 FCR 244
Reed v Blue Line Cruises Limited (1996) 73 IR 420
Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27
Division: Division 2 General Federal Law Number of paragraphs: 267 Date of last submission/s: 31 January 2022 Date of hearing: 6, 7 December 2021 & 31 January 2022 Place: Adelaide Counsel for the Applicant: Mr Hanna Solicitor for the Applicant: Wearing & Blair Pty Ltd Counsel for the Respondents: Mr Sallis Solicitor for the Respondents: RSA Law
Table of Corrections 7 July 2022 Date of Certification amended from 6 July 2022 to 7 July 2022. ORDERS
ADG 300 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KELLY THOMAS
Applicant
AND: THE TRUSTEE FOR THE BLAKAI TRUST
First Respondent
WARREN RANKINE
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
67 JULY 2022THE COURT DECLARES THAT:
1.The first respondent, the Trustee of the Blakai Trust and the second respondent, Warren Rankine have contravened the following provisions of Fair Work Act 2009 (Cth):
(a)Section 323(1)(c) by failing to pay the applicant, Kelly Thomas at least monthly; and
(b)Section 536 by failing to provide pay slips to the applicant, Kelly Thomas.
2.However, the Court declines to make any order that either the first or second respondent pay any pecuniary penalty in respect of the contravention referred to above.
THE COURT ORDERS THAT:
3.The application filed by the applicant on 4…
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- AGLC
- Thomas v Blakai Trust [2022] FedCFamC2G 551
- Case
- [2022] FedCFamC2G 551
- Decision Date
CaseChat Overview and Summary
The case of Thomas v Blakai Trust involved a dispute between Ms Thomas, an employee, and Mr Rankine, her employer, regarding her resignation and subsequent allegations of adverse action, including an alleged contravention of the general protection provisions under the Fair Work Act 2009 (FWA). The Federal Circuit and Family Court of Australia was tasked with determining whether Ms Thomas' resignation was influenced by adverse action taken by Mr Rankine, specifically whether he proposed an illegal scheme involving JobKeeper payments. The case hinged on the interpretation of communications between Ms Thomas and Mr Rankine during the COVID-19 pandemic, particularly around their understanding of the JobKeeper program and the nature of their professional relationship.
The primary legal issues the court had to resolve included the nature of the employment relationship, the interpretation of communications between the parties, and whether Mr Rankine's proposal constituted adverse action. The court had to establish whether Ms Thomas' resignation was influenced by adverse action, which required determining if Mr Rankine's proposal was indeed adverse action under the FWA. Additionally, the court had to assess the credibility of the parties' testimonies and the context of their communications amidst the pandemic's uncertainty.
The court's reasoning was grounded in the testimonies of the parties and the documentary evidence, including text messages and recorded conversations. The court found that the parties had fundamentally different interpretations of their communications, with Ms Thomas perceiving Mr Rankine's proposal as both fraudulent and illegal, while Mr Rankine believed it was a legitimate suggestion. The court concluded that there was no evidence to support Ms Thomas' claim that Mr Rankine's proposal constituted adverse action. Instead, the court found that Ms Thomas' resignation was primarily due to her concerns about the COVID-19 pandemic and not due to any adverse action by Mr Rankine. The court also noted the emotional and uncertain context of the communications, which contributed to the misunderstandings between the parties.
The final orders of the court dismissed Ms Thomas' claims of adverse action and contravention of the general protection provisions under the FWA. The court held that Mr Rankine did not engage in any adverse action towards Ms Thomas and that her resignation was not influenced by any such actions.
The primary legal issues the court had to resolve included the nature of the employment relationship, the interpretation of communications between the parties, and whether Mr Rankine's proposal constituted adverse action. The court had to establish whether Ms Thomas' resignation was influenced by adverse action, which required determining if Mr Rankine's proposal was indeed adverse action under the FWA. Additionally, the court had to assess the credibility of the parties' testimonies and the context of their communications amidst the pandemic's uncertainty.
The court's reasoning was grounded in the testimonies of the parties and the documentary evidence, including text messages and recorded conversations. The court found that the parties had fundamentally different interpretations of their communications, with Ms Thomas perceiving Mr Rankine's proposal as both fraudulent and illegal, while Mr Rankine believed it was a legitimate suggestion. The court concluded that there was no evidence to support Ms Thomas' claim that Mr Rankine's proposal constituted adverse action. Instead, the court found that Ms Thomas' resignation was primarily due to her concerns about the COVID-19 pandemic and not due to any adverse action by Mr Rankine. The court also noted the emotional and uncertain context of the communications, which contributed to the misunderstandings between the parties.
The final orders of the court dismissed Ms Thomas' claims of adverse action and contravention of the general protection provisions under the FWA. The court held that Mr Rankine did not engage in any adverse action towards Ms Thomas and that her resignation was not influenced by any such actions.
Orders
Orders of the court
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Background
Background to the litigation
In this difficult situation, with the parties unwilling and unable to communicate with one another, Ms Thomas attempted to recruit Ms Harding as an intermediary, a role Ms Harding was disinclined to take up. BACKGROUND There are many evidentiary disputes between the parties, which start with the nature of their relationship – were they friends or merely acquaintances? But particularly what was said between them (and what was their respective understanding of that) when information about the possible severity and implications of the pandemic began to percolate through the Australian community in early to mid-March of 2020. As I have previously observed, this was a time of acute uncertainty and anxiety for many in the community. It is Mr Rankine’s evidence that Ms Thomas resigned from The Trademan on 18 March 2020 because of concerns that she might contract Covid-19 at work or unwittingly infect her son or vulnerable clients of Nonna’s Cucina. Ms Thomas, in contrast, refutes these assertions. It is her case that it was Mr Rankine, rather than she, who hysterically over-reacted in the early days of the emergency. A further major evidentiary controversy, in the case, relates to telephone conversations between Ms Thomas and Mr Rankine, which occurred on 15 April 2020 and related text messages, which provide some form of written record of their verbal exchanges. The parties vehemently disagree about what occurred in those conversations and their overall import in terms of their on-going relationship as employer and employee. In the course of this conversation, Ms Thomas asserts that Mr Rankine indicated to her that The Trademan was eligible for JobKeeper and so Ms Thomas, as its employee, would be covered by its provisions. However, she alleges that Mr Rankine further proposed to her that, as the amount provided by JobKeeper was $1,500.00 per fortnight and she (Ms Thomas) did not usual earn such a sum, he would split the relevant payment with her so she received $200.00 to $300.00 per week of it and he retained the balance. It is Ms Thomas’ case that she was disgusted by this proposal, which she assessed to be both fraudulent and illegal and made it clear to Mr Rankine that she would have nothing to do with it. It is further her case that she personally had knowledge of how the JobKeeper program was intended to operate as a consequence of her membership of the board of Nonna’s Cucina. Nonna’s Cucina, at the time of the onset of the pandemic emergency, apparently employed many casual employees in its kitchen, who had previously worked short hours which had recouped them far less than $750.00 per week in wages. Yet, from briefings she had received from the accountants of Nonna’s Cucina, Ms Thomas was aware that this did not affect the entitlement of such employees to receive the full amount of JobKeeper, attributable to employees eligible under the Scheme, without any interference from the employer. As has been outlined above, Ms Thomas’ understanding of the Scheme was undoubtedly correct – an employee eligible to receive JobKeeper is entitled to receive the full fortnightly allowance, regardless of his or her level of weekly remuneration in the period prior to the pandemic emergency.
Evidence
Evidence Before The Court
Accordingly, in order to establish that she has suffered a contravention of a general protection provision under section 340 of the FWA, Ms Thomas must establish:·What is her workplace right;·What is the adverse action to which she has been subject; and·What is the connection between the workplace right and the adverse action.LEGAL PRINCIPLES RELATING TO THE EVIDENCE In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[24] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[25] [24] See Evidence Act (1995) (Cth) at section 140. [25] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ. The relevant standard of proof is the balance of probabilities. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged. In Hadgkiss v Sunland Constructions Pty Ltd & Ors[26] Kiefel J (as her Honour was previously) summarised the considerations relevant to establishing facts, on the balance of probabilities, in civil proceedings, particularly those involved in civil penalty proceedings. Her Honour indicated as follows:·The strength of the evidence necessary to establish a fact or facts, on the balance of probabilities, may vary according to the nature of what it is sought to be proved; ·The conventional perception is that people do not ordinarily engage in conduct prescribed by legislation and, as such, a court should not lightly make a finding to this effect, in civil litigation.[27][26] Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 at 195 [11][27] See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 In my assessment, all of the witnesses who gave evidence in the proceedings were motivated to be truthful and provide an account of their interactions with one another which corresponded with their personal recollection of what happened. However, for all sorts of reasons, including the general emotional discombobulation, which the early uncertain period for the pandemic precipitated in the community generally, those recollections are flawed, in my view. In these circumstances, each of the parties, but particularly Ms Thomas, has been inclined to misconstrue what the other has said in their heated and emotional conversations with each other and their terse and spontaneously composed text messages. As such, each has reconstructed, to some extend what happened, to buttress their recollection of it. As a consequence, it is my finding that more often than not, in the difficult period, which is at the centre of this adjudication, Ms Thomas and Mr Rankine was at complete and utter cross purposes with one another, which led to each of them fundamentally misconstruing what the other’s position was.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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