Trevena v Thiess Pty Ltd

Case [2016] FCA 468

FEDERAL COURT OF AUSTRALIA

Trevena v Thiess Pty Ltd [2016] FCA 468

File number: VID 303 of 2014
Judge: TRACEY J
Date of judgment: 10 May 2016
Catchwords: INDUSTRIAL LAW – alleged contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) – whether employee had exercised a workplace right to make a complaint “in relation to…employment” – where complaint made by employee’s brother – whether employer took “adverse action” by failing to offer employee previous casual position or allegedly promised role – where employee voluntarily relocated and only willing to return to previous position on fly-in fly-out basis or to new role alleged to have been offered prior to departure – whether adverse action because of the employee’s exercise of a workplace right – whether action taken with “intent to coerce” – whether employer had engaged in misleading or deceptive conduct in contravention of the Competition and Consumer Act 2010 (Cth) – whether employer had falsely promised role
Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 31

Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c)(ii), 342(1), 343, 343(1)(a), 361

Cases cited:

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

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225

Fountain v Alexander (1982) 150 CLR 615

IBM Australia Limited v National Distribution Services Limited (1991) 22 NSWLR 46

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1

Timic v Hammock [2001] FCA 74

Date of hearing: 9-11 June 2015, 11 and 18 December 2015
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 126
Counsel for the Applicant: Mr M McKenney
Solicitor for the Applicant: Equity Legal Australia
Counsel for the Respondent: Mr M Rinaldi
Solicitor for the Respondent: Piper Alderman

ORDERS

VID 303 of 2014
BETWEEN:

BRAD TREVENA

Applicant
AND:

THIESS PTY LTD (ACN 010 221 486)

Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

10 MAY 2016

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

TRACEY J:

INTRODUCTION

  1. The applicant, Mr Brad Trevena, was employed by Thiess Pty Ltd (“Thiess”) as an administration assistant on the Queensland Curtis Liquid Natural Gas Project (“the Project”). 

  2. The Project involved construction works to facilitate the production and distribution of liquid natural gas.  Thiess was contracted by QGC Limited (“QGC”) to perform construction works on the Project, which involved the installation of high pressure gas pipelines and equipment.

  3. Mr Trevena commenced employment with Thiess on 5 September 2012.  Thiess engaged Mr Trevena on the phase of the Project known as “6+1”, which involved the construction of six field compression stations and one central processing plant, predominantly…

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Details
AGLC
Trevena v Thiess Pty Ltd [2016] FCA 468
Case
[2016] FCA 468
Decision Date

CaseChat Overview and Summary

The Federal Court was asked to determine whether Thiess Pty Ltd had contravened the Fair Work Act 2009 (Cth) and the Competition and Consumer Act 2010 (Cth) in relation to their employment of Mr Trevena. The primary dispute arose from the circumstances surrounding Mr Trevena’s employment status and his allegations that Thiess had taken adverse action against him for exercising his workplace rights. Specifically, Mr Trevena claimed that he had been promised a permanent position as Quality Control Coordinator, which was allegedly withdrawn as a form of adverse action.

The court had to decide several key legal issues. First, it had to determine whether Mr Trevena had exercised a workplace right by making a complaint about Mr Jones’s conduct. Second, it had to ascertain whether Thiess had taken adverse action against Mr Trevena, as defined under the Fair Work Act. Third, the court needed to decide if Thiess had engaged in misleading or deceptive conduct by falsely promising Mr Trevena a permanent position. The court thoroughly examined the evidence, including the testimonies of various witnesses, and assessed the credibility of the parties' accounts to resolve these issues.

The court found that Mr Trevena had not exercised a workplace right as defined by the Fair Work Act. It held that the complaints he made were not in relation to his employment and, therefore, did not constitute the exercise of a workplace right. Furthermore, the court determined that Thiess had not taken adverse action against Mr Trevena because he had voluntarily relocated and was only willing to return to his previous position under specific conditions that Thiess could not reasonably accommodate. The court also found that Thiess had not engaged in misleading or deceptive conduct by falsely promising Mr Trevena a permanent position, as there was no evidence to support such a claim. Consequently, the court dismissed Mr Trevena’s claims in their entirety.

The final orders of the court were that the application brought by Mr Trevena be dismissed. The court found no merit in Mr Trevena’s allegations and ruled in favor of Thiess Pty Ltd.

Orders

Orders of the court

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Each of the witnesses was cross-examined. Leave was granted to permit some witnesses to give their evidence by video link. Messrs Bower, Schultz, Leary and Jones and Mses O’Hagan and O’Dell gave evidence by video link to Brisbane. Mr Giammo gave his evidence by video link to Perth. FACTUAL BACKGROUND For the most part the evidence was uncontroversial. The following account records my findings of fact. Where disputes have arisen relating to material matters I have made findings and explained the reasons for making them. In July 2013, Mr Trevena reported to Mr Campbell. Between July 2013 and September 2013, Mr Trevena raised with Mr Campbell the possibility of being employed by Thiess in a permanent position. Mr Trevena said that he had entered into discussions with Mr Campbell regarding a permanent position in Thiess’s Quality Control Department as Quality Control Co-ordinator. In September 2013, Mr Trevena informed Mr Campbell that he was going to resign if he was not given a staff position. In September 2013, Mr Campbell spoke to his supervisor, Mr Bower, about converting Mr Trevena’s casual position to a staff position, which was either full-time or part-time and which ran for a fixed term. Mr Jones and Mr McGilchrist were involved in these discussions. Each of Messrs Campbell, Bower, McGilchrist and Jones gave evidence that the discussion concerned a potential permanent position and that there was no guarantee that the proposal would be approved or that Mr Trevena would be offered the position. Mr Bower said that, at around the same time, Thiess was looking for a Quality Control Co‑ordinator to work on the next stage of the Project and that Mr Campbell had asked him whether Mr Trevena might be suitable for the position. Mr Bower had concerns that Mr Trevena did not hold the necessary qualifications and experience for the role. Mr Trevena claimed that, on 27 September 2013, Mr Campbell and Mr McGilchrist informed him that, following a meeting with Mr Bower and Mr Jones, a permanent position of Quality Control Co-ordinator had been approved for him and that the position was listed on an organisational chart with his name next to it. Mr Trevena gave evidence that Messrs Campbell and McGilchrist informed him that a contract would be presented to him as soon as Mr Jones set KPI’s (key performance indicators) for the position. Mr Campbell and Mr McGilchrist gave a different account of what had transpired once they had returned from Mr Bower’s office that morning. One of them had said to Mr Trevena something to the effect that: “We’ve just spoken to Simon [Bower] about the possibility of making your position permanent. We’ve now progressed it to a point where Simon is now willing to look at the role. Rob [Jones] and Penny [O’Hagan] are going to set some KPIs to help Simon to justify the role to senior management and human resources”. Mr Campbell and Mr McGilchrist denied offering the permanent position to Mr Trevena. I accept these denials. I will explain my reasons for doing so shortly after recounting some further evidence.

Evidence

Evidence Before The Court

Mr Trevena commenced the present proceeding alleging that Thiess has contravened ss 340(1) and 343 of the Fair Work Act 2009 (Cth) (“the Act”). Mr Trevena also alleged breaches of the Competition and Consumer Act 2010 (Cth) because Thiess had promised, but failed, to employ him as a Quality Control Co-ordinator.THE EVIDENCE In accordance with orders made in the course of directions hearings the parties filed affidavits on which they proposed to rely at trial. Mr Trevena filed two affidavits, one made by him and the other made by his brother, Mr Kris Trevena. Each of Messrs Brad and Kris Trevena was cross-examined. Thiess filed nine affidavits. The witnesses who made these affidavits and the positions held by them at the relevant time were:·Mr Darryl Schultz, Regional Construction Manager;·Mr Simon Bower, employed in a number of different roles over the relevant period, including Construction Support Manager, Site Manager, Package Manager and Construction Turnover Manager;·Mr Andrew Giammo, Project Manager; ·Mr Donald Campbell, Quality Lead for Structural, Mechanical and Piping Manager;·Ms Penelope O’Hagan, Lead Construction Turnover Coordinator;·Mr James McGilchrist, Quality Assurance/Quality Control Flange Management Coordinator;·Ms Terri-Lee O’Dell, Human Resources Manager, Industrial Projects;·Mr Adam Leary, Senior Human Resources Advisor; and·Mr Robin Jones, Quality Assurance/Quality Control Lead, QGC. Each of the witnesses was cross-examined. Leave was granted to permit some witnesses to give their evidence by video link. Messrs Bower, Schultz, Leary and Jones and Mses O’Hagan and O’Dell gave evidence by video link to Brisbane. Mr Giammo gave his evidence by video link to Perth. FACTUAL BACKGROUND For the most part the evidence was uncontroversial. The following account records my findings of fact. Where disputes have arisen relating to material matters I have made findings and explained the reasons for making them. In July 2013, Mr Trevena reported to Mr Campbell. Between July 2013 and September 2013, Mr Trevena raised with Mr Campbell the possibility of being employed by Thiess in a permanent position. Mr Trevena said that he had entered into discussions with Mr Campbell regarding a permanent position in Thiess’s Quality Control Department as Quality Control Co-ordinator. In September 2013, Mr Trevena informed Mr Campbell that he was going to resign if he was not given a staff position. In September 2013, Mr Campbell spoke to his supervisor, Mr Bower, about converting Mr Trevena’s casual position to a staff position, which was either full-time or part-time and which ran for a fixed term. Mr Jones and Mr McGilchrist were involved in these discussions. Each of Messrs Campbell, Bower, McGilchrist and Jones gave evidence that the discussion concerned a potential permanent position and that there was no guarantee that the proposal would be approved or that Mr Trevena would be offered the position. Mr Bower said that, at around the same time, Thiess was looking for a Quality Control Co‑ordinator to work on the next stage of the Project and that Mr Campbell had asked him whether Mr Trevena might be suitable for the position. Mr Bower had concerns that Mr Trevena did not hold the necessary qualifications and experience for the role.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 26 November 2013, Mr Trevena sent an email to Ms O’Dell, in which he said:“During a conversation with Steve Franklin yesterday, he informed me that my position with Thiess is no longer required as informed by you. As you have not reponded (sic) to my last email…or contacted me since the call between yourself, Steve Franklin and I (7/11/13) where you stated you would advise if my position was still there, I wanted to check what’s happening with you.If my position is no longer available, have I been terminated? If so, there has been no formal communication of this. Has a notice of separation been sent?If my position is no longer available, I have not been notified! I would expect all of my personal belongings from my work station to be sent to me.”(Original emphasis.) On 13 December 2013, Mr Trevena filed a general protections application in the Fair Work Commission, which stated that Thiess had terminated his employment on 25 November 2013. On 16 December 2013, Mr Trevena received a letter from Ms O’Dell, which read:“I confirm that:1.A deal of time has passed since you chose to return to Melbourne on 28 September 2013.2.Your allegations surrounding events on 27 September 2013 were not substantiated.3.There was and is no permanent staff role of Quality Control Coordinator available, and certainly not on a Fly-In Fly-Out basis as you have sought to demand.4.Relevant work is now nearing completion following your failure to make yourself available for further casual engagements on site on your previous terms. The suggestion that your employment was in any way terminated at the Company’s initiative is refuted.5.As you will appreciate, we otherwise take issue with your assertions of any wrongdoing on the part of the Company.” MR TREVENA’S CLAIMS Mr Trevena made three claims. The first and second claims relate to alleged contraventions respectively of ss 340 and 343 of the Act. The third claim alleged a contravention of the Competition and Consumer Act. Mr Trevena did not press a claim that Thiess had contravened s 351 of the Act. He also abandoned his claim that Thiess had breached an implied contractual term of mutual trust and confidence, following the High Court’s decision in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169. THE SECTION 340 CLAIM Mr Trevena alleged that his employment had been terminated and an offer of a staff position was withdrawn because he had lodged a complaint about Mr Jones’s conduct on 27 September 2013. Section 340(1) provides that “a person must not take adverse action against another person because the other person … has … exercised a workplace right”. The definition of “workplace right” contained in s 341(1)(c)(ii) of the Act includes the ability of an employee to make a complaint or inquiry in relation to that person’s employment. Mr Trevena relied on the following steps, taken by him, as constituting complaints or inquiries for the purposes of s 341 of the Act:·his making of a complaint to Messrs Giammo and Schultz on 27 September 2013;·his making of a complaint or inquiry to Thiess’s ethics line; and·his “elevation” of the issues to Ms O’Dell.