Tsilibakis v Transfield Services (Australia) Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740

Citation: Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Parties: ANTHONY TSILIBAKIS v TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
File number: SAD 274 of 2013
Judge: WHITE J
Date of judgment: 21 July 2015
Catchwords:

INDUSTRIAL LAW – adverse action – employee made internal complaints in course of employment – employer terminated employee’s employment, did so with immediate effect, did not locate alternative employment, and did not re‑employ employee in another position – whether purported redundancy was genuine – whether employer’s actions were taken in response to employee’s exercises of workplace rights

CONTRACTS – breach of contract – whether policies and procedures were incorporated in employment contract  
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 361
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 314 ALR 1
Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117
Gibbs v Palmerston Town Council (unreported, Gray J, 21 December 1987)
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189; (2000) 101 IR 435
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193
Rowland v Alfred Health [2014] FCA 2
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239
Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1
Date of hearing: 2-5 June 2014
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 238
Counsel for the Applicant: L Smith
Solicitor for the Applicant: Norman Waterhouse
Counsel for the Respondent: A Manos
Solicitor for the Respondent: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 274 of 2013
BETWEEN:

ANTHONY TSILIBAKIS
Applicant
AND:

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
Respondent

JUDGE:

WHITE J

DATE OF ORDER:

21 JULY 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 274 of 2013
BETWEEN:

ANTHONY TSILIBAKIS
Applicant
AND:

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
Respondent

JUDGE:

WHITE J

DATE:

21 JULY 2015

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. As one…

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Details
Case
[2015] FCA 740
Decision Date

CaseChat Overview and Summary

The applicant, Tsilibakis, brought proceedings against his former employer, Transfield Services (Australia) Pty Ltd, in the Federal Circuit Court. Tsilibakis alleged that his dismissal was an adverse action in response to him exercising his workplace rights and that the purported redundancy was not genuine. Transfield argued that the dismissal was a genuine redundancy resulting from a reduction in work.

The court had to determine whether the applicant's dismissal was an adverse action and whether the employer's actions were in response to the applicant exercising his workplace rights. The court also needed to decide if the redundancy was genuine and if the employer had breached any contractual obligations by not locating alternative employment for the applicant.

The court found that the decision to terminate the applicant's employment was made by multiple contributors, with Mr De Angelis being the ultimate decision-maker. The court considered evidence from each contributor and found that the recruitment workload on the Santos CMS Contract was significantly less than what the applicant claimed. The court concluded that the National Recruitment Team could manage the recruitment function, and the workload was not enough to sustain a full-time recruiter. The court also found that the applicant's dismissal was not in response to him exercising his workplace rights but rather due to a reduction in work. The court dismissed the application, and no orders were made in favour of the applicant.

Orders

Orders of the court

1. The application is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision to terminate the applicant’s employment was one to which a number of people contributed, although Mr De Angelis was the ultimate decision‑maker. Transfield adduced evidence from each contributor. The reasons for the decision of Mr De Angelis The events culminating in the termination of the applicant’s employment commenced in early June 2013. This was very soon after the applicant had lodged his formal complaint on 28 May. I make the following findings concerning those events. In early June, Mr Rynja and Mr Hall commenced discussions about the workload of recruiters on the Santos CMS Contract and about means by which savings could be obtained on that Contract. Mr Rynja told Mr Hall that he thought that Transfield’s National Recruitment Team had the capacity to perform the recruitment function, rather than having a dedicated team for that purpose. Mr Hall was willing to entertain the idea but wished to be satisfied that it would not result in any diminution of the service. Mr Rynja demonstrated to Mr Hall how the recruiting requirements for the Santos CMS Contract could be managed by the National Recruitment Team. He said that he considered that savings would be made if the National Recruitment Team carried out the recruitment function, being the saving of the wages paid to the applicant and to one of the two contract workers. Mr Rynja said that as part of the assessment he obtained so called “dashboard reports” which indicated that the recruitment team on the Santos CMS Contract was filling significantly less than 20 roles per month on average. Other evidence indicated that each recruiter could be expected reasonably to manage recruitments of that order. The applicant disputed Mr Rynja’s figures, saying that the average of his team was “30 plus” and that in the financial year ending on 30 June 2013, the team had filled 260‑280 positions. Neither party tendered documentary evidence of these matters. In his affidavit, Mr Rynja deposed that, since August 2013, the National Recruitment Team had recruited 67 roles for the Santos CMS Contract, that is, just over 6 roles per month. He said that work involved was “not nearly enough work to sustain a full‑time recruiter”. That evidence was not challenged. Furthermore, Mr Rynja deposed that when the National Recruitment Team assumed responsibility for recruitment for the Santos CMS Contract, there were only nine roles to be recruited. That evidence was corroborated by an email he sent to a member of the National Recruitment Team on 9 August 2013. This evidence was not challenged. It is inconsistent with the level of recruiting asserted by the applicant and tends to confirm the reasonableness of the assessment that the recruiting function could adequately be carried out by the National Recruitment Team. Mr Handy deposed that recruitment generally within Transfield had been quieter in the months preceding July 2013 than it had been in July 2012 and described the demand for recruitment on the Santos CMS Contract as “steady”.

Ratio Decidendi

Legal Principle Established

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