Tsilibakis v Transfield Services (Australia) Pty Ltd
[2015] FCA 740
•21 July 2015
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 1Date 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
ApplicantAND: 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
ApplicantAND: TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
Respondent
JUDGE:
WHITE J
DATE:
21 JULY 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
As one part of its business, the respondent (Transfield) provided construction and maintenance services to Santos Ltd in relation to its operations in the Cooper and Eromanga Basins. This involved Transfield recruiting, training and supplying the employees who, as employees of Transfield, undertake the contracted services. The governing contract between Santos and Transfield was referred to in these proceedings as the Santos CMS Contract.
Until August 2013, the applicant was employed by Transfield as its “Recruitment Lead” in relation to the Santos CMS Contract. In that position, he was the leader of the team of three persons, including himself, who were responsible for the recruitment of the employees who provide the services to Santos. Transfield also had another group known as the “National Recruitment Team” whose members were based in the various State capitals. This Team was responsible for managing the recruitment of workers for the services provided by Transfield to companies generally, and were not dedicated to recruitment for one particular contract, such as the Santos CMS Contract.
On 9 August 2013, Transfield terminated the applicant’s employment with immediate effect. It said that his position had become redundant and that it had no other positions for him.
The applicant alleges that the termination, and conduct of Transfield in relation to that termination, amounted to “adverse action” of the kind prohibited by s 340(1) of the Fair Work Act 2009 (Cth) (FW Act). He contends that Transfield “contrived” the redundancy to get rid of him because, on 30 April, 16 and 28 May 2013, he had made complaints about another employee. In addition, some of the applicant’s submissions were to the effect that, even if some retrenchments were genuine, the selection of him rather than others for termination was a form of adverse action.
The applicant alleges separately that the refusal of Transfield in September 2013 (that is, after the termination of his employment) to employ him as an “EP Coordinator” was an “adverse action” in contravention of s 340 of the FW Act, because that refusal was caused by his commencement of proceedings in the Fair Work Commission (FWC) in respect of his termination.
The applicant seeks orders for his reinstatement and for the payment of compensation in respect of these contraventions.
The applicant alleges in the alternative that, in the event that his redundancy was genuine, the termination was a breach of his contract of employment and, in particular, of the terms of Transfield’s Human Resources Management Plan and its Termination/Redundancy and Resignation Procedure. He contends that the terms of these documents had been incorporated into his contract of employment. The applicant seeks damages in respect of the alleged breaches.
The claims just summarised are those which were pursued ultimately by the applicant. His amended statement of claim had pleaded the breach by Transfield of other contractual terms. However, the applicant’s counsel indicated during the course of his opening at trial that those claims were abandoned. In addition, the applicant abandoned during the opening a claim that Transfield had taken adverse action because of a complaint he said he had made on or about 29 July 2013. Immediately before the commencement of the final addresses, the applicant abandoned another claim that Transfield had taken adverse action because of a complaint he had made on 25 July 2013.
Statutory provisions
Section 340 of the FW Act provides (relevantly):
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4 1).
As can be seen, s 340(1) prohibits a person from taking “adverse action” against another person because of the person’s exercise, or proposed exercise, of a “workplace right”. The term “workplace right” is defined in s 341 as (relevantly):
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)....
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
…
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3)A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note:Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
The term “adverse action” is defined in s 342 of the FW Act, relevantly as follows:
Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 An employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) ...
2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) ...
As indicated, the applicant contends that the adverse action involved in the termination of his employment was taken because he had exercised “workplace rights” by making a complaint during the course of his employment. In relation to the EP Coordinator position, the applicant contends that Transfield refused to appoint him to this position because of his same exercise of workplace rights and because he had applied to the FWC for it to deal with the dispute arising from the termination of his employment (the FWC claim).
In the claim arising from the termination of his employment on 9 August 2013, the applicant relied upon s 341(1)(c)(ii) and upon paras (a), (b) and (c) of Item 1 in s 342(1). In relation to his claim of adverse action resulting from the respondent’s refusal in September 2013 to employ him in the position of EP Coordinator, the applicant relied upon s 341(1)(c)(i) and upon Item 2(a) in s 342(1).
Section 361 of the FW Act has the effect that, upon proof by the applicant that he had exercised a “workplace right” and that Transfield has taken adverse action as defined, it is to be presumed to have taken that action for the reason alleged by the applicant unless it proves to the contrary: Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22 at [9]‑[10].
The resolution of this case does not require a review of the authorities bearing upon the discharge of the employer’s onus under s 361. Both parties referred to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 314 ALR 1.
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 when it said:
[31]... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
[32]The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...
Transfield must demonstrate that proscribed factors were not “a substantial and operative factor” for the adverse action. The enquiry about this is a question of fact.
Before addressing the applicant’s claims in more detail, it is appropriate to make findings concerning aspects of Transfield’s employment hierarchy and the three complaints alleged by the applicant.
The employment hierarchy
The applicant was employed by Transfield in September 2011 to work on the Santos CMS Contract. He was based in Adelaide.
Before October 2012, the applicant had reported to Mr Rynja and later to a Mr McColl. Mr Rynja was Transfield’s National Recruitment Manager, Resources and Energy. In that position he oversaw the recruitment by Transfield of all consultants in resources and energy. Mr Rynja was based in Brisbane.
In October 2012, Mr McColl was made redundant. The applicant then reported directly to Mr Craig Handy who held the position of Human Resources Team Leader on the Santos CMS Contract. However, the applicant continued to have a functional reporting line to Mr Rynja.
Mr Handy reported to Mr Hall, Transfield’s Project Director on the Santos CMS Contract, who was also based in Adelaide. At the same time, Mr Handy had a functional line of reporting to Mr Vigus who held the position of Regional Manager Human Resource Development – South, and who was based in Melbourne. Mr Hall reported directly to Mr De Angelis, Transfield’s Executive General Manager, Resources and Energy.
Mr Vigus reported to Ms Dodds, Transfield’s Executive Manager of Human Resources Development and through her to Mr Kerswell, Transfield’s Executive General Manager Human Resources.
A Mr Bradley held the position of Executive Manager Recruitment. He played relatively little part in the events giving rise to the applicant’s claim, and it is not necessary to describe his position further.
The First Complaint
The applicant contends that his employment was terminated because of a complaint he made on 28 May 2013 about his immediate supervisor, Mr Handy. That investigation was finalised on 29 July 2013, only 11 days before the termination. The applicant relies very much on the coincidence of these events. I make the following findings concerning the First Complaint.
The applicant’s pleaded case concerning his first exercise of “workplace rights” was (relevantly) as follows:
9.During the employment, the Applicant exercised a number of “workplace rights” as an employee in accordance with section 341(1)(c) of the Fair Work Act 2009 (Cth) (the Act), namely making complaints of bullying and harassment.
Particulars
On 30 April 2013, the Applicant verbally discussed the complaint of bullying and harassment against Mr Handy [with] Mr Ben Rynja.
On or about 16 May 2013, the Applicant verbally discussed the complaint of bullying and harassment against Mr Handy with Mr Gregory Vigus.
On 28 May 2013, the Applicant put his complaint of bullying and harassment in writing to the Respondent, against the Respondent’s employee, Mr Craig Handy (collectively the First Complaint).
The First complaint is in writing in an email from the Applicant to the Respondent ...
As can be seen, this pleaded “First Complaint” of the applicant was in fact a composite complaint said to be constituted by verbal statements of the applicant to Mr Rynja and Mr Vigus respectively on 30 April 2013 and 16 May 2013, and by a written communication on 28 May 2013. It was a complaint that the applicant had been bullied and harassed by Mr Handy.
Mr Handy had given the applicant two warnings. The first was given on 13 November 2012. A Ms Tesar had made a number of complaints about the applicant to Mr Handy. Following an investigation, Mr Handy concluded that one complaint was justified, but that the others were not. He issued a first written warning to the applicant for responding to, and forwarding on, an email containing an image of a naked woman.
On 18 April 2013, Mr Handy gave the applicant a final written warning. He had received approval from Mr Hall to do so. The second warning had its origins in emails received from applicants for positions under the Santos CMS Contract. Two applicants had provided email addresses which on their face could be understood as inappropriate. The resume of a third applicant included the entry “What I do not have: Computer Skills (unless it is porn)”. Each of these applicants had been accepted by the applicant’s recruitment team and appointed to positions on the Santos CMS Contract.
Mr Handy and Mr Bird (Technical Support Team Leader) discussed these matters with the applicant at a meeting on 9 April 2013. Mr Handy and Mr Bird told the applicant that they regarded the uncritical acceptance of these applications as indicating an inappropriate approach to the processing of applications for employment, as the identified matters raised concerns about the suitability of the particular applicants.
On 18 April 2013, at a second meeting with Mr Handy and Mr Bird, the applicant was given the final written warning mentioned earlier. The warning indicated that it was due “to a repeat of undesired behaviours in a related field within a period of six months”. Mr Bird and Mr Handy were concerned to reinforce to the applicant that he ensure that the respondent employed only persons whose values were consistent with its own. They told the applicant that, although he had not been personally involved in the processing of the applications, he had to take responsibility for the actions of his team.
The applicant said that he had been “shocked” to receive the warning as it had not been him but members of his team who had processed the applications in question. He also said that he was “incensed” that he had been given a warning when earlier complaints made by his team had either been ignored or dismissed without investigation.
On Tuesday, 30 April 2013, the applicant sent an email to Mr Rynja and Mr Bradley. He told them of the final written warning which he had been given, gave a brief account of the circumstances leading to it, and then continued:
Craig explained to me that as I am the Team Leader, all actions made by the team are my responsibility and therefore the onboarding of these two candidates, plus the sighting of the other person’s CV puts me at fault. Hence the apparent jump to final written warning stage.
Could one of you please get back to me in relation to what our recruitment protocol is in this instance and some advice on the matter.
There is a documented history of Dani Payne bullying members of my team and no action taken when officially raised with Craig so I would greatly appreciate some guidance in this matter.
The applicant attached to that email the email train of communications by which the issue of the inappropriate email addresses and email content had been raised.
Mr Rynja discussed the matter with the applicant by telephone later that same day. The applicant told Mr Rynja that he wanted his complaint investigated by an “external HR person” as he considered that he was being targeted and bullied by Mr Handy and Mr Hall. The applicant also said that he wished to submit a formal complaint against Mr Handy. Mr Rynja told the applicant that he would discuss the complaint with senior management and let him know the next steps for an investigation. This is the conversation with Mr Rynja on 30 April 2014 which constituted the first element of the pleaded First Complaint.
Mr Rynja spoke to Mr Vigus. The management of complaints of the kind made by the applicant was part of his role. Mr Vigus said that he would meet the applicant in Adelaide the following week. Mr Rynja then telephoned the applicant to inform him of the involvement of Mr Vigus. There was a difference in the evidence of Mr Rynja and Mr Hall as to whether Mr Rynja also spoke to Mr Hall at this time about the matter, but nothing seems to turn on that difference.
The applicant deposed that Mr Vigus was in Adelaide between 2 and 9 May 2013 and that, although speaking to Mr Handy, he had not spoken to him regarding the complaint. The applicant said that he had regarded this omission of Mr Vigus to speak to him as “odd”, given that he was the complainant, and not Mr Handy. He said that Mr Vigus’ first contact with him with respect to the complaint was by telephone after Mr Vigus’ return to Melbourne.
Mr Vigus’ evidence was to different effect. He said that he had been in Adelaide on 1 and 2 May 2013 only, and for a different purpose, and had not addressed the applicant’s complaint with anyone. Mr Vigus went on to say that he had taken, at short notice, a week’s leave between 6 May and 10 May 2013 and so could not have been in Adelaide in the week he had mentioned to Mr Rynja. Furthermore, Mr Vigus said that he had informed both the applicant and Mr Handy by email on Monday, 6 May 2013 that he was taking leave and that he would revert to them later that same week.
I considered that Mr Vigus was generally a careful witness. I had the impression that he had a shrewd appreciation of where Transfield’s interests lay in this litigation and there were occasions when I wondered whether that had coloured his evidence. My assessment however, was that Mr Vigus was a reliable witness and that his evidence could be accepted. That assessment has been confirmed on reading and re‑reading the transcript.
Mr Vigus’ evidence that he had informed both the applicant and Mr Handy of his absence on leave is supported by his email of 6 May 2013. Accordingly, I accept his account in preference to that of the applicant. The applicant made no reference to Mr Vigus’ email of 6 May and his evidence on this topic seemed to be directed to putting Transfield in a bad light by suggesting that, at an early stage, Mr Vigus had favoured Mr Handy over him, and had been seemingly indifferent to his complaint. This is one of several matters which caused me to doubt the applicant’s credibility more generally.
Mr Vigus met the applicant in Adelaide on 16 May 2013. The applicant said that he asked Mr Vigus to investigate formally both his first warning and his final written warning, and said that he would like to make a formal complaint against Mr Handy. This was the second element of the pleaded First Complaint.
On 14 May 2013, the applicant had by email sent to both Mr Handy and Mr Bird requested information regarding the complaints made to them against his recruitment team. This email was copied to Mr Vigus. By email of 20 May, Mr Vigus suggested to the applicant that his request be put on hold while he (Mr Vigus) was conducting his review. The applicant agreed but emphasised to Mr Vigus that he wanted a “speedy resolution” of the matter.
On 27 May 2013, the applicant told Mr Vigus that he would be making a formal complaint against Mr Handy for “harassment/bullying”. He said that Mr Handy had “used his supervisory position to intimidate and bully me and to threaten me with the loss of my employment”.
The applicant used Transfield’s pro forma complaint form for the written complaint made on 28 May 2013. He described the conduct of Mr Handy, of which he complained, as follows:
1.6/11/12 – Email sent to Craig Handy notifying him that I would like to put a Harassment/Slander complaint in against Erin Shaw for distributing a slanderous/derogatory email to other members of the contract about myself (email attached). No action was taken by Craig or any documentation provided to me to acknowledge that this was addressed.
2.9/4/13 and 18/4/13 – Was handed two hard copy documents including a final written warning and asked to sign off on both documents without a thorough investigation into complaints or being asked to provide a right of reply. Specifically that Craig Handy has directed complaints against the team to me.
I am submitting a bullying and harassment complaint against Craig Handy for showing discriminatory behaviour towards myself in failure to address a formal complaint request and in issuing written warnings directly to myself which were aimed at other people in the recruitment team, without thorough investigation.
The applicant then went on to detail at some length his version of events. In response to the printed question, “How would you like to see this situation resolved?” the applicant wrote:
I would like all written warnings against myself removed.
I would like all complaints against the recruitment team fully investigated and addressed appropriately.
I would [like] for Craig Handy to be given a written warning for the targeted bullying of myself in relation to the written warnings.
I would like for Craig Handy to be removed from the HR Team Leader position for continuously failing to act on important request[s] and for showing discriminatory [bias] against myself.
As can be seen, the applicant sought not only the withdrawal of the written warning to himself but also disciplinary action against Mr Handy and in fact the removal of Mr Handy from his position.
In response to the printed question, “Is there anything else you would like to add?” the applicant wrote:
Having to work under a manager who has shown a disregard for the well-being and health of members of the overall HR Team and who is willing to issue written warnings without fully investigating the facts is of great concern to myself and other team members within HR.
Craig has been clearly inconsistent with addressing issues within his team, and shown bias towards actioning emails and requests by certain individuals along with showing a distinct disregard on how his actions have affected the morale, health and mental well-being of members of his team.
I am extremely stressed and find it increasingly difficult to have to work with someone who has little proven management expertise or experience or who refuses to action requests by the recruitment team, including a bullying complaint by Brenna McBride.
It is obvious that by this time antipathy had developed between the applicant and Mr Handy, and I accept that Mr Vigus, Mr Hall and Mr Rynja were aware of it.
Although the evidence traversed in some detail the progress of the applicant’s complaint, it is not necessary for the determination of the present proceedings to make findings on every aspect of that progress.
Mr Vigus was concerned initially that some of the allegations in formal complaint were new in the sense that the applicant had not spoken to him about them previously. He was also concerned as to whether he would be regarded as sufficiently independent in order to conduct the investigation. He told the applicant that he would discuss the matter with other human resources practitioners within Transfield.
Mr Vigus informed the applicant on 5 June 2013 that he would investigate his complaint but would investigate first a separate complaint made by Ms McBride, a member of the applicant’s team. He also noted that the applicant had requested a meeting with Mr Hall to discuss his allegations against Mr Handy and the issue of a final warning, and told him that he did not wish there to be dual processes, that is, with both him and Mr Hall managing the issue at the same time. Mr Vigus told the applicant that, if he wished Mr Hall to resolve the matter by informal means, he would allow that to occur and would not conduct his investigation at the same time. He confirmed that in an email to the applicant on 6 June 2013.
The applicant did have a meeting with Mr Hall on 5 June. He described Mr Hall as being “aggressive and angry” during the meeting, whereas Mr Hall described himself as being “short and to the point”. There was little agreement between the applicant and Mr Hall as to what was said in the meeting. It is apparent that the applicant continued to question whether the final written warning was appropriate and Mr Hall continued to maintain that it was.
It seems that nothing of significance then happened either by Mr Hall or Mr Vigus until 17 June, when the applicant asked Mr Vigus for an update. Mr Vigus then had a teleconference with the applicant on 20 June 2013 in which the applicant’s counsel in this matter, Mr Smith, participated as a witness. Until that time, Mr Vigus had thought that the matter was being managed by Mr Hall. Mr Vigus then commenced active investigation of the complaint. It is appropriate to record that the complaint of the applicant was one of several complaints by employees which Mr Vigus was investigating at the time.
Mr Vigus came from Melbourne to Adelaide on 27 June 2013 for the purposes of his investigation, including meeting the applicant. He indicated to the applicant that he would uphold one aspect of his complaint and congratulated him for upholding “Transfield’s values” in relation to one aspect of the matters. I will refer again to this meeting shortly. By an email of 1 July 2013 to Mr Vigus, the applicant thanked him for taking the time to investigate properly the final written warning which had been issued to him. He continued:
I might add that I find it ironic that I am accused of having bad blood towards Craig or continually accused of not supporting him; when I am the one sitting on a final written warning from Craig’s recommendation.
I would like to think that the same question is asked of Craig and how/why he has recommended a first written warning against me for opening an email that was sent to me by a Santos employee via a Santos email address, and now this final written warning in a case that has not been fully investigated in the first instance and hastily escalated to a final warning stage.
Having worked through the Christmas period as I was asked to do, worked on weekends when he has asked me to and reported in daily while on my 1 week holiday break I took in late January as Craig had asked me to do at the time; I struggle to see how this is not supporting Craig, whether I have agreed with his decisions or not.
Mr Vigus responded to that email on 3 July 2013 as follows:
A couple of points I wish to comment on for the sake of clarity;
ŸI did not accuse you of “bad blood” between you and Craig – I did ask in your opinion if there was “bad blood” between you and Craig. You asked at the time if I had asked the same question of Craig to which I replied that I had. We then had a discussion about the support Craig provided you in management meetings and you covered off your demonstrated support by completing the tasks requested of you and matters such as working over weekends and reporting in whilst on approved leave.
ŸYou comment as to how you “struggle” to see how this is not supporting Craig. This was not questioned or raised in our discussions.
ŸHowever, I did raise with you and we did discuss the email from John Purvis dated 19 March and your views on the disclosure or non disclosure of this email to Craig and Reuben at the time – being 9 April. You advised that you did not have a copy of this email and that you had requested a follow up copy from John and Maureen.
I have advised you that I have completed the discussions with individuals involved and I will now finalise a report on the outcomes of the investigation, which will be communicated to you.
I will endeavour to complete this [in] the most timely manner.
Mr Vigus reported the results of his investigation to Mr Hall on 8 July 2013. He concluded that the first of the complaints made on 28 May was not justified but that the second should be upheld. Mr Vigus concluded the report with the following:
I see that the following actions need to be completed to close out this investigation:
ŸWithdrawing of the final written warning as a result of flaws in the investigation process.
ŸCoaching and counselling to Craig Handy of the need to fully investigate matters and keep notes and records of conversations and discussions. In addition, Craig may have benefitted by discussing the proposed actions (at the time) with more senior HR people within the business. To be actioned by Lou Hall and GV.
ŸCounselling of Anthony Tsilibakis on the need to fully cooperate with any investigations that he is involved in. To be actioned by Lou Hall and Craig Handy.
ŸWritten confirmation of the outcomes to Anthony Tsilibakis. Draft of advice completed by GV and attached. (Final legal review occurring at the moment and to be completed prior to issue.)
ŸAgreement with Lou Hall of these actions.
Mr Hall did not agree initially that the final written warning to the applicant should be retracted but, after further discussion with Mr Vigus, agreed to that course.
The actions recommended by Mr Vigus were implemented. Mr Handy was counselled on 27 July 2013. Mr Vigus provided the applicant with a letter of 29 July 2013. He told the applicant of his conclusion that there had been a lack of a thorough investigation into the complaints regarding his recruitment team which had led to the final written warning and told him that Transfield would provide counselling on the correct procedures to the employees involved and that it would retract the final written warning. He went on to caution the applicant about his own guarded cooperation with the investigation carried out by Mr Handy and Mr Bird.
The applicant responded to Mr Vigus’ letter by an email that same day as follows:
Thanks Greg,
I want to personally thank you for investigated (sic) this matter in a methodical, unbiased approach.
It should be noted however that I don’t acknowledge that my cooperation has been guarded in any response to the allegations associated with my wrongful written warning; I have been open and honest across the investigation in all instances, but interested in understanding why you are suggesting this.
I will add that it is a major concern with all three members of the Snr Leadership Team within this contract have been unwilling to consider that the initial investigation process was not executed properly and contrary to the standards that they are trying to implement within the contract, and that it needed to be looked at externally for an unbiased recommendation.
My expectation is a written apology from all three parties involved in the signing of the written warning.
As can be seen, the applicant stated his expectation that he should receive a written apology from Mr Hall, Mr Handy and Mr Bird. Mr Vigus telephoned the applicant on 31 July 2013 and told him that he would not be seeking an apology from those three men because it had not been part of the applicant’s original complaint and request for action.
The applicant was disappointed that an apology would not be provided. That disappointment formed the basis of his pleaded Third Complaint, to which I will refer shortly.
On Monday, 5 August 2013, the applicant sent an email to Mr Handy setting out his understanding that Mr Handy was to provide him with a written acknowledgement of Mr Vigus’ finding and confirmation that he had attended to correction of the applicant’s personnel file.
On 8 August 2013 (the day before the termination of the applicant’s employment), Mr Handy sent an email to the applicant confirming that his final written warning had been officially retracted and that a record to that effect would be placed on his personnel file. Mr Handy also told the applicant that no further documentation was required in order to finalise the matter.
It was common ground that the applicant’s making of the First Complaint, constituted by the three elements, was an exercise of a “workplace right” for the purposes of s 341(1)(c) of the FW Act.
Accordingly, it is unnecessary to traverse in these reasons the authorities bearing upon the concept of complaints which may be the subject of adverse action.
The Second Complaint
As already noted, during the trial the applicant abandoned reliance on his pleaded Second Complaint. Accordingly, it is sufficient to record the details of it only briefly.
On 4 July 2013, the applicant had received an email from a Transfield employee which indicated that the employee had told an applicant for employment that his curriculum vitae was “already with the HR poofters”. During a scheduled meeting on 25 July 2013 with Mr Hall, Mr Handy and Mr Bird, the applicant told them about this email and said that he was offended by it. He went onto say that he wanted the matter investigated and action taken on it. Later, on 1 August 2013, the applicant told Mr Handy that his complaint concerning the email was against Mr Hall because if he (the applicant) had to take responsibility for the conduct of a member of his team, Mr Hall should also take responsibility for the “poofter” remark in an email sent by a member of his team.
The applicant provided a hard copy of the email to both Mr Hall and Mr Handy. Neither had reported back to him about his complaint by the time of his termination of employment (but, contrary to the applicant’s belief, action had been taken concerning it).
The Third Complaint
The applicant’s pleaded case was that his email to Mr Vigus on 29 July 2013 set out earlier in these reasons, constituted a Third Complaint amounting to an exercise by him of a workplace right for the purposes of s 341(1)(c) of the FW Act. He said that he had thereby expressed his dissatisfaction with the investigation to Mr Vigus and had complained about its outcome. His pleaded case was that Transfield had failed to investigate his Third Complaint.
Although the applicant abandoned any claim with respect to this “Third Complaint”, it is appropriate to make some findings with respect to it as I considered that it, and the applicant’s evidence concerning it, reflected poorly on his credibility.
First, the letter cannot reasonably be regarded as a complaint. The applicant did not use the word complaint or any other words which indicated that he was reporting a matter to Mr Vigus which he wished to have investigated. He did no more than express some disquiet about aspects of Mr Vigus’ conclusions and of the conduct of Messrs Hall, Handy and Bird which he had investigated. That being so, there was no complaint for Mr Vigus, or for that matter anyone else, to investigate. Despite that, the applicant’s pleaded case was that Transfield had “either refused to, or failed to, investigate” this complaint. That was an untenable position which the applicant did not abandon until the commencement of the trial.
Secondly, the applicant admitted in cross‑examination that he had raised the concerns in the letter of 29 July 2013 “with a view to getting at Mr Hall” even though he knew that, whether or not action was taken against Mr Hall, there would be no difference in his own employment. This suggested that the applicant was making the so called complaint for spiteful reasons.
Thirdly, the terms of the letter to Mr Vigus and, in particular its first paragraph, are inconsistent with the applicant’s pleaded case that Transfield had failed “to view the First Complaint objectively and without bias”. In contrast to that plea, the letter to Mr Vigus commences with the statement “I want to personally thank you for investigated (sic) this matter in a methodical, unbiased approach”. The applicant’s evidence concerning this inconsistency did not reflect well on him.
In his cross‑examination, the applicant said that the contents of his email of 29 July 2013 reflected accurately his thoughts at the time but said (for the first time) that instead of intending to thank Mr Vigus, his first paragraph was intended as sarcasm as he considered that the investigation had been neither methodical or unbiased. The applicant did not point to any circumstance which should have alerted Mr Vigus that the statement was sarcastic rather than genuine.
There are a number of matters indicating the implausibility of the applicant’s present claim of sarcasm. First, Mr Vigus had in significant respects vindicated the applicant’s position and it is plain that the applicant had been appreciative of that. For example, when Mr Vigus interviewed the applicant on 27 June 2013, he had told him that he would not have given the applicant a final written warning, that he considered that the matter had been handled poorly by the leadership team within the Santos CMS Contract, and that the applicant should be commended for upholding “Transfield values”. The applicant’s appreciation is evident in an email he sent to Mr Vigus on 1 July 2013 which commenced with the statement:
Wanted to thank you for coming to Adelaide last week and taking the time to properly investigate the final written warning against me.
The applicant said in his evidence that he had intended this as a genuine statement of appreciation. It is improbable that the applicant’s appreciation of Mr Vigus’ efforts changed between 1 July 2013 and 29 July 2013.
I also consider that the applicant’s claim that the first paragraph was an attempt at sarcasm is inconsistent with the words “It should be noted however” with which he commenced the second paragraph. Those words suggest that the applicant was, in the second paragraph, qualifying in some way the statement in the first. It is not easy to understand how that could be so if the first sentence was an attempt at sarcasm. The same point can be made with respect to the words “I will add” with which the applicant commenced the third paragraph in his letter.
Furthermore, the applicant acknowledged that the rest of his statements in the email and, in particular, his statement in the third paragraph that “it [Transfield’s initial investigation against him] [had] needed to be looked at externally for an unbiased recommendation” was not an attempt at sarcasm. In fact, as the applicant acknowledged, he was pleased with the recommendation Mr Vigus had made with respect to the investigation of the complaint against him. Mr Vigus was the person who the applicant considered, at the time, had examined the matter “externally” as he was not engaged on the Santos CMS Contract.
When pressed about this in the cross‑examination, the applicant sought to draw a distinction between the recommendation, which he acknowledged to be unbiased, and its source, Mr Vigus, who he did not regard as unbiased. I considered this distinction to be unrealistic.
I consider that the implausibility of the applicant’s evidence on this topic, and the unimpressive manner in which it was given, mean that this evidence should not be accepted as reliable. It is not to the applicant’s credit that his evidence about the sarcasm emerged only in the cross‑examination when he was being taxed on the inconsistency between the statement in the first sentence and his pleaded case. The applicant acknowledged that, had it not been for the cross‑examination, the Court would not have heard at all of his claimed intention that the first paragraph in the letter of 29 July be a statement of sarcasm. This is remarkable, given the applicant’s pleaded claim concerned the Third Complaint.
I had the strong impression that the applicant made the claim that the opening lines in his letter of 29 July 2013 were intended as sarcasm in order to avoid the contradiction between that statement and his pleaded case. This reflected badly on his credit. It is one of the matters which has caused me to view with caution the applicant’s evidence more generally.
The applicant’s credibility
There were other matters which caused me to have doubts about the reliability of the applicant’s evidence generally. On 19 July 2013, the applicant asked Mr Vigus for clarification of the circumstances in which team leaders may be held ultimately responsible for the actions of their teams, and whether the undertaking of the investigation of complaints and the actions which may follow depended on the manner in which they were made. Mr Vigus provided a response by return email. Mr Vigus confirmed that a complaint did not have to be in writing before action could be taken on the complaint, including written warnings or termination, and went on to say that the outcomes of a complaint requested by a complainant would not necessarily have a bearing on the final action taken, and gave an example of why that was so. The applicant responded on 23 July 2013 saying:
Thanks for getting back to me on this. All good common sense answers which align with my thinking.
He then went on to make a recommendation as to education within Transfield on one of the matters.
The applicant was asked in cross‑examination about what he had meant by the term “which align with my thinking”. In my opinion, his answers were unrealistic and seemed to reflect an attempt to distance himself from his contemporaneous endorsement of the reasonableness of Mr Vigus’ approach. The applicant drew a highly artificial distinction between his “thinking” and his “understanding”, as the following excerpt of his evidence indicates:
Q:Well, you’ve said there that it aligns with your thinking. Doesn’t that suggest that what Mr Vigus has said is what you already knew?
A:No.
Q:Well, what does it mean?
A:It means that I [was] requesting clarity. It means that according to the Quality and Diversity Policy within Transfield that we had toolbox meetings around, your Honour. There was a chart system, or a flow chart, I usually call it which was a process to go through for complaints and final written warnings.
Q:Mr Tsilibakis, what does “which align with my thinking” – what did you mean by that?
A:What did – I meant that I didn’t understand it to be that, I thought it might that. It’s my thinking, it’s not my understanding.
...
Q:Well, what did you mean by “which aligns with my thinking” then?
A:I think my difference is between my understanding which was the process that needed to be followed, your Honour, and the process that was outlined and part of Transfield’s corporate process, I guess you would call it. My thinking was different to my understanding. My understanding was that there needed to be a formal written complaint according to the Quality and Diversity Policy that was within Transfield and the toolboxes. My thinking was different but my understanding was that it needed to be aligned to that.
Another passage in the evidence which did not reflect well on the applicant related to his evidence about his knowledge of the general protections provisions in the FW Act. The applicant said in cross‑examination that he was aware as early as January 2013, that there was a risk that his position may be made redundant. He then gave the following evidence:
Q:Were you also aware at that time of the general protections provisions in the Fair Work Act?
A: I don’t believe so, no.
Q:Were you aware at that time that if you made a complaint and then suffered adverse action, that a reverse – there’s a reverse onus that switches to the employer to prove they didn’t take that action [because] of the complaint?
A:No.
Q:You weren’t aware of that?
A:No.
However, only one year earlier (on 30 January 2012), the applicant had brought proceedings in the Federal Magistrates Court against a firm named Cadgile, in which he alleged that his employment had been terminated because of his exercise of workplace rights in initiating a bullying and harassment complaint against Cadgile’s Managing Director. The proceedings in the Federal Magistrates Court were resolved by a negotiated settlement in June 2012. The applicant’s legal representative in the present proceedings also represented him in the proceedings against Cadgile. In those circumstances, I consider it implausible that the applicant was unaware of the potential for him to bring proceedings against Transfield in the event that his employment was terminated following his making a complaint and was unaware of the fact that Transfield would have the onus of showing that the termination was not by reason of his having made the complaint.
It is not to the applicant’s credit that on several occasions, and without authority to do so, he forwarded on to his private email address the business emails of Transfield, simply so that he could have a record of them.
There were other aspects of the applicant’s evidence which did not speak well to his credit. I have already given one example of the applicant’s evidence on a topic being selective. Somewhat remarkably the applicant did not provide as part of his own evidence his formal complaint of 28 May 2013, or Mr Vigus’ report of the outcome of his investigation of that complaint. There were several other instances.
All in all, I did not at the time of trial regard the applicant’s evidence as being generally reliable. That view has been confirmed on re‑reading the transcript of evidence. I consider that care should be exercised before acting on the applicant’s evidence when it is not supported by contemporaneous documentary evidence or is disputed.
Credibility of witnesses – general
The applicant did not lead evidence from any other witnesses.
Transfield adduced evidence from Mr De Angelis, Mr Kerswell, Mr Vigus, Mr Rynja, Mr Hall and Mr Handy.
I have referred already to my assessment of the evidence of Mr Vigus.
I regarded the evidence of both Mr De Angelis and Mr Kerswell as honest and reliable. They gave their evidence fairly and with care. Mr Kerswell readily acknowledged that there were some matters about which he was uncertain and conceded that his understanding may have been wrong in some instances.
Mr Handy did not contribute to the decision to make the applicant redundant but was involved in its implementation. I formed a favourable view of his evidence. It would have been understandable if Mr Handy had been defensive or affected by antipathy towards the applicant, as he acknowledged that his working relationship with the applicant had been difficult. Other evidence indicates that there was unpleasantness between the two men. However, Mr Handy’s evidence was marked by fairness and he readily made concessions which favoured the applicant’s case. I regarded his evidence as reliable.
I considered that there was a certain defensiveness and a tendency to generalisation in Mr Hall’s evidence. On some matters his evidence was inconsistent with that of other Transfield witnesses. This led me to have less confidence in his evidence on matters of detail. I had the impression that Mr Hall, possibly with some justification, had come to regard the applicant as something of an irritant. In particular, he shared the concerns of other Transfield employees about the working relationship between the applicant and Mr Handy. Accordingly, although I formed a more favourable view of Mr Hall’s evidence than I did of the applicant’s, I still consider that care is needed before acting on his evidence.
I regarded Mr Rynja’s evidence as generally reliable. I was a little troubled by the fact that it did seem that once he had decided that the applicant should be made redundant (which decision seems to have been made at an early stage) he may not have considered other alternatives, or to have required close attention to Transfield’s own procedures. However, despite these reservations, I considered Mr Rynja’s evidence about his reasons for recommending the applicant’s termination, and the manner in which it was carried out, to be generally reliable.
The termination of the employment
The termination of the applicant’s employment was effected by Mr Hall and Mr Rynja.
At about 9.00am on 9 August 2013, Mr Hall asked the applicant to come to a separate room. Mr Rynja was already present.
Mr Hall informed the applicant that, following an ongoing review of Transfield’s structures with a view to lowering costs and improving efficiencies, his role as Recruitment Lead for the Santos CMS Contract had been made redundant, and that this meant that his employment was being terminated immediately. The applicant asked some questions about why he was being made redundant while his two team members who were contractors were continuing, and stated his belief that he was being made redundant because of his complaint of bullying and harassment against Mr Handy.
At the same time Mr Hall handed to the applicant a letter confirming his oral statements and providing further information relating to the termination.
There were some differences in the respective accounts of the applicant, Mr Hall and Mr Rynja as to what occurred during the termination discussion and immediately afterwards until the applicant left the building, but it is not necessary for findings to be made about that.
The reasons for the termination
The applicant’s principal case was that Transfield had terminated his employment because of his exercise of his workplace right in making the First Complaint, that is, the complaint of bullying and harassment against Mr Handy. He also invoked other limbs within s 342(1) Item 1 but I will address those separately.
As noted, s 361 of the FW Act has the effect that it is to be presumed that Transfield terminated the applicant’s employment because of his exercise of the workplace right relied upon, unless Transfield proves otherwise.
The very coincidence in time of the applicant’s complaint and the termination of his employment suggests that Transfield’s evidence concerning the reasons for the termination of the applicant’s employment should be scrutinised carefully. The fact that a number of the persons contributing to the recommendation were aware of the First Complaint adds to the need for this scrutiny.
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”.
On the other hand the applicant deposed that on 9 August 2013, his team was recruiting 33 roles for the Santos CMS Contract and would be recruiting a further 20 roles for a shutdown to take place in October 2013. The applicant did not adduce documentary evidence to support that position. He acknowledged in cross‑examination that recruitment was “slowing up” and that he had been concerned that the employment of one of the two contract workers on his team would not be continued. He had tried to expand the duties they performed in order to promote their job security. Furthermore, the applicant had been worried in January 2013 that his own position may be made redundant.
Reviews by Transfield which result in redundancies do not seem to be uncommon. Several witnesses spoke of the continuous reviews, especially in 2012 and 2013. Mr Kerswell deposed that in the financial year ending 30 June 2013, Transfield had made 359 positions redundant and, to May 2014 in the 2014 financial year, 583 positions redundant.
In all these circumstances, I accept Mr Rynja’s evidence about his assessment of the situation in June and July 2013.
Later in June 2013, Mr Rynja spoke to Mr De Angelis and Mr Kerswell about the proposal to transfer the recruitment function from the Santos CMS Contract to the National Recruitment Team. Mr Kerswell then wrote to Mr De Angelis on 24 June 2013 saying:
I have been reviewing the resourcing across the business, as you do in these instances and found a couple of items I recommend you review.
Bluescope: ...
Santos: I understand Ben has been having discussions about the sourcing workload and where the recruitment sources sit from a budget/team perspective with Lou. We all recognise sourcing people is an area we need to continue to strive to improve, but I understand the workload should be manageable for a single recruiter based on the current forecast. The model we work in the central team is each recruiter on average should fill about 20 roles a month, this is an average not an absolute as there are reasons why it may be greater or less than this. Given these numbers and the fact that currently Santos have two recruitment resources in Maureen Ginting and Anthony Tsilibakis in the contract, I would recommend that you ensure one resource moves into our central recruitment team (Maureen) and you could make the other role redundant (Anthony).
The effect of Mr Kerswell’s recommendation was that the recruitment work on the Santos CMS Contract be undertaken by the National Recruitment Team and that the applicant be made redundant.
As can be seen, the context in which Mr Kerswell made his recommendation to Mr De Angelis was one of a review of recruitment resources generally. It was not focused on the Santos CMS Contract only or on the applicant. There is no suggestion in the email that the absorption of the Santos recruiting function into the National Recruitment Team should occur for some extraneous purpose, such as creating a circumstance in which the applicant’s position could be made redundant.
Mr Rynja spoke to Mr De Angelis about the proposal at about the same time. Mr De Angelis told Mr Rynja that he was concerned that the change should not result in reduced service on the Santos CMS Contract but that if Mr Hall confirmed that the service could continue to be delivered effectively, then he would support the change.
Mr Rynja then spoke to Mr Hall and reported to Mr De Angelis on 4 July 2013 by email:
I have spoken with Lou and we’ve agreed the best outcome would be actioning the following:
1.The white collar recruitment function currently held by Anthony Tsilibakis is made redundant.
2.All white collar vacancies for Santos moving forward will be recruited regionally by the National Recruitment Team.
3.The blue collar recruitment role will remain
4.Maureen Ginting who holds the blue collar recruitment role will transfer into the National Recruitment Team and report directly to me. Maureen will still be paid for 100% by the contract.
If you are comfortable with these changes I will coordinate with Sarah Bendy and Lou Hall to action.
Mr De Angelis said that he agreed with the proposal in Mr Rynja’s email of 4 July 2013 because he knew that less white collar recruitment was necessary on contracts such as the Santos CMS Contract after the first six months, whereas there was a greater need for ongoing recruitment of blue collar employees. Transfield had commenced the Santos CMS Contract in November 2011, so it had reached the stage of relative stability to which Mr De Angelis referred.
Mr De Angelis gave his approval to Mr Rynja by an email on 5 July 2013. At the same time, Mr De Angelis gave verbal approval to Mr Hall to proceed to make the applicant’s position redundant. At that time the proposed date of termination was 2 August 2013. Mr De Angelis confirmed his decision on 8 August, being the day before the applicant’s employment was in fact terminated.
In his evidence, Mr De Angelis denied that he had made the decision that the applicant’s position was redundant because of the applicant’s complaints. He said that he had not even known about the complaints at the time and that his decision was based solely on the savings which could be made by moving the Santos recruitment function into the National Recruitment Team. Furthermore, the applicant was not the only person affected by the transfer of the recruitment function into the National Recruitment Team.
In the cross‑examination, counsel for the applicant put to Mr De Angelis an email from Mr Hall on 1 May 2013 by which he had provided Mr Vigus with a copy of a complaint the applicant had made against a Ms Payne. This was another complaint altogether and did not form part of the applicant’s pleaded First, Second or Third Complaints. The email showed on its face that it had been copied to Mr Bird and Mr De Angelis but Mr De Angelis said that he did not recall seeing it. It was not suggested to Mr De Angelis that he had taken account of this particular complaint in the decision concerning the applicant’s redundancy.
In fact, apart from one matter, Mr De Angelis was not really challenged on his evidence. The single challenge concerned the statement the applicant said Mr De Angelis had made at a “toolbox” meeting in early July 2013. The applicant said that Mr De Angelis had told employees present at that meeting that there would be no further redundancies on the Santos CMS Contract and that any further redundancies “would happen at the corporate level and outside of the contract level”. Mr De Angelis denied making such a statement.
Having regard to my favourable impression of Mr De Angelis as a witness, I accept that denial. I also consider it improbable that Mr De Angelis would have made such a statement given the discussions already on foot to which Mr De Angelis was a party concerning the transfer of the recruitment function to the National Recruitment Team and the retrenchment of the applicant and others.
It is convenient also to state my conclusion with respect to Mr Kerswell at this point. Mr Kerswell was aware, at a high level, that the applicant had made some complaints, but was not aware of their detail. He deposed that his recommendation to Mr De Angelis was based solely on the desire to achieve cost savings and had not been influenced by the applicant’s complaints. I accept that evidence. It was not seriously challenged.
Accordingly, the applicant’s claim, insofar as it rests on the reasons of Mr De Angelis and Mr Kerswell for the termination, fails.
The reasons of the other contributors
My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.
I have already referred to the initiative of Mr Rynja in early June 2013 which led to the restructure and the termination of the applicant’s employment. At that time, Mr Rynja knew of the applicant’s First Complaint but not its outcome. Mr Rynja did say that he received an “update” by telephone from Mr Vigus about three weeks after speaking to Mr Vigus on 30 April. Any update at that time would have been relatively uninformative as the active part of Mr Vigus’ investigation occurred at the end of June 2013. I think it likely, however, and so find, that Mr Rynja would have been informed, at least in a general way, by Mr Vigus of the progress of the investigation. That is especially so given that Mr Vigus had concluded in the last week of June 2013 that one of the applicant’s complaints should be upheld.
Mr Rynja also said that he had not discussed the applicant’s complaints with Mr Hall after 30 April 2013. I am willing to accept that that was so, but again consider it probable that after the initial recommendation that the applicant be made redundant, Mr Hall provided Mr Rynja with information of a general kind concerning the progress of the complaint.
I set out earlier the terms of Mr Rynja’s email to Mr De Angelis on 4 July 2013. Mr Rynja also sent an email that same day to Mr Hall. He repeated in the first part of the email the actions which he had outlined in the email to Mr De Angelis and then continued:
It should be noted I have several senior white collar recruiters in my team who have technical experience recruiting within the oil and gas industry. Marina and Alex in Brisbane are currently recruiting similar roles to that of which you require for Santos for our CSG contracts and Ang Jenkins in the West has significant large project and maintenance experience within oil and gas recruitment.
Sam Blee who is our shutdown trades recruitment lead can also support blue collar recruitment as required. I would ask you budget some annual costs for travel to site and accommodation for my team for you are looking at recruiting volume white or blue collar vacancies.
As can be seen, by this time Mr Rynja was contemplating that there would not be any need for the applicant or his subordinates to be transferred to the National Recruitment Team.
After Mr De Angelis gave his approval on 5 July 2013, further action towards the restructure occurred.
Mr Rynja, Mr Hall, Mr Vigus and Mr Handy participated in a teleconference on 5 July 2013. In that teleconference, Mr Handy was informed for the first time that Transfield was considering moving the recruitment function on the Santos CMS Contract to the National Recruitment Team. He was also told that if that plan proceeded, the recruitment roles on the Santos CMS Contract would be redundant. As the request of the participants, Mr Handy later prepared and circulated a document entitled “HR Structure Proposal” setting out the roles and responsibilities of the existing recruitment team and identifying who would perform those duties under the new structure.
It is evident that by 5 July 2013, those involved in the restructure proposal were conscious of the timing of its implementation in relation to the finalising of the investigation by Mr Vigus of the applicant’s complaint. They were also conscious of the implications of making the applicant as a permanent employee redundant but continuing the employment of Ms McBride, a contract worker. Mr Vigus referred to these matters in an email he sent to Ms Bendy in Human Resource on 5 July which included:
GV to close out the bullying and harassment complaints by Anthony Tsilibakis.
A further discussion point is that Maureen is engaged through an Agency at the moment as is Brenna McBride in the Santos recruitment team. To make Anthony redundant and employ an Agency person is likely to draw attention from Anthony – so this needs to be considered before we go anywhere with a redundancy.
I believe the service can be delivered by the National Recruitment Group but who stays and who goes needs closer attention to get the best outcome. In addition we should consider where any budget comes from and if any savings can be derived from the exercise for the Santos contract.
Another teleconference between Mr Rynja, Mr Hall, Mr Vigus and Mr Handy occurred on 9 July 2013. The participants discussed Mr Handy’s HR Structure Proposal and determined that the recruitment function for the Santos CMS Contract could be performed appropriately by the National Recruitment Team.
Mr Rynja deposed that, during the course of this meeting, he realised that the number of recruitments on which the applicant was working was well less than the applicant’s stated 20 roles. He said he obtained that information from the Recruitment Update Reports provided by Ms Ginting twice a week. Neither party tendered copies of these reports. Mr Rynja did not depose to the significance of this discovery but, by inference, it seems to have confirmed his view that retrenchment of the applicant was appropriate.
During the balance of July, the proposal for the restructure was settled. Initially, it was contemplated that the applicant’s employment would be terminated on 2 August 2013, but this was delayed by a week in order to allow the complaint process to be finalised.
Although the restructure proposal emerged at the same time as the investigation of the applicant’s complaint, there is no indication in the contemporaneous documents to indicate that the two were causally related. Furthermore, as already indicated, reductions by Transfield of its workforce resulting in redundancies were not unusual. I have already referred to the applicant’s evidence that he was apprehensive in early 2013 that he may be made redundant.
Several of Transfield’s witnesses deposed to Transfield’s ongoing review of its structures and the efficiency of its operations. I have referred to some of the evidence on this topic already. Several witnesses observed that it was common for there to be a greater need for recruitment services during the “ramp up” or commencement phase in a new contract, because a higher volume of new employees must be recruited within a short timeframe. Recruitment activity reduces significantly once the “ramp up” is complete. This circumstance pertained in relation to the Santos CMS Contract. Mr Rynja deposed to initiatives entitled “Project Quantum” and “Project Orange” which Transfield had undertaken in 2012 which resulted in changes in its recruiting system. He said that these had reduced the administrative requirements of recruiters.
Mr Rynja also deposed that in mid‑2013, Transfield was “focusing sharply on restructuring its operations in order to minimise costs” and that because of “diminished workload for recruiters across the business ... we were struggling to keep recruiters at capacity”. Other witnesses deposed to the same matters. Mr Vigus deposed that in the financial year ending 2013, Transfield made approximately 350 employees redundant and that other recruiters had also been made redundant.
For the Court to accept applicant’s claim that the restructure and the consequent redundancies on the Santos CMS Contract was simply a contrivance to get rid of him, the Court would have to find that there was, in effect, a form of conspiracy between, at the least, Mr Rynja and Mr Hall. At one stage the applicant’s counsel asserted that that was his claim. That is a serious allegation. It had not been pleaded and it is not, in any event, supported by the evidence.
I am satisfied that the restructure was unrelated to the applicant’s complaints. I reject the submission that it was simply a device or contrivance so that Transfield could terminate the applicant’s employment. In particular, it was not a device or contrivance by which Transfield could terminate the applicant’s employment because he had made the First Complaint. It was instead a restructuring for the reasons to which the Transfield witnesses deposed, namely, the obtaining of savings and efficiencies.
Mr Hall may have well appreciated that termination of the applicant’s employment in consequence of the restructure would remove an employee whom he considered to be an irritant, but that appreciation does not indicate that the applicant’s First Complaint was an operative factor in Mr Hall joining in the recommendation for the restructure and the redundancy of the applicant.
Mr Rynja and the applicant were on friendly terms, as they regularly had lunch together on Mr Rynja’s trips to Adelaide. It is highly improbable that Mr Rynja would have been motivated to contrive a redundancy just to get rid of the applicant.
The selection of the applicant for redundancy
Although not expressly pleaded, some of the applicant’s submissions, and some of the evidence he adduced in cross‑examination, were to the effect that, even if there was a genuine restructure, someone else should have been selected for retrenchment. The applicant suggested, for example, that he should have been transferred to the National Recruitment Team and that a member or members of that team made redundant. He also submitted that instead of the contract workers being kept on to the end of August, he should have been the one kept on so as to enhance his prospects of redeployment if a position became available later.
Transfield adduced relatively little evidence on this topic. This may well be because the issue had not been pleaded.
The evidence suggests that the identification of the applicant as a person to be made redundant was part and parcel of the restructure proposal. However, Mr Vigus recognised that it may be an issue for the applicant if his employment was terminated but the contract workers kept on. He referred expressly to this in his email of 5 July 2013. It is not altogether clear whether Mr Rynja and Mr Hall were aware of this concern of Mr Vigus as the email in which he mentioned it was not copied to them. It seems that they may well have taken the view that as the applicant was performing the recruitment of white collar employees for whom there was relatively little need, he rather than the contract workers should be the one retrenched. Other evidence indicated that the savings from the retrenchment of the applicant would be greater (he was on a higher salary) if he was the one retrenched, and it was contemplated that the employment of the contract workers would conclude at the end of August 2013 in any event.
As the selection of the applicant for redundancy was not part of his pleaded case, it would not be appropriate to find that Transfield had failed to discharge the s 361 onus on this basis.
Locating an alternative position
The applicant contended that Transfield had taken adverse action of a relevant kind by failing to take adequate steps to locate alternative employment for him. He contended that this omission had injured him in his employment and/or altered his position to his prejudice. The applicant alleged in this respect that Transfield had failed to comply with its own Redundancy and Resignation Procedure (Redundancy Procedure) and its own Human Resources Management Plan (the HRM Plan). Clause 6.3 of the Redundancy Procedure provides:
Following approval to effect redundancy measures, a review of suitable alternative employment opportunities for affected employees must be undertaken by management, including Company or Joint Venture redeployment or transfers. Where no suitable alternative employment is identified, the employee may have [an] entitlement to Redundancy/Severance Pay.
(Emphasis added)
The applicant attached to his affidavit a number of advertisements by Transfield in the latter part of 2013 for positions which he said he had the capacity to fill. This evidenced, he submitted, Transfield’s failure to consider him for alternative positions.
The evidence indicates that Mr Rynja was the relevant decision maker with respect to consideration of alternative positions.
Mr Rynja described the usual process by which Transfield reviews suitable alternative employment opportunities. Generally, a recruiter will send an email to the rest of the National Recruitment Team identifying the candidate by their current area or project and outlining their skills, qualifications and experience. The other recruiters then consider whether that person is suitable for roles which they have available.
Mr Rynja said however, that this procedure is not followed when the role being made redundant is a recruitment role. That is to preserve confidentiality. The circulation of an email of the usual type would alert recruiters that one of their number is likely to be made redundant with the effect that the affected employee would probably then become aware of his or her fate indirectly. Mr Rynja said that, accordingly, the search for alternative employment opportunities is carried out by one person at a senior level. In the applicant’s case he was that person. The applicant’s submission was that this evidence was a fabrication by Mr Rynja, to cover the fact that the usual procedure had not been followed in his case.
Mr Rynja said that he engaged in the following process:
(a)He reviewed the National Recruitment Report of open roles with a view to identifying any suitable opportunities;
(b)He discussed with a National Recruitment Manager the possibility of transferring the applicant into the National Recruitment Team;
(c)He considered whether it may be possible to transfer the applicant to Queensland to work on the QGC CSP Contract;
(d)He spoke to an ex‑colleague working with Conocco Phillips and enquired whether opportunities were available in their recruitment team.
Mr Rynja deposed that this was the same process which he had applied in the case of two recruiters in Western Australia who had been made redundant in July 2013.
I accept Mr Rynja’s evidence about these matters. I note again his friendly relationship with the applicant. It is improbable that Mr Rynja would have been seeking to harm the applicant and much more probable that he would have been concerned to do what he could in the circumstances.
I also accept Mr Rynja’s evidence about the advertised positions to which the applicant referred. Mr Rynja said that none of those roles had been available prior to the applicant’s termination on 9 August 2013 and had not even been “in the pipeline” at that time.
Accordingly, I am satisfied that Transfield has discharged the s 361 onus in respect of this form of alleged adverse action.
Termination with immediate effect
The applicant pleaded that Transfield had taken adverse action against him of a relevant kind by terminating his employment with immediate effect rather than placing him on “gardening leave” until an alternative position could be located. More particularly, the applicant submitted that he should have been allowed to work out his period of notice.
Mr Hall and Mr Handy were the decision‑makers on this aspect of the matter.
The applicant’s claim that the failure to allow him to work out the period of notice, or to take “gardening leave” (by which I understood him to mean that he would continue as an employee but not be required to attend at work) was a basis for his assertion that he had been treated differently from others. He referred to another employee of the respondent, a Mr Stiplovsek, who had been placed on “gardening leave” until such time as another role had been located for him. He also referred to the two contract employees in his team. He said that these two contractors had been allowed, after having been given their notice, to work until the end of August. As part of his evidence on these matters, the applicant said that he had been “denied a farewell lunch and/or presentation, or opportunity to farewell work colleagues”. He attributed this claimed differential treatment to his having made the three complaints.
Mr Handy gave evidence of his discussions with Mr Vigus and of their decision that the applicant be terminated with immediate effect. He said that they had been concerned that any negative reaction from the applicant to his redundancy would impact on persons being recruited and on the transfer of the recruitment work to the National Recruitment Team. Mr Vigus did not give evidence of this conversation or of considering the issue in the case of the applicant. He said, however, that sometimes employees were asked to work out notice periods and sometimes not, but that employees were often paid in lieu if they were considered a risk to the business by continuing.
Mr Handy also deposed that gardening leave is not an option offered to employees whose roles are made redundant. He was aware of only one employee who had been placed on gardening leave, namely, Mr Stiplovsek. That had been allowed because Mr Stiplovsek had particular skills and experience which Transfield knew they would require for a future position and wished to retain him for that position rather than running the risk that he would cease to be available. Mr Handy said that this was the exception rather than the norm.
However, on Monday, 29 July 2013, Mr Handy had sent an email to Mr Hall regarding the manner in which the termination of the applicant’s employment would be effected. At that time it was contemplated that the termination would take place on the Friday of that week, namely, 2 August 2013. In the email Mr Handy said:
... I would recommend we make the decision to have him not work his notice period. At the meeting Friday we can communicate that we will use his notice period to complete further investigations regarding deployment within the greater TS organisation however we will not have him work during that period.
As can be seen, it is implicit in this email that Mr Handy contemplated that that the applicant be given notice but not be required to attend work during the notice period. On one view, this could be regarded as inconsistent with Mr Handy’s evidence about the general practice.
However, other Transfield witnesses confirmed that keeping employees on to the end of the notice period, but not requiring them to attend at work, was not part Transfield’s general practice.
On my assessment, Transfield’s practice with respect to “gardening” leave may have been more liberal than the evidence of Mr Handy suggested. However, the grant of gardening leave was still the exception rather than the rule. Mr Kerswell said, and I accept, that employees were rarely put on gardening leave. He also said that around 85% of the employees whose employment was terminated for redundancy during 2012 and 2013 were given pay in lieu of notice, rather than being terminated at the end of the period of notice.
As already indicated, I considered that Mr Handy gave his evidence quite fairly, commonly making concessions against interest. I accept his evidence about the circumstances in which Mr Stiplovsek was placed on “gardening” leave. The position of the two contract workers was obviously different from that of the applicant. I consider it pertinent that the applicant did not point to other examples of persons being placed on “gardening” leave.
Mr Hall says that he was the one who decided that the applicant should be given payment in lieu of notice. In his affidavit, he said that was for two reasons: first, he thought it likely that the applicant would feel aggrieved at being terminated and may in that circumstance misuse confidential information to which he had access, and, secondly, because there was not a lot of work to be transferred from the applicant to the National Recruitment Team.
In his oral evidence, Mr Hall also said that the applicant had been terminated with immediate effect because there were no options for redeployment known at the time. He had relied on information from Mr Rynja in that respect.
I accept the evidence of Mr Hall about these matters. His assessment of the applicant’s likely reaction has been borne out by subsequent events.
It may well be the case that Transfield decided that it would prefer to terminate its relationship with the applicant immediately rather than have him on some form of “gardening” leave. Furthermore, it may well be the case on the evidence that Mr Hall in particular had come to regard the applicant as an unpleasant employee, especially given the applicant’s complaint for spiteful reasons against him. However, I accept the evidence of Mr Hall and Mr Handy that the decision to terminate his employment with immediate effect was not based at all on the fact that the applicant had exercised his right to make complaints.
Non‑compliance with redundancy procedures
The applicant’s last claim with respect of the termination of his employment was that Transfield had not complied with its own redundancy procedures and that this was because he had made complaints. I will address the redundancy procedures in more detail shortly.
This aspect of the adverse actions case was hardly pressed. I am satisfied in any event that Transfield has discharged its onus under s 361 with respect to the redundancy policies.
The EP Coordinator position
The applicant claimed that Transfield had taken adverse action against him after the termination of his employment by refusing to employ him in an EP Coordinator’s position, or even to respond to his offer in respect of that position.
The applicant relied on the evidence concerning the EP Coordinator’s position in two ways. First, he contended that Transfield’s refusal to appoint him to the position undermined its claim that it had genuinely considered whether there were suitable alternative positions for him and therefore reinforced his claim in respect of the First Complaint. Secondly, he submitted that it amounted to a freestanding contravention of s 340(1) of the FW Act.
The background to this claim is as follows. The applicant filed an application under s 365 of the FW Act in the Fair Work Commission on 19 August 2013. This was an exercise of a workplace right: FW Act s 341(1)(b) and (c). The FWC conducted a conference to deal with the dispute on 4 September 2013. It was not able to obtain a resolution by agreement. Accordingly, the FWC issued a certificate pursuant to s 369 of the Act that same day certifying that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.
The applicant commenced the current proceedings on 17 September 2013.
On 12 September 2013, the applicant’s solicitors, Norman Waterhouse Lawyers (NWL) sent a letter to Mr Parkinson, Transfield’s Group General Manager: Labour Relations Strategy and Development. In the letter, NWL said:
Our client has proposed an alternative position which is available within your organisation and seeks to again enquire regarding that position. The position specifically is the EP Coordinator role which is one currently available at Moomba. Our client has the skills for this position, and a background in understanding excavation work, along with exceptional organisational skills. Our client seeks to be appointed to this position at its banded remuneration level.
The letter went on to make representations about the applicant’s suitability for the job and ability to undertake on the job training and concluded with the assertion that, should the applicant’s request be refused, it would be taken as further evidence that his employment had been terminated because of the complaints which he had made, rather than because there were no suitable alternative positions available. Mr Parkinson responded on the morning of 13 September 2013, telling NWL that he was then in North America but that a member of his team would respond in due course.
It was common ground that Transfield did not otherwise respond to NWL’s letter.
Transfield submitted that the applicant had not established that there was a vacant EP Coordinator’s position in September 2013 to which the applicant could have been appointed and contended that s 342(1) Item 1(a) was engaged only if a position or vacancy existed at the time of the refusal: Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 at 121; Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189, (2000) 101 IR 435 at [43]‑[44].
It is true that the evidence does not establish expressly that there was a vacant EP Coordinator’s position, but I do not regard this as decisive. The NWL letter of 12 September 2013 asserted that an EP Coordinator’s role was “currently available” at Moomba. Transfield did not deny that assertion and dealt with the NWL letter at the time, and in the hearing, on the basis that there was a vacancy. It is natural to expect that Transfield would have denied that there was any vacancy, if that was the case. Accordingly, I consider it appropriate to proceed on the same basis as did Transfield in September 2013 and during the course of the evidence, namely, on the basis that there was a position to which the applicant could have been appointed if he had the requisite qualifications and experience.
It seems that there may have been some discussion about the EP Coordinator’s position at, or in connection with, the conference in the FWC on 4 September, as Mr Handy had been asked to, and did, provide the relevant position description to Mr Vigus that day.
The applicant’s first submission was that Transfield had not discharged the s 361 onus because it had not adduced evidence from Mr Parkinson as to the reasons for not offering him the EP Coordinator’s position. This submission assumed that Mr Parkinson was in fact the relevant decision‑maker.
The applicant made that assumption because it had been Mr Parkinson who, on 26 August 2013, had provided Transfield’s formal response to the application in the FWC. Further, Transfield’s discovered documents indicated that, on 12 September 2013, Mr Hall had provided Mr Vigus with comments on NWL’s letter to which Mr Parkinson had responded, saying “Thanks Lou – very convincing, cheers Peter”. Accordingly, there was only a slender foundation for the applicant’s assumption.
When it was pointed out to the applicant’s counsel that the material was just as consistent with Mr Parkinson having acted in a representative, rather than decision‑making, role, counsel modified the submission to one that, in order for Transfield to discharge the s 361 onus, it should identify the relevant decision‑maker and lead probative evidence from that person. I accept that that is so in the present case, although whether it be so in all cases need not be determined.
However, the applicant’s submission that Transfield had not in fact identified the decision‑maker and had not discharged the onus under s 361 cannot be accepted. Although Mr Vigus did not say so expressly, his affidavit indicates sufficiently that he was the relevant decision‑maker. Mr Vigus denied that he had taken into account the applicant’s complaints and the applicant’s application in the FWC when deciding not to respond to the NWL letter or to offer the applicant the role of EP Coordinator. Mr Vigus said that he had made enquiries as to the applicant’s suitability for the role of EP Coordinator and had formed the view, based on the information available to him, that the applicant was not appropriate for the role.
The documentary evidence supports Mr Vigus’ account. He was provided with a copy of the NWL letter at 9.06am on 12 September. At 9.33am, he provided a copy to Mr Hall by email. Mr Hall provided a written response to Mr Vigus at 7.31pm that same day. In that response Mr Hall said:
The EP Coordinator position is a highly specialised role which requires specific knowledge of the flowline business and the Santos Cooper Basin operation. I have attached the PD which clearly specifies the requirements. The current employees who hold these positions are [four named persons]. I have attached three of the CV’s which demonstrate the experience required. I cannot find a copy of Robert’s but assure that you that he is on the same level. I will forward when I locate it.
Mr Vigus also deposed to discussing the applicant’s suitability for the EP Coordinator position with Mr Hall on 13 September. Mr Hall confirmed then his view that the applicant did not have “the skill set or experience” to perform the EP Coordinator’s role.
On the basis of the position description and Mr Hall’s statements, Mr Vigus concluded that the applicant was not suitable for the role of EP Coordinator.
Transfield had not responded to NWL by the time that they were served on 18 September 2013 with the proceedings commenced in this Court. Mr Vigus said that as proceedings had been commenced no further response was provided to NWL.
As already indicated, I regarded Mr Vigus as a reliable witness. His account of his involvement in the decision in respect of the applicant’s request to be considered for the EP Coordinator’s position was not, with one presently immaterial exception, challenged. I accept that account.
I add that Mr Hall also said that he had not taken into account the applicant’s complaints or his application to the FWC, when informing Mr Vigus about the applicant’s suitability for the EP Coordinator’s position. I accept that evidence, although I also accept the applicant’s criticism of Mr Hall’s summary of the experience of one of the existing EP Coordinators.
The applicant challenged Mr Hall’s assessment that he did not have the training or experience to be an EP Coordinator. He acknowledged however, that each of the current EP Coordinators had operational experience and that he did not have any.
Accordingly, I am satisfied that Transfield has satisfied the s 361 onus with respect to the applicant’s claim based on the EP Coordinator’s position. The applicant’s reliance on Transfield’s response (or absence of response) to this request does not succeed, whether as a free standing claim of adverse action, or as part of his claim in respect of the termination of his employment on 9 August 2013.
Had it been necessary to do so, I would have rejected Transfield’s submission that the NWL letter of 12 September 2013 should not be regarded as an application for employment.
The breach of contract claim
Like the applicant’s adverse action claim, his claim that Transfield had breached his employment contract was modified and confined significantly during the course of the opening of his case. The claim ultimately pursued was that the applicant’s contract of employment included a term that Transfield would comply with its Redundancy Procedure and the HRM Plan in the Santos CMS Contract No. 936864. The applicant claimed that Transfield had breached the employment contract by:
(a)failing to undertake a review of suitable alternative employment opportunities, including company or joint venture redeployment or transfer;
(b)failing to consider potential relocation of the applicant to other Transfield sites;
(c)failing to apply selection criteria based on an assessment of classification, skills, competence, behaviour and experience.
The applicant alleges he suffered loss by reason of these breaches, although neither his particulars nor his submissions identified any discrete loss said to result from these particular breaches.
Transfield denied that it was a term of the contract of employment that it would comply with the Redundancy Procedure or the HRM Plan and, in the alternative, denied that it was in breach of any requirements in those documents.
The applicant indicated that the breach of contract claim was made in the alternative to the adverse action claim, with the effect that it would be necessary for the Court to consider it only in the event that the adverse action claim failed.
The applicant’s claims with respect to the terms of his contract of employment were not well pleaded. The pleading was that the terms and conditions were partly in writing and partly implied. For the allegation that they were in writing, the applicant relied upon his acceptance of the terms of Transfield’s offer contained in a letter dated 5 April 2012. I will refer again to that shortly. For the allegation that the terms and conditions were implied, the applicant asserted simply that the requirement that Transfield comply with the Redundancy Procedure and the HRM Plan was a matter implied by fact. This plea was not supported by any particulars. Nor was it elaborated upon in the applicant’s opening or closing submissions.
In the opening, counsel for the applicant did indicate that the claim for breach of contract was confined to a claim that Transfield had breached cl 6.3 of the Redundancy Policy by not conducting a review of potential suitable alternative positions; had breached cl 7.4 of the HRM Plan by not keeping the applicant on during his notice period so as to give him the opportunity to be considered for alternative positions which might become available during that period; and had breached cl 7.4 by contriving a circumstance of redundancy in order to terminate the applicant’s employment.
The letter of offer of employment from Transfield dated 5 April 2012 adopted in the main the style of a heading at the left hand side of the page and a description relating to that heading on the right hand side. In relation to compliance with the Transfield policies and procedures, the letter provided:
Company Policies and Procedures You are required to comply with all Company Policies and Procedures.
The Company’s Policies and Procedures include, but are not limited to, health and safety, environment and human resources policies and procedures, and any other policies and procedures the Company may implement and/or modify from time to time.
You will be required to acknowledge your understanding and agreement to abide by these policies at the time of induction. Transfield Services reserves the right to review and revise these policies and procedures from time to time.
Code of Business Conduct & House Rules Copies of Transfield Services’ Code of Business Conduct and House Rules accompany this offer and upon your acceptance of this offer form part of your contract of employment. By signing this offer, you acknowledge that you have received and read these documents and agree to abide by their contents. Equality and Diversity in the Workplace A copy of the Equality and Diversity in the Workplace Policy accompanies this offer and upon your acceptance of this offer forms a part of your contract of employment. By signing this offer, you acknowledge that you have received this policy and agree to abide by its contents.
...
Health, Safety and Environment Transfield Services has established health, safety and environment Policies and standards that are designed to provide all employees and visitors to our workplaces with a safe and healthy working environment, consistent with our obligations at law. Our Mandatory Safety Rules set out the behaviours required of our employees and contractors when working in proximity to specific hazards. ...
You will therefore be required to abide by all site rules and safety standards, and any revisions or additions that may be made from time to time whilst in our employment.
The letter of employment required the applicant to sign it and the attachments as confirmation of his acceptance of its terms. The tendered copy of the contract of employment was not countersigned by the applicant, but it was not suggested that anything turned on that.
In relation to the claimed incorporation of the Redundancy Policy and HRM Plan into the applicant’s contract of employment, both parties referred to Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 and to Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62. The question of whether these documents were incorporated into the applicant’s contract of employment is to be determined objectively. If a reasonable person in the position of the applicant would have concluded that Transfield intended to be bound contractually by the Redundancy Policy and the HRM Plan, then Transfield will be regarded as having been so bound: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at [40]; Nikolich at [23].
In the present case, it is not necessary in my opinion to give detailed consideration to whether the Redundancy Procedure did form part of the applicant’s contract of employment as I consider that the claim must fail in any event.
I indicate, however, that I consider that the applicant’s contention that the terms of the Redundancy Procedure did form part of his contract of employment to be correct. The document is described as a “procedure” and states its purpose as follows:
To ensure that in circumstances where the employment relationship ends, that the parties to the employment contract discharge their lawful obligations in accordance with the termination/redundancy or resignation provisions as prescribed by the employee’s contract of employment, industrial instrument and/or statutory legislation.
This procedure also seeks to ensure that upon termination of employment, all employees are treated in a procedurally fair and reasonable manner.
Note: Individual Common Law Contracts, Industrial/Occupational Awards, Enterprise Agreements and other relevant legislation may have authority over the provisions set out in the procedure – check with Human Resources.
A number of the provisions in the policy are expressed in mandatory terms. Further, the procedure elaborates the way by which Transfield, or employees, as the case may be, should effect terminations of employment.
Clause 6.3 of the Redundancy Policy provides (relevantly):
Redundancy occurs where the Company has determined that a role is no longer required to be performed by any employee. Such circumstances may necessitate that the employment of the employee will be retrenched as a consequence of the redundancy.
Where redundancy is being considered, it is necessary that the Manager discuss the proposal with HR before gaining approval from the Authorised Manager as per the Authorities Matrix.
Following approval to effect redundancy measures, a review of suitable alternative employment opportunities for affected employees must be undertaken by management, including Company or Joint Venture redeployment or transfers. Where no suitable alternative employment is identified, the employee may have [an] entitlement to Redundancy/Severance Pay.
(Emphasis added)
The balance of cl 6.3 concerned the entitlement of employees whose employment is governed by industrial awards, and notice requirements to Centrelink and to unions.
The manner of expression of the document suggests that it is obligatory in nature, rather than aspirational. Furthermore, the document answers the description of “human resources policies and procedures” to which the applicant’s letter of employment referred. However, as I have said, it is not necessary to consider these matters further.
The applicant alleged non‑compliance by Transfield with the requirement that it undertake “a review of suitable alternative employment opportunities”. For the reasons given earlier, this contention of the applicant is not made out as a matter of fact. Mr Rynja did conduct such a review. I accept his evidence about that. I note again that Mr Rynja was favourably disposed towards the applicant and had a good working relationship with him. In some respects he was a confidant of the applicant. There is no reason to suppose that Mr Rynja carried out his review in a narrow or perfunctory manner.
Accordingly, even if the Redundancy Procedure did form part of the applicant’s contract of employment, his claim of breach of contract arising from alleged non‑compliance with the requirements of cl 6.3 fails.
The HRM Plan stands differently.
There is first a question of identifying the HRM Plan which was in force at relevant times.
The applicant annexed to his affidavit two different HRM Plans: Annexure AT‑2 and Annexure AT‑33. In the body of his affidavit, the applicant described AT‑2 as a true copy of “the Santos contract” which he had earlier had defined as the “Santos CMS Contract 936864”. He described AT‑33 in his affidavit as one of “a number of policies and procedures which governed the employment relationship”. However, in his oral evidence in chief, the applicant said that Annexure AT‑2 was the “correct version” of the HRM Plan and that AT‑33 could be ignored. He sought to explain his annexure of two HRM Plans to his affidavit by saying, initially, that he had presumed that they were the same. Later, however, the applicant said that there had been confusion of his part because the two plans are not the same.
Transfield contended that Annexure AT‑33 was the operative HRM Plan. Mr Vigus deposed that AT‑2 had been prepared only as part of a re‑bid process. He said that Annexure AT‑33 was the document recorded in Transfield’s document quality control system as the relevant HRM Plan.
This disagreement as to the particular HRM Plan which was in force at relevant times should have been capable of ready resolution by agreement between the parties. I encouraged them to do so. However, counsel later informed me that they had been unable to reach that agreement.
Hence, it is necessary to make a finding as to which HRM Plan was in force. The position is quite unsatisfactory as the evidence upon which the Court is asked to make the finding is incomplete. The applicant’s claim that Annexure AT‑2 is a true copy of Transfield’s contract with Santos is plainly incorrect. Annexure AT‑2 is what its title suggests, namely, a Human Resources Management Plan. It does not even purport to be a contract and, by its terms, indicates that it is an HRM Plan in relation to a contract, rather than a contract itself. In its Introduction, Annexure AT‑2 says that it sets out “the strategies and framework for the management of Human Resources (HR) matters for the Construction and Maintenance Services (CMS) Contract”. It goes onto say that it “connects the CMS principles, values and Transfield Services business and operational requirements to the way people are managed”. Accordingly, Annexure AT‑2 may form part of Transfield’s contract with Santos but it is not the contract itself. The same points may be made with respect to Annexure AT‑33.
The parties did not tender a copy of the Transfield‑Santos contract, or even a redacted version of it.
Although I accept Mr Vigus’ evidence that the Transfield document quality control system may record that Annexure AT‑33 is the relevant HRM Plan, I am not prepared to find that that is in fact the case. It indicates that it was issued in September 2011, whereas Annexure AT‑2 indicates that it was issued on 25 October 2011. This makes it difficult to regard Annexure AT‑33 as a document issued subsequently to Annexure AT‑2 as part of a re‑bid process. Furthermore, Annexure AT‑33 indicates, on its face, that it was the first version of that Plan, whereas Annexure AT‑2 indicates, on its face, that it was revision number seven. This too tends to suggest that Annexure AT‑2 is more likely to be the document finally agreed upon by Santos and Transfield.
Annexure AT‑33 applied to employees whose employment would be covered by an enterprise agreement and to employees of subcontractors involved in the Santos CMS Contract engaged by Transfield. Annexure AT‑2, on the other hand, applied to all Transfield employees engaged in the Santos CMS Contract as well as to subcontractors. Given the subject matter of the HRM Plans, it is not readily apparent why Santos would have wished that Transfield apply the Policies and Procedures which they contained to employees governed by enterprise agreements but not to “staff” employees. Accordingly, I conclude that it is Annexure AT‑2 which is the relevant HRM Plan.
However, there remains a question as to whether it had any application to applicant’s employment. He was not an employee supplied by Transfield to Santos or performing services on its behalf. His role, as already indicated, was the recruitment of employees to carry out the work which Transfield had contracted with Santos to provide. Put slightly differently, he was one of the employees engaged in the administering of the contract rather than in the provision of services to Santos under the CMS Contract.
The applicant relied on the statement in cl 3.2 under the heading “Scope” in Annexure AT‑2:
The HRMP applies to all Transfield Services employees engaged in the CMS Contract.
The HRMP also applies to Transfield Services Subcontractors in terms of culture, values, standards and behavioural expectations, to ensure their approach to HR management, including employee relations, is consistent with that of Transfield Services and the CMS Contract.
He emphasised the statement that the Plan applied to all employees engaged in the CMS Contract and contended that he was such a person.
To my mind, this clause is ambiguous as it is unclear whether it extends the scope of the HRM Plan to all employees of Transfield who may carry out some work in connection with the Santos CMS Contract, or applies only to those providing the services which Transfield had contracted with Santos to provide. It is readily understandable that Santos would be concerned about the latter and, accordingly, would have made proper human resource management principles with respect to such employees a contractual term. It is much less obvious that Santos would have the same concern with respect to those engaged by Transfield who would not be carrying out work on its behalf.
The point is made more obviously with respect to Mr Hall. If the applicant’s contention be correct, then the HRM Plan also applied to Transfield’s employment of him in the position as Project Director. It does not seem probable that Santos sought agreement from Transfield with respect to employment in such a senior position.
Accordingly, I doubt that the HRM Plan applied, on its own terms, to the applicant’s employment.
However, even if that be wrong, there remains an issue of how a term of the contract between Transfield and Santos became a term of the applicant’s contract of employment. The applicant sought to overcome this difficulty by pointing to the passages in his letter of employment set out earlier in these reasons by which Transfield’s policies were made part of his contract of employment.
In my opinion, those passages do not assist the applicant. First, they make no reference to an HRM Plan. Secondly, the Policies and Procedures to which the letter of employment refers appear to be Transfield’s own Policies and Procedures, and not those which it has agreed with a third party. Thirdly, the Policies and Procedures to which the letter of employment refers appear, at least by their description, to cover much of the same subject matter as does the HRM Plan. It seems improbable that Transfield would have included references to these Policies and Procedures in the letter of employment if it was intended that the relevant content of its obligations with respect to those matters was to be found in the HRM Plan. In this respect, it is also pertinent that the letter of employment contemplated that Transfield’s Code of Business Conduct, its House Rules and its Equality and Diversity in the Workplace policy were attached to the letter of employment. There is no suggestion that the HRM Plan was similarly attached or brought to the applicant’s attention as part of the letter of employment.
In these circumstances, I am not satisfied that the HRM Plan found in Annexure AT‑2 was incorporated into the applicant’s contract of employment.
The applicant’s claim that the HRM Plan was incorporated by implication can be dealt with more shortly. As already noted, the applicant did not plead any of the facts, matters or circumstances on which it was said the alleged implication was based.
In those cases (such as the present) in which the parties have made a formal written contract that appears complete on its face, the Courts do not readily imply additional terms. The conditions which must be satisfied for such an implication are those stated in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422. The term must be:
(a)Reasonable and equitable;
(b)Necessary to give business efficacy to the contract;
(c)So obvious that “it goes without saying”;
(d)Capable of clear expression;
(e)Not contradict any express term of the contract.
In the present case, the second and third of these conditions, at the very least, are not satisfied. Counsel for the applicant did not make any submission to the contrary.
This means that I am not satisfied that the HRM Plan contained in Annexure A‑2 was incorporated into the applicant’s contract of employment, whether expressly or by implication. That means in turn that the applicant’s claim of breach of contract must fail.
This conclusion makes it unnecessary to consider Transfield’s submission that, even if the HRM Plan was incorporated into the applicant’s contract of employment, cl 7.4 on which the applicant relied, did not have contractual effect, being no more than aspirational in nature: see Goldman Sachs at [37]‑[42].
It is also unnecessary to consider whether, on the assumption that the HRM Plan did form part of the applicant’s contract of employment, it had been breached. It is sufficient to say that in the light of my earlier findings, the applicant faced difficulties in that respect.
Summary
For the reasons given above, I consider that the applicant’s claims wholly fail. It is accordingly unnecessary to consider the evidence and submissions concerning the forms of relief claimed by the applicant.
It is also unnecessary to consider Transfield’s pleaded defence that s 54(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) constituted a bar to the applicant’s claims. I observe that Transfield did not develop any submission in respect of that plea.
The applicant’s claims are dismissed.
I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 21 July 2015
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