Walker v Cape Australia Onshore Pty Ltd
[2019] FCCA 2397
•29 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALKER v CAPE AUSTRALIA ONSHORE PTY LTD | [2019] FCCA 2397 |
| Catchwords: INDUSTRIAL LAW – Alleged dismissal in contravention of a general protection – alleged adverse action – various complaints or inquiries in relation to employment – physical disability – dismissal from employment. |
| Legislation: Disability Discrimination Act 1992 (Cth), s.6 Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 360, 361, 550 Federal Circuit Court of Australia Act 1999 (Cth), s.75 Liquor Control Act 1988 (WA) |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 230 IR 452; (2013) 273 FLR 190; (2013) 65 AILR 101-866 The Shorter Oxford English Dictionary on Historical Principles, 3rd Edn (Oxford: Clarendon Press, 1973) |
| Applicant: | PETER WALKER |
| Respondent: | CAPE AUSTRALIA ONSHORE PTY LTD ACN 009 120 021 |
| File Number: | PEG 251 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 6-7 July 2015 |
| Date of Last Submission: | 7 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr DV Blades |
| Solicitors for the Applicant: | Ilberys |
| Counsel for the Respondent: | Mr J Snaden |
| Solicitors for the Respondent: | Arnold Bloch Leibler |
ORDERS
That the application, as amended on 12 September 2014, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 251 of 2014
| PETER WALKER |
Applicant
And
| CAPE AUSTRALIA ONSHORE PTY LTD ACN 009 120 021 |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant, Peter Walker (“Mr Walker”), alleges various contraventions of the general protection provisions under the Fair Work Act 2009 (Cth) (“FW Act”), by his former employer, the respondent, Cape Australia Onshore Pty Ltd ACN 009 120 021 (“Cape Australia”). The Court made orders by consent on 17 July 2015 giving leave to Mr Walker to discontinue his Amended and Consolidated Application against Bechtel (Western Australia) Pty Ltd (“Bechtel WA”), with no order as to costs. A Notice of Discontinuance in relation to Bechtel WA was filed by Mr Walker on 17 July 2015. Although Mr Walker discontinued the proceedings against Bechtel WA 10 days after the hearing, the hearing proceeded on the basis that leave had been granted to Mr Walker to discontinue against Bechtel WA with no order as to costs: Transcript, p.2.
The alleged adverse action is in relation to:
a)various alleged complaints or inquiries made by Mr Walker during the course of his employment with Cape Australia; and
b)the dismissal of Mr Walker from his employment with Cape Australia on 26 June 2014.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including the pleadings, evidence and submissions referred to at [4]-[5] hereunder. In the circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Pleadings, evidence and submissions
The Court has had regard to the pleadings, and specifically Mr Walker’s Amended and Consolidated Application and his Amended and Consolidated Statement of Claim, and to Cape Australia’s Amended Defence.
The Court has had regard to the evidence as a whole, including:
a)the affidavits filed for Mr Walker, namely:
i)Mr Walker’s Affidavit sworn 2 April 2015 (“Walker April 2015 Affidavit”); and
ii)Mr Walker’s Affidavit sworn 25 June 2015 (“Walker June 2015 Affidavit”);
b)the affidavits filed on behalf of Cape Australia, namely:
i)the affidavit of Jason Gary King (“Mr King”) affirmed 26 May 2015 (“King Affidavit”);
ii)the affidavit of Catherine Elizabeth Thomson (“Ms Thomson”) sworn 26 May 2015 (“Thomson Affidavit”); and
iii)the affidavit of Geoffrey Ross Weaver (“Mr Weaver”) sworn 26 May 2015 (“Weaver Affidavit”);
c)the transcript of the hearing (“Transcript”), which includes the oral evidence and submissions of the parties in the proceedings, which the Court has read, and re-read prior to finalising these Reasons for Judgment;
d)the Exhibits tendered during the proceedings; and
e)the written outlines of submissions filed by Mr Walker and Cape Australia.
Claims made by Mr Walker
In this matter it is alleged that there was adverse action taken by Cape Australia against Mr Walker in relation to his employment, and the first question which the Court must resolve is whether there was such adverse action. The second question is, if there was adverse action, was it taken against Mr Walker because of his exercise of a workplace right or because of his disability.
The Amended Statement of Claim alleges four separate incidents of adverse action, namely:
a)the dismissal of Mr Walker from his employment on 26 June 2014;
b)an allegation that Cape Australia supported the policies of Bechtel WA, or put differently positions adopted by Bechtel WA with respect to various issues;
c)that Cape Australia considered Mr Walker to be unfit for mobilisation to the Wheatstone Project Site; and
d)that Cape Australia insisted that Mr Walker provide additional information to Bechtel WA or Bechtel WA’s medical provider, Aspen Medical.
There is no question that the dismissal of Mr Walker from employment was adverse action.
Factual background
It is necessary to set down some of the basic factual background in relation to this matter as to the persons and witnesses involved, the nature of the Wheatstone Project and Wheatstone Project Site and the terms of Mr Walker’s employment contract, and the relationship between Bechtel WA and Cape Australia, before setting out the relevant law and then dealing with the issues that arise.
Persons involved
It is convenient at the outset to set out the names and positions of the primary persons involved in the events the subject of these proceedings.
Mr Walker, who is the applicant, was appointed to the position of HR/IR Manager for the Wheatstone Project with Cape Australia commencing on 20 January 2014, working until his dismissal from employment with Cape Australia on 26 January 2014: Walker April 2015 Affidavit at [17] and [112]; Weaver Affidavit at [166]. Mr Walker had worked in human resources and industrial relations for approximately 15 years, including time as a project HR/IR Manager for Rio Tinto from 2010 to 2012, from where he resigned in order to commence full time law studies at Charles Darwin University: Walker Affidavit at [1]-[5].
Cape Australia is a corporate entity and part of Cape plc, a global corporate entity founded in 1893 and based in London which provides multi-disciplinary services including access systems, insulation, refractory linings, painting, coating, blasting, industrial cleaning, training and assessment for large industrial assets: Weaver Affidavit at [12]-[15]. On the Wheatstone Project Cape Australia provided services to Bechtel WA including scaffold erection, dismantling services, painting, fire proofing and insulation services: Weaver Affidavit at [19]; Walker April 2015 Affidavit at [19].
Bechtel WA is a contractor engaged by Chevron Australia Pty Ltd, one of the joint venturers on the Wheatstone Project (the others being the Kuwait Foreign Petroleum Exploration Company, Woodside Petroleum Limited, Kyushu Electric Power Company and PE Wheatstone Pty Ltd) in respect to the engineering, procurement, construction and commission of the Wheatstone Project: Weaver Affidavit at [17]-[18].
Mr King was employed by Cape Australia as a Project Manager for the Wheatstone Project in September 2013, and has more than 30 years’ experience in the construction, operations and installation industry, and has completed certificate level qualifications in project management and construction and occupational safety and health whilst working in Europe prior to October 2011, and as Project Manager for Wheatstone Project has responsibility for Cape Australia’s contract for services with Bechtel WA including responsibility for safety and quality, production, construction, human resources and industrial relations: King Affidavit at [3]-[13].
Ms Thomson was first employed by Cape Australia as a Recruiter in November 2011, and was Cape Australia’s Recruitment and Mobilisation Coordinator from August 2012 to March 2014 when she was appointed as Resourcing Manager: Thomson Affidavit at [5]-[7]. Ms Thomson has a background in employment and recruitment dating from 2008, and in 2012 received a TAFE level diploma in human resources management: Thomson Affidavit at [3]-[4] and [9].
Mr Weaver was employed by Cape Australia in various human resources positions, and at the relevant time was Cape Australia’s HR Director, and as such responsible for developing and managing a national industrial relations strategy, implementing major organisational changes and restructures, and recruiting members of the senior human resources management team, and managing Cape Australia’s human resources strategy, including recruitment, training and workers’ compensation claims: Weaver Affidavit at [4]-[5]. Mr Weaver had, at the time of the relevant events, approximately 28 years’ experience in human resources across industries including motor vehicle manufacturing, mining, petroleum and energy, and had a Master of Business Administration from Macquarie University obtained in 1995, and in 2014 qualified to become a graduate member of the Australian Institute of Company Directors: Weaver Affidavit at [3] and [6]-[11].
Kinetic Health were Cape Australia’s medical providers, and relevantly conducted pre-employment medical assessments for Cape Australia: Thomson Affidavit at [33] and [46]-[48]. Sometime prior to April 2014 Kinetic Health changed its name to Sonic HealthPlus: Walker April 2015 Affidavit at [33].
Aspen Medical were Bechtel WA’s medical providers, and undertook medical assessments for Bechtel WA, particularly for the purposes of determining a person’s fitness for access to sites upon which Bechtel WA were engaged: Thomson Affidavit at [41] and [46].
It is necessary for the Court to make some observations with respect to witnesses.
Mr Walker was not a particularly impressive witness. He had a tendency to be dogmatic, which was to his detriment. He was forced to concede that statements made by him in his affidavit, and therefore under oath, were either wrong or only partially correct: see, for example:
a)the concessions Mr Walker was forced to make under cross-examination in relation to:
i)the hiring of a Ms Chiplin to work in HR at Cape Australia: Transcript, p.43, lines 34-40 (and see also Ms Thompson’s evidence at Transcript, p.108-109);
ii)the budget allocation for Ms Chiplin’s position: Transcript, p.43, lines 42-45 and 44, lines 1-9;
iii)interview dates and times: Transcript, p.45, lines 45-47 and 46, lines 1-2; and
iv)whether he had compute access to book medical assessments: Transcript, p.53 lines 21-24;
b)his endeavours to distinguish between responsibility and accountability for undertaking certain tasks: Transcript, pp.33 lines 1-9 and 38 lines 16-20, seemingly in an endeavour to avoid responsibility for ensuring certain administrative tasks associated with personnel recruitment were performed, an endeavour which was rendered futile by the concession already made under cross-examination that he had that responsibility: Transcript, p.21, lines 20-22 and 37-39; and
c)his endeavours to deny responsibility for recruitment functions as part of his role: Transcript, pp.23-24, in circumstances where he had conceded that he was responsible for all facets of human resources management for the Wheatstone Project: see [b] above, and where he had emphasised his recruitment expertise in his application for his role, and which he endeavoured to then downplay under cross-examination as “almost generic words”: Transcript, pp.23 lines 1-14, 64 lines 16-17 and 70 lines 34-35.
Some measure of Mr Walker’s dogmatism can be seen in his insistence that the Wheatstone Project Site was not a remote site, and in his insistence that Bechtel WA, who had responsibility for the Wheatstone Project Site, did not need to quantify the risk of his needing medical attention whilst on the Wheatstone Project Site. It is, with respect, obvious that the Wheatstone Project Site is a remote site. Further, it is obvious that on a site of that scale that it would be negligent of a site manager not to understand the risks for the personnel who may be on site, and to understand what steps might need to be taken in the event of a particular individual in either an individual medical emergency or a larger on site emergency. Furthermore, employers and site managers need to be aware of employees’ or visitors’ (to a site) disabilities in order to make any necessary reasonable adjustments to facilitate the work required to be done by those employees or visitors: Disability Discrimination Act 1992 (Cth), s.6. It is not the disclosure of a disability which constitutes discrimination, it is what the person to whom that disclosure is made then does with that information which may or may not constitute discrimination, and Mr Walker does not seem to have appreciated that distinction, or the practical reality of the necessity for Bechtel WA as the party responsible for the Wheatstone Project Site to know what risk, if any, any disability that Mr Walker had might pose, and whether any steps needed to be taken in relation to that disability.
Mr Walker’s evidence also suffered by reason of his seeming endeavours to pass responsibility to the much more junior Ms Thomson for matters that were his responsibility: Transcript, p.40.
Overall, Mr Walker was not an impressive witness, and to the extent that there is any conflict between his evidence and that of Mr Weaver, Mr King and Ms Thomson, the Court has preferred the evidence of the other witnesses.
Mr Weaver and Mr King both appeared to the Court to be solid and reliable witnesses who gave their evidence truthfully to the best of their ability and recall. They were prepared to be forthright where necessary, but their evidence also exhibited that as time passed, they became increasingly circumspect in their dealings with Mr Walker due to his performance and conduct during his employment. In relation to Mr Weaver there was little, and little effective, challenge to his evidence in cross-examination. The Court has no reason to doubt the truthfulness of the evidence given by either Mr Weaver or Mr King.
Ms Thomson was an impressive witness: she had a good recall of the relevant detail of matters, and a good grasp of the detail of the relevant HR/IR systems and processes at Cape Australia. Her evidence demonstrated that she was far more au fait with those systems and processes than Mr Walker. The Court has generally accepted Ms Thomson’s evidence without reservation.
Overall, the Court has preferred the evidence of Mr Weaver, Mr King and Ms Thomson to that of Mr Walker, and particularly so where there is any conflict between the evidence of Mr Walker and the other three witnesses.
Wheatstone Project
The Wheatstone Project is an enterprise to construct a liquefied oil and gas project: Walker April 2015 affidavit at [8]; Weaver Affidavit at [16]. In relation to its work on the Wheatstone Project Cape Australia had offices in both the Perth metropolitan area at Canning Vale and Jandakot, and on site
The Wheatstone Project oil and gas field and processing facilities are located at Ashburton North (“Wheatstone Project Site”), approximately 12 kilometres from Onslow, and approximately 1400 kilometres north of Perth.
The nature of the Wheatstone Project Site and the neighbouring town of Onslow is described by Mr Weaver: Weaver Affidavit at [24]-[30], as follows:
24 The Wheatstone Project is in a remote location and is exceptionally large and complex. The Site is several kilometres wide in each direction and there are long distances between facilities, including the accommodation area, food area and construction zones. In my experience, the Site is enormous and complex and took time to become familiar with.
25 By way of example:
(a) the Wheatstone Project has its own air strip and a bus is used to transport personnel arriving by plane to the Site;
(b) the accommodation area is able to sleep approximately 6,000 personnel;
(c) the distance between the accommodation area to the area where main meals are served is approximately 1 kilometre;
(d) the Site contains numerous facilities for eating, mess halls, taverns, entertainment areas, gymnasiums and a large swimming pool;
(e) personnel are transported by bus between the construction zone, food area, accommodation area and other areas; and
(f) to drive from one side of the construction zone to another could take up to 15 minutes.
26 The Site is an operational construction zone and, as such, the locations of buildings, roads and access points regularly change. For example, during my tenure as HR Director for Cape, there were temporary gravel roads, makeshift paths, and numerous temporary aluminium demountable huts which were moved around as the requirements of the Site changed. Due to the nature of the work, the Wheatstone Project is not an established workplace where everything is static.
27 The Site is located in desert terrain and is very hot and very dusty. The mean average maximum temperature in January is 41 degrees Celsius and average annual rainfall is just 280 mm.
28 Due to the heat, dust and distances involved, personnel on Site are transported by air-conditioned bus to and from the construction zone, their accommodation and the meals areas.
29 I did not view the medical facilities on Site during my visit to the Wheatstone Project as this aspect of the Site was not relevant to my role. I am not familiar with the location, scope or size of the medical facilities on Site.
30 The nearest town, Onslow, is very small. I visited Onslow during my time at the Site. It consisted of a petrol station, a small IGA supermarket, a pub and approximately three blocks of houses on each side of the main street. There is a hospital in Onslow, but I did not visit it and do not know any details about its size or operation.
In relation to the medical facilities on the Wheatstone Project Site and in Onslow:
a)Onslow is a small town of approximately 500 residents, with some medical facilities including a small local hospital: King Affidavit at [17]; and
b)the Wheatstone Project Site has its own medical facilities, including doctors and nurses, and those medical facilities are run by Aspen Medical and are similar to extended first aid, but any significant or prolonged medical issue requires personnel to be flown off the Wheatstone Project Site and into Perth, and if someone is unable to work for more than three days due to illness or injury they are routinely flown off the Wheatstone Project Site, but that decision is one made by Aspen Medical, and neither Cape Australia nor its personnel are involved in that decision-making process: King Affidavit at [18]-[19].
The employment contract
Mr Walker commenced employment with Cape Australia as an HR/IR Manager on 20 January 2014 pursuant to a contract of employment dated 16 January 2014 (“Employment Contract”): Walker April 2015 Affidavit at [17] and Annexure PWA-02.
The terms of the Employment Contract relevantly included terms to the effect that:
a)clause 9 - the employment was to be located at, and Mr Walker was to work at, the “Wheatstone Project, Onslow”, in Perth for the performance of training and other duties as required, and also at other locations as required;
b)clauses 10-12 - Mr Walker would be paid a salary of:
i)$162,500 per annum while working in Perth; and
ii)$250,000 per annum while performing work on the Wheatstone Project,
plus access to a bonus scheme, and superannuation contributions;
c)clause 13 - Mr Walker’s hours of work:
i)when in Perth, were notionally 38 per week, Monday to Friday inclusive; and
ii)when on the Wheatstone Project, an average of 65 hours per week, on the basis of a three weeks on, one week off, work cycle;
d)the duties and responsibilities of the position of HR/IR Manager were to be:
… discussed with the Project Manager. The Company may vary those duties and responsibilities as necessary, after consultation with you, and you may also be required to carry out other duties within your skills, confidence and training.
e)additionally, under cl.13 Mr Walker was required to carry out duties within his skill, competency and training and to:
i)promote the interests of Cape Australia;
ii)use his best endeavours to protect and promote Cape Australia’s activities and reputation;
iii)refrain from acting in conflict with the interests of Cape Australia; and
iv)to the best of his knowledge and abilities, perform the duties assigned to him;
f)clause 17 provided that Mr Walker’s employment was subject to a three month probationary period, during which period his “manager will monitor your behaviour and your performance”;
g)clause 23 entitled “Fitness For Work” provided as follows:
The Company may require you at any time to attend a Company nominated doctor (at no cost to you), for a full or partial medical examination, in relation to your continued employment. Upon termination, you may be required to have a post-employment medical.
You are also required to comply with random drug and alcohol testing throughout the duration of your employment.
The Company may also require you to undertake other medical tests as required if you are suspected of being under the influence of drugs or alcohol prior to commencement of work or while on duty.
The Company may be requested to furnish such reports arising from that medical examination, and including pre-employment medicals to a client to facilitate your entry to a site. By signing this contract you consent to this disclosure.
h)clause 24 provided for termination, in the case of probationary employees by the giving of one week’s notice of employment, or pay in lieu thereof, if Cape Australia was not satisfied with “behaviour or performance”, and for full and part time employees by the giving of one month’s notice in writing or payment in lieu thereof, subject to Cape Australia having the right to terminate the employment without notice for a serious breach of obligations or in the case of misconduct.
Mr Walker said that he understood that, together with the majority of Cape Australia management, he would commence working from Perth and then eventually mobilise to the Wheatstone Project Site: Walker April 2015 Affidavit at [20]. Mr Walker says that he was told by Cape Australia that it was anticipated that his role would be complete by April 2017: Walker April 2015 Affidavit at [23].
Mr Walker’s evidence was that his duties as HR/IR Manager included the following:
a)providing advice and education on all internal HR, IR and ER issues and obligations;
b)to partner with line management to manage Cape Australia’s workforce, ensuring compliance with the employee collective agreement and meeting legislative obligations;
c)to ensure that the Wheatstone Project Site activities complied with the relevant legislation, law and ethical standards; and
d)to manage the payroll function on the Wheatstone Project Site: Walker April 2015 Affidavit at [24].
Mr Walker asserted that his role was “primarily a ‘desk job’ and [that he] … would not be operating machinery or similar”: Walker April 2015 Affidavit at [25].
It is relevant to observe that mobilisation to the Wheatstone Project Site was delayed, and Mr Walker says that although it was originally planned to take place at the end of February 2014, it was delayed until sometime in April, May or June 2014: Walker April 2015 Affidavit at [28].
Law
It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
In the context of adverse action proceedings it is for Mr Walker to assert and establish that:
a)he exercised the workplace rights pleaded in his statement of claim;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
If Mr Walker proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for Cape Australia to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 (“Geraldton Port Authority”) at [221] per RD Nicholson J.
In Barclay the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 (“Russell”) at [60] per Foster J. In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
a)French CJ and Crennan J in Barclay said:
i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Mr Walker submits that the making by him of one or more complaints or inquiries was a reason for his dismissal. That allegation having been raised, s.361 of the FW Act operates to create a presumption that Mr Walker was dismissed including because of the making by him of one or more of the inquiries or complaints. The onus is then cast on the Respondents to prove otherwise. To displace the presumption, the Respondents need to establish that the making by Mr Walker of one or more of the complaints or inquiries was not a substantial and operative factor for dismissing him: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285 (“Greater Metropolitan Cemeteries Trust (No 2)”) at [17] per Bromberg J, where the Federal Court noted that the relevant authorities as to the operation of ss.360 and 361 of the FW Act are discussed in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911 (Bromberg J).
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person may be regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 (“BHP Coal”) at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 (“Endeavour Co”) at [32] per Jessup J.
Complaint or inquiry
An employee has a workplace right if the employee is able to make a complaint or inquiry in relation to his or her employment: s 341(1)(c)(ii) of the FW Act.
In Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 (“Trilab”) at [16] per Judge Lucev, this Court noted that divergent approaches have emerged in this Court and the Federal Court as to when an employee “is able to make a complaint or inquiry”.
On one approach to s 341(1)(c)(ii), a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person's employment: Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892; Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 (“Murrihy”).
The contrasting approach to s 341(l)(c)(ii) is that a complaint must be underpinned by a statutory or contractual entitlement or right: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346 (“Shea (No 6)”) at [625] per Dodds-Streeton J; Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 230 IR 452; (2013) 273 FLR 190; (2013) 65 AILR 101-866; Trilab at [24] per Judge Lucev.
Mr Walker submits that the wider approach of Murrihy should be preferred. On the appeal from Shea (No 6) the Full Court of the Federal Court cautioned against “implying into s 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a ‘complaint’”: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303 (“EnergyAustralia Services”) at [12] per Rares, Flick and Jagot JJ.
A complaint with an indirect nexus with Mr Walker’s terms and conditions of employment may still come within the scope of s.341(1)(c)(ii) of the FW Act: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 (“Pilbara Iron Services”) at [64] per Katzmann J.
The words “in relation to” as used in s.341(1)(c)(ii) of the FW Act are of wide import. The use of that phrase identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required: Greater Metropolitan Cemeteries Trust (No 2) at [41] per Bromberg J, and where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara Iron Services at [69] per Katzmann J; Greater Metropolitan Cemeteries Trust (No 2) at [42] per Bromberg J.
In Ramos v Good Samaritan Industries [2013] FCA 30 the Federal Court recognised the possibility that a complaint made by an employee about comments made by management concerning work issues might, dependent upon the circumstances, admit of a conclusion that adverse action could be taken against an employee because of such a complaint: see also Trilab at [47] per Judge Lucev.
In Greater Metropolitan Cemeteries Trust (No 2) the applicant raised a probity issue in relation to a contract with a supplier who supplied services which the applicant managed in the course of her employment. The Federal Court stated that whether or not the employee was under a contractual duty to report the possible misdeeds of others, her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, it was held that the contract complaint made by the applicant raised an issue with potential implications for her employment and was “in relation to...her employment” within the meaning of s.341(c)(ii) of the FW Act.
The parties differ as to the proper construction of s.341(1)(c) of the FW Act, and do so along the lines of the split in the Federal Court between the Shea(No 6) view that a complaint or inquiry must be one that the employee is able to make based upon an instrument such as a contract of employment, award or legislation, and the broader Murrihy view that the employee can make a complaint or inquiry about any matter, provided it is in relation to the employee’s employment.
The dichotomy in views as to the proper construction of s.341(1(c) of the FW Act is reflected in judgments of this Court which have applied both views: see Trilab.
Issues
Mr Walker claims that Cape Australia contravened s 340(1)(a)(ii) of the FW Act by taking adverse action, within the meaning of Item 1 of s.342(1) of the FW Act, against Mr Walker through dismissing him for reasons which included that he exercised a workplace right, within the meaning of s.341(1)(c)(ii) of the FW Act, to make a complaint or inquiry in relation to his employment. The particular complaints or inquiries made by Mr Walker in relation to his employment concerned:
a)the refusal of Aspen Medical and Bechtel WA to assess Mr Walker as fit for his duties;
b)the request of Aspen Medical and Bechtel WA to access Mr Walker’s general practitioner; and
c)relevant human resources and industrial relations policies, practices and procedures of Bechtel WA.
Further, and alternatively, Mr Walker claims that:
a)he was dismissed by Cape Australia in contravention of s.351(1) of the FW Act for reasons which included Mr Walker's physical disability, being his type-2 diabetes, and there was nothing about the role, which was administrative, or its location, being in close proximity to medical assistance, which meant that Mr Walker was less able to perform his job or was at increased risk to others simply because of his type-2 diabetes. The inherent requirements of the role did not require the adverse action taken against Mr Walker, or his dismissal, in light of his diabetes; and
b)the adverse action against him in contravention of s.351(1) of the FW Act was Cape Australia’s support of Bechtel WA’s policies, and Cape Australia’s decision not to consider him fit for duties and mobilisation to the Wheatstone Project and to insist upon access being provided to his general practitioner for the provision of information.
In the course of his employment, between approximately March 2014 and June 2014 Mr Walker also claims to have made other complaints or inquiries to Cape Australia or Bechtel WA in relation to his employment, but unrelated to his medical complaints, including but not limited to the following:
a)Bechtel WA's Drug and Alcohol policy as it related to employees on-site. Mr Walker was concerned as to possible contraventions of the Liquor Control Act 1988 (WA) (“LC Act”) through the practice of allowing open or unpackaged alcohol to leave the licensed area, and which he says was raised with Cape Australia and Bechtel WA several times from February 2014 to March 2014: Walker April 2015 Affidavit at [62]-[70];
b)the aspect of Bechtel WA's Drug and Alcohol policy which permitted the standing down of employees without pay prior to further confirmatory testing: Walker April 2015 Affidavit at [74], [75] and [79];
c)searches of contractors' rooms on site without the contractors' knowledge or consent, an issue that had been brought to Mr Walker's attention by contractors on the Wheatstone Project. Mr Walker raised these concerns with Cape Australia who advised Mr Walker that it would be raised with Bechtel WA. Mr Walker did not raise this with Bechtel WA himself: Walker April 2015 Affidavit at [81][91];
d)privacy concerns over interview checklist guidelines issued by Bechtel WA: Walker April 2015 Affidavit at [92]-[98]; and
e)the disclosure of workers compensation history in registrations of interest in working on the Wheatstone Project: Walker April 2015 Affidavit at [99]-[104].
Some of these complaints and inquiries were said to be on Mr Walker’s initiative, while others were at the request of other employees of Cape Australia.
Medical examinations and assessments
At the time of Mr Walker’s employment with Cape Australia it would appear that there was a requirement (which Mr King had to satisfy also) to do a medical for Cape Australia with Cape Australia’s medical assessors Kinetic Health, as well as a medical with Aspen Medical who were Bechtel WA’s medical providers, and on the basis of the respective medical assessments Cape Australia determined whether an employee was fit for duties with Cape Australia and Bechtel WA determined whether an employee was fit for duties on the Wheatstone Project Site: King Affidavit at [49]-[52].
On 15 January 2014, prior to commencing employment with Cape Australia, Mr Walker undertook a medical examination with Kinetic Heath, and was assessed as fit for his proposed duties as HR/IR Manager for the Wheatstone Project with no restrictions (“January 2014 Medical Assessment”): Walker April 2015 Affidavit at [13]-[15]. In the course of the January 2014 Medical Assessment Mr Walker disclosed that he suffered from type-2 diabetes.
In late January 2014 Mr Walker and Ms Thomson attended a meeting at which Cape Australia’s national training manager, Ms Waters, was present, together with Mr Scott and Ms Bassett from Bechtel WA to discuss personnel mobilisation to the Wheatstone Project Site. As part of that project Bechtel WA required that all personnel going to the Wheatstone Project Site undergo a medical assessment with Aspen Medical (“Late January 2014 Meeting”). Ms Thomson says that she was unsurprised by the requirement to undertake a medical assessment as she was aware that on most large construction projects there was a requirement for specific medical assessments to be undertaken: Thomson Affidavit at [41].
At the Late January 2014 Meeting Bechtel WA provided the Cape Australia officers present with an information brief in relation to pre-employment medicals: Thomson Affidavit at [42] and Annexure CET-08.
Under the heading “Planning Considerations” the Information Brief says that:
The conduct of a pre-employment medical assessment is a very thorough examination of an individual’s health and wellbeing. The aim of these examinations is to assess an individual’s capacity to safely work on the Wheatstone Project site.
With respect to medical assessment recommendations the Information Brief indicates as follows:
There are three [sic] Medical Assessment Recommendations, as follows:
· Fit for All Proposed Duties
· Unfit for Proposed Duties
· Fit for Proposed Duties with restrictions
· Currently Unfit but recommended further investigation.
Subcontractors that receive a Medical Assessment Recommendation of either Fit for Proposed Duties with Restrictions or Currently Unfit but recommended for further investigation should contact Bechtel Occupational Health Coordinator for further advice/guidance.
Following the Late January 2014 Meeting Mr Walker and Ms Thomson worked on Cape Australia’s pre-employment medical assessment process, because it became apparent that the Aspen Medical pre-employment medical assessment process required a greater level of detail than was required by the Cape Australia pre-employment medical assessment process, and this process was further complicated by the fact that Bechtel WA informed Cape Australia that the assessment process had to be completed on Aspen Medical paperwork: Thomson Affidavit at [43]-[45].
Ms Thomson contacted Kinetic Health and a process was ultimately put in place (it took a number of weeks to establish and finalise) which enabled a single medical to be undertaken to meet the requirements of both Cape Australia and Bechtel WA in relation to personnel assigned to the Wheatstone Project Site, but which required approximately 10 employees, including Mr Walker and Mr King, to undertake a second medical assessment process, but Ms Thomson was unaware, prior to reading Walker April 2015 Affidavit, that Mr Walker had had to undertake, or had undertaken, a second medical assessment with Aspen Medical: Thomson Affidavit at [46]-[50].
On 3 April 2014, Mr Walker underwent a second medical examination by Sonic Health Plus (formerly Kinetic), at the request of Bechtel WA (“April 2014 Medical Assessment”), and Mr Walker was again assessed as fit for his duties as HR/IR Manager for the Wheatstone Project: Walker April 2015 Affidavit at [30] and [35]-[37] and Annexure PWA-03. At the second medical examination Mr Walker again disclosed that he had type-2 diabetes: Walker April 2015 Affidavit at [36].
It would appear that the reason for the April 2014 Medical Assessment was that Bechtel WA required medical assessments to be completed using paperwork provided by Aspen Medical, who would review the assessment, and, at least by inference, the January 2014 Medical Assessment was not completed on Aspen Medical forms, and this was a requirement for all Wheatstone Project personnel: Walker April 2015 Affidavit at [31]-[32].
Prior to the April 2014 Medical Assessment Mr Walker had been performing his duties as HR/IR Manager for the Wheatstone Project in Perth.
On 4 April 2014 Mr Walker says he received a "Medical Recommendation" from Dr Eaton of Aspen Medical stating that Mr Walker was unfit for mobilisation to the Wheatstone Project Site (“Medical Recommendation”), and requesting further information: Transcript, p.9, lines 18-20. It is evident that this a reference to the fourth category of medical assessment referred to at [68] above.
Sometime in April 2014 after Mr Walker had been informed of the Aspen Medical Recommendation Mr King says that Mr Walker had a conversation with him to the following effect:
Mr Walker: “Aspen [referring to Aspen Medical] aren’t allowing me on site because of my diabetes. This is unlawful and discriminatory against people with diabetes or a medical condition that they are required to manage. They are telling me I have to provide all this extra medical information.”
Me [Mr King]: “It’s a Bechtel requirement. They need to approve you’re fit to go on site to prevent unnecessary risk. Bechtel will not authorise mobilisation within ERMS until they have adequately assessed suitability for site.”
Mr Walker: “It’s unlawful.”
King Affidavit at [53].
Mr King says that he did not respond further to Mr Walker, and although he did not agree with his views, he considered that Mr Walker was entitled to have his own opinion, and that Mr King had his own opinion: King Affidavit at [54].
Mr Weaver also says that Mr Walker had a conversation with him in approximately late April 2014 concerning the April 2014 medical assessment: Weaver Affidavit at [73]. Mr Weaver says that Mr Walker “appeared very agitated”, and that having referred to the fact that he had to do another medical with Bechtel WA, and that they were requesting more information as to whether or not his diabetes was under control, Mr Walker then said:
I object to the whole process. This is improper, unreasonable and discriminatory.
Weaver Affidavit at [74].
Mr Weaver says that he attempted to reassure Mr Walker that Bechtel WA were being reasonable, and that the information was likely to be used to manage risk on the Wheatstone Project Site, particularly in relation to medical emergencies, and that he then went on to say as follows:
Bechtel will be asking for this information in good faith. They need to manage the risk on site of medical emergencies. This is a huge contract for Cape and Bechtel have a lot of policies and procedures that we need to comply with. It is just part of their overall risk management approach.
Given the size and nature of the project, in my opinion I think the request is reasonable, and if I were asked, I would provide the information. But it’s up to you Peter, it’s not for me to decide. But if you don’t provide the information, there is a good chance they won’t let you on site. I’m sure there is a provision for this in your contract as well, which states that you have to do medical assessments to get access to sites.
Weaver Affidavit at [75].
Mr Weaver says that his tone was conciliatory and coaching in nature, that he was trying to reassure Mr Walker that there was nothing that he needed to be concerned about in relation to the request, but he also made it “very clear” that it was Mr Walker’s decision as to whether or not he provided the further information to Bechtel WA: Weaver Affidavit at [77].
Mr Weaver expressly denies saying words to the effect of:
It was Bechtel’s project and they could do what they want.
or
The consent enabled Bechtel to do whatever they wanted with medical information,
and Mr Weaver says that he did not, and does not hold that view: Weaver Affidavit at [78].
Mr Weaver says that Mr Walker did not indicate what he intended to do, and said very little to Mr Weaver in response: Weaver Affidavit at [76], and that this was the first occasion on which he had become aware of the requirement to undertake a further medical assessment for any Cape Australia employees and that Mr Walker had diabetes: Weaver Affidavit at [79] and [81], and that following the conversation with Mr Walker he did not hear anything further from him, or anyone else in relation to the April 2014 Medical Assessment: Weaver Affidavit at [84]. Mr Weaver’s account of these events is not disputed in the Walker June 2015 Affidavit.
Ms Thomson says that in late April 2014 she had a conversation with Mr Walker to the following effect:
Mr Walker: “Aspen are an absolute waste of time. There are all these issues with them. This process is unlawful. They can’t make you get the assessment done on certain paperwork. They shouldn’t get to decide who goes on site.”
Me [Ms Thomson]: “What do you mean? It’s their site.”
Mr Walker: “It’s not up to them, it should be up to Cape. This unfair.”
Me: “Peter, that’s not how it works. It’s the same as Pluto [referring to a similar large scale project]. Bechtel has the risk up there. It’s their project and they have to manage their own risk.”
Mr Walker: “It’s just red tape. They are trying to squeeze more money out of us. It’s unlawful.”
Me: Peter, it’s not. The processes are in place now so it’s not an issue.”
Thomson Affidavit at [51].
Ms Thomson says that at the time of this conversation she was unaware that the comments bore any relation to the April 2014 Medical Assessment: Thomson Affidavit at [52].
Mr Walker denies that there was ever a conversation to the effect set out at [82] above: Walker June 2015 Affidavit at [143]. In the Court’s view, Ms Thomson’s evidence that the conversation occurred is to be preferred: both because Ms Thomson was an impressive witness and because she was not cross-examined in relation to the conversation. A further reason that Ms Thomson’s evidence is to be accepted is that the evidence of what Mr Walker is alleged to have said is consistent with the views that Mr Walker otherwise expressed to Mr King and Mr Weaver: King Affidavit at [53] and Weaver Affidavit at [74], respectively cited at [75] and [77] above.
During April 2014 Mr Walker had corresponded with Aspen Medical objecting to the Medical Recommendation via an exchange of emails with those emails being set out at Annexure PWA-04 to the Walker April 2015 Affidavit. It is necessary to refer to the emails in detail.
On 4 April 2014 at 8.13am Ashleigh Davis, the medical PEM coordinator for the Wheatstone Project with Aspen Medical sent an email to Mr Walker referring to an “attached MEDICAL recommendation” (which does not appear to be attached).
Mr Walker’s response sent three days later (a weekend intervened) at 1.55pm is as follows:
Hi Ashleigh,
Who can I talk to about this?
I am unable to understand how the information sought is relevant to the inherent requirements of the actual position of an office based ER/IR manager, or how there is an increased risk to my health or safety, or to others, that is different to working in my role at Wheatstone than at any other location. Moreover, what possible restrictions could be put in place?
If the issue is whether there is a risk of needing medical attention by Wheatstone medical staff, that the project is wanting to quantify, that Bechtel/Chevron may not want to accept, then this is discrimination, both direct and indirect.
On 8 April 2014 at 7.40am Ms Davis sent Mr Walker a response as follows:
Hi Peter,
Please see below from Dr Eaton:
Ashleigh
This is about working in an isolated area with a known medical condition which can be associated with various complications and possibly require medical evacuation in the worse case scenario. Therefore it is important to know that the condition is well controlled and the individual is compliant with treatment to minimise the risk of untoward events occurring in an isolated area.
Hope this will suffice.
Yours sincerely
Dr Garth Eaton
Thank you
Ashleigh
Forty five minutes later Mr Walker responded in the following terms:
Hi Ashleigh,
Thank you for this.
I worked in isolated (far more isolated than Wheatstone), fifo sites for many years, including being the manager responsible for the health and safety of the site (where there was not the luxury of a GP on site or a hospital within 30 minutes) and have had to medivac people off site for a variety of reasons, therefore I fully understand the issues and risks associated with remote sites. On distant from Perth, Wheatstone is not isolated.
Deeming a person as unfit merely to minimise the risk of medical evacuations is discrimination. I am happy to provide more details if it would help. I have had two medicals for this role, one merely because of different paperwork, and both GPs – in practices that specialise in assessments for construction, mining and isolated sites – have found me fully fit for my duties with no restrictions. This is the only criteria permitted to be used – can I meet the inherent requirement of my role? To assess a person as unfit for a role merely to remove the possibility of worse case scenarios occurring is an inappropriate use of the medical information provided and not what I consented to. Judgments about control and compliance are between me and my GP when the medical condition in my role do not place me or others at risk. I stress that my actual duties have to be the factor that is considered, such as working at height or with machinery or equipment, which I am not.
While I fully accept the need to make a project as safe as possible, not everyone can be a paragon of health, and medical assessments relating to health must be within lawful boundaries. I do not believe this is. If there were concerns, the examining doctors would have either advised restrictions or determined I was unfit. They did neither, and this additional layer of assessment is, in my view, unrelated to my fitness to carry out the duties.
Please advise.
Ms Davis responded almost immediately indicating that she was passing Mr Walker’s email to Dr Eaton and that she would let Mr Walker know of his response.
Mr Walker responded within a few minutes in the following terms:
Many thanks. I am not being deliberately difficult but to have two GPs advise I am fully fit and to have one say I am unfit for the role surprised me, to be honest. As an industrial relations specialist, I am acutely aware of the laws relating to these matters. If I had a high risk job, I would have no issues about being in an admin role, it is no different to working in Perth and being 30 minutes from a hospital. It is important that medical assessments do not inadvertently evolve over time to make decisions on other things unrelated to the person’s job.
Some eight days later, on 16 April 2014 at 12.25pm Ms Davis emailed Mr Walker in the following terms:
Please see further response from Dr Eaton regarding your review:
I can only state the policy as promulgated. We need confirmation that all diabetics especially those on medication who are going to work in an isolated area eg Wheatstone that their condition is well controlled, stable and the individual is compliant with treatment. The isolation is the important aspect in this case.
Veronique has asked for the status of your medical, would you please be able to advise? If there is anything else I can do please don’t hesitate to ask.
A little over an hour later Mr Walker responded to Ms Davis in the following terms:
Thank you for this.
Before I respond in more detail, could I please be provided with a copy of the policy mentioned in the response.
Unfortunately I would have expected a consideration of my points below rather than a mere reference to policy. It is well established in law that medical assessments cannot be used to screen out illness unrelated to the specific task or to minimise cost or inconvenience to the employer. There is nothing related to the location, the site or my specific role that in itself increases any risk to myself or others. To decline an assessment on the basis that something may happen is discrimination as the assessment must ensure:
The test only assesses current health status and does not attempt to predict any future deterioration …
I repeat that Wheatstone is not isolated and I think it is folly to rely on this claim. However, on a purely hypothetical basis, how does that in itself increase the risk to myself or others that is different to being in, say, Albany? Or how does the location or my specific role have a direct correlation to the appearance of complications? The issue appears to be about responses to a potential illness and it further appears to me that the only consequence sought is the Project wanting to screen out anybody who may become absent from work or require the medical resources on site. No employer is permitted under Australian law to screen out people from employment on that basis. A blanket policy to eliminate worse case scenario should not be permissible nor to prevent complications that may appear regardless of the location or task. Put another way, even if there is a high likelihood of complications occurring, provided that it is not related to my role or creates a risk to others, there are still no grounds to deny employment under discrimination legislation.
The effect of the decision by Dr Eaton in declaring me unfit for my role, without bothering to determine the inherent requirements of my role and implementing a blanket policy related to achieving health standards rather than individual health requirements, is likely to result in the termination of my employment. I consider the medical assessment as being misused for purposes other than determining my fitness for the inherent requirements for the role. I also repeat that two doctors have found me fully fit without restrictions upon personal examination and discussion of my role. This confirms, in my view, that the current assessment is unrelated to the role.
In addition to the policy, please advise exactly what risks are being assessed or identified in relation to the inherent requirements of my specific role?
Before I take the matter further, I would appreciate it if someone could telephone me to discuss.
Ms Davis responded five minutes later, relevantly, in the following terms:
I have passed your email to my manager who may be able to assist you further and has a better understanding and more control than I do.
Hopefully this case can be resolved soon in the hands of Jayne.
It appears that Mr Walker objected to the Medical Recommendation on the basis of his previous certifications of fitness and that his type-2 diabetes did not, in his view, make him any less fit for his position of HR/IR Manager, which involved no manual labour.
On or about 16 April 2014 Bechtel WA’s Occupational Health Co-ordinator, Ms Alex Preston, contacted Mr Walker by telephone requesting further information relating to his type-2 diabetes because she said the Wheatstone Project was required to manage the risk of any problems occurring, in response to which Mr Walker:
a)asked Ms Preston why Bechtel WA was making assessments about his role rather than his employer, Cape Australia; and
b)also inquired as to the risk Bechtel WA was trying to manage, to which Mr Walker says that Mr Preston responded by saying words to the effect that the Wheatstone Project Site was remote and that they were trying to manage the potential risk for emergencies, but that she would get someone to contact Mr Walker to discuss the matter further: Walker April 2015 Affidavit at [41].
On or about 16 April 2014 Bechtel WA’s Health and Safety Manager, Mr Wayne Banks, contacted Mr Walker by telephone and a conversation ensued as follows:
a)Mr Banks said he would get Bechtel WA’s legal team to resolve the issue, to which Mr Walker indicated that he was trying to avoid complicating the matter and involving other parties, and then referred to his having been certified fit for his role on two occasions, and to “Dr Eaton finding me unfit without reference to the inherent requirements of my role”;
b)Mr Banks responded saying that the Wheatstone Project Site was remote and that Bechtel WA’s policy was to seek further information due to the potential risk of medical evacuation and that the issue was not related to the inherent requirements of Mr Walker’s role, and further said that Mr Walker was “right on the limit” of the risk assessment in Bechtel WA’s policy;
c)Mr Walker requested a copy of the policy referred to but Mr Banks declined to provide it;
d)when asked what the risk that Mr Walker was on the limit of was Mr Banks replied that it was the risk of being medically evacuated, and that most medical evacuations were non-work related;
e)a discussion then ensued about the nature of conditions on the Wheatstone Project Site, its isolation, the fact that Bechtel WA does not use the local hospital, and the medical facilities on Site, following which Mr Walker indicated that he had given his consent to the accessing of his personal medical information for the purposes of his pre-employment medical assessments and not for “commercial concerns” such as minimising the risk of medical evacuations; and
f)Mr Banks sought Mr Walker’s consent to the release of his medical records so that they could be reviewed, and Mr Walker gave that consent, albeit under protest, so as to try and resolve the matter: Walker April 2015 Affidavit at [42].
Mr Walker says that at the conclusion of the call from Mr Banks, Mr King asked him what the telephone call was about (the two worked in an open plan office and Mr King was present at the time of the call). Mr Walker gave Mr King an outline of the issue and explained his concerns with respect to discrimination and the potential for it to be an industrial relations issue for future employees on the Wheatstone Project Site, to which Mr King replied with words to the effect of “just give the information to them”: Walker April 2015 Affidavit at [43]-[45].
Mr King says that the conversation with respect to the telephone call was to the following effect:
Me: “What was that about?”
Mr Walker: “I was talking to Bechtel about a medical information they want. It’s unlawful. They can’t ask me to provide it.”
Me: “Peter they won’t mobilise you through ERMS unless you are approved to work up there.”
King Affidavit at [55].
Mr King expressly denies that he told Mr Walker to “just give the information to them” (meaning Bechtel WA), and says that the substance of the conversation was as set out at [99] above. Mr King says that he would not instruct Mr Walker to hand over his own personal medical information to Bechtel WA, and that that was not within the scope of his role or function and he had no authority to make that request: King Affidavit at [60].
At 5.30pm on 16 April 2014 Mr Walker sent Mr Banks an email authorising Mr Banks to access Mr Walker’s medical file, and Mr Banks replied a few minutes later indicating that he would be pursuing the matter: Walker April 2015 Affidavit at [46] and Annexure PWA-05.
Mr Walker says that about a week later he received a telephone call from Mr King who was at the Wheatstone Project Site advising him that Mr Banks was “very unhappy and angry that I had questioned my medical assessment”, and that approximately a further week later, Mr King telephoned Mr Walker from the Wheatstone Project Site and said words to the effect that “I had to give Bechtel what they wanted” or he would not be mobilised: Walker April 2015 Affidavit at [47]-[48].
At about the time of the latter telephone call from Mr King referred to above, Mr Walker says that he met with Mr Weaver, and with reference to Mr Walker’s medical assessments, asked Mr Weaver if Cape Australia would take up with Bechtel WA the issue of potential discrimination and risk management in relation to Cape Australia’s employees. Mr Walker says that Mr Weaver said that Cape Australia would do nothing because it was Bechtel WA’s project and they could do what they wanted to do, and further referred to clause 23 of the Employment Contract, which Mr Walker says Mr Weaver said was a consent for Cape Australia to furnish reports arising from medical examinations to Cape Australia’s clients to facilitate entry to the Wheatstone Project Site: Walker April 2015 Affidavit at [49]-[50]. Mr Walker then says that he said to Mr Weaver that he did not think the consent should allow Bechtel WA to use the information for improper purposes, to which Mr Weaver is said to have responded that the consent enabled Bechtel WA to do whatever they wanted with the medical information and it would be for their duty of care, and also that the Wheatstone Project was the biggest contract that Cape Australia had and was extremely important to Cape Australia: Walker April 2015 Affidavit at [51]-[53].
Mr Walker subsequently provided to Aspen Medical a copy of a letter from his general practitioner dated 7 April 2014 providing further information regarding Mr Walker’s type-2 diabetes: Walker April 2015 Affidavit at [54] and PWA06.
In or about April 2014 Mr Walker met with Mr Weaver and Mr King in Mr Weaver's office at Cape Australia’s offices in Jandakot (“April 2014 Jandakot Meeting”).
There is a dispute as to what was said at the April 2014 Jandakot Meeting.
Mr Walker says that at the April 2014 Jandakot Meeting, Mr King or Mr Weaver said, among other things:
a)words to the effect that Cape Australia would not intervene in the Medical Complaints and that Bechtel WA could make such requests as it desired; and
b)that Bechtel WA had contacted Cape Australia and queried whether Mr Walker was “a trouble maker”: Walker April 2015 Affidavit at [105].
Cape Australia says that Mr Walker said that:
a)Aspen Medical had determined that he was currently unfit to be deployed to the Wheatstone Project Site, subject to him providing further information from his general practitioner about his type-2 diabetes;
b)there was no reason for him to demonstrate anything other than he was fit for duty; and
c)the Wheatstone Project Site was not a remote site as the town of Onslow was nearby.
Cape Australia says that Mr Weaver responded to the effect that:
a)he did not see what the issue was;
b)the Employment Contract required Mr Walker to undertake medical examinations to facilitate his access to a client site;
c)if it was Mr Weaver, he would provide the information requested, but that was a matter for Mr Walker to decide;
d)there is a significant difference between Perth and Onslow in the availability of medical care, and in the event of a health incident he may need to be evacuated to Perth; and
e)Bechtel WA required the information to meet its duty of care obligations and it appeared to be a reasonable health and safety risk management request.
Both Mr King and Mr Weaver denied that they were contacted by Bechtel WA or that Bechtel WA queried whether Mr Walker was “a trouble maker”.
In this case Mr Walker says that he was told to “just go ahead and provide the information” to Bechtel WA.
Both Mr King and Mr Weaver say that they did not say this to Mr Walker. Cape Australia’s position is that what is alleged by Mr Walker to have been said concerning providing the information simply did not occur. In the Court’s view Mr King and Mr Weaver, whilst no doubt exhibiting some exasperation with Mr Walker, were nevertheless being relatively careful by this time, and in the Court’s view it is not likely that they said what it is alleged that they said by Mr Walker, and the evidence of Mr King and Mr Weaver as to what they did not say is to be preferred.
Even if Mr Walker was told to provide the information to Bechtel WA, Cape Australia says that there was no prejudicial alteration to Mr Walker’s employment position. That was because if Mr Walker wanted to mobilise to the Wheatstone Project site it was always the case, and remained the case, that Bechtel WA determined whether anyone went onto the Wheatstone Project Site.
Ms Thomson says that she attended a meeting on 2 May 2014 with two representatives from Bechtel WA, Ms Bassett and Ms Naaykens, together with Mr Walker to discuss the requirement for the Aspen Medical Assessment procedures to be put in place by Cape Australia. Ms Thomson says that the meeting became “very heated”, and that Mr Walker took exception to Bechtel WA’s process whereby they would do background verification checks to determine each employee’s role suitability and have the final say about who was mobilised to the Wheatstone Project Site based on those checks. Ms Thomson says that Mr Walker said words to the effect of:
This requirement by Bechtel isn’t right. It’s unlawful. It’s not for Bechtel to decide who gets on site if Cape wants to mobilise someone it’s not your right. It’s not your role. One day one of them [referring to Wheatstone Project Site personnel] will sue you for unfair treatment.
Thomson Affidavit at [54].
Ms Thomson says that toward the end of the meeting Mr Walker went to the bathroom, and that she took the opportunity to apologise on behalf of Cape Australia for Mr Walker’s conduct: Thomson Affidavit at [56].
Ms Thomson says that she spoke to Mr Walker after the meeting and that she indicated that the meeting did not go well, that there was nothing that Cape Australia could do about Bechtel WA’s mobilisation system and that there was no point “going on about it”, but that Mr Walker indicated that he did not agree with that and that he was “going to investigate and take this further”, in response to which Ms Thomson told him to “just leave it”: Thomson Affidavit at [58].
Ms Thomson says that later that day she spoke to Mr Weaver and indicated her concern about the way that Mr Walker was dealing with Bechtel WA and that he was “making everything harder … picking fights” and that there was “a process in place for the medicals now and no one wants to change that except him” and that in the meeting with Bechtel WA he had been saying that the process was “unlawful”, and that the meeting got heated and that when he went to the bathroom Ms Thomson had to apologise to the Bechtel WA representative: Thomson Affidavit at [59].
One of the purposes of the 2 May 2014 Meeting was for Ms Thomson to hand over the relationship between Bechtel WA and Cape Australia to Mr Walker: Thomson Affidavit at [57], but that following the 2 May 2014 Meeting Ms Thomson says that she did not feel comfortable doing so, and even though the matter was then in Mr Walker’s area of responsibility she did not deter the relevant Bechtel WA team from continuing to liaise directly with her in relation to recruitment for the Wheatstone Project: Thomson Affidavit at [63].
Ms Thomson says that on 3 May 2014 she telephoned Ms Scott from Bechtel WA to apologise for the way in which Mr Walker had spoken to the two Bechtel WA representatives at the 2 May 2014 Meeting, and that she enquired as to whether those representatives were “okay” and that the Bechtel WA representative indicated that “they were a bit taken aback, he [Mr Walker] was a bit aggressive”: Thomson Affidavit at [62].
The Court can infer that, having regard to the fact that Mr Walker had already given consent to Bechtel WA to access his medical records, that there would be no need for either Mr King or Mr Weaver to indicate to Mr Walker that he ought to give Bechtel WA the medical information that they had requested. In short, Bechtel WA already had Mr Walker’s permission to access that medical information, and there was no necessity for either Mr King or Mr Weaver to tell Mr Walker to provide that information.
Early in his cross-examination Mr Walker was asked if he “felt that it was unjust that you should be required to provide that [medical] information”, to which he responded that it was “unnecessary” rather than unjust: Transcript, p.12 lines 28-33. That was a response which, given the written and oral evidence set out above as to Mr Walker’s conduct at the relevant times, is either untrue, or, if true, means that Mr Walker’s protestations about discriminatory conduct were untrue. Either way it adversely affects the credibility of his evidence in these proceedings.
It is not apparent that, of itself, this issue was one which resulted in any adverse action as a consequence of Mr Walker raising the issue. Rather, the issue seems to have been that Mr Walker, whilst he disagreed with the policy of having to provide medical information to Bechtel WA, ultimately did so, and at that point (more than two months prior to Mr Walker’s ultimate dismissal from employment) the matter was concluded, apart from a latent threat from Mr Walker to investigate the matter further at some stage.
Sale of alcohol
Bechtel WA had a policy or position in relation to the sale of alcohol on site.
Mr Walker alleges that there was an apparent discrepancy in relation to the alcohol policy as to whether alcohol could be taken away from licensed premises if the premises were open.
There was evidence by way of an email dated 22 May 2014 (Exhibit 9) from a Mr Bradley of Cape Australia addressed to Mr Walker, and a number of other people, including Mr King, in relation to unopened alcohol being detected in rooms, following which Mr King sent an email which referred to open alcohol being permitted to be taken away from taverns.
Drug and alcohol policy
On 20 March 2014 Mr Walker gave Mr King, and Mr Uhlman, who was Cape Australia’s Project Commercial Manager, a draft copy of a letter that he suggested be sent to Bechtel WA regarding their drug and alcohol policy: Walker April 2015 Affidavit at Annexure 7. Mr Walker says that the purpose of the draft was to provide feedback and suggestions so as to improve the policy, remove inconsistencies and protect both Cape Australia and Bechtel WA.
Mr King did not want to send the letter. There was some reference to the drug and alcohol policy in a further email sent to Bechtel WA by Mr Walker, but Mr Walker says that he was not seeking to ventilate the particular issue any further with Bechtel WA at that stage, but merely to close off the prior discussion.
Mr Walker’s focus on minor or unimportant matters was demonstrated in cross-examination at transcript, p.14 lines 31-32, where he indicated that part of the letter, which he said was part of an attempt to align Cape Australia policy with Bechtel WA policy, was to change the word “refrain” in the phrase “refrain from consuming alcohol” in a part of the policy, to “abstain”. Those two words can of course mean the same thing: The Shorter Oxford English Dictionary on Historical Principles, 3rd Edn (Oxford: Clarendon Press, 1973), Vol. I at p.8 and Vol. II at p.1779.
The stand down
On 28 March 2014 Mr Walker raised with Mr Mark Bushel of Bechtel WA a query concerning the drug testing policy on the Wheatstone Project site and whether the standing down or suspension of a person with a positive drug test should be with or without pay.
On 9 April 2014 Mr Walker was told by Mr Gray of Bechtel WA that a non-negative result on a drug and alcohol test meant that an employee would not be paid for the period for which that employee was stood down.
Mr Walker sent Mr Gray a lengthy response replete with legal authorities on the issue, concluding that it was his understanding that unless a breach of the drug and alcohol policy was to be considered a refusal to work then the employer was obliged to pay the employee, and requesting further discussion on that issue, with the email advice being copied to a Chamber of Commerce and Industry representative who was asked for that organisation’s position on the issue by Mr Walker.
Mr Walker submitted that the response was one sent in good faith, and which diplomatically raised an issue which he thought required some attention, was not unprofessional, and did not generate conflict.
On 11 April 2014 Mr Gray from Bechtel WA replied to Mr Walker re-stating his previous position and indicating that Bechtel WA had its own policy that had been reviewed by legal Counsel and that they were not going to take the matter any further.
Mr Walker then, on 15 April 2014, sent to Mr King, Mr Weaver and Mr Bradley, a further email suggesting that Cape Australia obtain its own legal advice: Walker April 2015 Affidavit at Annexure PAW9.
Mr Walker received no response from Mr Weaver and about a week later asked Mr Weaver directly for his opinion and says that he was told that Cape Australia would not been seeking any legal advice, and that Mr Weaver was not happy with Mr Walker making the inquiries that he had made, and words to the effect that the contract was worth too much to Cape Australia.
Mr Walker submits that Mr Weaver’s response is consistent with Mr Weaver’s own evidence: Weaver Affidavit at [92].
Mr Weaver says that he told Mr Walker:
a)that the inquiry that he had made was outside of the remit of Mr Walker’s duties;
b)that it was important not to tell Bechtel WA how to do the job; and
c)Cape Australia’s role was as a contractor and was to deliver upon the work that it had agreed to do.
For some reason Mr Walker then engaged in further communication with Mr Gray on this issue on 7 May 2014, and in the course of an email with respect to another issue, in which he thanks Mr Gray for his reply in relation to the drug and alcohol policy query, goes on to say, amongst other things that:
Respectfully, I disagree with the position taken as the policy is contrary to well established authorities.
and
I have no doubt that this will be challenged, which I will prefer to avoid, but I will seek your guidance if and [when] that happens.
This final communication from Mr Walker is a good example of what it is that Cape Australia says was the problem leading to Mr Walker’s dismissal from employment, albeit that it was part of Mr Walker’s job to review and comment on Bechtel WA policies. Having raised this issue with Bechtel WA, having been told by Bechtel WA that they proposed to do nothing about it, having been told by Cape Australia that they proposed not to seek any legal advice with respect to it and were not happy with what Mr Walker had done in relation to the making of an inquiry in relation to this issue, Mr Walker then saw fit, in the course of an email on an unrelated issue, to express his disagreement with Bechtel WA’s policy, and to speculate as to future outcomes and actions.
It might be understandable if Mr Walker had sought to re-agitate the issue within Cape Australia by taking up the matter further with Mr Weaver following Mr Weaver’s response referred to at [x] above. But Mr Weaver’s response having made it apparent that Cape Australia was not happy with Mr Walker making the inquiries that he was making, and, at least inferentially, that those inquiries ought not be made directly with Bechtel WA because of the possible effect on the commercial relationship between Bechtel WA and Cape Australia. Mr Walker’s response was to directly raise the matter again with Bechtel WA in the course of dealing with an unrelated matter. Thus, it is not the making of a complaint or inquiry about the drug and alcohol policy that is the issue, it is the manner in which Mr Walker pursues and deals with that issue, in this case, in a manner contrary to express and implied advice from Mr Weaver that no further complaint or inquiry ought to be directed to or through Bechtel WA, and that, in any event, Cape Australia planned to take the matter no further. In cross-examination Mr Walker conceded that he had researched judgments and decisions of the Fair Work Commission, the Federal Court, the New South Wales Supreme Court and that House of Lords in relation to this issue in order to produce the email replete with authorities, and had unsuccessfully searched for journal articles concerning the issue, before sending it to Mr Gray, who was Bechtel WA’s Employee Relations Manager, in circumstances wher he conceded he had been told by Mr King not to trouble Bechtel WA with this issue: Transcript, pp.16-20. It was also considered by Cape Australia to be a minor issue, and one very much secondary to the pressing issue of mobilisation of personnel to the Wheatstone Project Site: Transcript, pp.15, 63 (“time… wasted in mining minutiae and irrelevant details”), 73, 80 and 82; Weaver Affidavit at [88]; King Affidavit at [6].
It is not therefore the complaint or inquiry which was an issue for Cape Australia, rather the conduct of Mr Walker in continuing to pursue a matter which he had been directed not to do, and which was considered by Cape Australia to be a minor issue which ought not to have then been the subject of any focus by Mr Walker: BHP Coal at [20] per French CJ and Kiefel J; Endeavour Coal at [32] per Jessup J.
Bechtel WA policies or positions
As a part of Mr Walker's role as HR/IR Manager, he reviewed and commented on Bechtel WA's policies that were relevant to his job. This was done to address potential issues that might be raised by employees of Cape Australia: Walker June 2015 Affidavit at [26]-[32].
There is no dispute that Bechtel WA:
a)reserved a right to prevent mobilisation to its site based on medical assessments;
b)had a drug, alcohol and search policy;
c)had interview check-list guidelines;
d)had a policy concerning room searches;
e)had a policy with respect to the sale of alcohol; and
f)had a policy with respect to WorkCover claims history.
There is no evidence before the Court as to the precise terms of any of these policies or positions, save as to the interview check-list guidelines, and for present purposes the content of those policies is largely immaterial. In any event their existence is not disputed, and it is unnecessary to resolve whether they are policies or positions which were adopted by Cape Australia. It suffices to observe that as part of Cape Australia’s agreement with Bechtel WA, Cape Australia’s policies and procedures were required to be “aligned” with Bechtel WA’s policies and procedures: Walker June 2015 Affidavit at [29].
In order for any expression of support by Cape Australia for Bechtel WA policies to constitute adverse action it is necessary for Mr Walker to demonstrate that any expression of support constituted adverse action, and in the context of these proceedings, that there had been some diminution in the rights or privileges or entitlements or matters to be enjoyed in his employment by reason of Cape Australia supporting the relevant Bechtel WA policy or position. Save for the contractual obligation for Cape Australia’s policies and procedures to be “aligned” to those of Bechtel WA, and an observation by Mr Weaver that the provision of information in relation to Mr Walker’s medical condition was a reasonable risk management measure, it is difficult to see what evidence there is of the alleged support. In any event, it does not matter, because assuming that there was a manifestation of such support, the support does not manifest itself as adverse action because there was no prejudicial alteration to Mr Walker’s position in his employment with Cape Australia either before or after the alleged expression of support (if such an expression was made, and, if so, whenever it was made) in relation to Bechtel WA’s policies, and therefore there was no adverse action.
Fitness for mobilisation
It is alleged that adverse action was taken against Mr Walker by Cape Australia because he was unfit for mobilisation to the Wheatstone Project Site.
The evidence establishes that the medical provider to Cape Australia, Kinetic, assessed Mr Walker twice, and on both occasions assessed him as being fit to work. On this basis Cape Australia say that it never considered Mr Walker to be unfit for mobilisation. There is no dispute that Mr Walker was also “assessed” by Aspen, who were the medical providers to Bechtel WA. Aspen did make an assessment that, taken at its highest, Mr Walker was unfit for mobilisation until he had provided Aspen with confirmation that his condition was under control and that he was complying with a treatment regimen. This was not an assessment that Mr Walker was permanently unfit for mobilisation, but rather that he would not be mobilised pending further medical information to be provided, and which was ultimately provided by Mr Walker.
In the Court’s view it is not the case that Cape Australia insisted that Mr Walker provide information to Bechtel WA, that was being sought by Bechtel WA, in order to further assess Mr Walker with respect to his fitness to mobilise to the Wheatstone Project. As indicated above: see [x] above, the Court’s view is that Mr Walker was not required by Cape Australia to provide that information, and at best for Mr Walker, suggested that he provide the information, which is not the same as insisting that it be provided, and there being some adverse outcome or effect at the instance of Cape Australia if Mr Walker did not do so.
In the Court’s view:
a)Cape Australia did not assess Mr Walker as being unfit for mobilisation to the Wheatstone Project;
b)it made no difference if Cape Australia thought that Mr Walker was unfit to mobilise, because even if Mr Walker was assessed as unfit for mobilisation he was in no worse a position because of that assessment than he would otherwise have been because he was already considered unfit to mobilise by Bechtel WA who would make the decision on his mobilisation; and
c)mobilising Mr Walker to the Wheatstone Project Site was not required prior to Mr Walker’s dismissal from employment.
It is the case that Mr Walker’s mobilisation to the Wheatstone Project Site was not dependent upon anything that Cape Australia did, but rather the views of Bechtel WA and Aspen in its capacity as Bechtel WA’s medical provider, and that nothing done by Cape Australia altered the position of Mr Walker in that regard. In that regard, it is pertinent to observe that Bechtel WA, who were a respondent to the proceedings, are no longer a respondent to the proceedings: see [1] above.
It follows from the above that in relation to the fitness for mobilisation issue there was no prejudicial alteration in Mr Walker’s position in his employment with Cape Australia, and therefore there was no adverse action in relation to this issue.
Dismissal from employment
Sick leave
From about the end of May 2014 Mr Walker became ill with flu like symptoms but continued to attend work with Cape Australia. Mr Walker's health continued to deteriorate and on the afternoon of Friday 13 June 2014 he went home from work early, notifying Mr Geoff Yeoman, Project Commercial Manager of Cape Australia, of that fact before leaving the worksite. Mr Walker returned to work on Tuesday 24 June 2014.
Mr Walker subsequently received a letter of termination from Cape Australia dated 26 June 2014.
Dismissal
On 26 June 2014 Mr Walker was dismissed from his employment with Cape Australia.
Following Mr Weaver’s meeting with Mr Walker to inform him of the decision to dismiss Mr Walker from employment with Cape Australia, Mr Walker was sent the following letter from Cape Australia:
Dear Peter,
Termination of Employment:
Further to our discussions today, I confirm that our ongoing concerns about your performance have caused us to lose trust and confidence in you and your employment with Cape Australia is therefore terminated in accordance with clause 24 of your contract of employment.
This letter is formal notification that your employment is terminated effective from close of business on Thursday, 26 June 2014 and that you will be paid one month's pay in lieu of notice. This notice payment and all applicable accrued entitlements will be paid to you at the nearest practicable pay run from today's date. The Employee Assistance Program (1800 303 090) will remain available to you for the next four weeks.
Please ensure that you have returned all company property, including but not limited to equipment, documents, confidential information and intellectual property by no later than close of business on Monday, 30 June 2014.
I remind you of your ongoing obligations not to poach Cape' s staff or clients for at least 12 months and not to use Cape Australia's confidential information at any time in the future.
Peter, I wish you well in your future endeavours,
Yours Sincerely,
Geoff WeaverHR Director
There is no dispute that Mr Walker’s dismissal from employment constituted adverse action.
Mr Weaver made the decision to dismiss Mr Walker from employment on 26 June 2014. Mr Weaver says that the basis for that decision was that Mr Walker’s poor performance had caused him to lose trust and confidence in Mr Walker, and for no other reason: Weaver Affidavit at [148]-[168].
Mr Weaver met with Mr Walker on 26 June 2014 at the Jandakot Office and informed him of his decision to dismiss Mr Walker from employment, and told Mr Walker that it was on the grounds that his poor performance had caused him to lose confidence in Mr Walker: Weaver Affidavit at [163].
It is necessary, therefore, to examine Cape Australia’s reasons for dismissing Mr Walker and whether Mr Walker’s dismissal occurred because Mr Walker either had, and exercised, a workplace right, or because of his physical disability.
Cape Australia says that it dismissed Mr Walker because of its concerns about his performance, and specifically, Mr Walker’s performance in relation to three matters, as follows:
a)that he was unable or unwilling to deal with the administrative aspects of his role, and was not on top of that role;
b)that he had proven himself to be someone who became fixated upon minor issues and was unable to resolve issues; and
c)that he had failed to form good working relationships, and indeed, formed bad, toxic and unproductive relationships with co-workers.
In relation to Mr Walker’s failing to perform administrative aspects of his role and generally not being on top of his role there was evidence as to:
a)the non-preparation of authority to recruit forms: Transcript, p.105 lines 10-13, a function for which he conceded he was “accountable”: Transcript, p.38 lines 16-20;
b)the non-preparation of, or failure to finalise, employment contracts: Thomson Affidavit at [116]-[118];
c)the unilateral alteration of employment contracts: Weaver Affidavit at [110]-[114]; Thompson Affidavit at [119]; Transcript at pp.107-108;
d)non-attendance at interviews: see the evidence of Ms Thompson at Transcript, p.108;
e)the improper preparation of interview notes, the importance of interview notes in the recruitment process being acknowledged by Mr Walker under cross-examination: Transcript, pp.35-36 and Exhibit 3, but the interview notes prepared by him being, for example, incomplete and illegible: Transcript, pp.68-69, and see the Court’s observation at Transcript, p.143; and where the incomplete aspects of those interview notes seemingly often went to aspects of the interviewees technical competence, as attested to by Ms Thompson: Transcript, pp.102-103 and 113 lines 1-22; and
f)the non-engagement of a heavy rigid driver: Transcript at pp.105-106.
It is unnecessary for Cape Australia to establish or prove that it was correct in its assessment of Mr Walker’s performance in these proceedings. The issue is not whether the performance related reasons are right or unfair. Ultimately, even if the reasons for dismissal are wrong or unfair (and in this case the Court does not consider them to be so), and provided that they were not designed or intended to camouflage prohibited reasons (which in the Court’s view they were not in this case), the fact that the reasoning with respect to Mr Walker’s performance might be wrong or unfair does not alter the basis for the reasons not being prohibited reasons.
In relation to whether Mr Walker was exercising a workplace right the workplace right relied upon is that in s.341(1)(c)(ii) of the FW Act, relating to an employee being able to make a complaint or inquiry in relation to their employment.
The law with respect to a workplace right constituted by a complaint or inquiry in relation to employment is discussed at [48]-[58] above. Cape Australia submitted that Mr Walker did not exercise a workplace right because had had no workplace right because the source of the complaints that he made was not founded in any particular instrument, whether legislative, quasi-legislative such as an award, or a contract of employment. That approach echoes the approach in Shea (No 6). The Court, as presently constituted, however, prefers the broader approach as to what constitutes a workplace right set out in Murrihy, and adopts what was said by the Federal Court in relation to the breadth of the phrase “in relation to” employment for the purposes of s.341(1)(c)(ii) of the FW Act in Greater Metropolitan Cemeteries Trust (No 2) at [41]-[42] per Bromberg J. For that reason, and in relation to Mr Walker’s alleged complaints or inquiries, the Court is of the view that:
a)his complaints concerning having been assessed as unfit for mobilisation, and his objection to providing medical information to Aspen are matters which clearly relate to his employment;
b)his inquiry concerning the searching of accommodation at the Wheatstone Project site and Bechtel WA’s policy or position in relation thereto, is a matter in relation to his employment given that he was meant to be mobilised to the Wheatstone Project Site;
c)likewise, his inquiries concerning the standing down of employees who test positive for drugs or alcohol, without pay, potentially is a matter in relation to his employment given his potential mobilisation to the Wheatstone Project Site; and
d)the complaints or inquiries relating to job candidate’s information from WorkCover, the insistence by Bechtel WA that Cape Australia complete the interview checklist or use the interview checklist guidelines, and his query concerning the legality or lawfulness of Bechtel WA’s policy or position on the sale of alcohol have, are all matters in relation to Mr Walker’s employment,
because they relate to the duties that he was required to perform, or which may have had some effect in relation to his mobilisation to the Wheatstone Project Site: compare Greater Metropolitan Cemeteries Trust (No 2) at [42] per Bromberg J; Pilbara Iron Services at [69] per Katzmann J.
At the meeting at the Jandakot Office Mr Weaver invited Mr Walker to speak to Mr King if he needed any further clarification in relation to the decision to end Mr Walker’s employment: Weaver Affidavit at [164]. Mr Walker then spoke to Mr King by telephone (a call initiated as a consequence of Mr Weaver speaking to Mr King, rather than Mr Walker speaking to Mr King): King Affidavit at [102]-[103]. Tellingly, in that conversation Mr King said to Mr Walker words to the effect that:
Peter this is because of all the issues with the ATRs, the lack of contracts of employment etc. You are so behind with the ATRs that I had to sit and write them out myself. The same thing with the contracts. You are just not in control of your responsibilities. You are not collaborative and you have not developed good relationships with people here at Cape and at Bechtel. We took you through these issues in Geoff’s office. I mean, your last comment about ‘taking up the medical information with Bechtel’ after you mobilise is an example. It just doesn’t fill me with confidence that you are right for the job. Bringing you up here is a risk to the project. That means I can’t mobilise you, and we have to let you go.
King Affidavit at [103].
Mr King gave evidence that his reasons for terminating Mr Walker’s employment were limited to Mr Walker’s performance, his attitude toward Bechtel WA and his failure to build constructive relationships in the role, and that he was not dismissed because of any of the complaints or inquiries raised in these proceedings: King Affidavit at [105]-[106], and the Court accepts that evidence.
At hearing there was an attempt by Mr Walker to exculpate himself from any shortcomings with respect to his recruitment activities by arguing that those activities were not part of his role. That submission must fail (as the Court pointed out at hearing: Transcript, p.130) because it is inconsistent with:
a)the evidence as to the recruitment functions required to be undertaken by Mr Walker as HR/IR Manager: see [20(c)] above; and
b)the general nature of human resource functions.
It is plain enough on the evidence, and in particular that of Ms Thomson, that Mr Walker either did not know what he was doing in terms of his recruitment functions, or, as the Court observed during closing submissions: Transcript, p.131, gave the impression that he did not know what he was doing. To some degree, the submissions made by Counsel on Mr Walker’s behalf acknowledged these shortcomings, and endeavoured to justify them by reason of certain circumstances applicable to Mr Walker’s employment, such as:
a)that for the period between January and April 2014 he worked from the Canning Vale office as his primary office whereas the recruitment team was based in Jandakot;
b)that Mr King and Mr Weaver had been mobilised to the Wheatstone Project Site, and Mr Walker was therefore operating remotely from them; and
c)that he was on sick leave for a period of time in late June 2014.
The above circumstances, and particularly (a) and (b), do not assist Mr Walker. He was a senior management employee, of whom it could be expected that he might have the wherewithal to work collaboratively and appropriately with colleagues notwithstanding that they were at times in different locations. It is worth observing that, on the evidence, his performance did not improve after April 2014, and thus (a) above seems to be immaterial. The fact that two other senior management employees with whom Mr Walker was required to work were operating remotely is hardly an impediment in the electronic age, noting in particular that the evidence disclosed significant communication by email and telephone (and the availability of Skype for the conducting of interviews and meetings: Transcript, p.100).
With respect to Mr Walker’s absence on sick leave that absence is an example, somewhat minor but nevertheless emblematic, of the communications difficulties that other employees of Cape Australia had with Mr Walker. For a period of time, Mr Walker was simply absent, and failed to communicate his absence to anyone at Cape Australia: Transcript, p.115, Thomson Affidavit at [97]-[106].
Likewise, Mr Walker’s evidence provided other examples of circumstances where, although he was employed to “manage” he had significant difficulty in managing the people under and around him, for example, Ms Chiplin. Whatever the basis for his difficulty in managing those people (which appear to be difficulties unrelated to his complaints and inquiries) those difficulties were an example of the performance issues that Mr King and Mr Weaver appeared to have with Mr Walker’s performance in his role.
The Court is satisfied that Mr Walker was responsible for the matters about which Mr King, and also Mr Weaver, said constituted a failure to perform, and that those matters were indeed a failure to perform his role, and were not matters which were made up with a view to intending to camouflage prohibited reasons.
In this regard, the Court prefers the evidence of Mr King and Mr Weaver to that of Mr Walker in relation to the matters for which he was responsible (or accountable, the two being synonyms), and accepts as reliable their evidence that Mr Walker was not performing well in his role.
In relation to the late April 2014 Meeting at which Mr Walker’s performance was discussed with Mr Weaver and Mr King the Court accepts that performance issues were discussed at this stage with Mr Walker, including the issue of the failure to issue contracts of employment to persons employed on the Wheatstone Project Site, and Mr Walker’s approach to the Bechtel WA requirement to be further medically assessed: King Affidavit at [87]-[91]. The Court further accepts, that in relation to the relevant concerns held by Mr Weaver and Mr King that there was no significant change in Mr Walker’s performance prior to his dismissal from employment: Weaver Affidavit at [93]-[97].
The second reason for Mr Walker’s dismissal flows, in some respects, from the first issue with respect to his performance, and that is namely that he was more likely to try to deal with minor issues because he lacked the capability to resolve with maturity and sensitivity major issues. The question of Mr Walker dealing with a non-critical or, what was perceived by Mr Weaver and Mr King to be minor issues, rather than the major issues, including the critical issue of mobilisation of personnel to the Wheatstone Project Site (said to be the fourth largest resources construction site in the world, and plainly on an enormous scale in terms of size and numbers of personnel employed) was of obvious concern: see [140] above and King Affidavit at [80].
In relation to critical issues, including mobilisation of personnel, there was evidence that Mr Walker was not ensuring that the areas for which he was responsible were being properly managed. In relation to contracts of employment it was obviously a concern to Cape Australia that some people had commenced without contracts of employment being issued to them. Mr Walker was the manager responsible for the oversight of that issue, but when it was raised with him in the late April 2014 Meeting his response as to described by Mr King (which the Court accepts) was that:
I don’t issue contracts of employment. It’s not in my job description.
King Affidavit at [86].
Mr Walker’s response clearly demonstrates a lack of insight into the concern, and an abrogation by a senior management employee of his responsibility for managing the area of work concerned, and does so in a manner which could only be described as abrupt and dogmatic.
There was evidence that Mr Walker did not form good relationships with his co-workers, and in particular, with Ms Thomson and was not collaborative in his approach. In the evidence there are numerous examples of a failure to form good relationships, or issues with relationships, which, in the Court’s view, are sufficient to establish that this was a matter of concern, and one of the reasons for, Cape Australia determining to dismiss Mr Walker from employment: see Weaver Affidavit at [152]-[154]; Thomson Affidavit at [93]-[96].
It is fair to observe that the evidence is consistent with what was said by Mr King and Mr Weaver as to the complaints or inquiries made by Mr Walker, and that is that it was not the fact that he was making the complaints or inquiries that caused concern, it was the manner in which, and his approach to dealing with people in dealing with those issues, that caused Cape Australia concern, and which ultimately caused Cape Australia to dismiss Mr Walker. Cape Australia’s concern was not with the fact that Mr Walker made complaints or inquiries about certain matters, but rather with the way in which he communicated those complaints and inquiries. Whilst there is some connection back to the complaints and inquiries that connection does not of itself provide the reason for Mr Walker’s dismissal: compare BHP Coal at [20]-[23] per French CJ and Kiefel J; Endeavour Coal at [32] per Jessup J.
In this instance the Court is satisfied that there is evidence consistent with the reasons given by Mr King and Mr Weaver for the dismissal of Mr Walker from his employment. In that regard, the Court accepts the direct testimony of Mr King and Mr Weaver as the director decision-makers as to the reasons for the dismissal of Mr Walker.
Even if the reasons for dismissal given by Mr King and Mr Walker were not all able to be made out as a matter of fact on the evidence, the Court still accepts that they were the reasons for the dismissal of Mr Walker. This is a case in which there is sufficient evidence for the views said to have been formed by Mr King and Mr Weaver for the Court to conclude that even if those views were incorrect, they still formed the basis for the reason for Mr Walker’s dismissal from employment.
Mr Walker claims that he was dismissed by Cape Australia in contravention of s.351(1) of the FW Act for reasons which included his physical disability, being his type-2 diabetes. Mr Walker’s claim in this respect cannot be made out because, as the Court as concluded above, the reason for the dismissal of Mr Walker from his employment with Cape Australia was based upon his performance, conduct and relationships in the workplace. There is simply no evidence that Cape Australia, or any of its employees (and most pertinently Mr Weaver and Mr King) had any regard at all, or paid any consideration at all, to Mr Walker’s type-2 diabetes in determining that Mr Walker ought to be dismissed from employment.
Having regard to the observations made above, and the evidence as a whole, the Court is satisfied that the substantial and operative reason for Mr Walker’s dismissal related to his performance, conduct and relationships in the workplace, as perceived by Cape Australia. The reasons for Mr Walker’s dismissal from employment were not those matters in relation to complaints and inquiries, and the exercise of a workplace right or his disability, as claimed by him. It follows that his allegations of a contravention of a general protection by Cape Australia in dismissing him from employment have not been made out.
Conclusion and orders
The Court has concluded that Mr Walker’s allegations of a contravention of a general protection by Cape Australia in dismissing him from employment on 26 June 2014 have not been made out, and his application, as amended on 12 September 2014, must be dismissed. There will be an order accordingly.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No 2) [2017] FCCA 1713). If, however, Cape Australia considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 August 2019
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