Ward v Star Track Express Pty Ltd

[2015] FCCA 209

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARD v STAR TRACK EXPRESS PTY LTD [2015] FCCA 209

Catchwords:
INDUSTRIAL LAW – Fair work – adverse action – whether a transfer of location was commensurate with the offer of employment – application dismissed.

Legislation:  
Fair Work Act2009

The Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32

Applicant: TONY WARD

Respondent: STAR TRACK EXPRESS PTY LTD

File Number: SYG 1157 of 2014

Judgment of: Judge Street

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: N/A

Counsel for the Respondent: Mr S. Meehan

Solicitors for the Respondent: Ashurst Australia

ORDERS

1. The amended application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1157 of 2014

TONY WARD

Applicant

And

STAR TRACK EXPRESS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction conferred under s.566 of the Fair Work Act2009 in which the applicant brings a claim for alleged adverse action under s.340, as well as a claim for alleged contravention of s.343, s.345 and s.50 of the Act, and breach of contract alleged wrongful dismissal.

2. The applicant commenced employment with the respondent on 27 September 2004.  On 21 September 2007 he accepted a letter of offer that he signed on 15 September 2011.  That document commenced:

   It is with pleasure I offer you full time employment in the position of AM Freight Handler with Star Track Express (‘Company’). The terms of the offer are set out below.

3. Under the heading Location:

   Location

   You will be based at our Minchinbury Bulk Shed. However, you may also be required to work at any other location that the Company may reasonably nominate from time to time in line with the needs of the business and as directed by your manager.

4. At the end of the letter there was an attachment checklist which identified the applicant.  It had a reference to his position, AM Permanent Freight Handler, and had a reference Location, Minchinbury Bulk Shed. 

5. The dispute in the present case arises out of events that appear to have originated in November 2013 when it was anticipated that there may be a transfer to what was called the Main Shed which, on the evidence before me, appeared to be something like 500 metres from the location where the applicant had been working which was called the Minchinbury Bulk Shed. 

6. In early February 2014, in effect, the applicant was directed by his employer to commence work and attend at the Main Shed to carry out his services for the benefit of the company.  The applicant took the view that, because of the clause that is referred to above in the contract of employment, as well as because of his view as to the terms of the enterprise agreement and, in particular clauses 17 and 18 relating to settlement of disputes and consultation regarding major workplace changes, that he wouldn’t comply with the direction. 

7. He was given at least five separate instructions by his employer in writing to attend the location at the Main Shed, namely on 4 February 2014, 6 February 2014, 11 February 2014, 12 February 2014 and 13 February 2014.  The applicant received three warning letters in relation to the failure to comply identifying that he faced the consequences of termination. 

8. There were three other employees who had also been directed to relocate, and I heard evidence from Mr Cooper, Mr Woodruff, Mr Ward and Mr Aldridge in relation to the events surrounding the instruction to relocate. It was clear the applicant understood the direction, which I find was not a major workplace change and the applicant conceded in cross-examination, that he appreciated that the consequences of failing to comply with the direction were that potentially he would be dismissed. 

9. The applicant was doggedly of the view that there was an obligation to negotiate, and doggedly of the view that the respondent had to engage with him in a process of negotiation, and that he didn’t have to comply with the direction. The applicant was of a fixed view that the terms of the contract, by reference to the location, did not permit the direction that he attend at the shed.  It is clear on the evidence of the applicant in cross-examination and in answer to the questions put from the bench that he deliberately took the view that he would not comply with the direction.   The applicant’s views were wrong and he was contractually obliged to comply with the directions and his refusal to comply did not create an entitlement to negotiation.

10. I find the direction that was given for him to attend at the Main Shed was a lawful direction and, in relation to the Fair Work Act 2009, it was a direction that was not given for any prohibited reason. I have taken into account the scheme of the Act, including s.361, and principles discussed in The Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32 at [5], [15-21],[41-45] and [127-129].  I find that the warning letters that were sent were deliberately not complied with by the applicant, but were sent in circumstances only for the reason of the failure of the applicant to comply with that direction and not for any prohibited reason.  I accept the evidence that was given by Mr Phelp in that regard that the termination was not taken for any proscribed reason.

11. In these circumstances, the refusal by the applicant was, in my opinion, clearly wilful misconduct of a kind that permitted the termination of the contract of employment and it was that refusal that was the sole reason for the adverse action by way of termination of the contract of employment.  In my opinion, there was no breach of the Fair Work Act 2009 in relation to that termination, given that the termination was not done for any prohibited reason and given that the conduct constituted wilful misconduct on the evidence before the court.

12. In those circumstances, the applicant is not entitled to succeed in relation to the claims advanced for alleged contravention of the Fair Work Act in respect of the dismissal. There are a large number of other claims that the applicant included in his written submissions and some of which were included in his amended application. Those claims are all, in my opinion, vexatious and without substance. I accept, the evidence of the respondent that the applicant was paid in accordance with his entitlements in the contract. It was put to him in cross-examination that he was paid in accordance with the schedule that was identified in the Star Track Express enterprise agreement. The applicant accepted that he was paid in accordance with that Star Express agreement but maintained that there should have been a difference of some eight cents or more that should have been paid. I do not accept that alleged error in payment by the respondent. I find there was no breach of the said enterprise agreement as alleged by the applicant.

13. I also find that wage discrepancy was not a reason for his termination. The applicant has not established any entitlement to any further payment from the respondent.  In those circumstances, I dismiss the amended application and the ordinary consequence under s.570 is that there will be no order as to costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  KM

Date:  3 February 2015