Williams v Insituform Pacific Pty Limited
[2023] FedCFamC2G 1211
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williams v Insituform Pacific Pty Limited [2023] FedCFamC2G 1211
File number(s): BRG 310 of 2022 Judgment of: JUDGE VASTA Date of judgment: 18 December 2023 Catchwords: INDUSTRIAL LAW – Adverse action – whether employer has discharged the onus under s 361 of Fair WorkAct2009 (Cth) – whether employer complied with a clause in Award – no contravention of s 45 Fair WorkAct2009 (Cth) Legislation: Fair WorkAct2009 (Cth): ss 45, 340(2), 251, 361 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Division: Division 2 General Federal Law Number of paragraphs: 117 Date of last submission/s: 11 December 2023 Date of hearing: 16-18 October 2023 Place: Brisbane Counsel for the Applicant: Mr Haddrick Solicitor for the Applicant: Queensland Workplace & Workplace Injury Law Counsel for the Respondents: Mr Grant Solicitor for the Respondents: Keypoint Law ORDERS
BRG 310 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RICHARD WILLIAMS
Applicant
AND: INSITUFORM PACIFIC PTY. LIMITED (ACN 123 427 305)
First Respondent
JEREMIAH DALY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 25 July 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
The applicant, Richard Williams, began working for the first respondent, Insituform Pacific Pty Ltd, in 2011 having previously worked for the UK and Netherlands arms of the company from 1993. In 2020, the first respondent was bought by the Killard Group, whose managing director is Jeremiah Daly, the second respondent.
In February 2022, the first respondent made a decision that it needed to make redundancies to help the financial viability of the company. The applicant was one of four persons made redundant.
The applicant claims that the first respondent made him redundant because he had made a WorkCover claim for a mental injury he had suffered. The applicant also claims that the first respondent failed to discuss the major overhaul of the company with him and that such discussion is mandatory under the appropriate Award which is the Building and Construction General On-site Award 2020 (“Award”).
Circumstances of the applicant
The business of the first respondent is ostensibly “trenchless pipe repair”. This means that the company uses technology wherein underground pipes, mainly sewers, can be inspected and repaired without having to dig a trench to access the pipe.
The applicant began working for Insituform UK in 1993. During that time, he often worked in the Netherlands. In 2001, his position was made redundant. The applicant enquired as to the availability of roles with the company in the Netherlands. He was offered a position, relocated to the Netherlands and remained working there for about 10 years.
In 2011, the applicant enquired about the possibility of working for Insituform in Australia. With the consent of his employer, the applicant approached the first respondent to enquire about the possibility of working in Australia. On 14 July 2011, the applicant was offered employment by the first respondent which he accepted. The applicant relocated to Australia and his employment started fresh with the first respondent.
The applicant was initially based in New South Wales but moved to Queensland in 2013. In 2016, the applicant was informed that his position would be made redundant. However, he was offered another position of “field coordinator”. He accepted that position.
The applicant detailed that, in 2019, he was involved in a project that required him to work away from Brisbane in Roma. He said that he drove to Roma from his home on a Monday morning and drove home from Roma on a Friday after work. The applicant said that this work was very taxing, and it was a very tense and stressful time for him.
Psychological injury
The applicant claims that there were a number of stressors in his life that had their origins in his work; this included the Roma project which had lasted for over nine months in 2019. The applicant claimed that, on 3 October 2020, he met with his superiors who told him that, in addition to the tasks he was already performing, he would also have to perform other duties. The applicant said that he reacted by challenging this decision by rhetorically asking how he was supposed to do so much work.
The applicant said that he felt overwhelmed and that “everything was dumped on me”. He said that he began to despair. He said that, on the morning of 6 October 2020, he just couldn’t get out of bed and couldn’t go to work. He attended upon his GP later that day. He said that he remained absent from work and was able to use accrued leave.
The applicant said that he had a conversation with the HR Officer of the first respondent, Ms Maree Hey during his absence. He said that Ms Hey enquired as to whether his injury was a work injury. He said that, on another occasion, Ms Hey called him and told him that he needed to make a decision about whether he was going to make a WorkCover application.
The applicant testified that he felt reticent to do so because he was fearful that making such an application would put his employment in jeopardy. However, he did make such a claim. The applicant said that Dr Hadwen issued workers compensation work capacity certificates. He said that he was absent from work from 5 October 2020 until 1 December 2020. From 1 December 2020, he was on light duties as a “return to work” program gradually increased his hours and duties at work.
On 26 August 2021, the work capacity certificate did not put any restriction on the applicant, and he resumed his full-time work on normal duties.
The applicant said that his WorkCover claim was closed on 27 September 2021. The applicant said that he was informed that, if the symptoms return, then he should call WorkCover.
The applicant said that, in November 2021, he was directed to go to Bundaberg for work. He said that this caused him to reactivate his injury. He saw his GP on 15 November 2021 and then saw Dr Hadwen on 30 November 2021. The applicant reported that the doctor told him that if he did not feel up to working overnight away from Brisbane, he did not have to go.
The applicant took pre-arranged personal leave which ended on 11 January 2022. On that date, the applicant saw Dr Hadwen who issued a work capacity certificate. The applicant emailed this certificate to WorkCover. The applicant said that WorkCover informed him that they had made a decision to reopen his claim.
The first work capacity certificate was for the period of 18 January 2022 until 15 February 2022 and the second certificate was from 15 February 2022 until 15 March 2022. It appears that the applicant emailed those certificates to Ms Hey around 15 February 2022. A copy of these certificates is annexed at RW-14 to the first affidavit of the applicant.
These certificates detail that the provisional diagnosis was “adjustment disorder with anxiety and depression” with the stated mechanism as being “increased work pressures including changing role with no additional training, increased workload and difficulties having contracts signed (partly due to COVID-19), exacerbation following three weeks off site work”. The certificate details that the capacity for work is that the applicant “can return to some form of work”.
Problems for the first respondent
In 2021, serious financial problems with the first respondent had been identified by the second respondent. There were myriad reasons as to why the financial position wasn’t healthy, but these need not be detailed. The second respondent detailed, in his affidavit, all of the measures he had taken to try and turn the business around. The second respondent said that, by Christmas 2021, it had become apparent that all of the measures that had been put in place were not going to be successful and, that unless something drastic occurred, the company was at risk of insolvency.
On 7 February 2022, a major meeting of all the managers of the first respondent took place. The attendees included the second respondent, Glenn Comte (the Victorian manager), and Simon Davis (the general manager). The outcome of this meeting was that everyone was to go and try and fix up their parts of the business noting that the financial figures for February would be reviewed in the context of the projected targets that were set.
The second respondent, and Mr Comte, both reported that the Queensland office had put forth projections in the order of $800,000. However, when the invoices came through, the Queensland office had only realised $400,000. This failure to meet projections by 50% was, according to the second respondent, the death knell for the Queensland office.
The second respondent detailed that he had a meeting on 20 February 2022 with Mr Davis and Mr Comte where the decision was made that the Queensland office would begin to give projects back to contractors and would close. The first respondent wanted to keep just enough personnel on the ground to finish off the contracts that they felt they could.
The second respondent said that this meant that the four persons who were, in effect, the Brisbane office would all have their positions made redundant. One of those positions was the position of the applicant.
Whilst it is that the second respondent said that the decision was a joint management decision (that is a decision made by himself, Mr Davis and Mr Comte), it seems to me that “the buck stopped” with the second respondent.
The second respondent then informed Ms Hey that redundancies would be made. He testified that he gave the list of positions that would be made redundant to Ms Hey. The second respondent was very particular in saying that it was the positions, rather than the names, that he had made redundant.
The second respondent testified that, after giving the list of positions to Ms Hey, Ms Hey mentioned to him that the applicant had been on workers compensation. The second respondent denied that this fact had any bearing on the decision to make the position of the applicant redundant.
Ms Hey and WorkCover
As earlier noted, Ms Hey had been in contact with the applicant during his absence from work and during his graduated return to work. The applicant had sent his certificates to Ms Hey on 15 February 2022.
According to notations from WorkCover, on 15 February 2022, Ms Hey spoke to Michelle Mochrie who is a customer advisor to WorkCover. The notations of this phone call were agreed by Ms Hey to contain the “gist” of the conversation she had that day.
Ms Hey had contacted WorkCover because she was aware that the claim of the applicant had been closed but she had just received a new medical certificate. Ms Hey detailed that, until they had received that medical certificate, the first respondent was unaware of any problems or that the applicant should be restricted from having to perform “out of Brisbane” work.
Ms Hey said to Ms Mochrie that the first respondent would have liked the applicant to discuss how he is feeling to his supervisor so that they could have brought him home early. Ms Hey said that she wondered how much longer this would be happening and whether this was going to be ongoing for the rest of the applicant’s life. She said that she had spoken to the applicant, and he would have conversations with her which were not related to work at all - such as the applicant saying that he can’t ride his motorcycle.
Ms Hey said to Ms Mochrie that the first respondent was not taking away the fact that they had let the applicant down initially, but they would like to have some direction on where things are going. Ms Mochrie advised that the applicant had gone to see his doctor and it appeared that WorkCover had reopened the claim but that she (Ms Mochrie) was not managing the claim. She said she would let the person who was managing the claim (Ms Kelly Fritz) know of the concerns that Ms Hey had.
On 25 February 2022, Ms Fritz telephoned Ms Hey and left a message. By this time, Ms Hey had been told by the second respondent that the position occupied by the applicant was to be made redundant.
Ms Hey returned the call of Ms Fritz later that day. Ms Hey told Ms Fritz that the organisation was currently going through quite a lot of changes and was in the process of a large restructure within the business. Ms Hey said that there were unfortunately going to be some positions that are going to be made redundant and one of those was the position of the applicant.
Ms Fritz said that she appreciated Ms Hey letting her know this and asked when the applicant would be notified about this decision. Ms Hey advised that the director (the second respondent) was flying up on Monday and so the applicant would be notified either Monday or Tuesday. Ms Fritz advised that the entitlements of the applicant under the claim would remain, and the payments would not change.
Mr Comte
Mr Comte (who no longer works for the first respondent) gave evidence that he was in the senior leadership team in 2021/2022.
Mr Comte said that he had spoken to the applicant during the time when the applicant was on reduced duties on a “return to work” program. Mr Comte conceded that the fact that the applicant was not working at full capacity was an issue that the first respondent had to manage. He said that he certainly knew about the fact that the applicant had made a WorkCover claim and that this was raised when, in management meetings, the HR situation in Brisbane had been discussed.
He said that he recalled the meeting of 7 February 2022 and that performance of the business, as a whole, was discussed. He spoke about each of the offices providing forecasts.
He recalled that, when the results came through a few weeks later, that the results for Brisbane were less than 50% of the forecasts. He said that the decision was made by himself, Mr Davis and the second respondent, that they needed to “exit Brisbane”. He said that this meant that there would be redundancies for those affected in the Brisbane office.
Mr Comte was adamant that there was never any discussion as to the individuals that would be the subject of redundancies. He said that there were no names mentioned, only positions. He denied that, when making the decision on redundancies, he took into account the fact that the applicant had made a WorkCover claim and had not been working to capacity in the previous year.
Mr Davis
Mr Davis testified that he was a member of the “team” that consisted of himself, Mr Comte and the second respondent. He said that he was aware that the applicant had made a WorkCover claim. However, he did not know that this claim had been reactivated. As far as he was concerned, the applicant had been back to work full-time for a number of months.
Mr Davis conceded that during monthly management meetings, the fact that the applicant was on WorkCover payments, or was on a gradual return to work schedule, was mentioned. Mr Davis said that the second respondent was present during those meetings.
Mr Davis gave evidence that he recalled the meeting of 7 February 2022. Mr Davis denied that he had taken the fact that the applicant had a WorkCover claim into account when the decision was made as to redundancies.
7 March 2022
There is some conflict amongst the testimony of the applicant and the second respondent as to what occurred on 7 March 2022.
What is not in dispute is that a decision had been made to make the applicant’s position (amongst others) redundant. It is not in dispute that the second respondent came to Brisbane to deliver that news to the applicant (and others). It is not in dispute that Ms Hey had drafted a letter which was signed by the second respondent. The contents of that letter are not in dispute, but for completeness, I reproduce the contents of that letter which is found at CB 175:
Dear Richard,
Re: Possible Termination of Employment by Reason of Redundancy.
The purpose of this letter is to confirm our discussions with you regarding the outcome of a recent review by Insituform Pacific (the Company) of its operational requirements and what that means for you.
As you may be aware, we are continually reviewing the performance of the business including the structure of the business, the current contractual commitments and the market conditions. The current climate of our business has placed continued pressure on Insituform to appropriately resource our business, in particular in Queensland. After a period of careful consideration, a decision has been made to restructure the business in Queensland to better align with the current contract commitments and market conditions.
It is with regret we advise that, as a result of the decision, the position of Field Coordinator Queensland is no longer required and is therefore redundant.
In an effort to minimise the impact of your position being made redundant, we have considered all avenues to find a reasonable alternative position within the Company that would match your skill set. Unfortunately, no such role exists.
In the event a suitable alternative cannot be found your employment with Insituform Pacific will end on 9th March 2022. Based on your length of service, your notice period we have calculated your payout/redundancy figure, this ls attached. You will also be paid your accrued statutory entitlements payable upon termination of employment and any outstanding pay, including superannuation, up to and including your last day of employment.
Next Steps
As part of the consultation process and in addition to our discussion today, we would like to meet with you to further discuss the proposed changes, how these changes will affect you and any alternative options. We have scheduled the meeting for Wednesday 9th March at 10am at the Northgate office/Teams You are welcome to bring a support person to this meeting. Between now and this meeting you are not required to attend work. You will be paid your ordinary hours of work for this period. If you, or your support person are unable to attend this meeting please contact the undersigned to make alternative suitable arrangements.
Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at the sensitive nature of these discussions we require you to keep this matter confidential and not to discuss this matter with any other member of staff.
We thank you for your contribution during your employment with us to date. Please contact HR on 0403 064 947 if you have any questions or need any assistance.
Yours faithfully,
Jerry Daly
Managing Director
Killard Group (lnsituform Pacific & Killard Infrastructure)
Version of the applicant
The applicant claims that he was asked by the second respondent to follow him into the conference room. The applicant claims that, as soon as they entered the conference room, the second respondent told him that he needed the keys to the applicant’s car (which was a company car which the applicant was allowed to drive for private use), his laptop and his phone. He said that the second respondent told him that an Uber was on its way. He said that the second respondent told him that things may be difficult but that he had to clear his desk and take what he needs.
The applicant said there was a conversation about the company generally. During that conversation, the applicant said that he told the second respondent that he believed that the company was going in the wrong direction because they didn’t use his knowledge that had been accumulated over many years of working for the company. The applicant said that the second respondent said that they might need a business development officer and asked whether that was something that the applicant might be interested in. The applicant said that he replied that he didn’t have any experience, but he was more than willing to try.
The applicant said that the second respondent said that he would speak to Ms Hey about that matter and get back to the applicant on Wednesday. The applicant said that the second respondent told him that he would escort him outside and wait with him until the Uber arrived.
The applicant said that the second respondent slid a letter to him across the table. He said that he did not read the letter and that it was not read out to him. He said he did not read the letter until many months afterwards.
The applicant said that he asked whether he could keep the phone to get any personal matters off the phone before he returned it. He said that the second respondent agreed to this request.
Version of the second respondent
The second respondent said that he had gone into the conference room and settled himself in. He said that he then called the applicant in and said to him that there were serious changes being made to the company because it was not performing well and that he would be reading out a letter. The second respondent said that he then read the letter out loud to the applicant.
The second respondent said that after he had read that letter to the applicant, he asked the applicant if he had any questions. The second respondent said that the conversation then went along the same lines as the applicant claimed including the claim that the second respondent would speak to Ms Hey about the possibility of the position of business development manager.
The second respondent said that it was at this point in the conversation that he told the applicant that he needed to take the keys to his car and that the applicant should clear out his desk. The second respondent said that he would order the applicant a taxi or an Uber.
The second respondent said that he and the applicant then shook hands. He said that the applicant then went to his desk and spent some time clearing personal emails off his laptop. The second respondent said that he cannot remember whether the applicant gave him his laptop then or whether he returned it later when he returned the mobile phone.
The second respondent said that he then arranged for an Uber and walked the applicant out to his car where the applicant cleared out some personal belongings. The second respondent said that while they were outside, they had a conversation in which the applicant said that he understood where the second respondent was coming from and that he understood that there needed to be cuts because the business was not making any money. The second respondent said that the applicant then asked, “Am I the only one?” to which the second respondent replied “No, there will be more, and it looks like we will need to close down Queensland”.
The second respondent testified that he did have a conversation with Ms Hey about a business development officer role. He said that the more he thought about it, the more he realised that they were not looking to win any more work in Queensland and so that suggested role was not going to be created. The second respondent conceded that he didn’t believe that the applicant would be the right person for that type of role anyway.
I should note that I accept the evidence of the second respondent that he did read the letter out loud to the applicant. I do not accept the applicant’s version in this respect. My reason for doing so is that the second respondent was far more credible on this point. It seems to me that the second respondent flew up to Brisbane for the express purpose of informing those who were to be made redundant of the decision. To ensure that he said everything correctly, the “script” in the form of the letter had been formulated for the second respondent to use to ensure that he complied with what he needed to do. I cannot accept that he would ignore this and simply slide a letter across the table to the applicant.
Subsequent occurrences
There was no physical meeting on 9 March 2022. Instead, Ms Hey contacted the applicant by telephone soon after 10 AM. Ms Hey said that the applicant did not answer his phone and it took four or five attempts before she was able to speak to him.
Ms Hey said that the applicant told her that he felt that he had been treated badly by being made redundant. Ms Hey described the applicant’s tone as being angry and aggressive. Ms Hey said that she asked the applicant whether he had considered any other positions to which he could be redeployed but he did not offer any suggestions. She said that she attempted to explain to the applicant that this was a business decision and was not a personal attack on him. She even tried to calm the applicant down by talking about her own experience of being made redundant by a previous employer.
Ms Hey said that she indicated to the applicant that she could put him in touch with their recruitment agency who could help him to find a new role but the applicant did not respond to this. She said she advised the applicant that he could contact the employee assistance provider to help him work through this. Despite all of these efforts, the applicant spoke to Ms Hey in a loud and animated fashion and so she elected to end the phone call by advising that he would be receiving a letter confirming the termination of his employment by way of redundancy.
That letter is found at CB 179 and reads as follows:
Dear Richard,
Re: Termination of Employment by Reason of Redundancy.
The purpose of this letter is to confirm our discussion following our meetings with you on the 7th and 9th March 2022 regarding the outcome of a recent review by Insituform Pacific (the Company) of its operational requirements and what that means for you.
As you may be aware, we are continually reviewing the performance of the business including the structure of the business, the current contractual commitments, and the market conditions. The current climate of our business has placed continued pressure on Insituform to appropriately resource our business in QLD.
After a period of careful consideration, a decision has been made to remove the position of Field Co-Ordinator QLD.
This means your employment with Insituform Pacific will cease as on the 9th March 2022.
You will also be paid your accrued statutory entitlements payable upon termination of employment and any outstanding pay, up to and including your last day of employment.
Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at contact HR on 0403 064 947 if you have any questions or need any assistance.
Yours faithfully,
Jerry Daly
Managing Director
Killard Group
The applicant conceded, during his testimony, that he did not raise any other job when he spoke to Ms Hey on 9 March 2022. The applicant also conceded that he didn’t tell Ms Hey that he would do any job or that he would move anywhere.
The applicant said that he found advertisements for positions within the first respondent, posted to a backpackers’ website. Those advertisements are reproduced at CB 771 - 776 and would seem to have been posted on 16 March 2022 which is a week after the applicant was given his formal redundancy letter by Ms Hey.
Since the redundancy of the applicant, the business of the first respondent has not improved. According to the second respondent, the Killard group had to take out a $2.6 million loan to keep the first respondent afloat. At this point, the first respondent is in negotiations for the sale of the business. The only work that the first respondent is doing in Queensland is finishing contracts that it had already entered into before 20 February 2022. It has not taken on any new work in Queensland since the redundancies.
Contentions of the applicant
The applicant makes four distinct claims. Three of those claims are “adverse action” claims and the fourth is the claim of a contravention of s. 45 of the Fair WorkAct2009 (Cth) (“FW Act”) in that the first respondent did not comply with a clause of the relevant Award.
At paragraph 27 of the Amended Statement of Claim, the applicant pleaded:
The First Respondent contravened:
(a) section 340(1)(a)(ii) of the Act because the First Respondent;
(i) dismissed the Applicant from his employment because of the Applicant's 17 November 2020 WorkCover Application; and; or in the alternative
(ii) did not consider the Applicant for redeployment and thereby injured the Applicant in his employment or prejudicially altered the Applicant in his employment because of the Applicant's 17 November 2020 WorkCover Application; and; or in the alternative
(iii) did discriminate between the Applicant, within its meaning at section 342(1)(d) of the Act, as an employee who made a WorkCover Application, by not considering the Applicant for redeployment, and those employees who the First Respondent did redeploy; and; or in the alternative
(b) section 340(2) of the Act because the First Respondent dismissed the Applicant because Ms Spence (the Third person) reopened the Applicant's WorkCover claim S20JM747599 for the benefit of the Applicant (the Second Person); and; or in the alternative
(c) section 340(1)(a)(iii) of the Act because the First Respondent dismissed the Applicant because by way of the Applicant's reaggravation of the Applicant's injury, the First Respondent's belief that the Applicant would or that WCQ would, as a third person, exercise a workplace right and reopen the Applicant's WorkCover claim;
Has the applicant established the existence of the objective facts?
It has not been disputed that the applicant made a WorkCover claim on 17 November 2020. It is not disputed that the applicant was off work for some time and was slowly reintroduced to the workplace until he resumed his full-time duties on 26 August 2021.
There has not been any dispute that the applicant was dismissed from his employment. There has not been any dispute that the applicant was not redeployed.
But there was no evidence given as to any other employee whom the first respondent did redeploy; in fact, the cohort (that included the applicant) that were made redundant, were not redeployed.
The applicant had originally claimed that there was discrimination as that term is used in s. 351 of the FW Act, however no evidence was led as to any discrimination.
On the first limb of “adverse action” of which the applicant bases this claim, I am satisfied that he has established the existence of the objective facts.
It has not been disputed that the applicant’s WorkCover claim was reopened. The factual question was the timing of the knowledge of the first respondent of that fact. There has been much argument as to whether the fact that a third person reopens a closed claim constitutes an exercise of a workplace right for the benefit of the claimee.
I am of the view that the situation that obtained here (that is, Ms Spence reopening the closed claim of the applicant) is one that fits within the parameters of s. 340(2) of the FW Act. This is because her action was such that a workplace right, that had been extinguished, was now revived.
The right to make a WorkCover claim must be a workplace right. The applicant could have (or attempted to) reopened that claim and he would have been exercising a workplace right. The fact that Ms Spence exercised that right for him, comes squarely within the purview of s. 340(2).
On the second limb of “adverse action” of which the applicant bases this claim, I am satisfied he has established the existence of the objective facts.
While it has been established that the first respondent knew that the claim of the applicant had been reopened (and therefore knew that the applicant had allegedly re-aggravated his injury), there is no evidence that the first respondent knew that the applicant would (or even that someone from WorkCover Queensland would) reopen the claim and therefore would exercise a workplace right.
The evidence shows that the claim had already been reopened by the time the first respondent knew that there had been a re-aggravation of the injury; in fact, it was the actual reopening of the claim that alerted the first respondent to this fact.
On the third limb of “adverse action” of which the applicant bases this claim, I am not satisfied that he has established the existence of the objective facts.
Reversal of onus
Having established the objective facts in relation to the two aspects of “adverse action”, s. 361 of the FW Act reverses the onus such that it is for the first respondent to prove to the Court, on the balance of probabilities, that the adverse action taken against the applicant was not done for a prohibited reason.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, the High Court (French CJ and Crennan J) said:
[42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
[43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean 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?".
[45] 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.”
In this case, the applicant has claimed that the adverse action committed by the first respondent was because he had previously made a workers compensation claim for a psychological injury sustained at the workplace. Because of this fact, the applicant claims that the first respondent did not consider him for redeployment and simply dismissed him.
The applicant also claims that the adverse action committed by the first respondent was because his workers compensation claim had been reopened.
The onus is upon the first respondent to illustrate to me that the reasoning claimed by the applicant was not the reason, nor did it play any part in the consideration of the reason, for the adverse action taken by the first respondent.
Issues with honesty and reliability?
The evidence given by the first respondent was that the business was not viable and so a decision was made to make the four positions, in the Brisbane office, redundant. The evidence of the first respondent was that the decision was made to make the “positions” redundant regardless of the actual persons who occupied those positions.
This is the clear evidence of the second respondent, Mr Comte and Mr Davis.
However, as has been previously noted, I am of the view that the decision-maker was the second respondent and not “a committee of three”. In the end, it was the second respondent who made the decision that the position, occupied by the applicant, was to be made redundant. The second respondent simply took advice from Mr Comte and Mr Davis.
The applicant argues that I would not accept the evidence of the second respondent. If I am to accept the evidence elicited from the first respondent, I must find that the evidence of the second respondent, when he speaks of the reason for the redundancy of the applicant, is both honest and reliable.
The second respondent gave evidence that he did not know that the applicant had been the subject of a WorkCover claim when he made the decision. This evidence does not sit well with the evidence of the other witnesses for the first respondent.
Mr Comte certainly knew that the applicant had made a claim. He recalls speaking to the applicant during the time that the applicant was on reduced duties. He said that the business had to manage the reintroduction of the applicant to full-time duties between December 2020 and 26 August 2021.
Mr Davis said that he knew that the applicant had been the subject of a WorkCover claim. He said that during monthly management meetings, the fact of the applicant being on WorkCover was a subject that would have been, at the very least, noted.
Both of these senior executives knew of the status of the applicant. The applicant argues that it would be ludicrous to think that the second respondent could have been unaware of the status of the applicant.
However, neither Mr Comte nor Mr Davis knew that the WorkCover claim of the applicant had been reactivated. But Ms Hey said that, when she was told that the claim of the applicant had been reactivated, she did tell the second respondent. She was of the belief that she would have kept Mr Davis informed as well.
The applicant argued that the second respondent knew that the applicant was the subject of WorkCover when he made the decision. The applicant also argued that it was convenient for the second respondent to choose to make the applicant redundant because he was “low hanging fruit”. The second respondent denied both of these suggestions.
The applicant also argues that the fact that the first respondent was still advertising for backpackers to work for them on sites in Queensland, illustrated that the business was still viable and that the work done by people in the “four redundant positions” was still required to be done by the first respondent. The second respondent also denied this suggestion.
Conclusion as to adverse action
Notwithstanding the shortcomings that have been pointed out by the applicant, I am of the view that the evidence of the second respondent, as to the reason that the applicant was made redundant, was both honest and reliable. The second respondent was consistent in his evidence that it was the financial situation that drove the need for redundancies. In this respect, he was corroborated by the witnesses Mr Comte, Mr Davis and Mr Wardak.
The second respondent may be mistaken as to when he learned of the WorkCover claim but I am satisfied that this was irrelevant to the decision to make the position of the applicant redundant.
Having made this conclusion, it follows that the first respondent has discharged the onus. I am satisfied that the redundancy of the applicant was not made for a prohibited reason.
This aspect of the application, therefore, fails.
The Award
It was not disputed that the employment of the applicant fell under the Building and Construction General On-site Award 2020. Clause 37 of that Award reads as follows:
37. Consultation about major workplace change
37.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
37.2 For the purposes of the discussion under clause 37.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
37.3 Clause 37.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
37.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 37.1(b).
37.5 In clause 37 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
37.6 Where this award makes provision for alteration of any of the matters defined at clause 37.5, such alteration is taken not to have significant effect.
The pleaded contraventions of the Award
Notwithstanding that the applicant made no submissions in their final submissions that any other contravention of cl. 37 had been made out, the pleaded allegations were not withdrawn. Because of this, I must still examine the contraventions that were pleaded.
As to the contraventions that were pleaded, it seems to me that there has been no contravention of the requirements of cl. 37.1 (b), cl. 37.2 or cl. 37.4. This is because the decision had been made on 20 February 2022. The contents of the letter were read out to the applicant which complied with the obligation under cl. 37.1(b). The letter was given to the applicant (even if the applicant said that he did not read the letter for a number of months) which complied with the obligation in cl. 37.2. The applicant did make his comments to the second respondent. The second respondent did promptly consider those matters but ultimately decided not to act upon them. This complied with the obligation in cl. 37.4.
Has there been a contravention of cl. 37.1(c)?
The applicant submits that the first respondent had made a definite decision to make major changes to the business on 20 February 2022. Pursuant to cl. 37, the first respondent was required to give notice of the changes to any employees, discuss with those employees the effect of changes and to discuss measures to avoid or reduce adverse effect of those changes on employees. The first respondent was required to commence those discussions as soon as practicable after a definite decision had been made.
The evidence discloses that the applicant was given notice of the changes and this was discussed with the applicant. However, the evidence discloses that those discussions occurred on 7 March 2022 which is 15 days after the definite decision had been made.
The applicant submits that this 15 day period was not “as soon as practicable after a definite decision had been made”. The applicant bases this claim on an exchange that occurred during the cross-examination of the second respondent. The exchange (at T41 lines 26-38) is reproduced as follows:
But again, you’re aware of your obligations under the modern award to commence discussions as soon as practicable after a definitive decision has been made. You’re aware of that obligation, aren’t you, sir?---Yes.
And you didn’t comply with that obligation, did you?---He could have brought it up on the 9th if he had something to say. He had an opportunity to come forward.
No, no, no, that’s not my question, sir. You did not comply with your obligation to commence discussions with Mr Williams as soon as practicable after a definitive decision was taken to make him redundant?---Yes. Well, we were losing money, so I had no choice.
Yes or no, sir?---Yes.
The applicant submits that the second respondent has admitted that he did not comply with that clause in the Award and so therefore has submitted that he has contravened s.45 of the FW Act. But this admitted “non-compliance” with the Award could only pertain to cl. 37.1(c) which was not pleaded. There was no application to amend the pleading.
The respondent submits that the applicant should not be able to have the advantage of relying upon an “admission” where it had not been specifically pleaded, and, therefore, not in issue at the time of the cross examination.
I do not agree with the submission of the respondents. The second respondent was under oath and he gave a clear answer to a question posed in cross examination. Regardless of whether the allegation was pleaded, the applicant is entitled to the fruit of his cross examination.
The question for me to consider is whether this was truly an admission to non-compliance with cl. 37.1(c).
On the evidence before me, the only people who knew of the impending redundancy were the second respondent, Mr Comte, Mr Davis and Ms Hey. It would seem to me that the only responsible action, on behalf of the first respondent, would be to have the second respondent, as the ultimate decision maker, inform all personnel who were to be made redundant of that decision. And this should be a communication that is made “face-to-face” rather than over a telephone or video link.
Ms Hey suggests as much in her conversation with Ms Fritz of WorkCover that occurred on Friday, 25 February 2022. Ms Hey told Ms Fritz that the applicant was to be made redundant and Ms Fritz asked when the applicant would be informed. Ms Hey said that the director would be flying up on Monday or Tuesday. This would correlate with Monday, 28 February 2022 or Tuesday, 1 March 2022. The second respondent did not actually travel until Monday, 7 March 2022.
It would seem from the conversation between Ms Hey and Ms Fritz that the attitude of the first respondent was that this decision needed to be conveyed to those affected quickly, but also it needed to be conveyed by the “director”. The fact that the discussion did not occur for 10 days after that conversation and six or seven days after the intended time, does not mean that the discussions did not occur “as soon as practicable after a definite decision had been made”.
I do not regard the testimony of the second respondent as being an admission to contravening cl. 37.1(c). This is especially so when his responses to the questions do not indicate admissions. When asked if he had complied with his obligation under that clause, the second respondent replied that the applicant could have brought it up if he had something to say.
He was again asked whether he (the second respondent) had complied with his obligation to commence discussions as soon as practicable and his response was “yes, well, we were losing money so I had no choice”. He was then asked to give a yes or no answer and he gave an answer of “yes”. This does not fill me with confidence that the second respondent was truly understanding of the proposition that was put to him.
It seems to me that “as soon as practicable” needs to be seen in its context. There is no evidence that the second respondent could have been in Brisbane to deliver this decision to the applicant any earlier than when he did, even though there is some evidence to suggest that his intention was to have been in Brisbane six or seven days earlier to deliver the decision.
There is no evidence that the first respondent had actually done anything to advance the decision that had been made on 20 February 2022; in fact, it seems that nothing was done in regard to that decision until it was that the applicant (amongst others) was notified of the decision.
In these circumstances, I am of the view that the applicant did comply with their obligation pursuant to cl. 37.1(c).
This means that there has been no contravention of s. 45 of the FW Act. Therefore, this part of the claim also fails.
Order
I dismiss the application.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 18 December 2023
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