Wilson v Engineering Australia Pty Ltd

[2019] FCCA 2704

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILSON v ENGINEERING AUSTRALIA PTY LTD [2019] FCCA 2704

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – interpretation of enterprise bargaining agreement – notice on termination – unpaid wages and allowances – termination of casual employees.

Legislation:
Fair Work Act 2009 (Cth) ss. 61, 117, 123.
National Metal and Engineering On-Site Construction Industry Award 1999.
National Metal and Engineering On-Site Construction Industry Award 2002, cls. 12, 14.
Building and Construction General On-Site Award 2010, cls. 11, 12, 13, 14, 16.

Cases cited:

Amcor v CFMEU [2005] HCA 10; 222 CLR 241.
Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWFCB 2434.
Polan v Goulburn Valley Health [2016] FCA 440.
Workprac Pty Ltd v Skene [2018] FCAFC 131.

Applicant: GEORGE WILSON

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3605 of 2018

Applicant: MARC PENHALL

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3603 of 2018

Applicant: DARYL HARBERGER

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3601 of 2018

Applicant: ROBERT SUTHERLAND

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3604 of 2018

Applicant: GREG PATERSON

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3602 of 2018

Applicant: NICHOLAS DONOHUE

Respondent: ENGINEERING AUSTRALIA PTY LTD

File number: MLG 3600 of 2018

Judgment of: Judge Mercuri

Hearing date: 18, 20 and 21 March 2019

Date of last submission: 21 March 2019

Delivered at: Dandenong

Delivered on: 11 October 2019

REPRESENTATION

Advocate for the applicants: Mr Terzic

Solicitors for the applicants: Australian Manufacturing Workers’ Union

Advocate for the respondents: Ms Van Den Brand

Solicitors for the respondents: Ceres Law

ORDERS

IN PROCEEDING MLG3600/2018:

1. The applicant’s application be dismissed.

IN PROCEEDING MLG3601/2018:

1. The applicant’s application be dismissed.

IN PROCEEDING MLG3602/2018:

1. The applicant’s application be dismissed.

IN PROCEEDING MLG3603/2018:

1. The respondent pay the applicant:

   (a)the sum of $1,295.36 in respect of unpaid wages; and

   (b)the sum of $41.30 in respect of unpaid allowances.

IN PROCEEDING MLG3604/2018:

1. The applicant’s application be dismissed.

IN PROCEEDING MLG3605/2018:

1. The applicant’s application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3605 of 2018

GEORGE WILSON

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

MLG 3600 of 2018

NICHOLAS DONOHUE

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

MLG 3601 of 2018

DARYL HARBERGER

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

MLG 3602 of 2018

GREG PATERSON

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

MLG 3603 of 2018

MARC PENHALL

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

MLG 3604 of 2018

ROBERT SUTHERLAND

Applicant

and

ENGINEERING AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before this court are claims by six former employees of the respondent.  Each of the claims was commenced in this court’s small claims jurisdiction. 

2. As each of the claims arose out of the same sub-stratum of facts, it was agreed by the parties that it was appropriate for these matters to be heard together.

3. For the following reasons I find:

   a)Mr Penhall is entitled to receive payment of unpaid wages and allowances; and

   b)Mr Donohue’s, Mr Harberger’s, Mr Paterson’s, Mr Sutherland’s and Mr Wilson’s claims be dismissed.

Background

1. The respondent is an engineering business established by Mr Rhian McKenzie.  The respondent has provided engineering services on various projects from time to time.  It engaged staff as and when required to assist with those projects. 

2. Mr McKenzie gave evidence that:

   a)he is a qualified fitter and turner;

   b)he operated as a sole trader under the name Engineering Australia from 2014 to 2016;

   c)in late 2016, he established the respondent company, Engineering Australia Pty Ltd which is engaged in structural and steel fabrications;

   d)initially, he was the only employee of the respondent but he proceeded to hire casual staff to assist as and when required;

   e)he initially met Mr Donohue when he engaged him through a labour hire company in early 2017;

   f)when he needed additional staff, Mr Donohue introduced him to Mr Harberger and Mr Sutherland whom he then also engaged from time to time;

   g)the respondent entered into the Engineering Australia Pty Ltd (McKenzie Family Trust) and AMWU Metal Engineering On-Site Construction Agreement (“EBA”);

   h)in or about November 2017, the respondent was contracted to provide its services at a construction project in Elizabeth Street, Melbourne, which was being fitted out for a retail outlet and office for Haigh’s Chocolates (“Haigh’s project”);

   i)in particular, the respondent was engaged to provide structural certification of the building, engineering design, and the supply and installation of structural steel for six flights of stairs, an elevator shaft for the ground, first and second floors of the building as well as the supply and installation of floor beams and roof support steel; and

   j)each of the applicants were engaged on the Haigh’s project at various times.

3. It is common ground that:

   a)each of the applicants were engaged by the respondent on a casual basis;

   b)by mid-January 2018, the Haigh’s project was coming to an end and there was a lot of pressure to complete the work;

   c)there was a principal contractor working on the Haigh’s project, Cube Commercial (“Cube”), and if Mr McKenzie required any work done to prepare the site or to make it safe which was outside of his area of expertise, he was to liaise with Cube to have this work done; and

   d)at times there were other tradespeople working at the Haigh’s project site other than Mr McKenzie or his employees. 

4. By mid-January 2018, Mr McKenzie was running two shifts a day to try and get through the work to completion. 

Sunday 14 January 2018

1. Mr Penhall’s claim relates to what happened on Sunday 14 January 2018. 

2. There is some dispute about exactly what happened on that day; however, it is common ground that Mr Penhall was initially asked to work on 14 January 2018.  The time at which he was asked to start working is in dispute. 

3. It is not in dispute that it was Mr Penhall’s son’s 21^st birthday party on Saturday 13 January 2018 and he initially indicated that he did not wish to work on the Sunday.

4. It is common ground however, that:

   a)at 6:11am on 14 January 2018, Mr Penhall sent Mr McKenzie a text message saying “OK, I’m still drunk”;

   b)notwithstanding his earlier text message, Mr Penhall turned up to the Haigh’s project site at approximately 9:00am on 14 January 2018; and

   c)whilst there is some dispute about what was said by him and Mr McKenzie, even on Mr McKenzie’s evidence, Mr Penhall entered the work site at that time.

5. It is accepted that Mr McKenzie then sent Mr Penhall further text messages at 7:45pm on the evening of 14 January 2018 about Mr Penhall attending for further work on the following day, namely 15 January 2018.

Monday 15 January 2018

1. It is also common ground that on Monday 15 January 2018:

   a)Mr Donohue, Mr Harberger and Mr Sutherland attended for work as directed at approximately 6:00am;

   b)they raised a number of safety concerns with Mr McKenzie, who was completing the night shift, about the presence of penetrations and risks of falling from heights;

   c)there was a heated altercation between Mr McKenzie and Mr Scenini from Cube;

   d)Mr McKenzie asked Mr Donohue, Mr Harberger and Mr Sutherland to tidy up the area while Mr Scenini completed the rectification works necessary to make it safe for the respondent’s employees to perform their work;

   e)Mr Donohue, Mr Harberger and Mr Sutherland told Mr McKenzie “we are boilermakers, we don’t do sweeping”, or words to that effect;

   f)Mr Donohue, Mr Harberger and Mr Sutherland then went outside to wait for the rectification works to be completed, and Mr McKenzie left for the day to attend another client meeting at another project;

   g)Mr McKenzie then contacted Mr Donohue by telephone and had a conversation which was on loud speaker, the contents of which are disputed, but it was agreed that following this conversation, Mr Donohue, Mr Harberger and Mr Sutherland left the site and did not return; and

   h)Mr Paterson was also due to work on Monday 15 January 2018, but had arranged to start at 10:00am as he had to attend to a personal matter regarding his daughter.

2. It is also common ground that none of the applicants worked for the respondent following the incident on 15 January 2018.

Applicants’ claims

1. Mr Penhall claims that:

   a)he was employed to work and in fact did work on 14 January 2018 but the respondent did not pay him for that work, and therefore claims payment pursuant to the EBA for work on that day;

   b)although he conceded that he did not arrive for work until about 9:00am on 14 January 2018, he says that he was told that he would be paid for the whole day, namely from 6:00am to 5:00pm; and

   c)he was also entitled to be paid a travelling allowance in the sum of $41.30.

2. Mr Donohue, Mr Harberger, Mr Paterson, Mr Sutherland and Mr Wilson each claim that:

   a)the respondent terminated their employment and failed to pay them a week’s notice in lieu of termination; and

   b)as their employment occurred within 14 days of a public holiday; namely, Australia Day, they were each entitled to be paid for that public holiday.

3. In their initial applications, the applicants also claimed an entitlement to a payment on their behalf to the PROTECT severance fund, but this claim was ultimately abandoned.

4. I will deal with Mr Penhall’s claim first and will then address the claims made by the applicants in each of the other matters.

Mr Penhall

1. Mr Penhall’s evidence was that he had worked for the respondent in November and December 2017 as a casual employee performing metal fabrication work. 

2. Mr Penhall stated that on the evening of 13 January 2018, during his son’s 21^st birthday celebration, Mr Harberger called him to ask if he would work the following day.  Mr Penhall’s evidence was that he said he was not keen to work as he wanted to be able to enjoy his son’s birthday party and not have to get up early the following morning.[1]

   [1] Transcript page 135 at lines 1 to 5.

3. Mr Penhall’s evidence was that he received two text messages from Mr McKenzie early on Sunday 14 January 2018 which he did not answer. At approximately 6:00am, he sent Mr McKenzie a text message saying that he was drunk.[2]  He said that he sent this to Mr McKenzie because he “wanted to get him off my back”.[3]  He said that he was in fact not drunk.[4] 

   [2] Transcript page 135 at lines 19 to 25.

   [3] Transcript page 135 at line 23.

   [4] Transcript page 139 at line 10.

4. Later that morning at about 8:00am, he received a call from Mr Harberger saying they urgently needed help at the Haigh’s site and that if he came in, he would be paid from 6:00am.[5]  Mr Penhall’s evidence is that following this call, he reluctantly agreed. He says that he arrived at the Haigh’s site at approximately 9:30am and worked until 5:00pm that evening.[6]

   [5] Applicants’ court book page 125.

   [6] Transcript page 136 at line 7.

5. Mr Harberger gave evidence which was consistent with this.  His evidence was that he had worked at the Haigh’s site on 13 January 2018 and that at the end of the shift on that day, Mr McKenzie told him that they needed extra labour.[7]  Mr McKenzie agreed that Mr Harberger should call Mr Penhall to come in, which he did, but Mr Penhall told Mr McKenzie that he was not keen for the reasons stated above.  Mr Harberger says he then called Mr Penhall again after he arrived at work on the morning of 14 January 2018 and Mr Penhall attended for work at about 9:00am.  Mr Harberger’s evidence was that he recalled that Mr McKenzie was initially hesitant but ultimately suggested that Mr Penhall work with Mr Paterson.[8]

   [7] Applicant’s court book page 76.

   [8] Applicant’s court book page 76.

6. Relevantly, Mr Harberger gave the following evidence:

   Mr Harberger:  Well, yes, he arrived, right, and I think Rhian didn’t really want him to work, being something that he was drunk or something, and that, if my memory reminds me, he had said something like ‘Go and work with Greg Paterson’.

   Mr Terzic:Who said that?

   Mr Harberger:  Rhian.[9]

   [9] Transcript page 80 at lines 36 to 40.

7. Mr Harberger did not give any evidence about promising Mr Penhall payment from 6:00am if he attended work.  He did however, confirm that although he did not work in the same area as Mr Penhall, he did see him at the Haigh’s site over the course of that day until about 11:00am when he (Mr Harberger) left to go back to the workshop to undertake other duties.[10]

   [10] Transcript page 81 at lines 10 to 41, 47.

8. In relation to this issue, Mr Penhall gave evidence was that it was his understanding that he would be paid from 6:00am even though he didn’t start until about 9:00am or 9:30am.  When asked why he expected payment if he was not in attendance, Mr Penhall responded:

   Because I’m actually helping him out by getting labour on the job.  You know, I – that’s what normally happens in construction.  If you get called in, you know, you normally get paid for the day if you’re getting called in late.[11]

   [11] Transcript page 141 at lines 3 to 6.

9. In the course of cross examination, after being referred to his timesheets for the relevant dates, Mr Harberger confirmed that it may have been that he called Mr Penhall on the Friday night at about 8:00pm rather than the Saturday night.[12]

   [12] Transcript page 95 at line 33.

10. Mr Paterson also gave evidence which was consistent with the above.  In particular, his evidence was that he worked at the Haigh’s project on 14 January 2018 and worked alongside Mr Penhall.  Mr Paterson also gave evidence that he had known Mr Penhall for some 10-15 years through working on similar projects.[13] 

    [13] Transcript page 128 at lines 12 to 29.

11. Mr McKenzie confirmed that he discussed the need for more labour with Mr Harberger, although he said that that conversation occurred on the Friday afternoon at about 8:00pm.  He said that Mr Harberger then tried to contact a few people and told Mr McKenzie that Mr Penhall was available.[14] 

    [14] Transcript page 173 at lines 39 to 46.

12. Mr McKenzie then gave the following evidence:

    a)he texted Mr Penhall and asked him to come in for the afternoon shift on Sunday 14 January 2018;

    b)he said that he had not made arrangements for Mr Penhall to come to work at 6:00am.[15] 

    c)when he was about to head home at the end of the night shift after doing a handover with the workers on the day shift, he was heading to his car and ran into Mr Penhall at about 9:00am;

    d)he said to Mr Penhall, that words to the effect of: “Mate, what are you doing here?  You’re still drunk. Go home.’[16] but Mr Penhall simply ignored him;

    e)he then did not see where Mr Penhall went as he himself then just went home;

    f)he did not direct Mr Penhall to work with Mr Paterson that day and he first became aware that Mr Penhall claimed to have worked some days later, either when he received a call from the union or when he received Mr Penhall’s timesheet for that day.[17] 

    [15] Transcript page 175 at lines 5 to 8.

    [16] Transcript page 175 at lines 25 to 27.

    [17] Transcript pages 175 to 176.

Findings

1. I do not accept Mr McKenzie’s evidence in regard to this incident.  Whilst it may be that there was some confusion between him and Mr Harberger as to whether the additional labour on that day was required for the morning or for the afternoon, it is clear that on the morning of 14 January 2018, Mr McKenzie was aware that Mr Penhall had attended work. 

2. If Mr McKenzie was genuinely concerned about Mr Penhall being fit for work due to being drunk, it would have been incumbent upon him to direct Mr Penhall to leave the site.  It would not have been acceptable for him to simply allow him to remain.  Irrespective of the obligations which others may have had, he as the employer, clearly had an obligation to ensure the occupational health and safety of his staff on site. 

3. Moreover, if it were the case that he had formed the view that not only had Mr Penhall failed to comply with a direction given for him to attend for work for the afternoon shift on 14 January 2018, but more importantly, had reported for work in an intoxicated state, it is unclear why he would then, that same day, have sent him a further message requesting that he attend for work the very next day for an afternoon shift.

4. I think that it is more probable than not that when Mr McKenzie saw Mr Penhall on the morning of 14 January 2018, whilst he was confused because he was expecting him to work on the afternoon shift, by his conduct, he agreed to him attending and performing work on that day. 

5. On the basis of the evidence given by the other witnesses in this matter, I am also satisfied that Mr Penhall attended for work from approximately 9:00am/9:30am until 5:00pm on 14 January 2018.  Whilst it may be the case that Mr McKenzie retained the ultimate responsibility to hire and fire, I am satisfied on the evidence before me that he delegated the authority to engage additional staff from time to time to Mr Harberger.  In this particular instance, if Mr McKenzie in fact did not require Mr Penhall’s services on 14 January 2018, he could and should have told Mr Penhall that he was not required until the afternoon shift. Moreover, if Mr Penhall was not prepared to return for the afternoon shift, Mr McKenzie should have informed Mr Penhall that his services were not required at all on that day. 

6. By his conduct, Mr McKenzie permitted Mr Penhall to work that day.  The evidence shows that Mr Penhall did in fact work that day and the respondent is required to pay him under the EBA for work performed.

7. There is insufficient evidence before me on which to make a positive finding that Mr Penhall was in fact told that if he came in late, he would nevertheless be paid for the full day. 

8. However, clause 25 of the EBA relevantly provides:

   The minimum period of engagement for a casual employee is one working day.  On each occasion a casual employee is required to attend work, the employee shall be entitled to payment for a minimum of one day’s work.

9. On this basis, Mr Penhall is entitled to payment for a full day on 14 January 2018.

10. For each of these reasons, I order that the respondent pay the following sums to Mr Penhall:

    a)$1,295.36 in unpaid wages; and

    b)$41.30 in unpaid allowances. 

Mr Donohue, Mr Harberger, Mr Sutherland, Mr Paterson and Mr Wilson

1. I will deal with the remaining claims together. 

2. For the purposes of these reasons I will refer to Mr Donohue, Mr Harberger, Mr Sutherland, Mr Paterson and Mr Wilson collectively as the “remaining applicants”.

3. The remaining applicants claimed that on 15 January 2018, their employment was terminated by Mr McKenzie in circumstances which did not justify summary dismissal (“termination claims”).

4. Mr Donohue, Mr Harberger and Mr Sutherland each claimed that their employment was terminated by Mr McKenzie in the course of a telephone discussion Mr Donohue had with Mr McKenzie at approximately 9:30am on 15 January 2018.[18]  Mr Harberger and Mr Sutherland overheard the said conversation.

   [18] Transcript page 28 at lines 12 to 16.

5. Mr Wilson claimed to have been terminated by Mr McKenzie by telephone later on 15 January 2018.[19]  Mr Paterson claimed that although he did not have a direct conversation with Mr McKenzie, his employment was also terminated by Mr McKenzie on 15 January 2018.[20]

   [19] Exhibit K.

   [20] Exhibit M.

1. As stated above, it is common ground that each of the remaining applicants were engaged by the respondent on a casual basis.

Remaining applicants’ employment history with the respondent 

1. Mr Donohue gave evidence that in about October or November 2017, he received a telephone call from Mr McKenzie asking if he would be interested in working on the Haigh’s site project.  Mr Donohue said that he was initially hesitant because in the past Mr McKenzie had, in his view, been reluctant to ensure income protection insurance coverage was in place and up to date.[21] Mr Donohue gave evidence that the income protection insurance which was provided for under the EBA (WAGEguard) provided significant benefits if he were injured or killed as a result of a workplace incident.  Moreover, it also provided continuous coverage and was not limited to incidents occurring at work.  This was a very important issue for Mr Donohue. 

   [21] Transcript page 13 at lines 15 to 19.

2. He said that Mr McKenzie assured him that he would keep the insurance up to date and Mr Donohue then agreed to work for him.[22]  He initially completed work at the respondent’s workshop in Thomastown and then by December 2017, he was working at the Haigh’s site. 

   [22] Transcript page 13 at lines 36 to 38.

3. Mr Harberger also gave evidence that after having met Mr McKenzie in 2017 and having worked for him on and off on various projects, he received a call in mid-November 2017 asking if he would be interested in working on the Haigh’s project.[23]  Mr Harberger’s evidence was that Mr McKenzie said that he would need about a dozen experienced construction fabricators to do on site erection and workshop fabrication and asked Mr Harberger to get the crew together.[24]  He organised a number of workers, including the applicants in this proceeding.[25]

   [23] Exhibit F.

   [24] Exhibit F.

   [25] Exhibit F.

Haigh’s site

1. The work at the Haigh’s site included an elevator shaft for three storeys and a steel staircase.[26] 

   [26] Exhibit F.

2. Mr Harberger stated that throughout the project, the applicants and others worked extensive overtime and weekends to get the job done and there were issues about payment for their work from the principal contractor at times.[27]

   [27] Exhibit F.

3. Mr Harberger said that there were ongoing safety issues throughout the project at the Haigh’s site.[28]  Similarly, Mr Donohue said that the Haigh’s site was one of the most dangerous sites that he had worked on in his career and that there were numerous safety issues on the site from day one.[29]  Moreover, he said that if he or one of the other boilermakers raised any safety concerns they were ridiculed, not by the respondent or by Mr McKenzie, but rather by the principal contractor’s representative on site.

   [28] Exhibit F.

   [29] Transcript page 15 at lines 2, 9 and 10.

4. Mr Sutherland also said that the Haigh’s site was a difficult job:

   because of the actual access and entry… at times it was very, very tight … you’ve got to remember you had to put four levels of stairs in a very small area.[30]

   [30] Transcript page 143 at lines 46 and 47 and page 144 at lines 1 and 2.

15 January 2018

1. Mr Donohue stated that on 15 January 2018, he arrived for work on the day shift with Mr Harberger.  Mr Sutherland was also working that day. Mr McKenzie had been working the previous night shift with Mr Wilson, Mr Michael Day and Mr Brian Smalley. 

2. Mr Wilson gave evidence that he had worked the night shift on 14 to 15 January 2018 together with Mr Day, whilst Mr McKenzie worked the shift with Mr Smalley.  Mr Wilson’s evidence was that at about 3:00am, he and Mr Day had completed their allotted tasks and he told Mr McKenzie they had finished.  Mr McKenzie asked Mr Wilson to assist him and Mr Smalley.  Mr Wilson responded by saying words to the effect of “Rhian, what you are doing is totally unsafe, I’m not getting involved with it.  I’m knocking off.”[31]

   [31] Exhibit K.

3. Mr Wilson’s evidence was that he then left and went home to bed. 

4. Mr Harberger gave evidence that on arriving at the Haigh site on 15 January 2018:

   it looked like a shambles, or, an accident waiting to happen: there were numerous fall hazards and it appeared that RM was intoxicated.[32]

   [32] Exhibit F.

5. Mr Harberger further stated that he and Mr Donohue commenced work and moved two Acrow props but realised that the job was too hazardous to continue.[33]

   [33] Exhibit F.

6. Similarly, Mr Sutherland gave evidence that when he arrived at work at approximately 6:00am on 15 January 2018, there were safety issues involving access, lack of appropriate hand rails and penetrations as well as rubbish everywhere. He described the work site as “like somebody had a party and just thrown it all around.”[34]

   [34] Transcript page 145 at line 19.

7. Mr Sutherland was of the view that it was not a safe environment to commence work.  Indeed, he went on to say:

   you’ve got to remember my background was management.  I dealt with engineers and safety and inspection.  …it wasn’t good…[35]

   [35] Transcript page 145 at lines 22 to 24.

Heated exchange with Cube employee

1. Mr Sutherland added that he then tried to speak to Mr McKenzie but smelt alcohol on his breath.  He told Mr McKenzie words to the effect that he should go home and they would try and sort it out, following which there was a heated exchange between Mr McKenzie and the Cube employee, Mr Scenini.  He said:

   … there was a heated discussion.  …big solid fellow from Cube, and they were screaming and shouting.  And one of the boys had said “look” – because I could see Rhian getting hurt from this guy because he was quite a big lad, and I think it was one of the lads saying, ‘Yes, we will get the cops,” and it sort of calmed down then, but it was a total screaming match.  In my … opinion, the builder should have had all this … Rhian had worked that night to try and get the job up to scratch, and that builder should have been following up, knowing that he had been working at the same time.  But nothing was done.  And then when that was attempted, some gentleman come out the front from Cube and … swore at us.  I don’t want to say it but he called us FBs and so forth and I just thought “what’s going on here?’ And then Rhian … went in the car and he was going home, and then it got out of hand again, and then Rhian was on the phone basically said, … ‘you are terminated, and you will never work for me as long as I go’. …I was quite disappointed…[36]

   [36] Transcript page 145 at lines 35 to 47 and page 146 at line 1.

2. Mr McKenzie and Mr Scenini both gave evidence that was consistent with this.  I am satisfied that a heated exchange did occur between them on the morning of 15 January 2018 about the state of the worksite and related matters. 

3. Mr Harberger’s evidence was also consistent with that set out above. Mr Scenini said that he was critical of both Mr McKenzie and his employees.  Mr Harberger said that as the argument escalated, it appeared that it might become physical and Mr Harberger called out words to the effect of “Listen, Stef.  Don’t hit him.  If you do, I’m going to call the police.”[37] This was observed by Mr Donohue.  The altercation between Mr McKenzie and one of the employees, Stef then calmed down, but Mr Donohue gave evidence that he was quite shaken by this. 

   [37] Transcript page 84 at lines 11 and 12.

4. This altercation occurred some five or six meters from ground level and according to Mr Harberger, there was a risk that someone could have slipped or fallen.

Rectification works

1. Mr Harberger said that in his view, it was not safe to carry out the work which had been allocated to them for that day.  He gave evidence that Mr Scenini made some disparaging comments to him and the other EA workers along the lines of “you blokes are… sissies… You wouldn’t work in a domestic game with us.”[38]

   [38] Transcript page 85 at lines 24 and 25.

2. Mr Harberger said that he raised his safety concerns with Mr McKenzie who appeared to be more concerned with “pushing ahead with the job than our safety concerns”.[39]  He said that he and Mr Donohue then went downstairs so that the carpenters could make the site safe. 

   [39] Exhibit F.

3. Similarly, Mr Sutherland said that he, Mr Donohue and Mr Harberger all told Mr McKenzie that he had to fix up the site.  Mr Harberger said that then he and Mr Donohue and Mr Sutherland spoke to Mr McKenzie about the need to make the site safe.  Mr Harberger stated that Mr McKenzie said words to the effect of “Don’t do this to me now”.[40]

   [40] Transcript page 84 at line 38.

4. Mr Harberger said that they then asked Mr McKenzie and Mr Scenini if they could make the area safe so that they could start the day’s work.  Mr Harberger, Mr Sutherland and Mr Donohue then went outside to a bench and waited for the rectification work to be done.

5. Shortly after this, Mr McKenzie left the site.  There is a dispute as to whether Mr McKenzie left because he had alcohol on his breath or whether he left to attend another meeting.  Nothing turns on this.

6. Mr Harberger then gave evidence, which I accept, that while they were waiting outside, he tried to get hold of Mr McKenzie to see if they could sort out the situation so they could get back to work, but he was unable to reach him.  He said:

   I was… getting frustrated, because I didn’t want this to blow up.  It was a good job, I mean, and there could have been further work from this job.  I just wanted him to sort it out.[41]

   [41] Transcript page 86 at lines 31 to 33.

7. He says that he left Mr McKenzie about three or four phone messages.[42]

   [42] Transcript page 86 at line 40.

Income protection insurance

1. While waiting outside the work site, Mr Donohue made some inquiries to find out whether Mr McKenzie had in fact made the relevant income protection payments.[43]  Mr Donohue said that he then called the union delegate and discussed the incident which had just occurred and also explained that he was now concerned as to whether the workers were covered by income protection. 

   [43] Exhibit A.

2. Mr Donohue was directed to call a Mr Robb at PROTECT and was told by Mr Robb that in fact, income protection had not been paid for the applicants by the respondent.[44]

   [44] Exhibit A.

Re-entry to site

1. Mr Donohue said that at approximately 9:00am, he became aware that Mr Sutherland had received a call from Mr McKenzie advising them that the rectification works had been undertaken and it was ok for them to go back into the site to start work for the day.[45]   According to Mr Donohue, he, Mr Harberger and Mr Sutherland were sitting outside the site on a street bench.  

   [45] Transcript page 22 at lines 18 to 20.

2. After receiving this call, the three of them re-entered the site and observed that the rectification work had in fact not been completed.  The site manager, Ray, was, according to Mr Donohue just telling them to get on with the job.[46]  One of the jobs that they had to do that morning was to cut a steel beam of the staircase and there was no fall protection according to Mr Donohue. 

   [46] Transcript page 22 at lines 22 to 25.

3. Mr Donohue took some photos which were entered into evidence,[47] which he said showed the poor state of the work area with open penetrations and other unsafe work practices, including a lack of appropriate hand rails.  Mr Donohue’s evidence is that he took these photos as he and the other workers were leaving the site.[48]

   [47] Exhibit B.

   [48] Transcript page 22 at lines 31 and 31.

Termination call

1. The applicant gave the following evidence regarding the circumstances they say led to the termination of their employment.

2. Mr Donohue said that he received a telephone call from Mr McKenzie while he was waiting outside the work site. During this conversation, Mr McKenzie allegedly said:

   ‘Why are you doing this to me?’ and I said … What do you mean by why am I doing this to you?  Have a look what you’re doing to yourself … the job is not safe.’ He says, ‘Well I want you to go back in, because they said that it is.’ I says, ‘We’re not going back at all’.  And I said, ‘And as a matter of fact … on another matter, I’ve rung up Protect and … I’m waiting on a phone call from Gary Robb’.  He said ‘why?’ and I said ‘Because I still don’t trust you, Rhian. … well, I … got an idea that you haven’t paid our income protection’.  I said ‘and the job is so unsafe’.  He said, ‘no .. I have.  I’ve told you I have, I have, I have’.  I says, ‘Well, until then, we’re not going back on the job’.  He says, ‘I’m telling you, if you don’t go back on the job’ – and the other two guys were near me at that time and I just had the phone like that – he said, ‘if you don’t go back to the job right now and get in there and do what you’re supposed to do’ – or words to that effect – he said, ‘you will never – you and the guys will never, ever work for me again.’[49]

   [49] Transcript page 28 at lines 2 to 16.

3. Mr Harberger’s recollection of this telephone call which he could overhear, was that Mr McKenzie said words to the effect of:

   You guys will never work for me again, you have fucked me up, and you’re sacked.[50]

   [50] Transcript page 88 at lines 33 and 34.

4. Similarly, Mr Sutherland confirmed that he could hear the telephone conversation between Mr McKenzie and Mr Donohue.  His evidence in this regard was:

   Well I heard Rhian say to him… “You are all sacked” was the words or “terminated” I’m pretty sure.  “And you will all never work for me again.” And I thought – well that’s when I was disappointed because I said ‘you’ve got to be kidding me’… I said ‘I do a lot of things… for Rhian to try and help him, and he’s basically just sacked me on top and not really asked any questions you know’.[51]

   [51] Transcript page 146 at lines 32 to 37.

Call with Protect

1. Mr Donohue said that after Mr McKenzie had told him that if they did not return to the work site they would ever work for him again, he received an incoming telephone call which he thought might be from Mr Gary Robb from Protect.[52]

   [52] Transcript page 28 at lines 16 to 19.

2. Mr Donohue gave evidence that Mr Robb told him that he, Mr Harberger and Mr Sutherland were listed as former employees on the Protect system, and the others working on the Haigh’s project were not even registered on the Haigh’s project.  Mr Donohue also stated that he then asked Mr Robb categorically whether they were covered for income protection and Mr Robb said “absolutely not”.[53]

   [53] Transcript page 29 at line 4.

3. Mr Harberger said that after this telephone call, they told Mr Scenini they were leaving and they went home.

Other telephone calls on 15 January 2018

1. Mr Donohue said that he then got another couple of telephone calls from Mr McKenzie whilst he was on the tram and on his way home, one at about 9:11am and another at about 9:24am.  He did not answer these telephone calls.  He then received another telephone call at about 10:40am from Mr McKenzie which he did answer and he then had a 13 minute conversation with Mr McKenzie.  Mr Donohue’s evidence was that this was not a heated conversation.  He said:

   So anyway the conversation centred around, ‘Rhian, don’t go blaming us.  You caused this.  You… never paid the WAGEguard according to Gary Robb.  We weren’t protected.  You never really backed us up properly at the end, and the end result was it is what it is.’ … I never said at any point in time, ‘I will never work with you again’.  A matter of fact, if he was good about it, I was … prepared to come back and finish the job, but I just thought in my mind, ‘well, he has never – he never variated off when he said that, ‘If you don’t go back in and finish the job off … ‘you will never work for me again and neither will any of the other guys.’  So … the conversation, I would say that it finished amiably … and that was it.[54]

   [54] Transcript page 29 at lines 17 to 26.

Direction to undertake clean up work

1. Mr Donohue confirmed that prior to leaving the site, Mr McKenzie asked him and the other applicants to undertake some general cleaning of the site while the rectification works were being done.  However, his evidence was that the clean-up that was required was at the bottom of the stairs where the rectification work was to be undertaken so that was unsafe and there was no cleaning required at the front of the work site as that had already been swept.[55] 

   [55] Transcript page 48 at line 16.

2. Mr Harberger’s evidence was that the three workers were not prepared to re-enter the worksite once they became aware that they were not covered for income protection insurance.[56]

   [56] Transcript page 101 at line 30.

Remaining work after 15 January 2018

1. Mr Harberger was of the view that there might have been a week’s worth of work left in the Haigh’s project after 15 January 2018.  He thought that there would need to be about three or four people with his expertise required to finish the job.[57]

   [57] Transcript page 112 at lines 12 to 20.

2. Similarly, Mr Sutherland stated that in his opinion there was about a week’s worth of work although he did say that he was not sure if that included night shifts.[58]

   [58] Transcript page 151 at lines 11 to 14.

3. Mr Wilson estimated there was some three to four days’ work remaining on the project with about eight people working each day including day and night shift.[59]

   [59] Transcript page 123 at lines 9 to 37.

Issues

1. The issues which arise for consideration in this case are:

   a)Does the EBA provide an entitlement to notice of termination for a casual?

   b)If the answer to (a) is yes, did the respondent terminate each of the applicant’s employment?

   c)If the answer to (b) is yes, did the applicants or any of them engage in serious misconduct, such that the respondent was entitled to terminate without notice?

   d)If the answer to (c) is no, what is the proper calculation of the termination payment in respect of each applicant?

Does the EBA provide an entitlement to notice of termination for casuals?

1. It is conceded that each of the applicants were employed as casuals.

2. The applicants argued that the EBA does not exclude a casual employee from an entitlement notice of termination or payment in lieu. 

3. The respondent submitted that clause 27 does not apply to casual employees.  In making his submission, the respondent pointed to the following:

   a)Section 117 of the Fair Work Act 2009 (Cth) (“the FW Act”) provides that an employer must not terminate an employee’s employment unless it provides specified notice of termination (or a payment in lieu) depending on the length of the employee’s employment. However, section 123(1) specifically states that this obligation does not apply to a casual employee. It was further submitted that section 61 of the FW Act provides that the National Employment Standards (“NES”) cannot be displaced.[60]

   b)Clause 14 of the National Metal and Engineering On-Site Construction Industry Award 2002 (“2002 Award”) which underpins the EBA, expressly excludes casuals from an entitlement to notice of termination.

   c)Similarly, clause 14.2 of the Building and Construction General On-Site Award 2010 (“2010 Award”), which would have applied to the applicants had the EBA not been entered into, expressly excludes casuals from the entitlement to notice of termination.

   d)Both the 2002 Award and the 2010 Award are expressly incorporated into the EBA.

   e)Other than clause 25 of the EBA, the EBA does not deal with casual employees.

   f)It was argued for the respondent that when one has regard to the FW Act, the 2002 Award and the 2010 Award, all of which expressly exclude casuals from an entitlement to notice of termination, and in circumstances where clause 27 does not expressly apply to casuals, the proper construction of the EBA is that it does not require notice of termination to be given to casual employees.

   [60] See also Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWFCB 2434.

4. The applicants argued that the proper interpretation of clause 27 requires the respondent to have provided them with one week’s notice of termination and also payment for the Australia Day holiday. 

1. The applicants conceded that in the ordinary course, a casual would not be entitled to notice of termination or payment in lieu.  However, they argued that the proper construction of clause 27 is that it equally applies to casuals.

Principles of interpretation

1. The applicants relied upon the comments of Mortimer J in Polan v Goulburn Valley Health [2016] FCA 440 where her Honour said:

   [32] Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument…

   …

   [34] In relation to industrial instruments, considerations of context include the wider industrial circumstances in which a particular agreement has been negotiated and concluded, taking particular account of the ‘practical frame of mind’ that might often be brought to its drafting and of the ‘industrial realities’ in which such instruments are drafted…. It is critical that construction of industrial instruments should contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the industrial instrument …. it is … clear from the authorities to which I have referred that a purposive approach to the construction of the terms of an industrial instrument is required just as much as it is required in construing a statute.[61]

   [61] Polan v Goulburn Valley Health [2016] FCA 440 at [32], [34].

2. The applicant also relied on the following passage from Workprac Pty Ltd v Skene [2018] FCAFC 131 where Tracey, Bromberg and Rangiah JJ said:

   The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context … the interpretation turns on the language of the particular agreement, understood in the light of its industrial context and purposes … The words are not to be interpreted in a vacuum divorced from industrial realities … rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament … To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced …’[62]

Does the termination clause in the EBA apply to casual employees?

[62] Workprac Pty Ltd v Skene [2018] FCAFC 131 at [197]. See also Amcor v CFMEU [2005] HCA 10; 222 CLR 241 at [13], upon which the applicants also relied.

Applicants’ position

1. The applicants’ primary position is that clause 27 does not make any distinction between casuals and other employees.  The applicants conceded that the EBA does expressly deal with casual employees at clause 25, however they submitted that clause 27 must be interpreted in a manner which permits both those clauses to operate in a “sensible fashion.”[63]  It was submitted that these two clauses can operate consistently with one another if one takes a sensible approach. 

   [63] Transcript page 225 at lines 15 and 16.

2. The applicants therefore conceded that if a person is engaged as a casual for one day, at the end of that day, the employee would not be entitled to a week’s notice of termination.  Similarly, it was conceded that if the employees had been engaged as casuals for the duration of the project, and the project came to an end, they would similarly not be entitled to a week’s notice of termination. 

3. However, it was submitted that in this case, the applicants were engaged for the duration of the project, albeit as casuals, and that their engagement was brought to an end by the respondent before the project’s completion.  In those circumstances, it was submitted that clause 27 does apply to casual employees such that they would be entitled to a week’s notice of termination.  Clause 27 goes on to specify how notice of termination is to be calculated; namely, by reference to the hours that the employees would each have worked had they continued in employment for an additional week. 

4. It was also submitted that if an industrial instrument or law is intended to exclude a casual employee, it should do so expressly.  For example, the applicants noted that the NES expressly excludes casuals from notice of termination, annual leave and other entitlements whereas clause 27 does not expressly exclude casuals.  Thus, it was submitted that whilst casuals are not entitled to notice on termination under the NES, there is no corresponding exclusion of casuals under the EBA and therefore, the EBA should be interpreted to include casuals in the right to receive notice of termination.

5. The applicants further pointed to a difference in wording between the EBA termination clause and the termination clause in the 1991 Award, which at clause 14.1.5 expressly excludes casuals, among others. 

6. Clause 7.5 of the EBA deals with the interrelationship between the EBA and the underlying awards. 

Respondent’s position

1. In response, it was submitted on behalf of the respondent that the EBA does not require notice of termination to be given to casual employees.  In support of this submission, the respondent referred to the following:

   a)as conceded by the applicants, the NES expressly provides that the requirement to give notice of termination does not apply to casual employees;

   b)clause 14 of the 2002 Award which underpins the EBA, expressly excludes casual employees from an entitlement to notice of termination;

   c)clause 14.2 of the 2010 Award also expressly excludes casuals from an entitlement to notice of termination;

   d)clauses 7.2 and 7.2A of the EBA provide that the terms of the 2002 Award and the 2010 Award are incorporated into and form part of the EBA; and

   e)with the exception of clause 25, the EBA does not specifically contemplate casual employment but rather references full time employment; and

   f)to the extent that the EBA does deal with casuals in clause 25, it simply specifies the maximum continuous period for which a casual can be engaged and further states that beyond this period, the employee is to be employed on a weekly hire basis as a full time employee.

2. The respondent submitted that having regard to each of these matters, the EBA expressly contemplates that casuals are not subject to the obligation to be given notice of termination. 

Casual employees

1. The principles of interpreting industrial instruments are well settled.  The starting point is the text of the instrument itself as well as its context and purpose.  Industrial instruments must be interpreted in a way which gives effect to their purpose and which results in a sensible outcome, having regard to the industrial context in which they were made.

2. In this case, the subject of these proceedings is an enterprise specific agreement. Clause 7 is particularly relevant.  It expressly incorporates into the EBA the 1999 Award, the 2002 Award and the Modern Award.

3. Relevantly clause 7.5 of the EBA provides:

   Where there is any inconsistency between an express provision or provisions of this Agreement and an Award Term or Award Terms, the express provision or provisions of this Agreement shall prevail to the extent of any inconsistency. 

4. The EBA does not contain a clause which expressly deals with different types of employment arrangements.  Clause 25 is the only provision in the EBA which expressly refers to casuals.  Elsewhere, the EBA simply refers to employees. 

5. Ultimately, the question which arises in this case is whether, in applying the principles of interpretation set out above, the term “employee” in clause 27 can properly be interpreted to include a casual employee, as submitted by the applicants, or only applies to ongoing employees, as submitted by the respondent.

6. Neither party has put a copy of the 1999 Award before the court.

7. The respondent has produced a complete copy of the 2002 Award and the Modern Award.

8. Relevantly, the 2002 Award states at clause 12.1:

   Except as provided in 12.2, employment shall be by the week.  Any employee not specifically engaged as a casual employee shall be deemed to be employed by the week. 

9. Clause 12.2 deals with casual employees and provides:

   12.2.1 A casual employee is one engaged and paid in accordance

   
   

   with the provisions of this clause.  A casual employee shall be entitled to all of the applicable rates and conditions of employment prescribed by this Award except annual leave, personal leave, parental leave, jury service, public holidays and redundancy.

   …

   12.2.3A casual employee may be employed by a particular

   
   

   employer on a regular and systematic basis for any period not exceeding six weeks.  If the employment is to continue on a regular and systematic basis beyond six weeks the employee must then be employed pursuant to clause 12.1 of this Award.

   …

   12.2.6A casual employee for working ordinary time shall be paid

   
   

   per hour 1/38^th of the weekly award wage prescribed herein for the work which he or she performs, plus 25%.

10. Clause 14 then deals with the termination of employment and relevantly provides:

    14.1.1 In order to terminate the employment of a full time
    or regular part time employee the employer shall give the employee the period of notice specified in the table below… (emphasis added)

    …

    14.1.5The period of notice in this clause shall not apply in the

    
    

    case of dismissal for conduct that justifies instant dismissal including inefficiency within the first fourteen days, neglect of duty or misconduct and in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks. (emphasis added)

11. Similarly, the Modern Award provides for different types of employment at clause 10:

    10.1Employees under this award will be employed in one of the

    
    

    following categories:

    (a)daily hire employees;

    (b)     full-time weekly hire employees;

    (c)      part-time weekly hire employees; or

    (d)     casual employees.

12. Clauses 11 to 14 detail the distinctions between each of these types of employees.  Relevantly, clause 14 provides:

    14.1A casual employee is one engaged and paid in accordance

    
    

    with the provisions of this clause.

    14.2A casual employee is entitled to all of the applicable rates

    
    

    and conditions of employment prescribed by this award except annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.

    …

    14.5A casual employee must be paid a casual loading of 25% for ordinary hours as provided for in this award.  The casual loading is paid as compensation for annual leave, personal/carer’s leave, community service leave, notice of termination and redundancy benefits and public holidays not worked. 

    …

13. Clause 16 deals with notice of termination and provides for the NES to apply. 

14. As conceded by all parties, the NES entitlement is specified in section 117 of the FW Act. Relevantly, however, section 123(1)(c) of the FW Act provides that the notice of termination entitlements prescribed by the NES do not apply to, among others, casual employees.

15. The applicants’ argument might have some merit were it not for clauses 7.1, 7.2 and 7.2A of the EBA, the effect of which is to incorporate the nominated awards into the EBA.  Whilst clause 7.5 makes it clear that where an inconsistency arises between an express term in the EBA and a term in one of the incorporated awards, the express term of the EBA applies, in this case, that does not assist the applicants. 

16. The effect of the incorporation of the Modern Award into the EBA is that the EBA is taken to include clause 14.2 and clause 14.5 of that Modern Award.  In other words, the EBA includes, by incorporation, a provision which expressly provides that a casual employee is not entitled to notice of termination.  Moreover, the EBA includes, by incorporation, a provision which expressly provides that the 25% loading is to compensate the employee for, among other things, notice of termination.

17. There is nothing in clause 27 of the EBA itself which is inconsistent with this interpretation.  Clause 27 simply imposes an obligation on an employer not to terminate an employee’s employment unless the requisite payment in lieu of notice has been provided, other than where the employer has engaged in serious misconduct. 

18. It is not inconsistent with this clause for the exclusion in clause 14.2 of the Modern Award to apply according to its terms, which by virtue of clause 7 is incorporated in the EBA. 

19. For these reasons, the applicants are not entitled to notice of termination.

20. Having come to this conclusion, it is not necessary to address the other issues identified at paragraph 100 above. However, given that the parties fully argued these matters, it is appropriate that I record my findings.

Did the respondent terminate the remaining applicants’ employment?

1. In answering this question, I will deal with the applicants, Mr Donohue, Mr Harberger and Mr Sutherland as one group and the applicants, Mr Paterson and Mr Wilson as another.

2. As discussed above, Mr Donohue spoke to Mr McKenzie at about 9:30am on the morning of 15 January 2018 by telephone.  Having regard to the totality of the evidence, I accept that although the telephone call was with Mr Donohue, both Mr Harberger and Mr Sutherland were able to hear Mr McKenzie. 

3. I find that this was a heated discussion, during which Mr McKenzie was frustrated at the fact that the applicants had left the work site and were continuing to refuse to re-enter and start work for the day.  Mr McKenzie had been told that the rectification works were completed and it was safe to recommence work.  The applicants had a different view.

4. On balance, I prefer the evidence given by Mr Donohue, Mr Harberger and Mr Sutherland in relation to what was said during this conversation and the effect of what was said.  Whilst there were slight differences between them as to the exact words used, their evidence was consistent in terms of Mr McKenzie saying words to the effect of, ‘if you don’t go back to work, you will never work for me again.’ [64]  I also accept that they all understood this to mean that their engagement was being terminated and that they would not be given any further work.

   [64] Transcript page 52 at lines 39 to 46.

5. I find that by his words and his conduct, Mr McKenzie terminated the employment of these three applicants.

6. In relation to Mr Wilson and Mr Paterson, the position is somewhat different.

7. On balance, I find that Mr McKenzie did terminate Mr Wilson’s employment.  I accept Mr Wilson’s evidence that on 15 January 2018 when he woke after having worked night shift, Mr McKenzie had left a telephone message for him along the lines of ‘the shit’s hit the fan on the job and you are not required to come to work.’[65]

   [65] Transcript page 120 at lines 4 and 5.

8. In the context of Mr Wilson’s casual but regular employment at the Haigh’s site, I am satisfied that this amounted to him being advised that his employment had come to an end.

9. The position in relation to Mr Paterson is somewhat more complex because on his evidence, he arrived at the Haigh’s site at approximately 10:00am on 15 January 2018 to find no other employees of the respondent present.  He then spoke to one of the other remaining applicants (although he could not recall exactly who) and said he was told they had been dismissed.[66] He did not speak directly to Mr McKenzie.  On balance, I am not satisfied that Mr McKenzie terminated Mr Paterson’s employment. 

   [66] Transcript page 129 at line 36.

Did the employees engage in serious misconduct?

1. In the circumstances, there is no claim that either Mr Paterson or Mr Wilson engaged in any misconduct, let alone serious misconduct.  They were not present on the morning of 15 January 2018 when the incidents which led to the termination of their employment took place.  I find that neither Mr Paterson nor Mr Wilson engaged in any misconduct.

2. As to Mr Donohue, Mr Harberger and Mr Sutherland, I find that their conduct on the morning in question did not amount to misconduct and certainly, did not rise to the level of serious misconduct which would justify the summary termination of their employment.  They arrived for work at their scheduled time.  They raised a number of safety concerns with Mr McKenzie.  Their refusal to undertake cleaning work does not, in the circumstances, constitute serious misconduct. I accept the evidence of the applicants that the bulk of the cleaning work that Mr McKenzie asked them to complete was located in the stairwell area where the rectification works were to take place. Their refusal to undertake that work was therefore reasonable.

3. I also find that in circumstances where they had been told that they were not covered for income protection insurance, they were further entitled to reasonably refuse to re-enter a site until such time as it was made safe.

4. In all of the circumstances, the respondent has not established to the requisite standard that any of the employees engaged in serious misconduct which would justify the summary termination of their employment.

What is the proper calculation of the termination payment in respect of each applicant?

1. In light of my findings at paragraph 124 above, it is not necessary for me to make findings as to what the applicants would have received by way of termination payment. In any event, on the basis of the evidence before me, whilst clearly some work continued on the Haigh’s site beyond 15 January 2018, there is insufficient evidence on which to find that there was an additional week’s work for each of the remaining applicants.

Conclusion

1. For the above reasons, I order that the respondent pay the following sums to Mr Penhall:

   a)$1,295.36 in unpaid wages; and

   b)$41.30 in unpaid allowances. 

1. For each of these reasons, I order that the applications of each of the remaining applicants be dismissed.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Associate:

Date:     11 October 2019