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Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3)

Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3)

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WINTLE v RUC CEMENTATION MINING CONTRACTORS PTY LTD (No.3)

[2013] FCCA 694

Catchwords:
INDUSTRIAL LAW – Termination of employment – termination letter – meeting – whether undue influence or undue pressure.

INDUSTRIAL LAW – Termination of employment – whether representations false or misleading – whether right to “thorough investigation” before summary dismissal – whether false or misleading representation about workplace rights.

INDUSTRIAL LAW – Termination of employment – whether because of race or national extraction – employee an Australian – whether adverse action in contravention of a general protection for a prohibited reason.

INDUSTRIAL LAW – Termination of employment – period of notice of termination of employment – whether period of notice prescribed by collective agreement or National Employment Standards – prescribed period of notice or payment in lieu thereof – whether notice given or payment made – whether serious misconduct justifying summary dismissal without notice or payment in lieu thereof.

EVIDENCE – Surveillance devices – inadvertent covert recording of meeting – whether likely to assist with determination of issue concerning undue influence or undue pressure – whether desirability of admission of recording outweighs desirability of non-admission – whether publication reasonably necessary for the protection of lawful interests.

WORDS AND PHRASES – “undue” – “influence” – “undue influence” – “undue pressure” – “serious misconduct”.

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)
Evidence Act 1995 (Cth), ss.138(1) and (3)
Fair Work Act 2009 (Cth), ss.12, 44(1) 50, 55, 117, 121, 123, 341, 342, 344, 345, 346, 347, 351, 357, 361, 570
Fair Work Bill 2008 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth), Ch.1, Part 1-2, Div.2, reg.1.07
Federal Circuit Court of Australia Act 1999 (Cth), s.18
Federal Circuit Court Rules 2001 (Cth), r.21.02(1)(b)
Surveillance Devices Act 1998 (WA), s.9
Workplace Relations Act 1996 (Cth), s.346M

Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32
Clouston & Co Limited v Corry [1906] AC 122
Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)
Gera v Commonwealth Bank of Australia Ltd (2010) 201 IR 26; [2010] FMCA 205
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (2009) 174 FCR 526; [2009] FCA 235
Jones v Chief of Navy (2012) 205 FCR 458; [2012] FCAFC 125
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105; [2005] FCAFC 46
Metz Holdings Pty Ltd & Ors v Simmac Pty Ltd & Ors (No. 1) (2011) 193 FCR 195; [2011] FCA 263
North v Television Corporation Ltd (1976)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 694
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the matter of *Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3)*, the applicant, Mr. Wintle, brought proceedings against his former employer, RUC Cementation Mining Contractors Pty Ltd, alleging unlawful termination of employment. The dispute centred on the circumstances surrounding the termination of Mr. Wintle's employment and whether the employer's actions constituted adverse action under general protections provisions, or a breach of the National Employment Standards regarding notice. The case was heard by Judge Lucev in the Federal Court of Australia.

The court was required to determine several key legal issues. These included whether Mr. Wintle's termination was a result of undue influence or undue pressure exerted by the employer, and whether any representations made by the employer regarding his employment rights were false or misleading. Furthermore, the court had to consider whether the termination was adverse action taken for a prohibited reason, specifically because of Mr. Wintle's race or national extraction, despite him being an Australian citizen. The adequacy of the notice period provided, or payment in lieu thereof, was also in question, unless serious misconduct justified summary dismissal. Finally, the admissibility of an inadvertently covertly recorded meeting was to be assessed.

Judge Lucev found that the employer had not engaged in undue influence or undue pressure during the termination meeting, nor had they made false or misleading representations about workplace rights. The court determined that Mr. Wintle's termination was not adverse action taken for a prohibited reason, as he was an Australian citizen and no discrimination based on race or national extraction was established. The employer was found to have provided the correct period of notice as prescribed by the applicable industrial instrument, and therefore, no breach of the National Employment Standards occurred. The court also ruled that the covert recording of the meeting was admissible, as its probative value in determining the issue of undue influence and pressure outweighed the prejudice it might cause, and its publication was reasonably necessary for the protection of lawful interests.

Orders