Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3)
[2013] FCCA 694
•12 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WINTLE v RUC CEMENTATION MINING CONTRACTORS PTY LTD (No.3) | [2013] FCCA 694 |
| Catchwords: 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) |
| Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284 Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82; [2009] FCA 1119 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308; [2010] FCAFC 65 |
| C Sappideen, et al, Macken’s Law of Employment (Seventh Edn) (Pyrmont: Thomson Reuters, 2011 The Macquarie Dictionary (2nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) |
| Applicant: | ALAN GEOFFREY WINTLE |
| Respondent: | RUC CEMENTATION MINING CONTRACTORS PTY LTD |
| File Number: | PEG 198 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing dates: | 27-28 September 2012 (Kalgoorlie), 1-2 November 2012 (Perth) |
| Date of Last Submission: | 2 November 2012 |
| Delivered at: | Perth |
| Delivered on: | 12 July 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr S Heathcote |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
That the respondent pay to the applicant one week’s pay in lieu of notice, but that otherwise the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT KALGOORLIE AND PERTH |
PEG 198 of 2011
| ALAN GEOFFREY WINTLE |
Applicant
And
| RUC CEMENTATION MINING CONTRACTORS PTY LTD |
Respondent
REASONS FOR JUDGMENT
The application
This is an application under the Fair Work Act 2009 (Cth)[1] in which the applicant, Mr Alan Wintle, alleges various contraventions of the FW Act, and arguably an associated breach of contract claim, in relation to the termination of his employment on 31 May 2011 by the respondent, RUC Cementation Mining Contractors Pty Ltd.[2]
[1] “FW Act”.
[2] “RUC”.
The claims and issues
Mr Wintle’s Amended Application gives rise to the following claims, which generally define the issues to be considered:
a)that RUC exerted undue influence or undue pressure on Mr Wintle in relation to a decision by Mr Wintle to agree, or not agree, to a deduction from amounts payable to Mr Wintle in relation to the performance of work, thereby contravening s.344(e) of the FW Act;
b)that RUC knowingly or recklessly made a false or misleading representation about Mr Wintle’s workplace rights, or the exercise, or the effect of the exercise, of a workplace right by Mr Wintle, most notably, the right to have a “thorough investigation” conducted before Mr Wintle was summarily dismissed, thereby contravening s.345(1) of the FW Act;
c)that RUC took adverse action against Mr Wintle, as an employee, because of his race or national extraction, thereby contravening s.351(1) of the FW Act; and
d)that RUC failed to observe the notice period under a collective (or enterprise) agreement in contravention of s.50 of the FW Act, or the National Employment Standards,[3] in contravention of s.44(1) of the FW Act, or alternatively, in breach of Mr Wintle’s employment contract.[4]
The facts
[3] “NES”; specifically s.117(2) and (3) of the FW Act.
[4] The above issues were the issues identified by the Court as being arguable on RUC’s unsuccessful summary dismissal application: see Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 2) [2012] FMCA 459 at paras.47 (undue influence or undue pressure); 49-50 (false or misleading representation); 53-54 (race or national extraction); and 56-59 (collective agreement, NES and contract of employment) (“Wintle (No. 2)”).
Amended Response
In the Amended Response RUC opposed the granting of the orders sought. Further relevant detail in relation to the grounds of opposition is set out below.
Remedy sought
The remedy sought is compensation. The compensation sought comprises:
a)wages from 31 May 2011 to 18 July 2011;
b)the cost of accommodation in Perth in the amount of $1,000; and
c)the cost of Court fees.
Persons involved
The persons involved in this matter were principally as follows:
a)Mr Wintle, who was employed by RUC as a mechanical fitter in their Kalgoorlie workshop;
b)Mr Gavin Hazell, who was Mr Wintle’s direct supervisor, and the person who made the decision to dismiss Mr Wintle;
c)Mr Graham Fleming, who was the workshop manager at RUC and maintenance controller at the time that Mr Wintle was employed by RUC, and supervisor of the machine shop, but who did not directly supervise Mr Wintle;
d)Ms Tarryn Murray, an administrative and clerical worker in the RUC maintenance workshop;
e)Mr Ron Docherty, who worked as the service manager at Westland Autos (a supplier to RUC), and who dealt with Mr Wintle when he attended at Westland Autos;
f)Ms Cindy Mohamad, a service adviser at Westland Autos who brought Mr Wintle’s alleged conduct at Westland Autos to RUC’s attention;
g)Mr Wayne Cullen, who was RUC’s financial controller; and
h)Ms Leanne Edwards, who was RUC’s HR payroll manager.
Of the above persons, Ms Murray, Ms Mohamad and Mr Cullen did not give evidence.
Witness’ credit
In the Court’s view each of the witnesses who were called did their best to assist the Court in the manner in which they gave their evidence. None of the witnesses were inherently unbelievable, or deliberately misleading. Mr Wintle had a propensity, occasionally, to be argumentative,[5] and also not to listen attentively to what was being put,[6] which meant that he occasionally went off on a tangent of his own. It is also fair to observe that he occasionally did not let the facts get in the road of an assertion couched as a conclusion, and, at some points, his evidence suffered accordingly. That said, the Court believes that he earnestly did what he thought was his best to assist the Court in relation to his evidence.
[5] Transcript at 31 and 41.
[6] Transcript at 49.
The other principal witnesses, namely Messrs Hazell, Fleming and Docherty, all gave their evidence in a relatively calm, consistent and non-confrontational manner, often in the face of a somewhat different and difficult style of cross-examination from Mr Wintle as a self-represented litigant. Mr Docherty in particular was an honest and impressive witness, not afraid or concerned about the impact of his evidence on the case for a major customer, RUC, of his employer, Westland Autos.[7]
[7] Transcript at 138.
To a significant extent there was not, in fact, significant divergence in relation to the relevant facts. Where, however, there is conflict between the evidence of Mr Wintle and others, the Court has generally preferred the evidence of the latter as being more reliable, particularly where Mr Wintle’s evidence is not corroborated by any other evidence or contemporaneous documents.
Employment
Mr Wintle was employed by RUC from 7 April 2011 to 31 May 2011, a period of seven weeks and five days, in RUC’s Kalgoorlie maintenance workshop.
Contract of Employment
Mr Wintle was offered employment by RUC on the following terms and conditions:
Your terms and conditions of employment are in accordance with the relevant industrial instrument (currently the RUC Mining Contractors Collective Employee Agreement May 2008)[8] and Terms and Conditions as a Mine Worker. Copies of there (sic) documents are attached for your information.
Your duties, position, and location may be subject to change from time to time due to operational requirements. You will be paid for the duties and roster that you undertake. Your terms and conditions may alter from site to site. You will initially be engaged on a three month probationary period, which may be extended by a further three months by mutual agreement.
Whilst employed by RUC … you are required to abide by all Company Policies and Procedures, as amended from time to time.[9]
[8] “Collective Agreement”.
[9] Exhibit 7 (“Employment Offer”).
On 7 April 2011 Mr Wintle:
a)accepted the Employment Offer on the terms prescribed by the Collective Agreement and acknowledged having received a copy of the Collective Agreement, and to have agreed to and understood its contents;[10] and
b)received two copies of, and signed at least one copy of, a document being the “Terms and Conditions of Employment as a Mine Worker”[11] with RUC, one specifying a Coolgardie address and nominating Kalgoorlie as his place of work,[12] the other nominating a metropolitan address, and leaving blank his work location.[13] Otherwise, the documents are identical, and nothing turns upon the fact that there are two such documents.[14]
[10] Exhibit 7.
[11] “Mine Worker Terms and Conditions”; Transcript at 31-32.
[12] Exhibit 8.
[13] Exhibit 9.
[14] Exhibits 8 and 9.
Relevantly, the Mine Worker Terms and Conditions, provided that:
a)Mr Wintle would “commence employment” with RUC “as a Mine Worker upon … acceptance of the terms and conditions of the … [Collective Agreement] …”; and
b)employment would be subject to a probationary period, described in the following terms:
For the first three (3) months of employment you will be on probation to enable RUC to assess your skills and work performance.
At any time during or at the end of the probationary period either party may terminate this Agreement with one (1) day’s notice.[15]
[15] Exhibits 8 and 9.
Nature of work performed
Although Mr Wintle is described as a “mine worker” in the Mine Worker Terms and Conditions, the nature of the work performed by Mr Wintle was as a light vehicle mechanical fitter, servicing and maintaining a fleet of vehicles used in mining operations, as well as machinery, which came into RUC’s workshop.[16] From time to time Mr Wintle was required to attend away from the workshop at mining sites to undertake vehicle repairs.[17] Mr Wintle said that he also had apprentices under his care.[18]
[16] Transcript at 20.
[17] Transcript at 92.
[18] Transcript at 20.
Collective Agreement
The Collective Agreement applies to RUC and its employees throughout Australia engaged as, amongst others, “Mechanics Fitters”.[19] Whilst not the most elegant expression, it is clear that the intention under the Collective Agreement by the use of the words “Mechanics Fitters”, was in fact to cover persons, such as Mr Wintle, engaged in mechanical fitting work. There was no dispute in this case that the Collective Agreement applied to the work undertaken by Mr Wintle.
[19] Collective Agreement, cl.1.2.
There was evidence that the Collective Agreement was in operation at the time of Mr Wintle’s employment, it having commenced to operate on 18 March 2009,[20] and remaining in force for a period of five years thereafter.[21]
[20] See notice under s.346M of the Workplace Relations Act 1996 (Cth) issued on 11 March 2009: Exhibit 17.
[21] Collective Agreement, cl.1.3.
Clause 2 of the Collective Agreement provides that:
This Collective Agreement is intended to cover all matters pertaining to the employment relationship. In this regard, this Collective Agreement represents a complete statement of the mutual rights and obligations between the employer and the employee to the exclusion (to the extent permitted by law) of other laws, awards, agreements (whether registered or unregistered) custom and practice and like instruments or arrangements.
This Collective Agreement regulates all terms and conditions of employment and thus expressly excludes and displaces (to the extent permitted by law) the operation or any and all other matters and conditions of employment (including those howsoever described or identified as either a preserved entitlement, preserved notional term, preserved notional entitlement, protected notional condition, preserved award terms or protected award condition) in any award or agreement.
To remove any doubt, this Collective Agreement expressly excludes and completely displaces the conditions of any award binding on RUC ….[22]
[22] Collective Agreement, cl.2.
Clause 4.2 of the Collective Agreement provides that:
4.2.1Employees engaged on a full time or part time basis will initially be engaged on a probationary period of up to three months, which may be extended by a further three months by mutual agreement.
4.2.2.Probationary employees will be required to provide one days notice of resignation or forfeit one days pay in lieu of notice. The employer may terminate a probationary employee by providing one days notice or one days pay in lieu of notice except in cases of misconduct where termination is effected summarily and payment will be up to time of dismissal only.
4.2.3Except in cases of misconduct where termination is effected summarily and payment will be up to time of dismissal only, the notice of termination for both the employer and employee shall be in accordance with the table below. Where notice is not provided in full and in writing, the period of notice not provided shall be either paid or forfeited from any monies due on termination.
The Collective Agreement goes on to provide that an employee with not more than one year’s service is entitled to a period of notice of at least one week.[23]
[23] Collective Agreement, cl.4.2.3.
Human Resource Management Plan
RUC’s Human Resource Management Plan,[24] updated to 1 February 2011,[25] was also put into evidence through Ms Edwards, the HR payroll manager at RUC.[26] The HRM Plan was a management guide with respect to the conduct of human resources issues. Clause 4.2.1 of the HRM Plan, relied upon in the Termination Letter, provides that:
[24] “HRM Plan”.
[25] Transcript at 189.
[26] Transcript at 186.
4.2.1 Summary Dismissal
RUC has the right to instantly dismiss an employee where that employee engages in conduct that is so serious that it strikes at the heart of the employment contract, and destroys the working relationship.
In such cases there is no requirement for notice to be given to the employee, or payment in lieu of notice.
However, it is imperative that a thorough investigation be conducted.
Grounds for summary dismissal include, but are not limited to:
· Wilful and serious misconduct (eg. Fighting, vandalism, theft).
· Wilful disobedience of a lawful direction.
· Intoxication in the workplace (alcohol, drugs).
· Dishonesty.
· The use of objectionable or obscene language in certain circumstances.
· Criminal offences / activities.
· Neglect of duties, negligence.
· Abuse.
· Insubordination.
Mr Wintle contacts Mr Docherty by telephone
Westland Autos was a vehicle and parts supplier to RUC, located in Kalgoorlie. It is alleged that Mr Wintle contacted Westland Autos directly by telephone seeking technical information in about mid-May 2011, about a fortnight before his employment with RUC was terminated. There is a dispute as to whether it was Mr Wintle who contacted Mr Docherty at Westland Autos by telephone.
Mr Wintle says that he had previously rung Mr Docherty regarding parts for a vehicle, and that Mr Docherty was busy, and having spoken to him briefly Mr Docherty had said that he would ring Mr Wintle back in about half an hour. Mr Wintle says that Mr Docherty called him back and gave him the information that he needed. Mr Wintle then says that he had to contact Mr Docherty again by telephone concerning a parts manual, and that Mr Docherty told him to come down to the Westland Autos’ office in about half an hour, and that he would leave a CD, containing the relevant parts manual, on the desk for Mr Wintle. Mr Wintle attended at Westland Autos and picked up a parts CD from the counter. Mr Wintle denies that any threats of any kind were made to Mr Docherty in those telephone calls.[27] Mr Wintle’s evidence was ultimately that there were only two telephone conversations with Mr Docherty.
[27] Transcript at 13-14.
Mr Docherty’s evidence was that he thought it was Mr Wintle who had contacted him, and, he said, threatened him over the telephone in relation to the future purchase of vehicles by RUC from Westland Autos.[28] Mr Docherty was not, however, 100% sure that the person who rang him on what he said was the fourth occasion to discuss these issues was Mr Wintle, but said that he had had three other telephone conversations with Mr Wintle with respect to the same technical information within a few days.[29]
[28] Transcript at 61-62 and 65-66.
[29] Transcript at 62 and 72-73.
Mr Docherty recounted what he said was the fourth phone call to him concerning a request for the same technical information. He said that he had not had time to get the information requested because he had been too busy and because the information took some time to get. As a consequence, the person on the other end of the phone, whom he understood to be Mr Wintle, said words to the effect that “RUC … buy a lot of vehicles from Westland Autos. We would hate to jeopardise that.”[30]
[30] Transcript at 73.
Mr Docherty considered the matter was sufficiently serious to raise what was said to him with Westland Autos’ dealer principal.[31] RUC did not, however, become aware of Mr Wintle’s alleged conversation with Mr Docherty until around 30 May 2011.
[31] Transcript at 74.
In the above circumstances, the Court, preferring Mr Docherty’s evidence to Mr Wintle’s for reasons already given,[32] is satisfied that the evidence establishes that:
a)Mr Wintle made at least three telephone calls to Mr Docherty requesting certain information prior to the telephone call in which Mr Docherty alleges a threat was made;
b)although Mr Docherty cannot be certain that the person who made the allegedly threatening telephone call was Mr Wintle, he, based on the prior telephone calls concerning the same technical information, assumed that it was Mr Wintle who made the fourth telephone call, without, in retrospect, being absolutely sure that it was Mr Wintle;
c)the Court considers, based on the prior telephone calls, and the nature of the information sought in each of the prior three calls and the final, or fourth call, that it is reasonable to infer that it was Mr Wintle who made that call; and
d)the Court prefers Mr Docherty’s evidence that there were four calls, over Mr Wintle’s evidence that he only ever made two calls to Westland Autos concerning parts matters, and that in the fourth call the alleged threat, or what was perceived as a threat to Westland Autos’ business interests, was made, and was made by Mr Wintle.
[32] See para.7 above.
Mr Wintle’s warnings
On the basis that the Court prefers Mr Hazell’s evidence to that of Mr Wintle, for reasons already given,[33] the Court concludes that:
a)on 25 May 2011 Mr Wintle was warned by Mr Hazell about not wearing his safety glasses and advised that he must wear them;[34] and
b)on 27 May 2011 Mr Wintle was warned by Mr Hazell with respect to the alleged improper removal of a safety tag on equipment, and instructed by Mr Hazell that that was not to be done again.[35]
[33] See para.7 above.
[34] Transcript at 31 and 120; Exhibit 14.
[35] Exhibit 15.
Mr Wintle’s visit to Westland Autos
On 30 May 2011 Mr Wintle went to Westland Autos. Whether or not that visit breached RUC procedure, and was unauthorised, is a matter of contention. Mr Wintle asserts that in the absence of a direct instruction that he was not to leave the RUC workshop, that it was permissible for him to do so. By contrast, RUC said that there was a process to be followed involving the obtaining of permission to leave the RUC work site from a senior person, as there was a need for RUC to know where their employees were, and hence Mr Wintle had no permission to go to Westland Autos on 30 May 2011. Likewise, RUC asserts that there was a procedure with respect to obtaining parts and technical information from a supplier such as Westland Autos.[36]
[36] Transcript at 22-23, 125 and 178.
On 30 May 2011 when Mr Wintle went to Westland Autos’ premises he went to a workshop.[37] Mr Wintle went past a sign which was approximately 1 metre by 600mm in dimension indicating that only authorised persons ought to enter the First Workshop and which said “Stop. No Entry.”[38] When in the First Workshop Mr Wintle spoke to an employee of Westland Autos who suggested that he go to another workshop,[39] similarly signed, to which Mr Wintle subsequently went, and entered, taking the direction from the employee in the First Workshop as authority to enter the Second Workshop.
[37] “First Workshop”.
[38] Transcript at 74 and 76.
[39] “Second Workshop”.
In the Second Workshop Mr Wintle spoke to Mr Docherty and sought information concerning a particular technical matter. That information was readily available to Mr Docherty at the time. Mr Docherty gave the information to Mr Wintle, and Mr Wintle departed. Mr Docherty conceded that a person who had entered the First Workshop and made enquiries of an employee, and who was the told to go to the Second Workshop, was likely to go to the Second Workshop. Mr Docherty indicated that whilst he was in the Second Workshop Mr Wintle (who he had never met in person before) was polite, and did not make any threats.[40] Mr Docherty indicated that so far as he was aware there was no woman in the Second Workshop at that time.[41]
[40] Transcript at 61-63.
[41] Transcript at 64.
Ms Mohamad’s involvement
Subsequent to Mr Wintle’s visits to the First and Second Workshops there was a discussion between Ms Mohamad and Ms Murray about Mr Wintle’s visits to the First and Second Workshops, as a consequence of which, Ms Murray raised this issue with Mr Hazell. Mr Hazell then phoned Ms Mohamad to discuss Mr Wintle’s visit, and it was then that Mr Hazell was informed by Ms Mohamad of what she claimed were threats which were made by Mr Wintle, in the fourth telephone call to Mr Docherty.[42] Mr Hazell asked Ms Mohamad to put in writing what had allegedly occurred in relation to Mr Wintle’s interaction with Westland Autos.[43] It is not apparent on the evidence how Ms Mohamad came to know of the content of the fourth telephone call from Mr Wintle to Mr Docherty. The evidence indicates that Ms Mohamad, who at the relevant time was a service adviser at Westland Autos, is no longer employed by Westland Autos,[44] and Counsel for RUC informed the Court that he did not believe that RUC had been able to locate her.[45]
[42] Transcript at 112 and 121.
[43] Transcript at 82.
[44] Transcript at 63.
[45] Transcript at 75.
Ms Mohamad sent Mr Hazell an email at 8.03am on Tuesday, 31 May 2011 in the following terms:
Good morning Gavin,
I have been asked to put this in writing.
We had one of your employee’s & I believe his name is Alan, walk straight into our workshop yesterday morning, expecting the workshop boys to drop everything & assist him with some torque specs.
He hadn’t gone through the service department in any way, he just went straight to the work shop. We had all the mechanics on vehicles that were in for a service, luckily Ron was there to help him.
The service manager [Ron] had dealings with him a week or two ago. He rang wanting information there & then, Ron explained that he wasn’t at his desk to help him & asked Alan to give him 10 minutes & call back. Now I can’t word this exactly! Alan basically told Ron that if he was mucked around, the dealings with RUC purchasing vehicles from us would be under jeopardy.
As I said this is not word for word.[46]
[46] Exhibit 13 (“Ms Mohamad’s Email”).
Mr Hazell did not speak to Mr Wintle about what had allegedly occurred at, or in relation to, Westland Autos and Mr Docherty. Mr Hazell spoke to Mr Docherty concerning these events, and Mr Docherty verified the contents of Ms Mohamad’s Email.[47] It is evident that Mr Hazell believed the general account of events given to him by Ms Mohamad and Mr Docherty in relation to Mr Docherty’s telephone conversation with Mr Wintle, and Mr Wintle’s subsequent visits to the First and Second Workshops.[48]
[47] Transcript at 75 (“…I did verify it”), 76, 88-89 and 122.
[48] Transcript at 122-123.
The 31 May 2011 Meeting
On 31 May 2011 Mr Hazell arranged to meet with Mr Wintle.[49]
[49] “31 May 2011 Meeting”.
At hearing an issue arose as to the admissibility of a recording of the 31 May 2011 Meeting. The recording was made inadvertently by Mr Wintle.[50] Ultimately, both Mr Wintle and RUC consented to the recording being admitted into evidence. The Court took the view, expressed at hearing, that the recording of the 31 May 2011 Meeting was likely to assist with the determination of the issue as to whether or not undue pressure or undue influence was exerted in the course of the 31 May 2011 Meeting. The Court took the view that, for the purposes of s.138(1) of the Evidence Act 1995 (Cth),[51] even if the recording had been obtained improperly, in consequence of an impropriety, or in contravention of Australian law, the desirability of the recording being admitted outweighed the undesirability of it not being admitted.
[50] Transcript at 40.
[51] “Evidence Act”.
Section 138(1) and (3) of the Evidence Act provides as follows:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
In Metz Holdings Pty Ltd & Ors v Simmac Pty Ltd & Ors (No. 1)[52] the Federal Court was dealing with the tender of a computer disk containing recordings of conversations by using a mobile telephone. The Federal Court held that in the circumstances where there was a dispute between the parties concerning legal obligations, and when the recordings were made they had been made in order to protect lawful interests, the further publication of the recordings was necessary in order to protect the same legal interests.[53]
[52] (2011) 193 FCR 195; [2011] FCA 263 (“Metz Holdings”).
[53] Metz Holdings FCR at 199 per Barker J; FCA at para.24 per Barker J.
In Jones v Chief of Navy[54] there was an appeal by a male naval officer against his dismissal for, amongst other things, smacking the buttocks of a junior female naval officer. In issue on the appeal was the admission of a recording between the male naval officer and service police, the recording having been admitted pursuant to the discretion in s.138(1) of the Evidence Act by the Federal Court at first instance. The appeal was rejected with the Full Court of the Federal Court observing that the male naval officer’s extraordinary responses to the questioning about the pretext for recording was distinctly probative as tending to show a consciousness on his part that his conduct towards the female naval officer involved knowing manipulation of her.[55]
[54] (2012) 205 FCR 458; [2012] FCAFC 125 (“Chief of Navy”).
[55] Chief of Navy FCR at 499-500 per Keane CJ; Emmett, Edmonds, Besanko and Robertson JJ; FCAFC at paras.161 and 163 per Keane CJ; Emmett, Edmonds, Besanko and Robertson JJ.
Section 9 of the Surveillance Devices Act 1998 (WA)[56] relevantly provides as follows:
[56] “SD Act”.
(1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Penalty:
(a) …;
(b) ….
(2) Subsection (1) does not apply —
(a) where the publication or communication is made —
(i) …;
(ii) …;
(iii) …;
(iiia) …;
(iv) …;
(v) …;
(vi) for the protection of the lawful interests of the person making the publication or communication;
(vii) …;
(viii) …; or
(ix) …;
(b) …
or
(c) …
(3) Subsection (2) only provides a defence if the publication or communication —
(a) is not more than is reasonably necessary —
(i) …;
(ii) …; or
(iii) for the protection of the lawful interests of the person making the publication or communication;
(b) …;
(c) …; or
(d) …
In Georgiou Building Pty Ltd v Perrinepod Pty Ltd[57] the Western Australian Supreme Court held that whether the use of a device is reasonably necessary is to be judged on the circumstances that existed at the time of its use, and that a recording made where a serious dispute has erupted, and where there will be a dispute as to different versions of an arrangement, may give rise to a lawful interest, and the lawfulness of the interest may exist whether a dispute was either present or anticipated.[58]
[57] [2012] WASC 72 (S) (“Georgiou Building”).
[58] Georgiou Building at paras.16-17 per Allanson J.
In Smith v Saracen Management Pty Limited[59] it was held that the tape recording of a company board meeting, at which the applicant in unfair dismissal proceedings was present, was necessary for the protection of the applicant’s lawful interests where the “matters discussed … go to central issues in these proceedings”.[60]
[59] (2002) 82 WAIG 1050 per Smith C; [2002] WAIRComm 5619 at para.154 per Smith C (“Saracen Management”).
[60] Saracen Management WAIG at 1076 per Smith C; WAIRComm at para.154 per Smith C.
Mr Wintle had the recording device with him in order to record conversations which he alleges were taking place in the workplace, and which related to issues of discrimination on the basis of race or national extraction, and which might therefore have ultimately been relevant to the claim now made under s.351 of the FW Act. Mr Wintle says that he inadvertently recorded the 31 May 2011 Meeting. Notwithstanding that the recording:
a)was inadvertent;
b)unknown at the time to Mr Hazell and Mr Fleming; and
c)is now sought to be tendered in relation to a meeting which is said to give rise to a claim under s.344(e) of the FW Act,
it nevertheless appears to the Court that the recording, like that in Saracen Management, fits within the exception in s.9(2)(vi) of the SD Act as a publication of a recording which is no more than reasonably necessary for the protection of the lawful interests of Mr Wintle.
Even if the recording is otherwise improper, the result of an impropriety or in contravention of an Australian law, it is the view of the Court that under s.138(1) of the Evidence Act 1995 (Cth) it ought to be admitted as:
a)it is the best evidence available of what occurred at the 31 May 2011 Meeting, particularly as to what was said, and the tone of what was said;
b)the evidence is patently important in the context of this aspect of Mr Wintle’s claim, and the nature of the relevant contravention is such that an actual recording of the 31 May 2011 Meeting is likely to assist significantly with the question of whether or not there was undue influence or undue pressure exerted;
c)in the context of the circumstances of an inadvertent recording the gravity of any impropriety or contravention is not great, and neither was it deliberate or reckless; and
d)whilst other evidence is obtainable in relation to what was said at the 31 May 2011 Meeting, and its tone, and there is not really any dispute as to what was actually said, the recording nevertheless conveys with precision how it was said, which is always a difficult matter to determine where, as here, it is in dispute as to whether what was said was said in a manner which exerted undue influence or undue pressure.
On the basis of the above rationale, the CD containing a recording of the 31 May 2011 Meeting was admitted into evidence as Exhibit 11 in the proceedings.
What was said at that meeting is, therefore, not in dispute, it having been recorded, and providing as follows:
MR HAZELL: I’ve had a complaint, Al.
MR WINTLE: Yeh, that’s all right.
MR HAZELL: Westland Autos have said that you basically just walked into their workshop and demand information and – without going through the front counter. And I am led to believe it was also stated that if she can’t help you out, that the dealings with RUC purchasing vehicles from us would be under jeopardy.
MR WINTLE: Well, I categorically deny that full stop.
MR HAZELL: Well, I don’t think they would say if it wasn’t said:
Hasn’t gone through service department in any way. He went straight through the workshop. It had all the mechanics and vehicles that were in the service bay. Luckily, Ron was there to help him. He rang wanting information then and there. Ron explained that he was at his desk and helped him and asked Alan to give him 10 minutes to call back. Alan basically told Ron that if he mucked around in dealings with RUC that purchasing with us would be under jeopardy.
MR WINTLE No, well, I categorically deny that full stop.
MR HAZELL: All right. You have every right to do that.
MR WINTLE: Yep.
MR HAZELL: Basically I want you to read this. I’m letting you go.
MR WINTLE: Okay, no worries. Is that all?
MR HAZELL: Yes, No, I just need you to sign it. I will sign it and you get a copy in the mail.
MR WINTLE: I don’t sign anything, cob.
MR HAZELL: No, you don’t have to sign it at this stage.
MR WINTLE: Okay.
MR HAZELL: I will sign mine here.
MR WINTLE: You’re just letting me go?
MR HAZELL: At the end of the day?
MR WINTLE: That’s fine.
MR HAZELL: I will pay you to the end of the day.
MR WINTLE: Yep.
MR HAZELL: But, mate, you really need to pack up your tools and things.
MR WINTLE: See you in court.[61]
[61] Extract of Transcript from playing of audio recording (Exhibit 11), 27 September 2012 at 2-3 (“31 May 2011 Meeting Audio”).
The letter which Mr Wintle refused to sign was in the following terms:
31/05/2011
Mr Alan Wintle
PO Box 37COOLGARDIE WA 6429
Dear Alan,
In reference to No: 4.2.1 of the RUC Cementation Human Resources Management Plan a complaint has been lodged against you by a company supplier regarding actions that you completed at their business recently which goes against RUC protocol.
In relation to this incident your employment with RUC has been terminated effective immediately.
Your truly,
Gavin Hazell
Maintenance Controller
RUC Cementation Mining Contractors Pty LtdWitnessed by:
Graham Fleming
Workshop Supervisor
RUC Cementation Mining Contractors Pty LtdEmployee signature:
Alan Wintle[62]
[62] Exhibit 2, also being Annexure A to Mr Wintle’s Affidavit of 8 March 2012 (“Termination Letter”).
Although Mr Fleming was at the 31 May 2011 Meeting it does not appear that he said or did anything at that meeting.[63]
[63] Transcript at 42; 31 May 2011 Meeting Audio.
In relation to the 31 May 2011 Meeting the evidence indicates that at no stage did Mr Hazell raise his voice, get up out of his chair, or take an aggressive posture toward Mr Wintle.[64]
[64] Transcript at 42 and 179.
There is some dispute as to whether the Termination Letter was signed on behalf of RUC when given to Mr Wintle. It is evident from the copy attached to Mr Wintle’s 8 March 2012 Affidavit that the copy he received was not signed. Nothing, however, actually turns upon whether or not the Termination Letter was signed at the time that it was given to Mr Wintle in the 31 May 2011 Meeting. It is plain on the evidence that the meeting was called in order to terminate Mr Wintle’s employment, and that the letter, whether signed or unsigned, was intended to give effect to that intention.
Mr Hazell was the person at RUC empowered to make a decision to dismiss Mr Wintle, and he did so.
It is apparent from the 31 May 2011 Meeting Audio that Mr Hazell ran the two incidents at Westland Autos together and treated them as if they were one. That is evident also from the Termination Letter which refers to “this incident”. Although that was doubtless factually incorrect, it nevertheless remains the case that, on the face of the record, Mr Wintle’s employment was terminated in relation to his alleged conduct at Westland Autos.
Mr Hazell gave evidence that his reasons for terminating Mr Wintle’s employment were:
a)Mr Wintle’s unauthorised visit to Westland Autos; and
b)that Mr Wintle was slow in performing his tasks, and that he spent a lot of time walking around talking to others in the workshop rather than doing his tasks.[65]
[65] Transcript at 122-123 and 139.
Termination notice
A termination notice, being an internal RUC document to facilitate payment on termination, was completed by Mr Hazell on 31 May 2011, and contained the following comments:
General Comment on Ability, Attendance etc. Slow In Performing Tasks.
If dismissed – Reason Failure To Comply With RUC Protocol In Dealings With Suppliers.
Would you re-employ? No.[66]
[66] Exhibit 16.
Mr Hazell also gave evidence that even if Mr Wintle had not been dismissed on 31 May 2011 he would nevertheless have been dismissed at some time prior to the end of his probationary period, or that his employment would not have continued upon the expiry of his probationary period.[67]
[67] Transcript at 128.
Further specific factual material relevant to specific heads of Mr Wintle’s claims is also set out below, where relevant.
General protections applications – the correct approach
In Barclay v Board of Bendigo Regional Institute of Technical and Further Education[68] the Federal Court, at first instance, rejected the respondents’ submissions that the reasons given by a decision-maker were irrelevant as “inconsistent with the legislative history, relevant principles of statutory construction and authority”.[69] Rather, the Federal Court said:
The task of the court, in a proceeding such as the present is … to determine why the employer took the adverse action against the employee. Was it for a prohibited reason or reasons which included that reason? In answering this question, evidence from the decision-maker which explains why the adverse action was taken will be relevant. If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason.[70]
[68] (2010) 193 IR 251; [2010] FCA 284 (“Barclay”).
[69] Barclay IR at 258 per Tracey J; FCA at para.24 per Tracey J. As to the legislative history, see Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807.
[70] Barclay IR at 260-261 per Tracey J; FCA at para.34 per Tracey J.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[71] in a joint judgment, the High Court endorsed the approach of the Federal Court at first instance outlined above.[72] Two justices of the High Court observed that the contrary approach, if accepted, would “destroy the balance between employers and employees”[73] central to the civil penalty regime established under the FW Act, saying that “it is a misunderstanding of, and contrary to, [authority] to require that the … reason for adverse action must be entirely dissociated from an employee’s union position or activities”.[74]
[71] (2012) 86 ALJR 1044; [2012] HCA 32 (“Barclay – High Court”).
[72] In so doing the High Court reversed the judgment of the Full Court of the Federal Court of Australia in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14, which had reversed the judgment of the Federal Court at first instance in Barclay.
[73] Barclay – High Court ALJR at 1056 per French CJ and Crennan J; HCA at para.61 per French CJ and Crennan J.
[74] Barclay – High Court ALJR at 1056 per French CJ and Crennan J; HCA at para.61 per French CJ and Crennan J.
Another two justices of the High Court also approved the first instance approach in Barclay holding that “it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry”.[75]
[75] Barclay – High Court ALJR at 1066 per Gummow and Hayne JJ; HCA at para.127 per Gummow and Hayne JJ.
In a separate judgment, a single justice of the High Court also concurred in upholding the first instance approach in Barclay, and was critical of any differentiation being made between “conscious” and “unconscious” reasons, noting that such an approach would impose an “impossible burden” on employers facing accusations of prohibited adverse action.[76]
[76] Barclay – High Court ALJR at 1069 per Heydon J; HCA at para.146 per Heydon J.
The approach in Barclay, upheld in Barclay – High Court, suggests that the decision-maker’s subjective intention, if accepted by the first instance judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason remains a question of fact for a first instance judge to determine on the evidence, bearing in mind the employer bears an onus under s.361 of the FW Act to show that it did not take adverse action for a prohibited reason. Section 361 of the FW Act provides as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Alleged undue influence or undue pressure
Section 344 of the FW Act reads as follows:
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
…
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
In the FW Act neither “undue influence” nor “undue pressure” is defined.
In the Building and Construction Industry Improvement Act 2005 (Cth),[77] the phrase “undue pressure”, similarly undefined, was said to bear its ordinary meaning in the context of the purpose of the legislation.[78] The Federal Court observed:
According to the Macquarie Dictionary, the word “undue” means “unwarranted; excessive, too great” or “not proper, fitting or right; unjustified”. The Macquarie Dictionary also defines the word “pressure” in its relevant sense as “harassment; oppression”.[79]
[77] “BCII Act”.
[78] Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82 at 87-88 per Gray J; [2009] FCA 1119 at para.18 per Gray J (“Stuart”). The judgment in Stuart was appealed, but only as to penalty: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308; [2010] FCAFC 65.
[79] Stuart at para.18 per Gray J.
To “influence”, at its most benign, means “to move or impel to, or to do, something”.[80]
[80] The Macquarie Dictionary (2nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) page 903.
In the Fair Work Bill 2008 (Cth), Explanatory Memorandum[81] it was noted that:
Under (sic) influence or pressure is a lower threshold than coercion.[82]
[81] “Explanatory Memorandum”.
[82] Explanatory Memorandum, para.1396.
In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors[83] the Federal Court observed that:
57 … the expression ‘undue pressure’ could not … be limited to circumstances of the kind comprehended by the equitable doctrine of undue influence … the expression was intended to have a connotation that was relevant in the conduct of industrial relations in the building and construction industry over a much broader front than would be implied by the equitable doctrine.
58 Looking then at the normal meaning of the words used in the expression, there is no particular difficulty with the word "pressure". It is the word "undue" which is problematic. The dictionaries tell us that "undue" may carry a quantitative connotation - in the sense of going beyond what is warranted, or excessive - or a qualitative connotation - in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable. … I think it likely that the legislature intended that a qualitative standard of some kind was connoted by the expression.
59 What is clear, as a matter of construction, is that the application of undue pressure was regarded by the legislature as something different from coercion. …
60 A very cursory survey of the recent use of the expression "undue pressure" in the industrial relations context reveals that it has been used to describe the kind of situation that might be regarded as a constructive dismissal (see Allison v Bega Valley Council (1995) 63 IR 68, 73) and the situation which may arise when an employee does not make a free decision to agree to a change of shift, for example (see Victorian Hospitals Industrial Association v Australian Nursing Federation [2002] AIRC 1124 [14]). Cases of this kind throw little light on the meaning of the expression used in s 44 of the BCII Act. They do, however, demonstrate that, in context, the expression "undue pressure" has at least the potential to cover forms of pressure which are somewhat more benign than those considered necessary to make good an allegation of coercion in the statutory sense.[84]
[83] (2009) 174 FCR 526; [2009] FCA 235 (“John Holland”).
[84] John Holland FCR at 543; FCA at paras.57-60 per Jessup J.
Whether or not what happened at the 31 May 2011 Meeting amounted to undue pressure or undue influence is a question which must take its colour or content from the evidence concerning that meeting.
Questioned at hearing as to the precise nature of the undue pressure or undue influence which was exerted Mr Wintle’s answers varied from being asked to sign the Termination Letter, or being told that he needed to sign the Termination Letter, to an alleged right under a contract to have a thorough investigation, to pressure arising from a complaint (that made by Ms Mohamad from Westland Autos) that Mr Wintle said he did not know about.[85]
[85] Transcript at 43-44.
The Court has listened to the recording of the 31 May 2011 Meeting at hearing, and subsequently several times in Chambers. The Court also heard evidence of the conduct of the 31 May 2011 Meeting from Mr Wintle, Mr Hazell and Mr Fleming. From all of the evidence it is clear that:
a)the 31 May 2011 Meeting was conducted as plainly as it reads on paper;[86]
b)the tone of the 31 May 2011 Meeting is unremarkable, and there is no evidence, either in the recording or from the witnesses, of any raising of voices, agitation, or body language or movements which could be interpreted as an attempt to exercise undue pressure or to exercise undue influence with respect to any matter, or a requirement to do any thing, including in relation to deductions from amounts payable to Mr Wintle in relation to the performance of work;
c)at the 31 May 2011 Meeting there was a request, and no more than that, for Mr Wintle to sign the Termination Letter, and Mr Wintle was told by Mr Hazell that “you don’t have to sign it at this stage”;[87] and
d)there was nothing in the terms of anything said or read to Mr Wintle, or the Termination Letter itself, which constituted undue influence or undue pressure, with respect to any matter, including deductions from amounts payable to Mr Wintle in relation to the performance of work.
[86] See para.45 above.
[87] 31 May 2011 Meeting Audio: see para.45 above.
The 31 May 2011 Meeting was short and uneventful, especially in the circumstances where Mr Wintle was being terminated from his employment. If what was said and done at the 31 May 2011 Meeting was held to constitute undue influence or undue pressure, then almost anything that was said or done in the context of any termination of employment could be said to be undue influence or undue pressure. That is clearly not the intention of the provisions of s.344(e) of the FW Act. Those provisions do not require coercion, but there must be some conduct which nevertheless amounts to the exercise of some influence or some pressure in order to make an employee act in a particular way, namely, to agree or not agree to a deduction in relation to the performance of work. There was no conduct of that type in this case.
In the circumstances, the Court finds that there was no undue influence or undue pressure exerted by RUC in the 31 May 2011 Meeting. What was said and done in the 31 May 2011 Meeting by Mr Hazell and Mr Fleming, on behalf of RUC, did not amount to undue influence or undue pressure for the purposes of s.344(e) of the FW Act.
It follows that Mr Wintle’s claim under s.344(e) of the FW Act alleging undue influence or undue pressure is not made out.
Alleged false or misleading representation
Section 345 of the FW Act provides as follows:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Mr Wintle made a number of separate sub-claims under s.345 of the FW Act. The Court has previously observed that Mr Wintle’s argument with respect to the alleged false or misleading representation was “a little difficult to follow”, but that it appeared to be based upon a misrepresentation by Mr Hazell to Mr Wintle arising, at least in part, from a failure to conduct a “thorough investigation” pursuant to the provisions of an applicable enterprise agreement.[88] As the evidence emerged, it transpired that the provision with respect to a “thorough investigation” prior to summary dismissal of an employee was contained in Part 4.2.1 of the HRM Plan, and was not part of the Collective Agreement. Notwithstanding that, Mr Wintle continued to assert that he was entitled to a thorough investigation before being summarily dismissed and that there was in this respect a false or misleading representation. Other aspects, or clarification of some of the other aspects, of the sub-claims under s.345 of the FW Act emerged in Mr Wintle’s cross-examination at hearing.[89]
[88] Wintle (No. 2) at para.49 per Lucev FM.
[89] Transcript at 45-48.
First, Mr Wintle claimed that there was a false or misleading representation by Westland Autos in relation to his conduct, seemingly, both in relation to his telephone calls to Mr Docherty, and his visits to the First and Second Workshops, as advised to RUC in Ms Mohamad’s Email. This claim cannot succeed however as Westland Autos are not a party to the proceedings, have never participated in the proceedings and Mr Wintle has never sought to join them to the proceedings. Nor, on their face, are those matters “about” a “workplace right” as defined in s.341 of the FW Act. Further, insofar as the telephone calls to Mr Docherty are concerned the Court has already found that the words constituting the conduct complained about in Ms Mohamad’s Email were words said by Mr Wintle to Mr Docherty.[90] The representations in Ms Mohamad’s Email are therefore neither false nor misleading. Finally, Mr Wintle’s conduct on his visits to the First and Second Workshops as set out in Ms Mohamad’s Email is not generally inconsistent with what actually occurred at the First and Second Workshops, and the representation is, therefore, neither false nor misleading. The Court notes that there is no allegation in Ms Mohamad’s Email (or otherwise) of threats being made by Mr Wintle at the First and Second Workshops.
[90] See para.26 above.
Second, Mr Wintle asserted that Westland Autos were a member of an industrial association, namely, the Motor Trades Association. The precise relevance of this assertion was never made apparent to the Court. The Court notes that ss.346 and 347 of the FW Act deal with issues in relation to industrial associations and industrial activity, but no claim was made in these proceedings under ss.346 or 347 of the FW Act. Further, there was no evidence led about:
a)Westland Autos’ alleged membership of the Motor Trades Association; or
b)the status of the Motor Trades Association as an industrial association, or otherwise.
This aspect of the claim therefore fails as the facts asserted as a foundation for the submission were not proven.
Third, Mr Wintle claimed that there had been a knowing or reckless false or misleading misrepresentation about his workplace rights, or the exercise, or the effect of the exercise, of his workplace right, in relation to the carrying out of a “thorough investigation”[91] before he was summarily dismissed.
[91] HRM Plan, Part 4.2.1.
This raises the question as to whether or not there was a workplace right under s.341 of the FW Act in relation to the alleged entitlement to a “thorough investigation” prior to Mr Wintle being summarily dismissed.
Section 341(1) and (2) of the FW Act deals with the meaning of “workplace right” and provides as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
The basis for Mr Wintle claiming to have a “right”, or even a “workplace right”, to a “through investigation” prior to summary dismissal is, however, misconceived. That is because the reference to a “thorough investigation” before the summary dismissal of an RUC employee appears in the HRM Plan. The HRM Plan is a document designed as a management and tendering tool for senior managers of RUC,[92] and although Ms Edwards gave evidence that she complied with it[93] and Mr Hazell was obviously aware of it, using provisions in it (Part 4.2.1) as the basis for the Termination Letter, it has no effect at all, because of the terms of the Collective Agreement. That is because the provisions of the Collective Agreement are “intended to cover all matters pertaining to the employment relationship” and “represent[s] a complete statement of the mutual rights and obligations between the employer and employee to the exclusion (to the extent permitted by law) of other laws, awards, agreements (whether registered or unregistered), custom and practice and like instruments or arrangements”, and “regulate[s] all terms and conditions of employment”.[94] The HRM Plan is not an Australian Workplace Agreement or other statutory individual agreement which might attract the operation of the exclusory provisions of clause 1.6 of the Collective Agreement. The Court notes that the Collective Agreement also deals with the contract of employment in clause 4 of the Collective Agreement, including making provision for termination of employment on the basis of misconduct, summarily, on the basis of notice, and during the probationary period.[95] In the circumstances, there is no doubt that the Collective Agreement displaces any provision of the HRM Plan which might have purported to have effect if it were implied into Mr Wintle’s contract of employment, or on the basis of estoppel.
[92] Transcript at 188-189.
[93] Transcript at 201.
[94] Collective Agreement, cl.2.
[95] Collective Agreement, cll.4.2 and 4.4.
The terms of this Collective Agreement are not to be varied to accommodate the terms of the employment contract or the HRM Plan. The Collective Agreement, like any other industrial agreement, although not a law itself, is given the force of law by statute, and can be varied in accordance with the terms prescribed by statute, but not otherwise. It cannot be varied by a collateral agreement, such as a contract of employment, particularly where, as here, it comprehensively regulates the terms of employment, and cannot give rise to an estoppel. There was, therefore, no right of any kind for Mr Wintle to have a “thorough investigation” prior to his summary dismissal on the basis of any provision of the HRM Plan.[96]
[96] McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105; [2005] FCAFC 46; Regional Express Holdings Ltd v Clarke (2007) 165 IR 251; [2007] FCA 957.
The provisions of the Collective Agreement do not of course displace the provisions of the NES, but there is no relevant provision of the NES relating to the right to an investigation in dismissal cases.[97]
[97] See FW Act, s.55(1).
In relation to each of the above sub-claims it is also a requirement that the representation be “knowingly or recklessly” false or misleading, and that it be about “workplace rights”, or a “workplace right”. These issues do not arise because, as the Court has found, the representations the subject of the above sub-claims were neither false nor misleading. In the circumstances it is unnecessary to address the issue of reliance referred to in s.345(2) of the FW Act, although it is difficult to see how Mr Wintle could make a case that, in the circumstances, he would have been expected to rely upon the representations that he asserts were false or misleading, but it is unnecessary to decide or deal with that issue.
In the above circumstances, it follows that Mr Wintle’s claim under s.345 of the FW Act alleging false or misleading representations is not made out.
Adverse action because of discrimination
Section 351(1) of the FW Act provides as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Mr Wintle’s argument is that he:
a)is an Australian;
b)qualified as a tradesperson in Western Australia; and
c)has higher technical standards than those of foreign employees of RUC,
all of which caused problems in the workplace, and that as a consequence of those problems, his employment was terminated.
There is no reason to doubt that Mr Wintle is an Australian qualified as a tradesperson in Western Australia. Other than a reference in evidence by Mr Wintle to all other employees of RUC being “foreign people”, and “visa-imported”,[98] there is no evidence of any actual foreign employees employed by RUC. No contracts of employment or visas were tendered, nor were any of the foreign employees called, and there was no evidence which established as a fact that there were foreign employees at RUC, and if there were, what their technical standards were. The latter, in any event, would most likely have been a matter for expert evidence, of which there was none. Furthermore, apart from the bare assertion by Mr Wintle that foreign employees caused problems in the workplace as a consequence of which his employment was terminated, there was no other evidence to that effect. The Court prefers and accepts the evidence of Mr Hazell that the reason for Mr Wintle’s termination of employment was, firstly, his conduct in relation to Westland Autos, and more generally, his work performance during the short time that he had been employed,[99] and that Mr Wintle’s race or national extraction played no part in the termination of his employment.[100]
[98] Transcript at 49.
[99] 31 May 2011 Meeting Audio; Exhibit 16.
[100] Transcript at 125-126.
As canvassed extensively in the course of Mr Wintle’s submissions,[101] there is simply no evidence to support an allegation of discrimination constituting adverse action “because of” Mr Wintle’s race or national extraction. The allegation is denied, and there is nothing in the evidence to indicate that race or national extraction, as opposed to conduct and performance, were factors in the decision by Mr Hazell to terminate Mr Wintle’s employment. The claim under s.351 of the FW Act is not made out.
[101] Transcript at 254-264.
Onus
For the sake of completeness, the Court notes that the onus on RUC to provide evidence negativing the reversal of proof in s.361 of the FW Act has, in the circumstances of each of the above claims, been met.
Failure to observe notice period or pay in lieu of notice
Section 117 of the FW Act, part of the NES, provides as follows:
(2) The employer must not terminate the employee's employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice ) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
Section 117(3) of the FW Act provides that an employee with continuous service of not more than one year is entitled to a period of one week’s notice.
Section 117(2) of the FW Act must be read with s.123(1)(b) of the FW Act which provides as follows:
(1) This Division does not apply to any of the following employees:
…
(b) an employee whose employment is terminated because of serious misconduct;
The provisions of the Collective Agreement are set out above,[102] and essentially provide for RUC to terminate Mr Wintle, as a probationary employee, by providing one day’s notice or pay in lieu of notice except in cases of misconduct where termination is effected summarily and payment is up to the time of dismissal only.[103]
[102] See para.18 above.
[103] Collective Agreement, cl.4.2.2.
A term of the Collective Agreement cannot, by reason of s.55(1) of the FW Act, exclude any provision of the NES. Were clause 4.2.2 of the Collective Agreement providing for one day’s notice or pay in lieu of notice to be given to Mr Wintle applied in this case it would derogate from s.117(2) and (3) of the FW Act, part of the NES, which provides for one week’s notice, or payment in lieu thereof, to be given to an employee with up to one year’s service, subject only to a right to summarily dismiss with payment to the time of dismissal in the case of serious misconduct. There is no exception for an employee on probation.
The question therefore arises as to whether the conduct of Mr Wintle constituted serious misconduct for the purposes of s.123(1)(b) of the FW Act, thereby excluding the application of the provisions of the NES.
Section 12 of the FW Act defines “serious misconduct” as having the meaning prescribed by the FW Regulations. The FW Regulations define “serious misconduct” as follows:
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) ….[104]
[104] FW Regulations, Ch.1, Part 1-2, Div.2, reg.1.07.
To define “serious misconduct” by reference to its “ordinary meaning” as is done in reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular assistance in determining whether or not the conduct for which the employee has been terminated is serious misconduct disentitling an employee to the minimum period of notice prescribed under the NES. That is because, both historically and in more modern times, courts have been wary of defining the extent of “misconduct” which justifies dismissal, and where they have attempted the task have made it clear that the misconduct must be sufficiently “serious” as to warrant non-continuation of the contract between employer and employee. Thus, the “ordinary meaning” definition of “serious misconduct” adds little, if anything, to the content of the meaning of “serious misconduct”.
In Clouston & Co Limited v Corry[105] it was observed that there “is no fixed rule of law defining the degree of misconduct which would justify dismissal”.[106]
[105] [1906] AC 122 (“Clouston”).
[106] Clouston at 129 per Lord James of Hereford.
In Laws v London Chronicle (Indicator Newspapers) Ltd[107] it was observed that:
… if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.[108]
… one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.[109]
[107] [1959] 2 All ER 285 (“Laws”).
[108] Laws at 287 per Lord Evershed MR.
[109] Laws at 288 per Lord Evershed MR.
In North v Television Corporation Ltd[110] the Australian Industrial Court was called upon to consider the word “misconduct” as used in an industrial award covering journalists.[111] In the joint judgment in North it was observed that:
It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.[112]
[110] (1976) 11 ALR 599 (“North”).
[111] North at 608 per Smithers and Evatt JJ.
[112] North at 608-609 per Smithers and Evatt JJ.
It was also observed in North by a single judge that although the conduct of the journalist concerned was “reprehensible” it fell short of misconduct justifying summary dismissal because it was an isolated incident which occurred “under [the] considerable strain” of preparing for a nightly news bulletin.[113]
[113] North at 616 per Franki J.
In Gera v Commonwealth Bank of Australia Ltd[114] the employee’s Australian Workplace Agreement provided for termination without pay in lieu of notice for misconduct if the misconduct was serious.[115] In that case it was observed that:
The use of the adjective “serious” imposes an additional requirement before the Bank can terminate employment without notice. Something more than mere misconduct is required.[116]
[114] (2010) 201 IR 26; [2010] FMCA 205 (“Gera”).
[115] Gera IR at 34 per Lucev FM; FMCA at para.21 per Lucev FM.
[116] Gera IR at 58 per Lucev FM; FMCA at para.104 per Lucev FM.
In Gera the Court went on to find that there was no doubt that the sexual or indecent assault of a fellow employee was serious misconduct warranting summary termination without payment in lieu of notice, as it constituted a fundamental breach of an employee’s duty, particularly where the employee was a senior employee and mentor to the employee who had been assaulted.[117]
[117] Gera IR at 59 per Lucev FM; FMCA at para.105 per Lucev FM.
In this case Mr Wintle was terminated because of an alleged failure to comply with RUC protocols in dealing with Westland Autos.[118] There were two such failures alleged at hearing: firstly, the telephone conversation between Mr Wintle and Mr Docherty in which Mr Wintle asserted that the purchase of vehicles by RUC from Westland Autos would be in jeopardy if Mr Wintle was not assisted, and, secondly, his leaving RUC without permission and his entry into the First and Second Workshops without permission. As noted above, these two allegations were in fact conflated by Mr Hazell at the 31 May 2011 Meeting.[119]
[118] 31 May 2011 Meeting Audio; Termination Notice, Exhibit 16.
[119] See para.51 above.
The threat to remove RUC’s purchase of vehicles from Westland Autos was a hollow one. It was a matter over which Mr Wintle had no control or influence.[120] When the threat (and it was, in context, a threat) was made Mr Docherty raised the matter with his dealer principal, who indicated that efforts ought to be made to keep RUC satisfied, but took the matter no further. The threat was not one which was considered so serious by Westland Autos that it ought to be immediately taken up with RUC, notwithstanding that Mr Docherty had raised the matter with his dealer principal at Westland Autos. Indeed, it was not taken up until about a fortnight later when the incident in the First and Second Workshops occurred. There is no doubt that the conduct of Mr Wintle in making the threat was misconduct. But, it is difficult to conclude that it was “serious misconduct” warranting summary dismissal. It did not evince an intention to repudiate the employment contract between Mr Wintle and RUC, but rather to ensure that RUC (and in particular Mr Wintle) received prompt service from Westland Autos. The means sought to give effect to that were undoubtedly misguided, and arguably reprehensible, but not, in context, serious misconduct within the ordinary meaning of that term. Nor was it conduct which caused a serious and imminent risk to the reputation, viability or profitability of RUC’s business. Westland Autos’ response was simply to evince an intention to work harder to satisfy demands made by RUC, and the conduct in that regard could have no affect upon the reputation, viability or profitability of RUC’s business. In the circumstances, the telephone threat was misconduct, but not serious misconduct warranting summary termination without payment in lieu of notice.
[120] Transcript at 13.
In relation to Mr Wintle’s conduct in leaving RUC’s premises and entering the First and Second Workshops at Westland Autos, it is argued that there were protocols in relation to Mr Wintle’s leaving the workplace at RUC, and entering the First and Second Workshops. In relation to the protocols with respect to leaving Westland Autos, the evidence is that Mr Wintle says that he was not aware, nor made aware, of any particular protocol, other than that he should let someone know that he was leaving the premises.[121] Mr Wintle said that he informed someone (he did not say who) when he left RUC to go to the First and Second Workshops,[122] and that assertion has not been the subject of contrary evidence. The evidence does not establish that, in relation to these alleged protocols, there was a lawful and reasonable instruction given to Mr Wintle which he refused to comply with. Ms Murray, who seems to have been an administrative and clerical support person for the RUC workshop,[123] and the person most likely to have been informed by Mr Wintle that he was leaving the workshop, was not called to give evidence. In the circumstances, and in any event, the act of leaving the workplace without permission, particularly in circumstances where it was to go to a supplier to clarify an issue in relation to work which was being undertaken by RUC, even if it is in breach of protocols and misconduct, is not serious misconduct within the ordinary meaning of that term. Even if there was a lawful and reasonable instruction not to leave the work premises without permission, in the circumstances in which Mr Wintle did so, the conduct that he engaged in was not conduct which would have made his employment during the period of notice of one week unreasonable,[124] or which would disentitle Mr Wintle from being paid in lieu of notice.
[121] Transcript at 22-24.
[122] Transcript at 23.
[123] Transcript at 21, 85 and 198-200.
[124] FW Regulations, Ch.1, Part 1-2; Div.2, reg.1.07(4).
In relation to Mr Wintle’s conduct at the First and Second Workshops, whilst he may have entered without authority, particularly in relation to the First Workshop, that act, which is probably misconduct, is again not so serious as to indicate any intention to repudiate the contract of employment. Indeed, it was done in pursuance of what Mr Wintle perceived to be the ongoing work required to carry out the terms of his contract of employment or the work being performed under it. In relation to the Second Workshop his conduct is even less egregious, because, as Mr Docherty conceded, having been told to go to the Second Workshop by the Westland Autos’ employee in the First Workshop, that was then a reasonable thing to do.[125] Once again, there is no serious misconduct warranting summary termination of Mr Wintle’s employment.
[125] See para.30 above; Transcript at 61-63.
Even considered collectively, the conduct in alleged breach of RUC’s protocols is not conduct which would warrant summary termination of employment.
In all the circumstances, there was misconduct, but not serious misconduct warranting summary termination of Mr Wintle’s employment. In those circumstances, Mr Wintle was entitled to notice, or payment in lieu of notice, to terminate his employment (even during the probationary period) of one week. It is clear that Mr Wintle did not serve out a notice period, and no evidence has been led to indicate that he was in fact paid in lieu of the notice period of one week prescribed by s.117(2)(b) and (3) of the FW Act. In those circumstances, Mr Wintle has made out an entitlement to one week’s pay in lieu of notice upon termination, and there will be an order accordingly.
The above conclusion, based upon the NES provisions of the FW Act, which prevail over any inconsistent provisions of Mr Wintle’s contract of employment, make it unnecessary to consider the latter. Furthermore, the Collective Agreement, which displaces the terms of the contract of employment, also provides for “at least” one week’s notice, or payment in lieu thereof,[126] the provision for termination on one day’s notice during the probationary period being of no effect as it is inconsistent with the NES notice provisions in s.117(2) and (3) of the FW Act.[127] Because Mr Wintle was an employee with a very short period of service, and serving a probationary period, paid fortnightly based on a daily rate of $300 for a 12 hour day,[128] and was a tradesman, those factors, indicative of a relatively modestly paid person in a routine job not held for a long period, would not, in the Court’s view, warrant more than a week’s notice by way of reasonable notice.[129]
[126] Collective Agreement, cl.4.2.3.
[127] FW Act, s.44(1).
[128] Collective Agreement, cl.6.3 and Appendix A.
[129] C Sappideen, et al, Macken’s Law of Employment (Seventh Edn) (Pyrmont: Thomson Reuters, 2011) pages 289-292, setting out the factors for assessing reasonable notice, and at 291-292 some of the circumstances in which one week’s notice might still be reasonable.
Conclusions and orders
The Court has concluded that:
a)Mr Wintle has failed to establish any contravention of ss.344(e), 345(1) or 351(1) of the FW Act, and in those respects his claim must be dismissed; and
b)RUC failed to make a payment in lieu of notice to which Mr Wintle was entitled under s.117(2) and (3) of the FW Act, namely one week’s pay in lieu of notice, and there will be an order that Mr Wintle be paid one week’s pay in lieu of notice.
The Court notes that s.570 of the FW Act would generally preclude a costs order in a matter of this type, but if either party considers that they have an entitlement to costs, an application for costs may be made under and in accordance with r.21.02(1)(b) of the Federal Circuit Court Rules 2001 (Cth).
Finally, the Court observes that this was not an unfair dismissal case, and that such cases are not within the Court’s jurisdiction. Much of the evidence, particularly in relation to possible failures of procedural fairness, might have been of assistance to Mr Wintle had he elected to pursue an unfair dismissal case in Fair Work Australia (as it then was). But he did not do so. Instead he brought before this Court quite specific and technical general protections claims, which for reasons set out above, have not succeeded. In that respect, the proceedings demonstrate the dangers for self-represented litigants in pursuing proceedings in relation to the termination of employment without the benefit of proper advice as to the initiation and conduct of those proceedings.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 12 July 2013
15
19
9