Wu v DSMJ Pty Ltd (No 2)
[2023] FedCFamC2G 1056
•21 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v DSMJ Pty Ltd (No 2) [2023] FedCFamC2G 1056
File number(s): SYG 541 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 21 November 2023 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – Professional Employees Award 2000 – adverse action – whether objection to participate in on-call roster a workplace right – coercion – undue influence – unreasonable work hours – accessorial liability. Legislation: Fair Work Act 2009 (Cth) ss 45, 62
Workplace Health and Safety Act 2011 (Cth) s 84
Professional Employees Award 2000
Cases cited: Association of Professional Engineers, Scientists and managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549
Cummins South Pacific Pty Ltd v Andrew Keenan (2020) 281 FCR 421
United Workers’ Union v Bervar Pty Ltd (T/as Della Fresh Food) [2022] FedCFamC2G 418
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of last submission/s: 18 August 2023 Date of hearing: 14-18 August 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Ms Brigden of Counsel appeared on behalf of the First, Third, Fourth and Fifth Respondents.
Table of Corrections 5 December 2023 Order 1 changed from:
A declaration be made that the First Respondent was involved in the following contraventions of the Applicant, pursuant to s 550(2) of the Fair Work Act 2009 (Cth) (’the Act”):
a) section 45 of the Act and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.to:
A declaration be made that the First Respondent contravened section 45 of the Fair Work Act 2009 (Cth) (the “Act”) and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.
ORDERS
SYG 541 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIANHUA WU
Applicant
AND: DSMJ PTY LTD
First Respondent
JOE COLON
Second Respondent
MEGAN FARRELL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
Amended pursuant to rule 17.05(2) (h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 5 December 2023
1.A declaration be made that the First Respondent was involved in the following contraventions of the Applicant, pursuant to s 550(2) of the Fair Work Act 2009 (Cth) (’the Act”):
a) section 45 of the Act and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.1.A declaration be made that the First Respondent contravened section 45 of the Fair Work Act 2009 (Cth) (the “Act”) and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.
2.All other alleged contraventions are dismissed.
3.The Applicant is to file and serve any evidence and submissions in relation to pecuniary penalty, on or before 5 December 2023.
4.The Respondent is to file and serve any evidence and submissions in relation to pecuniary penalty, on or before 19 December 2023.
THE COURT NOTES THAT:
A.The parties agree that penalty may be considered in chambers without a need for an oral hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant commenced employment with Grow Super Ops Pty Ltd (“Grow”) on 7 January 2019 in the position of Information Technology System/Development Operations Engineer. On 4 February 2020, the applicant’s position changed to Lead Systems Engineer. Grow changed its business trading name to DSMJ Pty Ltd (“DSMJ”) on 1 July 2021.
The first respondent, DSMJ, designs and manufactures computer software. The second respondent, Mr Joe Colon, was Head of People and Culture of the first respondent. His employment was terminated on 1 April 2022. Mr Colon has taken no part in the proceedings. The applicant sought default judgment be entered against Mr Colon.
Given that the allegation against Mr Colon was on the basis of being an accessory to breaches of the Fair Work Act 2009 (“the Act”) by DSMJ, the Court refused to enter default judgment against him until such a time as liability of the first respondent was established or not.
The third respondent, Ms Megan Farrell, is Chief People Officer of the first respondent. The fourth respondent, Mr Liong Lim, is General Counsel and Chief Risk Officer of the first respondent. The fifth respondent, Dr Rohan Tronson, is Head of Technical Operation of the first respondent.
The applicant makes allegations that the respondents have contravened the Act, the relevant Award and the applicant’s contract of employment, by taking adverse action against him, coercing him, and exerting undue influence on him, as well as attempting to require him to work unreasonable hours. These actions relate to the desire of the respondents for the applicant to participate on an out of hours, On-call Roster following the go live of a new IT system for a major customer. The applicant refused to participate in the roster on any basis that he agreed to and attempts to negotiate a mutually agreed separation, failed. The applicant was given verbal notice of termination on 23 December 2021, and written notice of his termination on 24 December 2021. The applicant’s employment was then terminated effective from 10 January 2022.
The applicant’s application alleges multiple contraventions by the first respondent of the Act, the Professional Employees Award 2000 (“the Award”) and the applicant’s employment contract (“the Contract”), relating to the introduction of an On-call rostering arrangement and his subsequent termination, by the first respondent. The applicant makes further allegations of breaches of s 84 of the Workplace Health and Safety Act 2011 (Cth), including that he was asked to work unreasonable and unsafe hours. The second, third, fourth and fifth respondents are alleged to be accessorily liable for the first respondent’s contraventions, due to being involved in the alleged contraventions.
The trial took place over four days being 14-17 August 2023. The applicant was self-represented. This caused some issues, as the matters in dispute were not able to be narrowed, as the applicant stubbornly pressed all his claims.
The trial preparation was made much more complex than it needed to be, due to the applicant filing multiple Applications in a Case, in some cases entirely misconceived, such as seeking an adjournment of the trial pending a NSW Police investigation into allegations the applicant made that some of the respondents’ evidence was false. Further, the applicant sought two reviews of Registrar’s Decisions relating to objections to Notices to Produce and a significant number of objections the applicant raised to evidence contained within the respondents’ Affidavits.
At the beginning of the trial, the Court carefully outlined the process of how the trial would proceed. During the trial, care was taken to allow the applicant time when needed to prepare cross-examination and other matters.
While the applicant spoke reasonable English, he was provided with an interpreter during the whole of the trial to ensure any language issues could be dealt with and to allow the applicant to properly participate in the trial.
At the conclusion of evidence, the matter was adjourned to allow the parties to file written closing submissions.
EVIDENCE OF THE APPLICANT
The applicant was the only witness called in his case. The applicant relied upon Affidavits dated 21 December 2022, 4 January 2023, 24 March 2023 and 21 July 2023. The applicant submitted that he was a highly credible witness who gave reliable evidence consistent with that contained within his Affidavits. The applicant submitted that his evidence should be preferred over the evidence of the respondents.
The Court, however, prefers the submission of the respondents, that the applicant’s evidence was, at times, deliberately unhelpful, and that he was not prepared to make any reasonable concessions. For example, the applicant refused to concede that following an email from Mr Colon on 10 December 2021, he was rostered to perform on-call duties in the week commencing 13 December 2021. The applicant also refused to accept that he would not be rostered on-call 365 days a year. The applicant refused to accept that Ms Farrell’s email of 15 December 2021 was an attempt to discuss mutual terms of separation.
The Court has considerable concerns that the applicant apparently, without the knowledge of the other participants, recorded conversations that took place during video and telephone communications, and only much later, after deposing to those conversations in his Affidavits using the prefix “words to the effect”, did it become apparent that the applicant had in his possession an actual recording of the precise words used in the conversation. This affects in the Court’s view his overall credibility and reliability as a witness.
The Court does not accept the applicant’s assertions that Mr Colon told him in a conversation on 14 December 2021 that “you have to sign the amendment to your contract”. The statement Mr Wu relied on in the transcript gave rise to Mr Colon saying, “that was not optional”. Mr Wu replied, “you got back to me in the email that if people don’t be in the roster they won’t get $750.00. To me, that’s an indication of optional”. The Court accepts that the applicant continually conflated signing the amendment to the Contract with participating in the roster.
Based on an assessment of all of the evidence, particularly that of Ms Farrell, the Court is reasonably satisfied that the respondents did listen to the applicant’s concerns and did their best to try and meet them. The Court is satisfied the respondents did listen to the applicant’s concerns but were simply unable to resolve them to his satisfaction.
While the Court accepts that the applicant is a highly intelligent person, with a considerable capacity to undertake very detailed research into areas where he has not previously worked, such as employment law, he is entirely fixed in the belief that his view, and only his view, is the correct one. The applicant came across, as very concrete in his thinking, enmeshed in detail and completely unable to accept that others may have reasonable, but differing views on matters, or that that there may be grey areas. In his world, matters are either black or white, there is no in-between.
The applicant’s claim that he had a medical condition, being a heart condition, prevented him from participating in the out of hours roster cannot be accepted. No clear medical evidence, supporting his claim that the applicant was medically unable to work on an out of hours roster or that it might affect his health have been made available to the Court. The only medical evidence points to a possible heart condition but does not state that the applicant is unable to participate in an out of hours roster due to the condition.
THE EVIDENCE OF MS FARRELL
Ms Farrell relied upon an Affidavit dated 7 March 2023. At the relevant time, she was employed as the Chief People Officer with the first respondent. By virtue of her position, she is aware that the applicant signed a written contract of employment dated 4 February 2020. Mr Colon reported to her.
In approximately October 2021, Ms Farrell became aware that the first respondent was proposing to introduce an on-call arrangement for certain IT staff to support the rollout and implementation of its new product with significant clients. In her experience, having worked at other technology start-up companies, on-call arrangements were an industry norm. Ms Farrell left the development of the policy and arrangements to Mr Colon. On 2 December 2021, the applicant sent an email to her seeking clarification of aspects of the on-call policy. On 6 December 2021, Mr Colon informed Ms Farrell that the applicant had been provided with a second edition of the on-call policy. Ms Farrell was informed that the applicant was the only employee who had not expressly agreed to perform on-call duties.
Ms Farrell understood that the on-call arrangement would go live as of 14 December 2021. On 13 December 2021 the applicant sent an email to Mr Colon, with Ms Farrell and Mr Tronson copied in, that he was unwilling to participate in the on-call arrangement. Significantly included, was the following from the applicant (verbatim):
…(the) retainer payment of $750.00 is too low to me as lead engineer in the IT ops team and you told me Grow didn’t willing to increase the retainer payment rate…If Grow is willing to make an offer which reflects my contribution not Grow and it’s business I am open for further negotiation.
On 14 December 2021, Ms Farrell stated that she was informed by Mr Colon that the applicant was still refusing to participate in the on-call arrangements. Mr Colon stated that the applicant “indicated that he wants to discuss mutual terms to leave DSMJ”.
Following consultation with Mr Lim, Ms Farrell stated that she decided to put the applicant on paid leave so that he could reconsider his position. It was also determined that it was appropriate to suspend the applicant’s access to the first respondent’s systems, to remove any possibility that he might sabotage the system.
On 15 December 2021, Ms Farrell sent an email to the applicant which contained a confidential offer of separation that was conditional upon the applicant entering into a deed of release. The applicant declined the offer and proposed a counteroffer.
Ms Farrell noted that cl 3(a) of the applicant’s contract of employment required him to undertake “any other duties and responsibilities assigned or delegated to the applicant from time to time we which are within the applicant skills qualifications and competencies”. Clause 3(b) of the applicant’s contract of employment provided that his employer may, at their discretion, reasonably alter the applicant’s duties and/or reporting structure at any time. Clause 6.1 of the applicant’s contract of employment provided that the applicant agreed to work the hours of work plus reasonable additional hours that are reasonably necessary for him to perform his duties and/or ensure the first respondent’s effective operation.
Ms Farrell stated that she concluded that the applicant was labouring under a misapprehension that his Contract needed to be varied before he could be required to perform the on-call duties. Ms Farrell stated that the applicant would be and was directed to perform the on-call duties in accordance with his original contract, notwithstanding the fact that the first respondent had prepared a variation to his Contract which specifically incorporated the on-call policy and set out the manner in which it would work, including the payment of an allowance of $750.00 per week when an employee was on-call.
During a video meeting between the applicant, Mr Lim and Ms Farrell, the applicant stated words to the effect of:
“I don’t agree to the change my contract. Grow cannot change my contract unilaterally, I don’t want to participate in the on-call roster”.
Ms Farrell stated that she responded with words to the effect:
I understand you disagree with our view of the on-call arrangements and whether we can require you to take part in it. Our view is that is within our rights as an employer to ask you to support this on-call model.
If you will not perform the on-call work, our preference is to come to a mutually agreed resolution, hence our offer of 15 December 2021.
Later in the day, she sent an email to the applicant confirming the position of the first respondent.
A further video call took place on 23 December 2021. Ms Farrell said words to the effect that the applicant’s termination from the company will only occur because he failed to follow lawful and reasonable direction to perform on-call duties.
On 24 December 2021, the applicant was provided with written confirmation of the termination of his employment, effective Monday, 10 January 2022. The Court notes that the applicant was invited to reconsider and if he would commit to participating in the on-call arrangements, consideration would be given to revoking the termination.
Ms Farrell denies that the decision to terminate the applicant was made because it exercised or proposed to exercise or as a result of his enquiries in relation to health and safety or any complaints she made in respect of the on-call policy.
Ms Farrell denies that she coerced or sought to coerce the applicant not to exercise his workplace rights or engaged in any other activity in contravention of the Act.
The applicant submitted that Ms Farrell’s evidence was highly questionable as demonstrated by a deliberate and highly evasive nature in responding to questions in cross-examination. The Court rejects this submission, instead finding that Ms Farrell gave truthful and forthright evidence. The Court prefers her evidence to that of the applicant. Ms Farrell readily conceded that she was the decision-maker in relation to the decision to terminate the employment of the applicant with the first respondent. She stated clearly, and the Court accepts without reservation, that she alone made the decision to terminate the applicant based on her belief that the applicant had refused to accept a reasonable direction of his employer to participate in the on-call roster.
The Court accepts that Ms Farrell, together with other senior managers of the first respondent, sought to navigate a way through the refusal of the applicant to participate in what was considered an essential requirement for the company in the implementation of its new service for a significant customer. When the negotiation process broke down and it became clear that under no circumstances would the applicant participate in the roster, Ms Farrell sought to bring about a mutually agreed separation of the applicant’s employment.
The Court is satisfied that the applicant refused to agree to a separation on mutually agreed terms. As a result, Ms Farrell made the decision to terminate the applicant’s employment with him being paid his statutory entitlements only. The possibility of that outcome had been clearly communicated to the applicant in earlier meetings he had with Ms Farrell and the other respondents.
THE EVIDENCE OF MR LIM
Mr Lim is the Chief General Counsel and Chief Risk Officer of the first respondent. His evidence is contained in an Affidavit dated 7 March 2023.
Mr Lim states that he was aware by December 2021 of a proposal to introduce on-call arrangements for Information Technology personnel to reflect the support and maintenance duties that were necessary to be provided to clients.
On 10 December 2021, he became aware that following consultation regarding the on-call arrangements, the applicant was refusing to participate in the arrangement and perform on-call duties. He formed a view that the applicant could be directed to participate in the on-call duties as they were within the scope of his employment.
Mr Lim denies that he said, or that Ms Farrell said words to the effect of “we, as an employer have the right to change or employment agreement” rather, words to the effect that the on-call duties were covered within the terms of the original employment agreement. The above is his recollection of the conversation.
Mr Lim participated in a further video conference with the applicant and Ms Farrell on 23 December 2021. Mr Lim recalls the applicant saying words to the effect of “I will not perform the on-call duties”. Mr Lim denies the allegations of collusion or applying undue influence and pressure on the applicant.
Mr Lim was an impressive witness. He was considered and careful in his answers in cross-examination. The applicant submitted that Mr Lim gave inconsistent and contradictory evidence. The Court rejects this submission. The Court prefers Mr Lim’s evidence where it differs to that of the applicant. The Court accepts that Mr Lim was not the decision-maker in relation to the termination of the applicant’s employment. Rather as set out above, the Court accepts that the decision-maker was in fact Ms Farrell. The Court accepts that Mr Lim was present during meetings held on 17 and 23 December 2021, but his presence was not such to make him the relevant decision-maker.
The Court accepts that Mr Lim was not aware of a document called “Amendment to Contract” sent to Grow employees and that he was not personally included in any discussions regarding the development of the on-call policy and the subsequent amendment to the employment contract of affected employees.
THE EVIDENCE OF DR TRONSON
Dr Tronson relied upon his Affidavit dated 10 August 2023. That Affidavit was filed following the respondents becoming aware that the applicant had recorded a number of video conversations that took place without their permission. Dr Tronson’s previous Affidavit, which was not relied upon, set out his recollection of the conversation to the best of his knowledge and memory at the time. Given that the applicant produced a transcript of the conversations, it was necessary to revise his Affidavit in light of that transcript which was taken from the unauthorised recording of the video conferences.
Dr Tronson occupies the position of Head of Technical Operations with the first respondent. He has a long history of working in the Information Technology industry.
At the time Dr Tronson became employed with the first respondent, the company had committed to introduce an online software solution for the Financial Services Sector, particularly the Superannuation industry. The software was built around the assumption that it operated on an “always on” basis and thus IT support for the systems needed to be always available. Dr Tronson formed the view that there would need to be an on-call arrangement in place that would enable, if necessary, a relevant person with expertise, such as a System Engineer, to be available in case of a system crash.
During the period of October and November 2021, Dr Tronson, together with others, researched on-call arrangements with other employers and developed an on-call policy including a renumeration policy for those undertaking on-call arrangements.
Dr Tronson denies that he was aware of any health condition which prevented the applicant from participating in the on-call arrangements. The only injury he was aware of, was an arm injury that the applicant disclosed on 24 November 2021 where the applicant stated that he hurt his arm when he was packing to move apartments. Dr Tronson denies the applicant’s assertion that he was not notified by or had any discussions with the first respondent’s representatives about the on-call arrangement prior to 26 November 2021. Dr Tronson deposes that on 10 November 2021 he conducted a stand-up meeting with his team in which he said that the on-call policy was still in development.
Further consultation took place regarding the development of the on-call policy, but it was scheduled to go live on 13 December 2021. It was proposed that the applicant would be rostered on from 13 December 2021.
On 26 November 2021, the applicant sent Dr Tronson several messages with questions about the roster and payments under the on-call policy. At a meeting on 3 December 2021, Dr Tronson clarified that there was no expectation that anyone who was on-call would be actively monitoring Slack (a messaging system used by DSJM) or emails during time rostered on-call. Any notification requiring you to respond to an incident would be via an active alert mechanism such as SMS or phone call. Thus there was no need for the applicant or anyone else on the on-call roster to stay awake. They would be required to answer a telephone call and then respond to the issue.
Dr Tronson was informed that all affected employees, including Mr Wu were provided with a second edition of the on-call policy on or about 6 December 2021.
During a meeting held on 7 December 2021, discussions took place regarding whether or not Mr Wu would receive additional training or cash bonus payments as part of any agreement for him to participate in the on-call program. Dr Tronson denies that on 9 December 2021 he conducted a video conference together with the applicant where he compelled and demanded the applicant to accept the on-call offer and undertake the on-call roster. When it became apparent that the applicant would not participate in performing his on-call duties, he arranged another person from the team to duplicate this duty to ensure that there would be a suitable Engineer providing support.
In a video conference call on 14 December 2021, Dr Tronson understood Mr Wu’s desire to leave the business. He communicated to the applicant that his access to the business systems would be suspended.
Dr Tronson denies that he threatened to terminate the applicant’s employment or coerced the applicant to comply with the on-call policy or accept without prejudice the offer of settlement or that he sought to coerce the applicant to not exercise his workplace rights.
Dr Tronson was clearly uncomfortable in the witness box and gave careful and considered evidence. He took time to consider questions and formulate his answers. The Court, however, is unable to make any adverse credibility findings in relation to the way that he gave his evidence. To the extent that his evidence differs from that of the applicant, the Court prefers Dr Tronson’s evidence.
The assertion by the applicant that Dr Tronson’s evidence is untrue cannot be sustained. Dr Tronson’s first Affidavit was based upon his recollection and without the benefit of the transcript which the applicant made from an unauthorised recording of a number of video conferences. In saying that it was unauthorised, the recording was made without the knowledge of the other participants.
The Court accepts that between September and December 2022, IT Engineers from DSMJ were frequently rostered on-call on a one in three week basis. In any event, this was at a time period after the applicant had left his employment.
ADVERSE ACTION
A claim in respect of adverse action is made out if a proscribed reason is a substantial and operative reason for the action, or if the reasons for that include the proscribed reason: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549. Whether the decision-makers took adverse action for a prohibited reason is a factual question to be determined by the Court, taking into account all the facts and circumstances of the case and any available inferences: Cummins South Pacific Pty Ltd v Andrew Keenan (2020) 281 FCR 421.
The respondents submitted that the questions for the Court to determine were:
1. whether the alleged adverse action took place;
2. whether Mr Wu had the workplace rights alleged and did he exercise or propose to exercise those rights; and
3. if the adverse action was taken, was the exercise or proposed exercise of Mr Wu’s workplace rights a substantial and operative reason for the taking of that action.
WORKPLACE RIGHT
The applicant claims to have exercised a workplace right by:
a) objecting to the first respondent unilaterally varying the applicant’s employment contract;
b) making a complaint or inquiry concerning the on-call arrangement;
c) refusing to undertake unreasonable additional hours of work;
d) declining to enter a new agreement; and
e) proposing to involve an arbiter to resolve a workplace dispute.
The respondents submit that:
a) paragraph 25 of the applicant’s application does not contain any actions that can be considered a complaint or inquiry for any purposes;
b) the applicant was not required to enter into a new contractual agreement to undertake the on-call duty; and
c) the direction to perform the on-call duty was not unreasonable and the application does not expressly identify the applicant as “declining”.
The respondents submitted that of the pleaded exercise or proposed exercise of workplace rights, the only pleaded right that is capable of constituting a workplace right is Mr Wu’s complaints and/or inquiries in relation to his employment and the on-call roster. The Court accepts this submission. The other actions which Mr Wu claim were an exercise or proposed exercise of workplace rights do not demonstrate any clear link between those and his pleaded workplace rights.
It was further submitted that nowhere does Mr Wu plead that s 62(2) of the Act or s 84 of the Work Health and Safety Act 2011 (Cth) were entitlements to benefits under workplace law, nor were they raised in the applicant’s response to a request for further and better particulars.
The respondents submitted that the applicant informing the second and third respondent that he declined to undertake the on-call duty does not constitute a complaint, inquiry, or other workplace right.
With respect to the applicant’s claim that he exercised a workplace right by requesting an arbiter, the respondents submitted that the only evidence of this is found in the transcript of a 14 December 2021 meeting where Mr Wu said “I don’t think there’s any point that…we continue our dispute, in regards to this. We can let you know the arbiter, or any third party, to make a fair decision for us in regards to this”. It was submitted that this is not a complaint or inquiry, but a suggestion.
THREAT TO TERMINATE EMPLOYMENT
The applicant alleges that the respondents engaged in three incidents of adverse action. The first incident of adverse action relates to threats to dismiss the applicant’s employment. The applicant claims that he was threatened that if he did not accept the on-call arrangement he may be disciplined, or his employment would be terminated.
The respondents submit that this action did not take place and that the applicant was warned that his employment may be terminated because of his failure to comply with lawful and reasonable directions. The respondents referred to the transcript of the 14 December 2021 meeting whereby the following was recorded to be said by Mr Colon, “I just wanted to be very clear from Grow’s perspective is, as we said, there’s two pathways. One is the performing of duties or two, that we go down disciplinary matter, which unfortunately may end in the termination of your employment”. Other references identified by the applicant do not refer to termination, and the above statement in the Court’s view does not constitute a threat to dismiss, but rather conveys the available options if Mr Wu continued to refuse to perform the on-call duties.
It was submitted that Mr Colon is a named respondent in these proceedings, that he is no longer an employee of DSMJ and has not appeared in the proceedings. There is no evidence from him as to the reason for mentioning the possibility of Mr Wu’s employment being terminated and the Court can infer from what was said that the reason for the possibility of termination being raised was Mr Wu’s refusal to perform his duties as directed, which is not the exercise of a workplace right.
ORGANISING THE APPLICANT’S DISMISSAL
The second incident of adverse action concerns the organising of the dismissal of the applicant from his employment. The applicant claims that the respondents organised the termination of his employment without providing him with notice of his termination.
The respondents submitted that this action did not take place and that the applicant’s claim in this respect is inconsistent as he states that the applicant was terminated without notice, but that his termination was also threatened. It was submitted that the evidence indicates that as of 15 December 2021 the decision to terminate Mr Wu’s employment had not been made. If the Court were to find that the pleaded matters constituted organising Mr Wu’s dismissal, the Court should find that the reason for this was due to his failure to comply with DSMJ’s directions to perform his duties.
The Court accepts this submission. Mr Wu was clearly given written notice of his proposed termination date and the reasons for it. He had an opportunity, up until the date his termination became effective, of agreeing to participate in the on-call roster. Had he done so, his termination may not have proceeded. The Court is reasonably satisfied the termination occurred solely due to the applicant’s refusal to participate in the on-call roster and for no other reason, including the exercise of any workplace rights.
TERMINATION OF APPLICANT’S EMPLOYMENT
The third incident of adverse action concerns the dismissal of the applicant’s employment with notice. The applicant claims that his employment was terminated after he exercised the above mentioned workplace rights.
The respondents say that applicant was terminated. However this was solely due to his failure to comply with lawful and reasonable directions. Clause 6.1 of Mr Wu’s employment contract obliged him to work the hours of work reasonably necessary to perform his duties and ensure DSMJ’s effective operations. It was submitted that the applicant’s duties, as of December 2021, required the provision of on-call services and the Contract was silent on the question of whether or not the on-call arrangement constituted reasonable additional hours. The Contract did include at cl 18.2 that DSMJ could terminate Mr Wu’s employment contract summarily and without notice for serious misconduct, which included “any deliberate and wilful failure to follow any lawful instruction or direction by your supervisor or any person from whom you are required to take directions”. The respondents submitted that Mr Wu’s conduct justified termination for summary dismissal but that they elected to provide him with notice as to his termination.
The Court is satisfied that the applicant’s contract of employment allowed a variation to his hours of work such as to encompass his participation in an out of hours roster. The Court is satisfied that the roster, as envisioned, did not require the applicant to stay awake, rather he could sleep and the respond to a call if needed. The Court is satisfied that participation in the roster did not require the applicant to work unreasonable hours, rather he was simply required to be on-call. Again, the Court is satisfied the termination of the applicant was for the reason stated by Ms Farrell, being a failure to a lawful instruction.
COERCION
The applicant claims that he was coerced into entering an amendment to his employment contract and the on-call policy by threatening to terminate his employment because he had exercised a workplace right.
The respondents says that they did not require the applicant to enter into a new employment agreement and did not unlawfully coerce the applicant to do so. The Court is reasonably satisfied it was within the applicant’s contract of employment for him to be directed to participate in the on-call roster. The applicant’s main complaint is that he did not feel the $750.00 per week allowance offered was properly reflective of his worth to DSMJ and what he required to participate in the roster. The Court is satisfied that had he been offered an increased allowance he may have participated in the roster. The respondent was simply not prepared to offer the applicant what he felt he was worth.
UNDUE INFLUENCE OR PRESSURE
The applicant claims that undue influence and pressure was applied on him, to force him and coerce him to accept the on-call arrangement provided by the amendment to his employment contract and policy. The applicant further submitted that the respondents have failed to respond to this claim in their Amended Response and so they should be taken to have admitted this contravention.
The applicant claims that he was unduly influenced and pressured by:
a. The second respondent saying words to the effect of: “if you do not accept the on-call arrangement, you might be in breach of employment contract”;
b. The second respondent misleading the applicant by suggesting that his failure to accept the on-call arrangement would be unfair and unreasonable to other staff;
c. The second respondent threatening to terminate his employment;
d. The fifth respondent using an aggressive tone and misleading words to suggest that the applicant’s declining of the on-call arrangement was a refusal to accept duties as per his employment contract;
e. The third and fourth respondent threatening to terminate the applicant’s employment; and
f. Using coercion to influence the applicant to accept that the on-call arrangement was part of his signed employment contract and that the first respondent would only then discuss his heart problems after he accepted it.
The Court does not accept these assertions. The first assertion was simply a correct statement of the applicants’ obligations as an employee of DSMJ. The same applies to the second assertion. If the applicant did not participate in the roster, then it would need to be shared within a smaller group of employees. The third assertion is again a statement of fact as to the possible consequences of failing to comply with a reasonable and lawful direction of his employer. I do not accept that Dr Tronson used aggressive and threatening language towards the applicant. This is completely at odds with the demeanour exhibited by Dr Tronson in the witness box when he gave his evidence. I do not accept that Ms Farrell and Mr Lim improperly threatened to terminate the applicant’s employment. Rather the applicant’s options were carefully explained to him and he was given the freedom to make his own decision.
The Court does not accept the applicant was required to sign the amendment to his contract before DSMJ would discuss the applicant’s heart problem. There is a lack of evidence as to the precise nature of his claimed heart problem. No evidence is before the Court that this issue prevented the applicant participating in the roster for medical reasons.
ALLEGED CONTRAVENTIONS OF THE PROFESSIONAL EMPLOYEES AWARD 2000
One of the issues that require determination in this matter is whether the Award applies to the applicant’s employment.
The applicant submitted that the Award covered his employment as it covers those principally engaged in the Information Technology industry. The applicant submitted that he was not a high income employee and that he did not have a guarantee of annual earnings that was above the high income threshold.
The respondents initially contended that the applicant’s base salary exceeded the high income threshold and that the Award did not cover his employment. The respondents, in their written closing submissions accepted that the first respondent was bound by the decision of Association of Professional Engineers, Scientists and managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945, which is binding on the Court and as a result, the applicant is not a “high income employee”.
The applicant alleges the following contraventions of the Award:
a) The first respondent did not make a copy of the Award available to the applicant: cl 3.3 of the Award;
b) The first respondent did not give the applicant written communication that his employment would be terminated should he not accept the on-call amendment and policy during the consultation period: cl 25.2 and 25.5 of the Award; and
c) The workplace dispute did not follow proper dispute resolution: cl 26 of the Award.
In the circumstances the respondents conceded that there was no evidence that it made a copy of the Award available to the applicant. In these circumstances the breach of s 45 of the Act is made out. The Court considers this to be a technical breach only, in that it is clear that the applicant was able to, and in fact, did access a copy of the Award using his extensive research skills.
The Court will hear from the parties on the matter of penalty on what is now an admitted breach.
The applicant next alleges that the respondents failed to comply with cl 25.2 and 25.5(a) of the Award by not informing him in writing that an objection to the on-call roster would result in his termination. Clause 24 deals with consultation with employees about major changes.
Cl 25.2 and 25.5(a) read as follows:
25.2 For the purposes of cl 25.1(b) the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including;
(a) their nature; and
(b) the expected effect on employees; and
(c) any other matters likely to affect employees.
25.5 In clause 25, significant effects on employees, includes any of the following:
(a) termination of employment; and
(e) alteration of hours of work.
The Court is satisfied that the introduction of an on-call roster amounted to a significant change requiring consultation with employees under the relevant terms of the Award set out above.
Attached at MF-4 to Ms Farrell’s Affidavit are copies of the first and second editions of the Draft On-call policy prepared by the first respondent. Based on Ms Farrell’s Affidavit, I am reasonably satisfied these documents were circulated to all affected personnel, including the applicant, for consultation and comment.
Attached at MF-5 to the Affidavit of Ms Farrell is a copy of an email from Mr Colon to the applicant dated 10 December 2021. That email recites that there has been ongoing consultation over the introduction of the on-call roster over a period of six weeks. It sets out that the applicant has clearly indicated that he does not propose to participate in the roster. The email clearly states that the first respondent expects the applicant to participate in the roster and they were unable to accommodate his absence from the roster.
In my view, there was no requirement for the first respondent to inform the applicant in writing that the introduction of the on-call roster would result in his termination if he failed to participate in it. The change being considered related to the applicant’s hours of work. He was extensively consulted about that.
When the change was introduced there was no intention to terminate the applicant’s employment. It only came about due to his continued refusal to participate in the roster. In my view, the relevant consultation was carried out and no breach of the Award is apparent.
In terms of the second alleged breach of the Award, the dispute resolution procedures are set out at cl 27 of the Award. They state in summary as follows:
Resolution should first occur between the employee and the relevant supervisor.
If resolution does not occur, discussion should take place between the employee and more senior management.
If the dispute is unable to be resolved, a party to the dispute may refer it to the Fair Work Commission.
The respondents submits that cl 27 only relates to a dispute about a matter under the Award or in relation to the National Employment Standards. The on-call arrangements were not a dispute about matters covered by the Award or the National Employment Standards. I do not accept that submission. A significant change in work hours, which I have found the on-call roster amounted to, was covered by the Award. That being said cl 27.4 states that “a party to the dispute may refer it to the Fair Work Commission” (emphasis added). There was thus no obligation for the first respondent to refer the matter. The applicant could have referred the matter but did not do so. No breach of the Award is made out.
ALLEGED CONTRAVENTIONS OF SECTION 62 OF THE ACT AND SECTION 84 OF THE WORKPLACE HEALTH SAFETY ACT
The applicant alleges that the first respondent breached s 62 of the Act and s 84 of the Workplace Health and Safety Act 2011. The applicant submitted that the burden lies with the respondents to demonstrate that the weekly on-call rostering was reasonable.
Section 62(2) of the Act reads as follows:
The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Section 62(1) of the Act refers to normal work hours being 38 hours per week. Section 62(3) of the Act sets out a list of factors to be assessed in determining if the additional hours are unreasonable.
Section 84 of the Workplace Health and Safety Act 2011 reads as follows:
A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
The applicant submitted the following information as relevant to the determination of whether he was required to work unreasonable hours according to the factors provided by s 62 of the Act:
a) Due to the applicant’s health condition, undertaking the rostered on-call duties would put his health at risk: s 62(3)(a) of the Act;
b) The Mercy Master Services Agreement indicates that the first respondent was only required to respond to incidents during business hours (8:00am to 5:00pm). Accordingly, the first respondent did not have a business obligation which required the out of hours work contemplated by the on-call arrangement: s 62(3)(c) of the Act;
c) The applicant objected to the on-call rostering: s 62(3)(f) of the Act;
d) The on-call rostering was not a usual pattern of work in the industry which the first respondent operates in: s 62(3)(g) of the Act;
e) The nature of the applicant’s role did not require him to undertake on-call rostering: s 62(3)(h) of the Act;
f) The requirement to work an average of 48 hours per week over a three month period contravened cl 13.2 of the Award, or s 64(10(a) of the Act: s 62(3)(i) of the Act;
g) The requirement to work on public holidays with financial compensation but not time in lieu contravened cl 23.2 of the Award and term 14 of the employment contract: s 62(3)(j) of the Act;
h) The on-call rostering policy required employees to respond to incidents within 15 minutes, even while they were asleep: s 62(3)(j) of the Act;
i) Mr Arefin’s employment was not terminated for refusing the on-call rostering. The applicant was treated discriminately: s 62(3)(j) of the Act; and
j) The first respondent, through the second, third, fourth and fifth respondent, misrepresented the applicant’s contractual rights and the nature of the contract nature of the on-call rostering: s 62(3)(j) of the Act.
The respondents submitted that in fact it was the applicant that bears the onus of establishing that the on-call arrangements first, required him to work more than 38 hours per week and second, that the Court needed to be satisfied that the additional hours the applicant was being asked to work were unreasonable, in order for him to have a workplace right under
s 62(2) of the Act; United Workers’ Union v Bervar Pty Ltd (T/as Della Fresh Food) [2022] FedCFamC2G 418 at [42]-[43].
It was submitted that the on-call rostering arrangement did not require the applicant to work more than 38 hours per week as the policy made provision for employees to start late or finish early in the event that they worked any on-call work.
In the event that the applicant was required to work more than 48 hours per week, it was submitted that those additional hours were reasonable, taking into account the factors under
s 62(3) of the Act.
First, there has been no demonstrated risk to the applicant’s health and safety from working the additional hours that may be necessary. The additional hours were not intended to be and were not in fact numerous. The on-call roster that was put in place initially required him to work on-call every one in four weeks. Dr Tronson’s evidence was that the applicant would likely have been rostered on-call once every five or six weeks. The expectation from the first respondent was that an employee such as the applicant who was rostered on-call might be called out once or twice a week. Issues were initially triaged by the service desk before being escalated to Engineers such as the applicant.
In fact, callouts occurred on far fewer occasions than they were predicted. As at March 2022, there was approximately one callout every two weeks with the issue resolved within an hour. As of August 2023, no employee had received more than a few incident alerts in a week whilst on-call. Between December 2021 and 16 March 2022, only 6.5 hours of work were performed by the applicant’s team with on-call, averaging 0.5 hours per week.
As of December 2021 and early 2022, on-call employees were notified of issues to which they needed to respond by way of telephone call from the service desk team. There was thus no requirement for employees to actively check emails text or Slack (a messaging service). It was submitted that the submission of the applicant that it was impossible to begin work within 15 minutes of receiving a notification, while asleep, was based on a false premise. The work which was required when on-call, which was remote work, did not require on-site attendance.
In terms of the applicant’s medical condition, no evidence was provided with which the Court could find that there was a risk to the applicant’s health and safety from being on-call.
It was further submitted that there was nothing in the applicant’s personal circumstances including family responsibilities which would make it unreasonable for him to be on-call.
It was submitted that the first respondent formed the view that it was necessary for them to respond to any software outages properly, thus it was necessary to have an on-call system. The submission by the applicant that the Master Services Agreement that the first respondent had with its customers did not require an on-call engineer service must be rejected.
It was further submitted that had the applicant signed the amendment to his contract, he would have had a contractual right to an on-call retainer payment of $750.00 for any week where he was rostered on-call, irrespective of whether or not he was required to perform any on-call work, plus an hourly rate paid to on-call work actually undertaken with a minimum period between 130% to 250% of his hourly rate.
It was further submitted that considerable notice was given by the first respondent of the introduction of the on-call arrangements and that the applicant was expected to participate in them. The respondents contend that the applicant was first informed of the proposed on-call roster by Dr Tronson during a meeting on 10 November 2021. While the applicant denies this, it was submitted that the evidence of Dr Tronson should be preferred.
It was further submitted that the usual patterns of work in the Information Technology industry, the industry in which the applicant worked, are such that an on-call arrangement was common. Further, the applicant’s position being a Systems Development Operations Engineer was such that it was reasonable to expect him to have the skills necessary to address an incident or fault which occurred outside of business hours. Further, any suggestion that the applicant was required to work on public holidays that time off in lieu simply cannot be sustained.
The reliance by the applicant on another team member’s purported refusal to undertake weekly on-call rostering, yet not being dismissed for that refusal, as demonstrating discrimination on the part of the respondents cannot be sustained. Ms Farrell had no knowledge of the other worker’s position at the time she made the decision to dismiss the applicant.
The Court has considered all of the relevant matters contained within s 62(3) of the Act. As indicated above, the Court prefers the evidence of Dr Tronson where it disagrees with that of the applicant.
Whilst there is some evidence that the applicant suffered a heart condition, that evidence does not go as far as to indicate that there was any risk to the applicant from participating in the on-call roster. Nothing in the applicant’s personal circumstances, including his family responsibilities, indicate that he was unable to participate in the roster. The Court is reasonably satisfied that the on-call roster was a necessary and integral part of the overall service being provided by the first respondent to their customers, following the introduction of the new IT system. It is to be noted that the applicant would only have been called upon to do work, after a first-line service desk was unable to resolve the problem. The Court accepts the evidence of Dr Tronson as to the limited number of actual callouts required and the limited duration of them. The Court also accepts that arrangements were in place under the on-call policy, for late starts, in circumstances where a significant amount of work may have been required overnight as a result of a callout.
The Court considers the retainer payment of $750.00 per week whilst on-call, regardless of whether or not any work was actually performed, to be more than sufficient to compensate an employee for the inconvenience of being on-call. The Court rejects the applicant’s assertion that it would have been necessary for him to stay awake or to constantly monitor either emails or other messaging systems in order to comply with the requirement to attend to an on-call matter within 15 minutes of receiving a notification. Callouts during the relevant period were made via telephone which would have enabled the applicant to sleep and otherwise attend to normal domestic duties whilst on roster.
The Court recognises a degree of inconvenience when on-call, including having to remain within mobile/telephone range and being able to have access to an IT system to remote in to work on the issue raised. The Court is satisfied that on-call rosters are commonplace in service industries, such as the Information Technology industry.
The Court is satisfied that significant notice was given by the first respondent to the applicant of the intention to introduce the on-call roster, and the consultation took place as to the actual policy that would underpin it. The Court is satisfied that from the very beginning, the applicant indicated quite clearly that he simply would not participate in any on-call roster. That was his choice, however, it led to the consequences of his eventual termination, when no mutually agreeable outcome could be arrived at.
The Court is not satisfied that any breach of s 62 of the Act has been made out and that the on-call roster was reasonable in all the circumstances. The Court is also not satisfied that any of the other allegations made by the applicant as set out above, have also been made out.
For the same reasons, the Court is not satisfied that the applicant has shown that there is any breach of s 84 of the Workplace Health and Safety Act. The on-call roster did not expose a serious risk to the applicant’s health or safety, such as to justify his refusal to participate in the on-call roster.
The Court is not satisfied that any of the alleged contravention as alleged by the applicant have been made out with the exception of the breach of the relevant award in not providing a copy to the applicant.
ACCESSORIAL LIABILITY
The applicant made a number of allegations as to the accessorial liability of the second, third fourth and fifth respondents. They are as follows:
SECOND RESPONDENT
The applicant submitted that a conversation he had with the second respondent on 9 December 2021 supports the conclusion that the second respondent knew that the on-call rostering introduced a variation to the applicant’s employment contract and changed his hours of work. The applicant further submitted that:
a) On 9 December 2021, he told the second respondent that the first respondent could not change his employment contract without consent and that the required hours proposed by the on-call arrangement were unreasonable;
b) On 10 December 2021, the second respondent shifted his position on the on-call rostering from an offer to change the employment contract to an offer containing requirement outlined in the contract; and
c) On 13 December 2021, the applicant told the first respondent not to change the contract without his consent.
THIRD RESPONDENT
The applicant submitted that the third respondent left out the amended contract from her Affidavit. The applicant also submitted that she sponsored the on-call policy and admitted that she had experience in considering the Act.
It was submitted that the third respondent knew that the first respondent could not change his employment contract or his hours of work without consent based on:
a) On 17 December 2021, the third respondent said that the on-call rostering was for changing the contract due to Mercy Go-Live. However, she earlier said in written communication that the on-call rostering fell into “existing terms and conditions of the contract”;
b) The applicant’s belief that the third respondent not responding to his request to explain which clauses or items in his employment contract covered the on-call roster meant that she knew it constituted a change to his employment contract; and
c) The third respondent was the Chief People Officer of the first respondent, who had responsibilities and knowledge in interpreting contracts.
FOURTH RESPONDENT
The applicant submitted that the fact that the fourth respondent is General Counsel supports the conclusion that he knew that the on-call rostering introduced a variation to his employment contract and changed his hours of work. The fourth respondent has professional responsibilities and capabilities to find that the employment contract could not be changed without the applicant’s consent.
It was submitted that the fourth respondent admitted that he had read the employment contract but did not provide an explicit response to being told that cl 22.8 of the Contract meant that it could not be varied without consent.
The applicant claims that the fourth respondent said to him that “we’ll come back with the next steps based around finishing up your employment from this point on”, and that on 24 December 2021 he informed the applicant the starting day of his notice period.
FIFTH RESPONDENT
The applicant contends that the second respondent’s email of 8 December 2021 supported the conclusion that the fifth respondent knew that the on-call rostering introduced a variation to the Contract and changed the applicant’s hours of work.
The fifth respondent ought to have known by 9, 10 or at least 13 December 2021 that the Contract and the applicant’s hours of work could not be changed due to the following:
a) On 9 December 2021, the applicant told the fifth respondent that the first respondent could not change his employment contract without consent and that the additional hours proposed were unreasonable;
b) The fifth respondent had access to the employment contract and admitted that he had read it in November and December 2021; and
c) On 13 December 2021, the applicant advised the fifth respondent that his employment contract could not be varied without consent as per cl 22.8 of the contract.
The applicant’s claims that the fifth respondent’s email of 13 December 2021 directing the applicant to work the on-call roster, after the applicant told him that he objected to the on-call rostering, was suspicious.
Given that the Court has found that none of the alleged contraventions by the first respondent had been made out, it is not necessary to consider whether or not accessorial liability to any of the alleged breaches by the balance of the respondents has been made out. If there is no breach by the first respondent, none of the other respondents can be liable as an accessory.
No accessorial liability in relation to any respondent was pleased in respect of the failure to provide him with a copy of the relevant award. Thus accessorial liability does not attach to the sole contravention made out.
All allegations, with the exception of the failure to provide the applicant with a copy of the relevant award are dismissed. The Court will make orders for the filing of evidence and submissions on an appropriate penalty for the contravention.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Associate:
Dated: 21 November 2023
SCHEDULE OF PARTIES
SYG 541 of 2022 Respondents
Fourth Respondent:
LIONG LIM
Fifth Respondent:
ROHAN TRONSON
4
3