CFMEU v Oakdale Sydney Construction Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Brisbane South Regional Health Authority v Taylor 186CLR541 Hurrell and Queensland Cotton Corporation Limited [2003} NSWIRComm139

APPLICANT Ms l Charlson of CFMEU

LEGAL REPRESENTATIVES: RESPONDENT: Mr M Barko of Counsel SOLICITORS Beazley Singleton lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Construction, Forestry, Mining and Energy Union (New South Wales Branch)(on behalf of Gary McCarthy) and Oakdale Sydney Constructions Pty Ltd

Application by Construction, Forestry, Mining and Energy Union (new South Wales Branch) on behalf of its member Gary McCarthy for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996.

1 On 12 May 2008 the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the Union) made Application for Relief from Victimisation-section 213 of the Industrial Relations Act 1996 (the Act).

2 The application was made on behalf of a member Mr Gary McCarthy against Oakdale Sydney Constructions Pty Ltd (the Company). Mr McCarthy had been employed by the Company as a carpenter on the company's two sites in Cooma and Queanbeyan from 7 August 2007 until 1 November 2007. Mr McCarthy had previously been employed by the Union as an organiser for a total period of two and one half years ending in 1999. 3 On Wednesday 31 October 2007, Mr Guy Cooper the site safety officer for Adco Constructions (the head contractor) at the Cooma site called a toolbox meeting on site. At that meeting Mr McCarthy called for a site safety committee to be formed.

Mr McCarthy was nominated by Mr Travis Dowling his supervisor to be a member of the safety committee. Mr Dowling made this nomination because he was aware of Mr McCarthy's previous experience in the safety area and his keen interest in the subject. 4 On the morning of Thursday, 1 November 2007, Mr McCarthy took part in a safety walk on the Cooma project commencing at approximately 9.00am and lasting about one hour. A number of issues were identified including a partial collapse to a mezzanine level of a building, which Mr McCarthy proposed to other members of the safety committee should be cordoned off until an engineer reported on whether the area was safe. 5 At approximately noon that day the safety committee members met with the project manager for Adco Constructions, Mr Mark Varnham and site manager Mr Brendan Green. A lot of the issues identified required immediate attention. The meeting finished at approximately 1pm.

No action was taken that day to cordon off the mezzanine level. 6 On the afternoon of 1 November 2008 at approximately 2.15pm, Mr Travis Dowling spoke to Mr McCarthy and advised that he was to cease work that day. There was disagreement between Mr McCarthy and Mr Dowling in giving evidence as to what was said between the two men. 7 Mr McCarthy stated that he was not told the reason for termination. Mr Dowling stated that he advised Mr McCarthy it was due to lack of work. 8 Mr McCarthy protested his termination but completed his shift for the day. Later that day he rang his Union organiser Mr Peter Primmer and told him what had happened. Mr Primmer advised Mr McCarthy to attend for work the next day.

Mr Primmer took steps to be on site on the following Monday 5 November 2007 to talk with Company officers to try and resolve this issue.

9 On Friday, 2 November 2007 Mr McCarthy returned to the Cooma site but was told to leave by Mr Dowling, as he no longer was an employee of the Company. Mr McCarthy did not leave but remained on site and was later allowed to accompany two WorkCover inspectors complete a safety walk through the site. Later that afternoon Police were called and he was arrested and charged with trespass by the Police.

The Police charges against Mr McCarthy were dismissed on 8 May 2008 in the Local Court. 10 On Saturday 3 November 2007 Mr McCarthy sent a detailed email to the state secretary of the Union Mr Andrew Ferguson and the federal secretary of the Union Mr D Noonan outlining his termination and some casual employees termination. Mr McCarthy noted in the email, that the reason given for his termination at 2.15pm on 1 November 2007 was "no more work". 11 It was Ms Charlson's submission on behalf of the Union that Mr McCarthy's termination was as a consequence of his activities as a member of the safety committee and rejected the Companies reason of lack of work. The termination therefore breached section 210(1)(j) of the Act. 12 Ms Charlson sought an Order for reinstatement in accordance with subsection 213(2)(a) of the Act. 13 As the application was filed out of time to which the Company objected to it being accepted by the Commission, the preliminary issue to be determined in this matter is whether there exists sufficient reason for the application to be accepted.

I note that Ms Charlson in her submissions was critical of the Company not immediately raising the out of time issue when the application was initially filed but some two months later. I do not accept this criticism as valid. As the onus to show that sufficient reason exists always lies with the applicant then the applicant must be in a position to met that challenge to convince the Commission once the Company objected.

Case for the Applicant. 14 In the Application For Relief From Victimisation Part C contained the reasons why the application was late in being filed. It is stated that Mr McCarthy was concerned about the criminal charges, which had been made against him and gave his attention to those proceedings. He believed that he would be able to bring a claim in respect of the termination of his employment after the criminal charges were disposed of.

He also had trouble finding replacement work in Cooma and travelled to Western Australia to find work.

Mr McCarthy requested on a number of occasions a copy of the relevant Enterprise Agreement but was continually refused by the Company. He believed that he needed to view the clauses in relation to safety committees, in order to make a complaint about his termination.

The bail conditions with respect to the charge of trespassing required Mr McCarthy not go near the project. He did not consider that he was able to bring a claim in relation to the termination under these circumstances.

15 It was the respondent's submission that it was a predetermined premeditated decision not to bring proceedings until after the criminal case had been determined. Ignorance of the law did not play a part in the decision making process. Mr McCarthy is an experienced worker and ex union official who commenced industrial proceedings when it suited him. The delay in filing the application was exorbitant. The reasons for the delay were weak and selfish. Mr McCarthy had ready access to Union officials but did not direct any person to commence proceedings.

The degree of hardship to Mr McCarthy is no different to any other employee who is terminated. It is always difficult to when dealing with a substantive claim as well as dealing with an out of time claim because the two can meld together and the prospects of success of the substantive claim is a relevant element in considering the out of time claim. In this case there is no direct evidence of victimisation. It is a conspiracy theory that involved the major contractor Adco.

The evidence showed that both the Cooma and Queanbeyan buildings sites were winding down when Mr McCarthy was terminated. Mr McCarthy was terminated not for his activity with the Safety Committee but because of the lack of work.

16 As this application was filed on 12 May 2008 and Mr McCarthy was terminated on 1 November 2007 as is alleged for making a complaint, the application was some 172 days late.

17 As expressed earlier in this Decision, this application was made under section 210 of the Act, with the claim that Mr McCarthy had been victimised for complaints raised by the safety committee on 1 November 2007 and therefore the Company had breached sub section 210(1) (j). That sub section is expressed in the following terms: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise ) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000.

18 Applications made out of time Section 213 (4) of the Act is expressed in the following terms: The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of ,the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and ( c) the conduct in relation to which the order is sought. 19 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, the term sufficient reason is not defined in the Act. 20 When one compares section 85(3) and section 213(4) of the Act it is readily apparent that they are almost identical in terms. That being so, I am of the view that consideration of section 213(4) may be had by reference to the authorities on the general powers of courts to accept out of time applications. 21 An authoritative judgment on the principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in Brisbane South Regional Health Authority v Taylor, 186 CLR 541 where McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)…

and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension. 22 More recently, a Full Bench of this Commission said in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

23 The Commission is also guided as to matters to be taken into consideration, by reference to subclauses (a) (b) and (c) and as the onus rests on the applicant to show "sufficient reason" exists, it is appropriate for the applicant to address each of the criteria in those subclauses.

I now turn to each of the discrete provisions of section 213(4) in the context of these reasons. Reason for and length of delay-section 213(4)(a)

24 As expressed above Mr McCarthy stated that his focus and energy post his termination were directed towards the Police charge of trespass. He believed he could prosecute his termination after the criminal charge had been heard and determined. He also wished to obtain a copy of the enterprise agreement he was working under, as he was interested to see the dispute resolution procedures, the redundancy procedures and any procedures relating to the termination of safety representatives. 25 Mr McCarthy also advised that he was not aware of the 21 day time limit to file an application. Since his period of time as an organiser industrial laws had changed and he was a bit confused as to whether he was under state or federal laws. 26 In giving evidence Mr McCarthy accepted that he could have obtained a copy of the enterprise agreement through his Union. Mr McCarthy had ready access to Mr Primmer his local Union organiser and had sent an email to both the national and state secretary of his Union two days after his termination, yet failed to ask any of those officers for a copy. He stated that he finally obtained a copy of the enterprise agreement from his Union four to five weeks after his termination but still took no action to commence legal proceedings.

He also stated that he took no action at the time of his termination because the matter was in the hands of Mr Primmer. He advised that he last spoke to Mr Primmer about one and one half to two weeks after his termination.

He also admitted that at no time until after the criminal charge had been heard and determined did he direct Mr Primmer to commence legal proceedings in the Industrial arena. Mr McCarthy accepted that his Union could not be accused of "sitting on its hands", because he never gave it direction to do anything.

Post his termination and prior to him gaining reemployment in the building industry on around 6 February 2008, Mr McCarthy journeyed to Western Australia on two separate occasions in order to complete a course entitled a STCW95, that gave entry into the maritime industry in both Australian and international waters.

Mr McCarthy agreed that his intention was formed some time in November 2007 to leave the construction industry and enter the maritime industry.

In my view Mr McCarthy had adequate opportunity to file a victimisation claim in time. I do not accept the submission that the Police charge had precedent. The Police charge and the victimisation claim were separate issues and should have been treated as such. Mr McCarthy had the benefit of union membership and had a good relationship with his local organiser Mr Primmer yet did not call upon either to commence proceedings in a timely fashion in any industrial court action. I reject this submission with respect to this sub clause.

The Commission must also consider the length of the delay. The longer the delay the more difficult will be the applicant's task to satisfy the Commission that its discretion should be exercised. This issue was well expressed by Cambridge C in Schwinger v Church Stores [1999] NSWIRComm485: The length of the delay adds height to the hurdle almost in an exponential relationship. That is, the further that the delay extends, the more difficult it will be to obtain the discretion to extend time.

In this case the delay was 172 days. Such a delay can only be considered significant. I find such a delay to represent a significant hurdle for the applicant to overcome. Hardship to the applicant or other party-section 213(4)(b)

27 Ms Charlson for Mr McCarthy stated that he had significant difficulty in obtaining fulltime employment in the building industry post his termination from the Company which resulted in him having to access his Long Service Leave benefits. Evidence was given that Mr McCarthy has only worked on a casual basis ever since with various building firms. 28 For how long further Mr McCarthy would have worked for the Company if he had not been terminated on 1 November 2007 was in dispute. Mr Primmer gave evidence of two to three months of work to be done. Mr Dowling stated that he and a fellow tradesman Mr Scott Cedelland worked until very early December 2007 when they finished and returned home to the Hunter.

It was also accepted by both parties that the building industry closes down over the Christmas/New Year period. The duration of the close down varies from site to site. 29 Taking into consideration what Mr McCarthy did in travelling to Western Australia twice between his termination in early November 2007 and his commencement of paid work in early February 2008 and why he travelled there, I do not believe that evidence was placed before the Commission that he suffered any excessive hardship compared to the generality of difficulties that all displaced employees experience. He secured casual employment within the same industry approximately eight weeks after his termination. I note the comments of Sams DP in Kent Gorrell and Uwatec Pty Ltd: There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, emotional or financial. The applicant is not " Robinson Crusoe" in this respect. In my view,s.85(3) (b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing varying degrees of hardship, nevertheless, are able to file within time. 30 I believe that some hardship was placed on the Company in facing this application. At no stage was the Company placed on notice by the applicant that an application of this nature would be filed in an industrial tribunal.

A consequence of receiving and having to defend such a claim without prior notice that occurred some time ago is the difficulty witnesses have in remembering details of what was said and when. The conduct in relation to which the order is sought.

31 It was Ms Charlson's view that as a consequence of Mr McCarthy's actions as a member of the Safety Committee and the subsequent list of problems given to management of the major contractor on the Cooma site that Mr McCarthy's employment was terminated. If that was to be proven then that action in terminating him would be in breach of section 210(1) (j).

It was the respondent's case that Mr McCarthy's employment was terminated due to the work required by the respondent on site to be winding down. 32 It is my concluded view that notwithstanding the substantive delay in filing this application and the reasons given for the delay, that the substantive claim as outlined above is of such importance and therefore of public interest that the determination of the victimisation claim is required. Evidence and submissions of applicant.

33 I will now briefly summaries the relevant evidence given by the applicant's witness pertinent to the matter before the Commission. 34 Mr McCarthy stated that when he joined the Company he was told that he would work both at the Cooma and Queenbeyan sites. He stated that he did not think that either sites were run in a safe manner. He had previous experience in safety committees and accepted his supervisor's nomination on 31 October 2007 to be on the Cooma project committee. The following day he participated in a safety walk through which resulted in the committee meeting with management of Adco. This meeting took place from approximately noon to 1.00pm. At approximately 2.15pm he was spoken to by his supervisor Mr Travis Dowling.

He said that Travis Dowling said to him words to the effect: I've had a call from Esa. He telephoned me to tell me that I've got to put you off. I know the reason and you know the reason but I am the bearer of bad news.

Mr McCarthy replied: I'm not accepting that and I'll be taking the matter further. 35 He remained at work and spoke with his union organiser Mr Peter Primmer. Later that day he approached Mr Mark Varnum form Adco and asked for his mobile phone number so Mr Primmer could call him. 36 The following day he came to work at 6.30am but was prevented from commencing by Mr Dowling. He objected to leaving the site and later that morning he participated in a safety walk through with WorkCover inspectors. Later that afternoon Police arrived on site and he was asked to leave. He was taken to his car by the Police but then returned to the site and was arrested. 37 Mr McCarthy stated that there was no mention of shortage of work or redundancy at the time of his termination. He believed there was 6-8 weeks of work left on the Cooma site. 38 Mr Peter Primmer is the local union organiser and has worked for the union since 1999. He stated that he was aware that Mr McCarthy was working on the Cooma site and spoke with him on 31 October 2007 when he was told that he had been elected onto the safety committee. He received a phone call from Mr McCarthy on 1 November 2007 stating that he had been terminated because he complained about safety. 39 The next day he rang both Mr Laukka and Victor from the Company. He was told by Victor that the job was winding down. The same day he received a phone call from Mr McCarthy that he had been arrested. He sounded very upset.

In Mr Primmer's view there was plenty of work left on site to be done. In his estimation 2-3 months work.

It was his view that Adco had instructed the Company to terminate Mr McCarthy.

I should note that this view was made without any evidence to support such a claim. 40 A Mr Rodney Rendal gave evidence to state that he did work for the Company at Cooma for approximately 2 months finishing in early September 2007. He resigned he said because of safety concerns on this site. 41 In her final submissions Ms Charlson stated that Mr McCarthy had been victimised due to actions he had taken in raising safety issues to Adco management. There was plenty of work on site at Cooma and at Queanbeyan and in other parts of New South Wales. 42 In her view the Company would have had to know about the complaint through Adco who then directed the Company to terminate Mr McCarthy.

Ms Charlson accepted that there was no evidence before the Commission to support that submission. 43 Ms Charlson also accepted that Mr Laukka would have to had to been put on notice by someone that Mr McCarthy had become a member of the safety committee on 31 October 2007 and that he had participated in the safety walk through of the Cooma site on the following day which resulted in a list of complaints being provided to Adco management at approximately noon that day. Evidence and submissions of the respondent.

44 Evidence was given by Mr Esa Laukka and Mr Travis Dowling of the Company. 45 Mr Laukka stated that he is the Operations Manager for the Company. He would on nearly a daily basis contact Mr Dowling to discuss the progress of the Cooma project. When contacting Mr Dowling he would call him on Mr Dowling's company mobile phone. When he received phone calls from Mr Dowling he would see that Mr Dowling used the company mobile phone. 46 It was his evidence that he called Mr Dowling at 8.29am on 1 November at 2007 to get an up date on the Cooma site. During that phone call he told Mr Dowling to terminate Mr McCarthy after being assured by Mr Dowling that the work left to do on site could be handled by himself and the other tradesman, Mr Scott Cedelland who had accompanied Mr Dowling down to Cooma at the start of their work. On that day, three day labourers were also not required any longer. The Companies numbers went from 6 to 2 at the Cooma site. 47 He also advised that when he advised Mr Dowling to terminate Mr McCarthy he was unaware of the formation on the previous day of the safety committee at Cooma or its walk through on 1 November 2007 at the Cooma site, and the subsequent list of complaints that it believed had to be corrected, that had been passed onto Adco management. 48 Later on 1 November 2007 Mr Laukka received a phone call from Mr Dowling stating that Mr McCarthy would not leave the site and then another phone call from Mr McCarthy complaining about being terminated. He explained to Mr McCarthy that the job was winding down and that he only needed two persons to finish the job. Mr McCarthy said it was because he was on the safety committee. Mr Laukka replied that he didn't even know he was on the safety committee. 49 He stated that he could not remember the contents of the telephone conversation with Mr Green that he received on 1 November 2007 but it was not about Mr McCarthy. At what time that conversation took place he could not remember. 50 He stated that at the beginning of November 2007 both the Cooma and Queanbeyan jobs were winding down and workers numbers were being reduced. At the end of November 2007 Adco required some further work to be done which was unexpected and therefore two extra workers were required for a short period to clean up. 51 He said he received a phone call from Mr Green on 2 November 2007 complaining about Mr McCarthy being on site. 52 He also disagreed with the conversation as expressed in Mr McCarthy's statement that Mr McCarthy said took place on 2 November 2007. 53 Mr Travis Dowling stated that he commenced with the company as an apprentice in 2000 based in the Hunter region. When he completed his statement for these proceedings he was still working for the company, but now works for Weedon Brothers. 54 He said that he and another ex apprentice Mr Scott Cedelland travelled on the long weekend in June 2008 to commence work on the Cooma job. He was the supervisor on this job. He said that he communicated with Mr Laukka on a regular basis about how the job was going. When communicating with Mr Laukka he used his company mobile phone. 55 Mr Dowling stated that when Mr McCarthy approached him for a job he told him that they were on the third deck and just about finished. Mr McCarthy did some extra work at the Queanbeyan site. 56 Mr Dowling said he received a phone call from Mr Laukka early on 1 November 2007. He stated he was asked how the job was going and what he had left to do. He explained what he had left. He was asked if he could complete the work with only himself and Scott and he advised that they could.

Later in the day Mr Laukka rang back and said that he could finish Mr McCarthy and the day casuals. It was his memory that it was about over an hour later he actually terminated Mr McCarthy sometime between 1.30pm and 3.30pm. Mr Dowling denied the conversation as expressed in Mr McCarthy's statement when he was terminated. After he terminated Mr McCarthy there were a number of phone calls going between himself and Mr Laukka. 57 Mr Dowling said that it was his practise when communicating with the company to use his work mobile and not the landline on the Cooma site. He only used the landline to fax pay sheets to Head Office. 58 It was his evidence that both he and Mr Laukka would have shouting matches with Mr Green from Adco about work. 59 Mr Dowling stated that he had not told Mr Laukka about the formation of the safety committee at Cooma, nor the appointment of Mr McCarthy on that committee or any safety issues that had been raised. He also did not tell Mr Laukka about the sagging of the mezzanine until after Mr McCarthy had been terminated. The reason for the termination of Mr McCarthy was because of the work running out. 60 He said that two labourers were employed on around 23 November to clean up the place. He and Mr Cedelland continued working there until 4 or 5 December 2007 when they returned back home to the Hunter. 61 Mr Dowling stated that he spoke to Mr Green on a daily basis and would have spoken to him on 31 October and 1 November 2007. At no time was Mr McCarthy's named raised or the safety committee. 62 Mr Dowling denied saying to Mr McCarthy at the time that he terminated him "I know the reason and you know the reason…" He did say that he was the bearer of bad news and the reason for termination was lack of work.

With respect to the Queanbeyan site he was aware that they were down to a skeleton crew at the time of Mr McCarthy's termination. Consideration and Decision.

63 This application was brought under section 213 of the Act by the Union for relief from victimisation. It was not a claim for an unfair dismissal nor a dispute with respect to unsafe working conditions or a dispute with respect to a breach of award conditions.

Therefore the onus falls on the applicant to prove that the reason for the termination of Mr McCarthy was as a consequence of him making a complaint about a workplace matter as a consequence of his activity in the safety committee that took place in Cooma.

The onus rests on the Company to satisfy the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

It was accepted by Ms Charlson that Mr Laukka would have had to have known about the safety committee complaints and or safety committee participation by Mr McCarthy in order for there to be a victimisation of the applicant. 64 If I accept the submission of the Union that there was a very strong suspicion that Mr Laukka knew of Mr McCarthy's safety committee activities and or the complaints directed to Adco management, then who told him ?

There was evidence that Mr Loukka had spoken to Mr Green on 1 November 2007.Mr Loukka confirmed this and whilst he could not remember the actual subject matter of the conversation he did state it was not about Mr McCarthy.

Mr Green was not called as a witness in this matter. 65 It was the evidence of Mr Dowling that he did not tell Mr Laukka on either 31 October or 1 November 2007 that there had been a formation of a safety committee on the Cooma site nor what complaints they had raised to Adco management. He also did not advise Mr Laukka of the sagging on the mezzanine floor. I accept the evidence of Mr Dowling with respect to this issue. 66 Mr Laukka gave evidence that as a consequence of his phone conversation on 1 November with the site supervisor Mr Dowling who assured him that the work left to do on the Cooma site could be completed by himself and Mr Cedelland, he then directed Mr Dowling to finish up Mr McCarthy and three day labourers. This direction was to be carried out later in the day. 67 It was Mr Laukka's evidence that this direction was given to Mr Dowling on 1 November at 8.29am. It was Mr Dowling's evidence that whilst he received a phone call early in the morning from Mr Laukka concerning where the work was up to and whether he and Mr Cedelland could complete the work, it was a further phone call later in the day from Mr Laukka that directed him to terminate particular employees. 68 Taking into consideration the records of mobile telephone calls that were in evidence in this matter, it is my finding that I prefer the evidence of Mr Laukka than to that of Mr Dowling with respect to this point.

Mr McCarthy stated in an email in evidence, dated 3 November 2007, two days after his termination, directed to various union officials and other persons, that he was terminated at 2.15pm by Mr Dowling, reason no more work.

As noted above, Mr Laukka phoned Mr Dowling at 8.29am on 1 November. Mr Dowling rang Mr Laukka twice at 2.17pm, at 3.49pm and at 4.25pm that afternoon. Mr Loukka rang Mr Dowling at 2.41pm and Mr Green at 2.44 pm and 2.49pm. These seven phone calls would have therefore taken place after Mr McCarthy had been terminated.

This preference for Mr Laukka's evidence, should in no way be seen as a criticism of Mr Dowling for it is my view that he sought to tell the truth but had difficulty in trying to remember what had occurred so long ago. This lack of precise memory was also experienced to a degree by Mr Laukka with respect to particular phone calls. As I stated previously, the Company was unaware of this application until it was received by them some six months after 1 November 2007 and therefore resulted in a disadvantage to witnesses trying to accurately remember.

Ms Charlson stated that there existed a strong suspicion that Mr Laukka was aware of Mr McCarthy's safety committee activities and complaints given to Adco management. I am not prepared to make an adverse finding against Mr Laukka based on a suspicion. As no evidence was brought before the Commission by the Union to prove that Mr Laukka knew of Mr McCarthy's actions prior to him directing Mr Dowling to terminate Mr McCarthy, it is my concluded finding that Mr Laukka was unaware of the activities of Mr McCarthy with respect to the safety committee and or the complaints raised at Cooma in need of rectification at the time he directed Mr Dowling to terminate his services on the morning of 1 November. 69 Mr McCarthy was in the Company's view terminated due to lack of work. In Mr McCarthy's view there was 4 to 6 weeks left of work at the Cooma site. Mr Plummer stated he believed there was 2 to 3 months of work to be done when he visited the site on 5 November 2007. Mr Dowling and Mr Cedelland worked for a further 4 weeks after Mr McCarthy's termination before heading home.

There would be no logic in both Mr Dowling and Mr Cedelland going home to the Hunter with work left outstanding. Mr Dowling gave evidence that the job had finished. Both Mr Dowling and Mr Laukka gave evidence that as at 1 November 2007 there was not much work left at the Queanbeyan site. I accept the evidence of both Mr Dowling and Mr Laukka with respect to the quantum of work remaining.

It is my finding that the reason for the termination of Mr McCarthy was due to the lack of work that the Company was required to complete, in accordance with their contracts at both the Cooma and Queanbeyan sites and not for his activity in being a member of the safety committee or the raising of complaints to Adco management on the Cooma site. 70 As a consequence of this finding I therefore dismiss this application.

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