Dickson v Downer EDI Works Pty Ltd [2014] FCA 1134 | Case summary

REASONS FOR JUDGMENT

Introduction
Mr Derek Dickson (the Applicant) alleges that Downer EDI Works Pty Ltd (the Respondent) has contravened the Fair Work Act 2009 (Cth) (the FW Act) in that it has taken adverse action against him because he exercised various workplace rights or, further and in the alternative, because he was temporarily absent from work because of illness. The conduct which is alleged to constitute the adverse action occurred on 18 March 2014 (the suspension of Mr Dickson's employment on full pay; (the Suspension)) and the termination of the Applicant's employment on 16 April 2014 (the Termination). The Applicant seeks relief in the form of declarations, reinstatement, the imposition of penalties and compensation.
The Applicant was unrepresented throughout the hearing, but had been represented at an earlier stage of the proceeding. In these circumstances the Court has an obligation to provide such advice and assistance to the unrepresented party as is necessary to ensure a fair and just trial, while respecting the rights of the opposing party. As Samuels JA observed in Rajski v Seitec Corporation: "... the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent..."
To assist the Applicant and to facilitate the efficient conduct of the proceedings the Court prepared a 'Draft Statement of Agreed Facts and Issues in Dispute'. The agreed facts and disputed issues were derived from the pleadings and the Draft Statement also set out the relevant provisions of the FW Act and the relevant legal principles. The Draft Statement was provided to both parties on 4 September 2014 and the email which attached the Draft Statement included the following statement: "3. The Case Outline states that the Applicant will give evidence supporting the facts pleaded in the Statement of Claim. The hearing will begin with the Applicant calling the evidence upon which he intends to rely. Note: (i) The Applicant should call evidence in respect of any of the disputed facts. The failure to call evidence on a disputed fact may result in that issue being determined against the Applicant. (ii) In the course of his evidence the Applicant should deal with why he believes that the Respondent has taken adverse action against him and the basis for that belief. The Applicant should also respond to any of the factual assertions made by the Respondent in its defence, with which he does not agree (eg see paragraphs 34 and 38 of the Draft Document)."
It became apparent during the course of the proceeding on 8 September 2014 that the Applicant was not in a position to give his evidence at that time and so the Respondent put its evidentiary case first. At the commencement of the hearing on 8 September the Applicant was provided with a document (Attached) which was intended to assist him in putting his case. I took the Applicant through the document, emphasising the importance of challenging, in cross examination, the evidence of the Respondent's witnesses where the Applicant did not agree with their evidence. It was also explained to the Applicant that if he disagreed with a witness' evidence he should put his version of events to the witness, particularly if he intended to submit that the Court should reject the witness' evidence. These points were reiterated during the proceeding, particularly when the Applicant came to cross examine the decision makers.
Before turning to the facts and contentions I propose to set out the relevant legislative context.
The Legislative Context
In these proceedings it is alleged that the Respondent took adverse action against the Applicant because: (i) he exercised a workplace right; and/or (ii) he was temporarily absent from work due to illness (s.352).
Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right or engages in industrial activity.
Section 340 is one of the central provisions. It states, in part: "(1) A person must not take adverse action against another person: (a) because the other person: ... (ii) has ... exercised a workplace right; ..." [emphasis added]
An employer contravenes s.340 if it can be said that the employee's exercise of a workplace right was a 'substantial and operative factor' in the employer's reasons for taking the action which constitutes 'adverse action' within the meaning of s.342.
Section 341 sets out the meaning of a workplace right, relevantly: "Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment..."
The table in s.342 sets out the circumstances in which a person takes adverse action against another person. Relevantly, adverse action is taken by an employer against an employee if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (Patricks) the High Court considered the meaning of a provision in essentially the same terms in a legislative antecedent to s 342 (i.e. s 298K of the Workplace Relations Act 1996 (Cth)). Their Honours (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) held, at [18] that injuring an employee in his or her employment (now s 342(b)) covered 'injury of any compensable kind' and that altering an employees position to their prejudice (now s342(c)) was: ". . . a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question."
Subsequent cases are illustrative of the range of circumstances which may amount to altering the position of an employee to their prejudice and hence constituting adverse action, for example: • the laying of employment related disciplinary charges against an employee; • commencing an investigation into an employee's conduct; • requiring an employee to participate in an investigatory process; • suspending an employee from duty; and • issuing a disciplinary warning to an employee.
The task of the Court in a proceeding such as this is to determine three factual questions: (i) Was the employee engaged in exercising a workplace right? (ii) Did the employer take 'adverse action' against the employee, within the meaning of s.342? (iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?
In the context of this case Mr Dickson bears the onus of establishing that he was exercising a workplace right at the relevant time, or had exercised a workplace right, and that adverse action was taken against him. If these elements are established then the Respondent bears the onus of establishing that the adverse action was not taken because Mr Dickson exercised a workplace right.
Sections 360 and 361, in Div 7 of Pt 3-1, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, "a person takes action for a particular reason if the reasons for the action include that reason". Section 361(1), casts a burden of proof on an employer to show that it did not take action for a prohibited reason. It says: If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and (b) taking that action for that reason ... would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.
The question of why an employer took adverse action against an employee is a question of fact to be determined on the balance of probabilities. The application of s.346 (and s.340) turns on the word 'because', as Gummow and Hayne JJ observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay): "The use in s.346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s.346, while there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
The Applicant also contends that the Respondent breached s.352 of the FW Act by terminating his employment because he was temporarily absent from work because of illness. Section 352 is in the following terms: "An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury or a kind prescribed in the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 prescribes kinds of illness or injury for the purpose of s.352, it states: "(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury. Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. (2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within: (a) 24 hours after the commencement of the absence; or (b) such longer period as is reasonable in the circumstances. Note: The Act defines medical certificate in section 12. (3) A prescribed kind of illness or injury exists if the employee: (a) is required by the terms of a workplace instrument: (i) to notify the employer of an absence from work; and (ii) to substantiate the reason for the absence; and (b) complies with those terms. (4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act. Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer's leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee. (5) An illness or injury is not a prescribed kind of illness or injury if: (a) either: (i) the employee's absence extends for more than 3 months; or (ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and (b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence. (6) In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation."
I now turn to the facts and contentions.
The Facts and Contentions
The Statement of Claim particularises nine complaints made by the Applicant over the period from December 2013 until the termination of his employment on 16 April 2014. The Respondent admits that five of the nine alleged complaints made by the Applicant, amounted to the exercise of a 'workplace right', namely the ability to make a complaint in relation to his employment (section 341 (1)(c)(ii) of the FW Act). I have proceeded on the assumption that each of the complaints particularised in the Statement of Claim constituted the exercise of a workplace right.
Further, it has been assumed that the Applicant was temporarily absent from work due to illness in two periods: • 13 December 2013 to 3 February 2014; and • 21 March 2014 to 16 April 2015
The Applicant alleges that the Respondent imposed the Suspension and then the Termination for reasons which included that he made various employment complaints or exercised other workplace rights, in contravention of section 340(1) of the FW Act. The Applicant further alleges that the reasons for the Dismissal, included that the Applicant was temporarily absent from work because of illness or injury, such that a separate contravention of section 352 of the FW Act occurred.
While the Respondent admits that the Suspension and Termination constituted 'adverse action' within the meaning of s.342, it submits that the adverse action was not taken for a proscribed reason. For completeness I note that the Statement of Claim also alleges that the Suspension was adverse action insofar as it constituted discrimination between the Applicant and other employees of the Respondent that were not suspended. No evidentiary basis in support of this contention was advanced during the course of the proceedings and I reject the proposition that the Respondent discriminated against the Applicant in the manner contended.
It is unnecessary to conclusively determine many of the factual matters relied on by the Applicant and to do so would unreasonably increase the cost and duration of the proceedings and, as the Applicant is self represented, potentially be unfair. The most convenient course is to focus on the determination of the central question: Did the employer take the adverse action against the employer because of a proscribed reason or reasons which included a proscribed reason?
The following witnesses gave evidence in the proceedings: • On behalf of the Applicant: • Mr Stomps, an organiser with the Australian Workers' Union • Mr Dickson • On behalf of the Respondent: • Sergio Cinerari, Chief Operating Officer Downer Infrastructure Group • Stuart Billing, General Manager Victoria Downer EDI Works Pty Ltd • Michelle Fox, Human Resources Manager, South East Downer Infrastructure • Lina De Zilva, General Manager Human Resources
Many of the relevant facts are not in contention.
The Applicant worked for the Respondent or predecessor entities for about 10 years. Since about 1 March 2011 he was employed as a Supervisor and, at material times in early 2014, supervised a work crew based at a site in Somerton. At all relevant times the Respondent was, and is, an employer to whom Part 3-1 of the FW Act applies.
In late 2013 and throughout early 2014, some workplace conflict developed between the Applicant on the one hand, and his direct report Mr Mario Pisani (Contracts Manager) (Pisani), and Mr Pisani's direct report Mr Peter Rodrigues (Maintenance Manager Vic) (Rodrigues) on the other.
The Applicant alleges that between 20 December 2013 and 24 March 2014, he made nine complaints in relation to his employment, either about Pisani, Rodrigues, a fellow employee (more particularly, her boyfriend) Ms Meegan Jones (Plant Administrator) (Jones), or the Respondent more generally. The Applicant also gave evidence that the making of these complaints was preceded by bullying and harassment behaviour directed at him by various managers of the Respondent, over a significant period of time.
I do not propose to go through each of the alleged complaints in order to determine whether or not each complaint amounted to the exercise of a workplace right within the meaning of s.341 of the FW Act. As mentioned earlier, I have proceeded on the assumption that each of the complaints particularised in the Statement of Claim constituted the exercise of a workplace right. I have also considered the nature and timing of these complaints in assessing whether the adverse action was taken because the Applicant exercised a workplace right.
One of the complaints (in relation to Ms Jones' boyfriend) arose from an incident on 20 December 2013. On that day a person claiming to be Ms Jones' boyfriend attended the Respondent's premises, approached a number of the Respondent's employees and stated that he was going to kill the Applicant, or words to that effect. On 23 January 2014 the Applicant telephoned Rodrigues and told him that he did not feel safe returning to work by reason of this incident. The Applicant sent an email to Pisani to the same effect.
There was a conversation between the Applicant and Rodrigues at the Respondent's premises on 19 February 2014. The Applicant says that during the conversation Rodrigues said words to the effect that he was 'fucking sick of the situation' and that he didn't know who he was going to 'let go'.
On 8 March 2014 the Applicant sent an email to Andrew Wall, Civil Manager of the Respondent. The Applicant asserts that Pisani telephoned him later that day and said words to the effect: 'who the fuck are you to offer Andrew Wall our subcontractors?'.
Later on 8 March 2014, the Applicant sent an email to Pisani in the following terms: "I find that Loud Abusive, Swearing Tone of language to myself today Saturday 1pm unacceptable, I've been working 20 hr, 16 hr days the last 6 working days in order to get all the work Organised, you have been away for 4 of these days, end of Month being 1 of these days, and totally acceptable you have been sick and your boy has been sick, I have been trying to helping Grace out so Much with her work, giving her much of my time, Part of which I got know Idea with PO, Invoicing, certain codes, ETS items, Suppliers, Sub Contractors, Not 1 person informed me Gordon had an email address who is the Surveillance Officer for Hume, Moreland, Bell St etc that you had organised. And you blame me for this for 1 afternoon yesterday Friday 7th for not returning back from leaving the Office at 12pm, as I was that Exhausted, and I am in the office now Saturday 8th in my own time, and before you take that the wrong way I have no gripes or Complaints. And the barrage of Swear words in the Conversation regarding offering Andrew Wall, 1 of out Subbies for assistance is Totally Unacceptable, I only thought I was doing the correct thing, I thought we were 1 Company, all work and help each other out and Communicate together which is 1 of Downers Core Values. As you mentioned, Will discuss this Tuesday. Thanks"
The Applicant's email of 8 March was copied to 11 other employees, including seven of the Applicant's subordinates. On 11 March 2014 four of the recipients of the Applicant's email of 8 March 2014 sent responses which were generally supportive of the views expressed by the Applicant.
On 12 March 2014 the Applicant received a letter from Rodrigues directing him to attend a performance improvement meeting on 14 March 2014 regarding the email he sent on 8 March. Rodrigues also sent an email to recipients of the Applicant's email of 8 March 2014 informing them that further emails about the matter were to stop as they were not constructive, and that other avenues existed for raising these issues in the correct forum.
On 14 March 2014 the Applicant attended a meeting with Allsyn Musster (a human resources manager employed by the Respondent), Rodrigues and Stomps. Stomps and the Applicant gave evidence about what was discussed at the meeting and on the basis of that evidence I find that: (i) Musster told Dickson that group emails copied into his work crew which raised issues about management were not acceptable. (ii) Musster said something along the lines that the company did not have a problem with Dickson making complaints just so long as he didn't copy in his work crew. (iii) Dickson was informed that an external investigator would be appointed to investigate his allegations about the work environment and the conduct of particular people within it.
As to the second finding above I note that Stomps gave evidence to that effect, but that the Applicant denied that any such statement was made. I prefer Stomps' evidence on this point to that of the Applicant. Stomps was more direct in his evidence and appeared to have a clearer recollection of what was said during the meeting. On his own admission the Applicant 'zoned out' during parts of the meeting.
Following the Applicant's email of 8 March Pisani was absent from the workplace. A conversation then took place between the Applicant and Rodrigues in which the Applicant said that he could do Pisani's job. Rodrigues asked the Applicant what he knew about contracts and the running of the business, the Applicant responded that he did not know the details. Rodrigues then said that the Applicant needed to develop a better understanding of the business and how the contracts, the financials and the cost structure work.
At 9:31am on 18 March 2014 the Applicant sent an email to Rodrigues which was critical of him and his behaviour. The email was copied to 10 other employees, inc1uding seven of the Applicant's subordinates. The email was in the following terms: "I would like to thank you yesterday's Up close, in my personal space Verbal Attack. Can you stand further away next time, As I don't like feeling your spit on my face. Yes you are Correct, I do not know Fucking nothing about this Business Yes you are Correct, I do not know Fucking nothing about Running a Business Yes you are Correct, we do ·not make no money from Fucking Asphalt Jobs Yes I am aware he had to make Fucking Changes Why threaten staff with disciplinary Action who replied to my email, who backed my thoughts after constant months of Harassment and Bullying by Senior Management. You say we broke the downer Values by doing so, I must have the wrong Values below, correct me if I'm wrong. Courage- To stand up and speak out after Months of Abuse and Harassment by Management Collaboration- We stood together as 1, we backed each other up as a Team Integrity- We stood up for what we believed in, defended our own personal Values for the respect that we should all except from all. Excellence- We did so to move forward, feel proud of what we do, have the Spark to go above and beyond to make the Downer Brand proud. Do you know what it is like to be constantly bullied Harassed day by day, of course you don't, after copping yesterday's attack and the others recently, you are just same as all the Bullies . Well I will tell you, Day after Day, Week after Week of these Constant unwanted attacks, you start to feel slightly sick, this feeling doesn't go away, then you cop more and more harassment and that sickness feeling starts to grow and grow getting stronger and stronger growing in side you, then eventually when your Copping the abuse as I did yesterday morning from yourself morning from yourself, your body, head goes in to this Zone where everything is blocked out, you stop hearing anything that is being said, until you see that person stop talking, the spit is no longer bouncing of your cheeks, the lips are no longer moving and then you're hearing pops back in. You get home and think thank God, got through another day of shit. That feeling of growing inside you from all the Harassment, always constantly reminds you of what you experience day by day, you start to feel sorry yourself and the whole world is out to get you, you don't answer Phone calls, you don't answer the door, you sit there an wait for the doorbell to stop ringing, wait for your family to walk off hoping that they think you're not home. Do you really think that I wanted for things to go this way, you say to more, Poor Mario, what about him, he's devastated to think we turned against him, Well Fuck him, He caused it all, we tried to help him, we tried to tell him to lead us, we tried to say work with us not against us, but as the norm, constantly ignored, what about all the Grief he has put on to others, not 1 thought of them by yourself. You are always talking to us that we are fighting the New Structure, well for like the 50th time I have said, WE ARE NOT, we agree and understand from a Monteria side of the Business, we understand and accepted the Changes that had to be made. It was the Constant denial, the standover tactics used on us when we tried to mention Ideas on possible tweaks to the Make this Structure more Successful that was more upsetting. So thanks again for this attack yesterday morning, Sucking what confidence I had left out of me and Spat to the side, this attach where you haven't even had the decency to sit down with me for 5 minutes to even have a chat with me or try to hear nor understand my Point of View. All this after 11yrs Service in the Company, and for what, Your Senior Manager, who you should be able to look up to with Respect, Honour and trust can't even give you any form of decency, respect for at least 5 minutes of his time to sit down with you to hear your concerns and Thoughts. Yes I did CC in all my fellow workers who have, Backed me, helped me, Respected me, I have the upmost respect for them also and want to Say thanks to them all for their extra un paid over the years and effort that they have put into the NWM Contract. Thanks"
Rodrigues brought the email to the attention of Billing. Billing's evidence was that while he had no issue with the contents of the email itself, he regarded the distribution of the email to the Applicant's subordinates as 'totally inappropriate'. Billing, with Fox and Musster, decided to arrange another meeting with the Applicant that afternoon to 'discuss the email and the reasons behind it and ask him to explain why he had sent the email ccing in the subordinates'.
In the afternoon of 18 March 2014 Billing and Fox met with the Applicant and Stomps. Each of the participants gave evidence about what was discussed at the meeting and on the basis of that evidence I find that: (i) Dickson confirmed that at the meeting on 14 March he had been told not to send group emails copying in his work crew. (ii) Dickson's explanation for sending the email to his subordinates was the stress he was under due to the bullying and harassment from his superiors and that he wanted to 'rally the troops'. (iii) Fox said words to the effect that there was no problem with making complaints, the problem was in copying in others when he had been told not to. (iv) Dickson was told that his conduct in copying in his subordinates in emails critical of management, contrary to directions, amounted to serious misconduct. (v) Dickson was told not to discuss the investigation with his work crew and not to copy any more emails critical of management to his work crew.
The evidence of Billing, Fox and Stomps as to what was discussed during this meeting is broadly consistent. To the extent that the evidence of Billing, Fox and Stomps conflicts with the Applicant's evidence I prefer the evidence of Billing, Fox and Stomps.
There was a break during the meeting in which Billing and Fox discussed whether to terminate the Applicant's employment for serious misconduct. A decision was made to suspend the Applicant's employment, on full pay, pending the completion of the external investigation into the bullying and harassment allegations. The Suspension decision was made by Billing. In his evidence Billing canvassed the reasons for that decision: "We decided that the fairest thing to do would be to suspend Mr Dickson whilst the investigation was carried out and completed, such that we could see whether he had turned up any extra mitigating circumstances that would justify Mr Dickson's actions in - in sending the - the second email against the clear instructions that he had been given ... We believed we needed to remove Mr Dickson from the workplace so that we could ensure that no further destabilisation of the work team occurred, and so, whilst - also then allow the investigation to - to continue with participation of all those that needed to participate in it."
At some point during the course of the meeting the Applicant was told that it had been decided to suspend him on full pay. Stomps deals with this aspect of the meeting in his evidence: "Counsel: Before the end of the meeting ... they told him (Dickson) that it was serious misconduct which warranted disciplinary action, but before they decided on the disciplinary action they wanted to investigate the allegations he had made? Stomps: Correct. Counsel: And they were going to appoint an external investigator for that purpose. Stomps: Yes. Counsel: And the process of the investigation was separate to the allegations of misconduct against Derek? Stomps: Yes. It was about the conduct on the site. Counsel: And they wanted to see whether any of the conduct which Mr Dickson had allegedly been subjected to provided some explanation or justification for his behaviour. Stomps: Correct."
Billing confirmed the Suspension in a letter to the Applicant dated 19 March 2014.
The Respondent engaged Dumais Workplace Services Pty Ltd (Dumais) to conduct an investigation into claims made regarding the Somerton Depot. I deal with the Dumais investigation report later in these reasons.
At 12.20 am on 20 March 2014 the Applicant sent an email from his personal email account (given he was on suspension) to four of his subordinates, which was critical of the respondent's management and its handling of his allegations against Pisani and Rodrigues. The email is set out below: "Subject: Free Thai Massages Somerton Depot Date: Thu, 20 Mar 2014 00:20:25 +1100 QUICK PRINT THEN DELETE Hey Guys, Sorry no Massage lol, have been sworn to have no contact with you guys and for myself to be sworn to confidentiality regarding what's happening. Like Fuck, I only, as yourselves, have only ever wanted to try to work to the best of our ability's and for all those years of loyal Service, where did that get me, bye bye, thrown out to the Wilderness, To Peter/being wove in my face, What is this? What's the meaning of it? Why did you do it? This is a serious breach of Employment??? Tell me why before we decide your fate?? Thought it was fucking obvious why I wrote it, what it is, what it meant and the reasoning why to get marching in to my office and virtually strip searched so I didn't leave the Office when boated out, with Downer property was fkn degrading and humiliating and these people are our so Called leaders,,pfffft. Sent through 1 of many, this 1 from last week, for you to have a read and understand why I would say what I did and act as times, even today, 1 st day out of the Company, sshhhhttt did the planning list this morning, had that gut feeling of wanting to be there,, going to chill dor a week then start looking around what's out there,, your better printing, delete the email, and make a copy of Gordon, Santo, Rick who I cant spell there surnames lol have a read of it smoko or Lunch. before the shit hits the fan, your going to need a Supervisor, fukn vote someone who puts there hand up for it, and then that person has to choose a 2ic. there's everyone chain of Command, Everyone together and decide how the Fuck you all move forward from here, only my belief here, the 2ic relieves some councils to Manage and Control from the Super and inspects a couple of days, learn together and don't be afraid to call myself for Assistance. Then when the dust settles, get Vic Rds over to meet the whole team, Barbie? And start to create your own Culture, from all personal Beliefs who are there, maybe only Give Peter Bendell the option of 2 only lol, Great bloke, smart man, old school who can you really utilise,,, Fuk this guys i'm going to bed, was only meant to be a short brief for below lol,, PS, if someone believes that my actions are not correct in anyway what I have written above and below or done, please tell me, to see where I have got it so wrong<< I'm sound asleep Right now as your reading this, mmmhhhh, planning a couple of nice sleep in for once, Good luck with everything Guys, been an honour and Pleasure to meet you all, if any of you require a Reference no drama, get my number from the Call out phone,, Over and Out,,,,"
On 21 March 2014 the Applicant commenced a period of paid personal leave due to a personal illness. The Applicant provided the Respondent with the following medical certificates from his doctor certifying that his absence from work was due to illness: (a) a medical certificate from Dr lan Calcutt dated 21 March 2014 certifying that the Applicant had a medical condition and would be unable to attend work from 19 March 2014 to 4 April2014 inclusive; and (b) a medical certificate from Dr I an Calcutt dated 15 April 2014 certifying that the Applicant had a medical condition and would be unable to attend work from 15 April2014 to 2 May 2014 inclusive.
The certificate referred in subparagraph 50(a) above was provided to the Respondent by way of email at 1:37pm on 27 March 2014 after which the Respondent adjusted its pay records from suspension with ordinary pay to personal leave. The Applicant provided the certificate referred to in subparagraph 50(b) by way of email at 2pm on 16 August 2014 together with a further certificate for the period 15 April 2014 to 2 May 2014, by which time the Respondent had already terminated the Applicant's employment.
On 24 March 2014 the Applicant made a written complaint against Rodrigues for bullying and harassment in accordance with the Respondent's 'Fair Treatment Review'. The Applicant's complaint was referred to the independent external investigator.
The Applicant's email of 20 March 2014 (see paragraph 49 above) only came to the Respondent's attention ·in the early hours of 27 March 2014, when the Applicant forwarded it as part of an email to Cinerari. Cinerari, who had no relevant prior involvement with the issues at the Somerton Site or the Applicant, sent the email to De Zilva for information, and later responded to the applicant.
Billing became aware of the Applicant's 20 March email and gave evidence that he could not believe that the Applicant had 'done it again', in that he had sent emails critical of management to his subordinates again, contrary to several express directions not to do so. Billing decided that as he had committed to the investigation of the Applicant's allegations before any disciplinary outcome was determined he would await the Dumais report before putting the 20 March email to the Applicant for his explanation, and before giving consideration to what to do about his serious misconduct.
The Dumais Report deals with, among other things, the breakdown in the relationship between the Applciant and Pisani which led to the Applicant's email of 8 March 2014. The author of the report recommended that three allegations be formally put to the Applicant concerning his emails of 8, 18 and 20 March 2014.
The Dumais investigation report was received by the Respondent on 8 April 2014 and Billing and Fox drafted recommendations for Cinerari and De Zilva with respect to the applicant, Pisani and Rodrigues, over the course of 9-11 April 2014.
Billing decided that the Dumais Report did not provide any explanation, justification or other basis for the Applicant's serious misconduct and he and Fox recommended that the 20 March email be put to the Applicant, and that his employment then be terminated for serious misconduct, subject to some other explanation he might provide for his conduct. The serious misconduct was his repeated failure to follow directions not to send emails critical of management to his subordinates.
Billing and Fox made a recommendation to Cinerari and De Zilva about the Applicant in the following terms: "In response to the final report and statements taken by the external investigator into the issues that have arisen in the Somerton Maintenance Contract, we propose the following approach: Derek Dickson
Discussions have already occurred into the 1st and 2nd emails sent by Derek Dickson as outlined in the allegations on page 14-15 of the report. Derek was suspended pending the outcome of the independent investigation report attached.
Based on the report, there are no extenuating circumstances that mitigate Derek's chosen actions in the sending of derogatory emails to the wider crew even after explicit instructions not to do so.
Recommended Actions a. A performance improvement notice will be sent to Derek Dickson to attend a meeting with Stuart Billing and Michelle Fox, to respond to the allegations of the emails send including the 3rd email he sent to crews which he indirectly provided in his correspondence to Sergio. b. Based on the evidence provided to date, serious misconduct will be supported and termination of Derek's employment will occur."
Cinerari, De Zilva and Billing considered the Dumais Report late on 11 April 2014, and Cinerari decided to accept the recommendations regarding the Applicant. Cinerari accepted that the Applicant had engaged in the serious misconduct alleged, and that in the circumstances, the appropriate response from the Respondent was the termination of the Applicant's employment.
On 14 April 2014, the Applicant was invited to a performance meeting about his serious misconduct, to be held on 16 April 2014. The meeting started at about 11am on 16 April 2014 and was attended by Stomps, the Applicant, Fox and Billing. Each of the participants gave evidence about what was discussed at the meeting and on the basis of that evidence I find that: • In response to a question by Fox, Dickson confirmed that he had previously been told at least twice not to copy complaints about management to his work crew. • Dickson admitted that he had spoken to his work crew about the investigation.
Fox and Billing agreed that as nothing new was provided, Cinerari's decision from 11 April 2014 stood, and that they had authority to implement his decision and terminate the Applicant's employment. This was done, with the stated reason for the termination being that he engaged in serious misconduct by repeatedly failing to comply with directions prohibiting him from sending emails critical of management to his subordinates. A letter of termination confirmed this stated reason in the following terms: "SEPARATION OF EMPLOYMENT This letter is to acknowledge that your employment as a Supervisor with Downer EDI Works is to be terminated effective immediately. I wish to confirm that serious misconduct is the reason provided for summary dismissal given 16th April 2014 by Stuart Billing, General Manager, VIC/TAS and Michelle Fox. HR Manager, SE. The reason for the determination of serious misconduct is due to your repeated deliberate inappropriate communication against company instruction which is inconsistent with the continuation of your contract of employment. You stated that you had no excuse for your conduct and the company has determined the relationship is untenable. A determination of serious misconduct amounts to no payment in lieu being provided as derived from the terms of employment in your common law contract. Your final payment shall comply with your terms of employment and include unused annual leave entitlements and pro-rata long service leave. Payment advice shall be sent upon the final pay being deposited in to your provided bank account. If you have any questions regarding this matter please contact Michelle Fox ..."
Consideration
As mentioned earlier, the central question in these proceedings is whether the Respondent took the adverse action against the Applicant because of a prohibited reason or reasons that included a prohibited reason.
In assessing the evidence it needs to be borne in mind that the Court's task is to determine whether or not the employer took adverse action against the employee because he exercised a workplace right, contrary to s.340 of the FW Act. Importantly, in the context of this case, the issue is not whether Mr Dickson was unfairly dismissed within the meaning of Part 3-2 of Chapter 3 of the FW Act, indeed the merits or otherwise of the termination of Mr Dickson's employment are not the focal point of these proceedings.
A number of decisions of this Court have drawn a distinction between proceedings such as these (ie general protections dismissal disputes under Part 3-1 of Chapter 3 of the FW Act, or the legislative antecedents to those provisions) and unfair dismissal proceedings. For example, in Pryde v Coles Myer Ltd Keely J had to consider whether the defendant had discharged the onus of proof under s.334(6) of the then Industrial Relations Act 1988, in circumstances where Mr Pryde, a shop steward, had been dismissed. The defendant's case was that Mr Pryde had been dismissed for misconduct, specifically for the language he used towards a manager (Mr Cirillo) in the presence of a customer and another employee. His Honour drew a distinction between the proceedings before him and an unfair dismissal claim, in these terms: "Although Mr Pryde initially commenced proceedings in the South Australian Industrial Commission, alleging that his dismissal was harsh, unjust or unreasonable, in this court he has brought proceedings alleging an offence against s.334 of the Act. This is not a case of an allegation of unfair dismissal ... on the ground that the dismissal was 'harsh, unjust or unreasonable'. In the present case the question which the Court has to decide is not whether the dismissal was 'harsh, unjust or unreasonable'. Nor is it whether the defendant could have - or should have - acted differently in all the circumstances of the case, including the length of Mr Pryde's service with it. The question is whether the defendant has satisfied the onus of proof placed upon it by s.334(6) of the Act."
His Honour found that the decision to dismiss Mr Pryde was made by Mr Siemsen and that he did so after discussing the matter with Mr Rossiter and that Mr Rossiter had advised Mr Siemsen that the conduct reported by Mr Cirillo warranted dismissal. His Honour concluded that the defendant had discharged the onus: "Both Mr Rossiter and Mr Siemsen were called by the defendant to give evidence in the case. Both have specifically denied in their evidence in chief that the dismissal of Mr Pryde was actuated in any way by the fact that he was a delegate of the union or his activities as a delegate; that denial was maintained under cross examination ... Mr Siemsen's evidence was that the decision to dismiss Mr Pryde was made by reason of the language which, according to the oral report of Mr Cirillo, had been used to him by Mr Pryde in the presence of a lady customer and another employee. I have rejected Mr Cirillo's evidence that that language was used but I accept the evidence of Mr Rossiter and Mr Siemsen that each of them was told by Mr Cirillo that that language had been used in the presence of those persons ... on the evidence as a whole I have reached the conclusion that it is more probable than not that the defendant, in deciding to dismiss Mr Pryde, 'was not motivated (whether in whole or part) by the reason ... specified in the charge'. Accordingly the information is dismissed."
Hence, in Pryde the onus was discharged on the basis of a genuinely held, albeit erroneous, belief that the dismissed employee had engaged in inappropriate conduct. It was not relevant that, on examination, the reason for the dismissal was not well founded - as the dismissed employee had not in fact used the language attributed to him. It was sufficient that the decision maker genuinely believed that he had, on the basis of the report provided to him. This may be contrasted with unfair dismissal proceedings under Part 3-2 of Chapter 3 of the FW Act. In an unfair dismissal case one of the considerations is whether there was a 'valid reason' for the dismissal. A 'valid reason' must be defensible on an objective analysis of the relevant facts and it will not be sufficient for an employer to say they acted on the belief that the dismissal was for a valid reason.
Had Pryde been an unfair dismissal case the test would not have been whether the employer believed, on reasonable grounds, that the employee was guilty of misconduct, rather the Tribunal would have to make a finding as to whether the conduct actually occurred based on the evidence before it.Conversely, in a general protections matter it may be sufficient, depending on an assessment of all the evidence and circumstances, that at the time the adverse action was taken the decision maker's reason for taking that action was genuinely held, on reasonable grounds, even if that belief is ultimately shown to be erroneous.
The court's task in a case such as this is to determine, on the balance of probabilities, 'why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason.'
The practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. In assessing the evidence led to discharge the onus upon the employer under s.361(1), the reliability and weight of such evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it is the reasons of the decision-maker at the time the adverse action is taken which is the focus of the inquiry.
Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of whether the adverse action was taken because of a prohibited reason. As French CJ and Crennan J observed in Barclay: "The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of the decision maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken' ... ... this question is one of fact, which must be answered in light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s.361 if no direct testimony is given by the decision maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision maker which is accepted as reliable is capable of discharging the burden upon an employer. . . (citations omitted) (emphasis added)
It is apparent from the above extract that evidence from the decision-maker 'is capable' of discharging the burden of proof cast on the employer by s 361. But this does not mean that evidence by a credible decision maker that adverse action was not taken because of any prohibited reason will necessarily always discharge the statutory onus. It is open to the court to accept as honest and credible a decision maker's explanation of the decision for taking adverse action, then to weigh all of the evidence and the overall facts and circumstances of the case, and not be satisfied that the employer has discharged the statutory onus.
In the present matter I find that the decision maker in relation to the Suspension was Billing and that the decision maker in relation to the Termination was Cinerari.
The Respondent contends that the adverse action was not taken for a proscribed reason. The relevant decision makers gave evidence in support of this contention; that evidence also went to the 'real reason' why the adverse action was taken - namely the Applicant's repeated failure to comply with directions that he not send emails critical of management to his subordinates. It is appropriate to have regard to such evidence, not for the purpose of determining the fairness or otherwise of the adverse action taken, but rather as part of the Court's consideration of the probative value of the decision maker's evidence that the adverse action was not taken for a prohibited reason. The more plausible the evidence as to the 'real reason' for taking the adverse action, the more likely the Court will accept a decision maker's statement that the action was not taken for a prohibited reason.
Billing gave evidence as to his reasons for the Suspension, which did not include any of the alleged proscribed reasons. Billing also specifically denied having knowledge of some of the alleged proscribed reasons, and denied having regard to or relying on any of the alleged proscribed reasons that he did have knowledge of, in coming to this decision. Billing understood and drew a distinction between making complaints per se, and misconduct associated with those comp1aints. Billing's evidence was unaffected by cross examination, was corroborated by Cinerari, Fox, Stomps and De Zilva and is consistent with documentary evidence.
Cinerari gave evidence as to his reasons for the Termination, which did not include any of the alleged proscribed reasons. Cinerari had no knowledge of almost all of the alleged proscribed reasons, and denied having regard to or relying on any of the alleged proscribed reasons that he did have knowledge of, in coming to this decision. Cinerari understood and drew a distinction between making complaints per se and misconduct associated with those complaints. Cinerari's evidence was not challenged in cross examination, is corroborated by Billing and De Zilva and it is consistent with the documentary evidence.
The distinction referred to earlier, between adverse action proceedings and unfair dismissal proceedings is important in the context of this case because much of the evidence led by the Applicant and most of his submissions were directed at the fairness of the adverse action taken against him. The Applicant pointed to the length of his service with the Respondent, the fact that he had received a bonus payment in the months prior to the termination of his employment and to his general commitment to his employment. These matters would undoubtedly be relevant considerations if the proceedings were concerned with whether or not the Applicant had been unfairly dismissed, but they are not directly relevant to the determination of whether the adverse action was taken because of a proscribed reason.
As best as I am able to discern the Applicant's contentions from his evidence, submissions and cross-examination of the Respondent's witnesses, three lines of argument are advanced.
First, it is submitted that the Dumais Report is a flawed document. Two complaints are made in this regard - first, that the Report did not address the Applicant's complaints regarding a bullying culture at the Somerton depot and second, the Report was only a partial report. The essence of the latter point is that the Report recommended that a Downer internal investigation into the Applicant's conduct take place and that formal allegations be put to the Applicant regarding the emails he sent.
These matters are not relevant to the determination of the issue before the court. Even if it is accepted that the Dumais Report was deficient in the manner suggested by the Applicant any such deficiency is not relevant. In his evidence Billing described the relationship between the Dumais Report and his recommendation to Cinerari: "I did not use the outcome of the report to make the recommendation. The recommendation was made based on your (Dickson's) non following of reasonable and fair instruction on multiple occasions. We waited for the report as a means to ensure that there was no absolute extenuating circumstances to justify your continued, repeated behaviour against reasonable request and instruction."
I accept Billing's evidence. It follows that the Dumais Report was not central to the decision making process. To the extent that it informed Cinerari's decision what matters is his reliance on the report (as opposed to a proscribed reason), not the accuracy of the report itself - as demonstrated by Pryde.
I also note that in the course of his evidence Billing rejected the proposition that the external investigator was appointed to bolster management's decision to terminate the Applicant's employment,: "... the answer to that is no, it certainly was not. The investigation was instigated to - in a best attempt to get to the bottom of what appeared to be some behaviour that we would not condone as suggested by Derek and as potentially backed up by some of the people from the emails. That's why the investigation was undertaken ... I made the decision with Michelle (Fox) to bring in an external investigator as I felt it would be easier for the people who would be involved or speaking or had allegations to make. I believed that it would be easier for them to speak up to a third party who wasn't an employee of the company. I believed it would make the - it easier for them and, hopefully, get even, you know, a better - to the bottom of the truth. I felt they might be more comfortable in opening up."
I accept Billing's evidence.
Second, the Applicant contends that the email of 20 March was not in breach of any direction he received at the meeting on 18 March. There are two limbs to this argument. The first is that the email was about 'operational matters' and Billing had authorised the Applicant to communicate his work crew about such matters. The second limb to the argument is that the email was not sent to senior management and therefore did not fall within the scope of the direction given to the Applicant at the 18 March meeting.
Two points may be made about this contention. The first is that I do not accept the proposition that the email of 20 March was not in breach of the direction given to the Applicant at the 18 March meeting. It is clear on its face that the email is not about 'operational matters'. Further, the terms of the email make it clear that the Applicant knew that he was not supposed to be sending it to his subordinates but sent it anyway in deliberate defiance of the direction he had been given.
The second point is that - for reasons already given - this is not an inquiry into the fairness or otherwise of the action taken against the Applicant. It is clear on the evidence that the decision maker (Cinerari) genuinely believed that the 20 March email was in breach of the direction given to the Applicant. In this regard I also note that the Applicant did not raise any of these matters at the meeting on 16 April 2014.
The third line of argument relies on Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states: "1. Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: a. For respect of the rights or reputations of others; b. For the protection of national security or of public order (ordre public), or of public health or morals."
The Applicant's contention appears to be that paragraph 2 of Article 19 gives him a right to freedom of expression, which includes the 'freedom to...impart information ... through a media of his choice', and that he exercised that right in sending the emails dated 8, 18 and 20 March 2014. I am not sure what follows from this but have assumed that the Applicant is submitting that the adverse action taken against him was unlawful because it was in response to the exercise of his rights under the ICCPR.
Australia is a party to the ICCPR, the text of which is set out as Schedule 2 to the Human Rights and Equal Opportunity Act 1986 (Cth), but it has not been made part of Australia's domestic law. As Mason CJ and McHugh J observe in Dietrich: '[r]atification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions'.
It may be accepted that courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with Australia's obligations under an international treaty, such as the ICCPR. The ICCPR may also be relevant to the development of the common law, as Brennan J (with whom Mason CJ and McHugh J agreed) observed in Mabo v Queensland (No.2),: "The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights"
But neither of these propositions assists the Applicant. The present proceedings seek statutory remedies based upon alleged breaches of the FW Act. There is no ambiguity in the relevant statutory provisions which would be assisted by reference to the ICCPR and the proceedings do not concern the breach of any common law right. In such circumstances there is no room for the ICCPR to influence Australian law. As Kirby J stated in Re Kavanagh's application,: "... where there is applicable Australian legislation which is clear, and without relevant ambiguity, and where such legislation governs the case to the exclusion of the common law, there is no room for the articles of the ICCPR to "bring to bear" on Australian law the influence mentioned in Mabo [No 2] or as otherwise favoured by me. In such cases, because Australian parliaments have not, so far, given domestic effect to the ICCPR as part of the municipal law of Australia, the duty of Australian courts is clear. It is the duty stated in the Australian Constitution itself. It is to obey and give effect to the law of Australia, including the law stated by Parliament... It is perhaps understandable that a lay person might consider that international law has legal force superior to domestic law. The habit of thinking in a federal system of government, such as Australia, might encourage such reasoning. Thus, by analogy with the superiority of valid federal law over State law, it might be thought that international law, in a similar fashion, always overrides domestic federal law. This is not the case. Ultimately, municipal courts derive their lawful authority and legitimacy from a national Constitution, not from international law. The duty of such courts in Australia is ultimately to that Constitution. They must obey the laws made under, and in accordance with, the Constitution. Commonly, they will endeavour to avoid inconsistencies between domestic (national) and international law. The influence of international law, and its impacts on domestic law, is growing, including in Australia. However, international law, such as the ICCPR, does not, as such, oust or override municipal law. The applicant's mistaken belief that it is otherwise is fatal to his endeavour to invoke the ICCPR in this Court to circumvent the binding and valid obligations of Australian federal legislation, applicable to his case."
I should also mention that the present proceedings are clearly distinguishable from the circumstances in Bennett v President, Human Rights and Equal Opportunity Commission. In Bennett the applicant was a public servant employed by the Australian Customs Service (Customs) and was also the Federal President of the Customs Officers Association (the COA). After he made various media statements relating to the operations of Customs the Chief Executive officer of Customs issued a direction to him not to make media comments as a Customs Officer or as Federal President of the COA which involved disclosure of information about public business or of anything about which he had official knowledge. The applicant did not comply with this direction and was disciplined. He subsequently complained to the Human Rights and Equal Opportunity Commission (HREOC) that the Chief Executive of Customs had: (i) infringed his right to freedom of expression under the International Covenant on Civil and Political Rights (ICCPR); and (ii) discriminated against him on the basis of trade union activity and political opinion.
HREOC had powers to investigate acts that might be inconsistent with any human right recognised in the ICCPR or that might constitute discrimination. However, the President of HREOC declined to continue her inquiry into the applicant's complaint as she was satisfied that the acts of Customs were not inconsistent with the applicant's right to freedom of expression and did not constitute discrimination on the basis of trade union activity or political opinion. The applicant applied to this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenging HREOC's decision not to continue its inquiry. The application challenged the validity of reg 7(13) of the Public Service Regulations 1999 (Cth) which stated: "An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee had official knowledge."
Finn J held that reg 7(13) was invalid because it infringed the implied constitutional freedom of political communication and could not be read down to avoid that consequence. His Honour also held that the regulation was inconsistent with the right to freedom of expression protected by Art 19(2) of the ICCPR as it is not necessary for the protection of public order under Art 19(3). Finn J set aside the decision of the first respondent declining to continue to inquire into the applicant's complaints and remitted the matter for further consideration.
In contrast to the circumstances in Bennett, the present proceedings are not concerned with the lawfulness of the Respondent's direction to the Applicant not to send emails critical of management to his subordinates. Nor are the present proceedings concerned with whether the Suspension and Termination, consequent upon the Applicant's failure to follow such a direction, was unfair. The central issue in these proceedings is whether the Respondent took adverse action against the Applicant because of a proscribed reason or reasons that included a proscribed reason.
I would also observe that the implied constitutional freedom of communication on political or governmental matters does not assist the Applicant in the context of these proceedings. The implied freedom of communication is not a personal right but rather operates as a restriction on legislative power. As McHugh J observed in Levy v Victoria,: "The freedom protected by the Constitution is not, however a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian Community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under the general law."
The breadth of the protection of the implied freedom is also constrained by the purpose for which the freedom exists, that is it protects communication in aid of political and governmental constitutional systems. The emails sent by the Applicant on 8, 18 and 20 March 2014 do not fall within the scope of that protection as they are not communications about political and government matters.
Having regard to all of the evidence and the facts and circumstances of this case I accept the evidence of Billing and Cinerari as to the reason for the adverse action taken against the Applicant. I accept that the adverse action was not taken for a prohibited reason or for reasons that included a prohibited reason. In particular, the adverse action was not taken because the Applicant exercised a workplace right; nor was it taken because the Applicant was temporarily absent from work because of illness or injury. The adverse action was taken because of the Applicant's repeated breaches of a direction not to send emails to his subordinates which were critical of management. I acknowledge that the emails which led to the imposition of the adverse action (ie. the emails of 8, 18 and 20 March 2014) may be construed as complaints such that the making of the complaint constituted the exercise of a workplace right. But it is important to distinguish the making of the complaint and the distribution of that communication to the Applicant's subordinates. It was not the making of the complaint which resulted in the adverse action, rather, it was the Applicant's decision to distribute the complaint to his subordinates (contrary to a direction by his employer) which led to disciplinary action.
For completeness I need to briefly refer to the Applicant's contention in relation to Pisani. At paragraphs 8, 9, 10, 12, 16 and 18 of the Statement of Claim the Applicant refers to various conversations that he had with Pisani and an email he sent to Pisani on 19 December 2013. These events took place in late December 2013. In his evidence the Applicant adopted these aspects of his Statement of Claim and I accept what the Applicant said about his interactions with Pisani. But it is clear that Pisani was absent from the workplace from 8 March 2014 and there is no probative evidence to suggest that Pisani had anything to do with the Suspension or Termination decisions. Indeed the decision makers seemed unaware of the exchanges between the Applicant and Pisani. In the circumstances I am not persuaded that the email exchange and conversations between the Applicant and Pisani had any bearing on the decisions to take adverse action against the Applicant.
I am satisfied that the Respondent has discharged the onus under s.361.
Conclusion
For the reasons set out herein, none of the alleged contraventions of the FW Act have been made out, and the Originating Application dated 6 June 2014 is dismissed. I certify that the preceding 100 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ross.

Dickson v Downer EDI Works Pty Ltd

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