Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 | Case summary

Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 | Case summary | Zoe

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REASONS FOR JUDGMENT 1 Mr John Bill (Bill) worked for the first respondent (AJR Nominees) as a spray painter for a number of years before he contracted a form of blood cancer in late 2010. Bill's employment ended in February 2011. The central issue in this case is whether, as the applicant, the Fair Work Ombudsman contends, Bill was dismissed, or as the respondents contend, he resigned voluntarily. 2 More particularly, the applicant in these civil penalty proceedings alleges breaches by the respondents of the National Employment Standards and provisions in Part 3-1 (General Protections) of the Fair Work Act 2009 (Cth) (the Act). AJR Nominees conducts an automotive panel beating and spray painting business in Bayswater, Western Australia. It trades under the business name Hi-Lite Automotive Body Repairs. Pasquale Minniti (Minniti) is a director of AJR Nominees and was responsible for the day to day management of its operations. Minniti's wife, Natalie Minniti, is also a director of AJR Nominees and is employed as receptionist and book-keeper at its business premises. 3 Bill was employed by AJR Nominees from 2 July 2001 to 3 February 2011 as an automotive spray painter. He qualified in that capacity in 1978. 4 The applicant alleges that AJR Nominees and Minniti: (a) took adverse action on 3 February 2011 against its employee, Bill by dismissing him because he proposed to exercise a workplace right, that is, his entitlement to accrued and accumulated paid personal leave because of unfitness for work due to illness and to prevent him exercising that right or, in the alternative, AJR Nominees took adverse action against Bill which altered his position to his prejudice: s 340(1), s 342(1), Item 1(a) & (c) of the Act; (b) failed to pay Bill in lieu of notice of termination: ss 44 and 117 of the Act; (c) failed to pay accrued annual leave when Bill's employment ended: ss 44 and 90(2); (d) took action against Bill with intent to coerce him not to exercise a workplace right, namely the right to take paid personal leave after 3 February 2011: s 343 of the Act; and (e) dismissed Bill because he was temporarily absent from work because of illness, despite the fact he was covered by a medical certificate: s 352 of the Act. 5 The claims that Minniti personally contravened these provisions are made pursuant to s 550(1) and (2)(c) of the Act. It is thereby alleged that Minniti was involved in the contraventions by AJR Nominees in that he was knowingly concerned in or a party to each of the alleged contraventions by AJR Nominees. A person who is involved in such contraventions is taken to have contravened them. 6 If the Court finds a contravention of s 340 of the Act, the applicant does not press for a finding of contravention of s 352. There can be only one pecuniary penalty order in relation to particular conduct: s 556 of the Act. 7 However, in respect of s 343 of the Act, the applicant's case is that Minniti first told Bill that he "had to resign", but he refused to resign and was then dismissed. If the Court so finds, the applicant says that the conduct that is the subject of the s 343 allegation may be regarded as separate to the dismissal which is the subject of the s 340 allegation. 8 The respondents' case, as opened, is that Bill was not dismissed but rather that he voluntarily resigned. If the Court holds that the respondents did dismiss Bill, then the respondents' case is that Bill's employment ended because he acted in an unprofessional manner in the presence of other employees and customers and was abusive toward his employer, not because he was temporarily absent from work because of illness or to prevent him from exercising a workplace right. However, there is no evidence which is capable of supporting this aspect of the respondents' defence. 9 The applicant raised an alternative claim should the Court find, contrary to the applicant's primary case, that Bill did resign. The applicant claims that, in this event, Bill did so only because he was forced. A forced resignation amounts to being "dismissed" as the term is defined in ss 12 and 386(1)(b) of the Act. 10 The applicant seeks orders pursuant to s 545(2)(b) of the Act that compensation be awarded against AJR Nominees in favour of Bill for the losses that he has suffered because of the alleged contraventions. 11 The applicant claims that Bill was entitled to 5 weeks' pay in lieu of notice of termination under s 117(2) and (3) of the Act, namely $4,037. 12 Further, the applicant claims that AJR Nominees should pay Bill for accrued and accumulated personal leave because he was unfit for work due to personal illness as at the date of termination of his employment. The parties have agreed that, should liability be established, the amount payable in this respect is $10,953.73. Personal leave includes leave due because the employee is not fit for work due to personal illness: s 97(a) of the Act. In these reasons "personal leave" is a reference to personal leave arising from Bill's unfitness for work due to personal illness. 13 There is also a claim for interest on the above sums from 3 February 2011: s 547 (2) of the Act. 14 There is no claim for compensation in respect of accrued annual leave as this entitlement was paid some 12 months after Bill's employment with AJR Nominees ended. 15 The applicant also seeks that the contraventions, as found, ought be the subject of declarations to that effect by the Court. 16 In respect of ss 44 and 90(2) of the Act, the respondents' case is that Bill's accrued annual leave was paid as soon as the correct amount of accrued annual leave owed was determined to the satisfaction of the parties. 17 It is apparent that the factual issue central to the determination of this case is whether, as the applicant contends, Bill's employment was terminated by AJR Nominees on 3 February 2011, or whether, on that date, Bill voluntarily resigned.

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Adverse action 22 Section 340 (1) of the Act provides: A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or … (iii) proposes … to…exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). 23 Section 341(1) provides: A person has a workplace right if the person: (a) is entitled to the benefit of…a workplace law, workplace instrument or order made by an industrial body … (Original emphasis) 24 The workplace law in this case is Bill's entitlement to paid personal leave due to personal illness by virtue of ss 96, 97 and 99 of the Act. 25 Under s 342(1), Item 1, adverse action is taken by an employer against an employee if the employer: (a) dismisses the employee; or … (c) alters the position of the employee to the employee's prejudice… 26 "Dismissed" is defined in s 386(1) of the Act as follows: A person has been dismissed if: (a) the person's employment with his or her employer has been terminated on the employer's initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (Emphasis added) 27 The applicant's case is that Bill was dismissed within the meaning of Item 1(a) of s 342(1). 28 The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states that what is now s 386: … is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronic Pty Ltd (1995) 62 IR 200). 29 In Mohazab v Dick Smith Electronic Pty Ltd (1995) 62 IR 200, the appellant was told that if he did not resign the respondent would call the police. Unlike Bill, the appellant had signed a letter of resignation that had been drafted by the respondent. The Full Court of the then Industrial Relations Court of Australia considered the meaning of the terms "termination" and "termination of employment" as it appeared in s 170EA(1) of the Industrial Relations Act 1988 (Cth) (IR Act), observing at 203, that these terms were to be given the same meaning as they were given in the Convention concerning Termination of Employment at the Initiative of the Employer. The terms "termination" and "termination of employment" were defined in the Convention as meaning "termination at the initiative of the employer". Their Honours found that the relevant question then was not whether the appellant had resigned, or had his employment terminated by the respondent, but rather, to determine whether there had been a "termination at the initiative of the employer". 30 At 205-206, the Full Court observed: In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. 31 The Full Court concluded at 207 that: The termination of the appellant's employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective. That conclusion is reinforced by the peremptory conduct of the respondent in escorting the appellant out of the respondent's premises, leaving him to stand in the car park to await a letter of resignation to be prepared by the respondent and brought to him to sign. That conduct by the respondent suggested summary termination of the appellant's services by the respondent rather than a voluntary resignation by the appellant. (Emphasis added.) 32 The applicant contends that, arising from Bill's illness, his employment with AJR Nominees was terminated at the initiative of Minniti on 3 February 2011 because Bill had a workplace right, namely, considerable accrued personal leave, and his dismissal was aimed at preventing his exercise of that right. 33 Sections 360 and 361 of the Act provide as follows: 360 For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. … 361(1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 34 Section 361(1) casts the "burden of proof on an employer to show that it did not take action for a prohibited reason": Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 (Barclay) at [21]. 35 In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [127], Collier J, looking at s 361, observed: In other words, [the employer] is required to prove, on the balance of probabilities, that the reason for the adverse action was not one which would constitute a contravention of the Act. The prohibited reason need only be one of multiple reasons for the adverse action taken by the employer against the employee. (Original emphasis.) 36 In Barclay at [44]-[45], French CJ and Crennan J, with whom Gummow and Hayne JJ generally agreed, observed as follows: [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory provision "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into the defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to the 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?"…. [45] This question is one of fact, which must be answered in the 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 the 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 even though an employee may be an officer or member of an industrial association and engaging in industrial activity. (Emphasis added.) 37 Gummow and Hayne JJ further observed at [86], citing Mason J in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617, that: Section 5(4) [of the Conciliation and Arbitration Act 1904-1976 (Cth)] imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that the hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on the [employer] the onus of proving that which lies peculiarly within his own knowledge. (Emphasis added.) 38 Gummow and Hayne JJ concluded at [104] that "the reasoning of Mason J in Bowling [was] to be applied to s 346 [of the Act]", and that an "employer contravenes s 346 if it can be said that the engagement by the employee in an industrial activity comprised 'a substantial and operative' reason, or reasons including the reason, for the employer's action…". 39 The test to be applied in this case is to look at the evidence advanced on behalf of AJR Nominees as to why it dismissed Bill together with the evidence as a whole in order to ascertain whether AJR Nominees has, on the balance of probabilities, satisfied the Court that the adverse action was not a "substantial and operative" reason for the action taken. 40 In Stevenson v Murdoch Community Services Inc (2010) 202 IR 266 at [100], Gordon J, discussing s 659 of the Workplace Relations Act 1996 (Cth), a reverse onus provision, observed that: [N]otwithstanding that presumption [of adverse action], an applicant must prove the existence of objective facts which the applicant contends provide a basis for the respondent's contravening conduct: see Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162]. The presumption "simply … alleviate[s] the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work" ... [I]f an applicant proves those facts and alleges that the conduct was carried out for a prohibited reason, then the onus shifts to the respondent to prove, on the balance of probabilities, that it was not motivated by a proscribed reason: Geraldton Port Authority 93 FCR 34 at 68 ... (Emphasis added)

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National Employment Standards 41 Section 44(1) of the Act states that an "employer must not contravene a provision of the National Employment Standards". Pursuant to s 61(3) of the Act, ss 90(2) and 117 of the Act constitute National Employment Standards. Section 44(1), being a civil remedy provision, allows civil remedies to be sought in relation to a contravention of this provision. 42 Sections 90 and 117 of the Act provide as follows: 90 Payment for annual leave (1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. (2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. 117 Requirement for notice of termination or payment in lieu Notice specifying day of termination (1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). Note 1: Section 123 describes situations in which this section does not apply. Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by: (a) delivering it personally; or (b) leaving it at the employee's last known address; or (c) sending it by pre-paid post to the employee's last known address. Amount of notice or payment in lieu of notice (2) The employer must not terminate the employee's employment unless: (a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or (b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. …

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Background 44 Bill fell ill in late 2010. He went to the Emergency Department at Royal Perth Hospital on 15 December 2010, where a blood sample was taken. This followed an earlier medical review he had undergone on 9 November 2010 arising from pain associated with a rash on his ankles. 45 He then saw a general practitioner, Dr Sanjay Bhardwaj, on 20 December 2010, who gave him an urgent referral to see Dr Andrew Barr, a physician and specialist haematologist. He told Minniti that he was going to see Dr Barr. 46 Dr Barr, on 22 December 2010, made an initial diagnosis of Bill's condition. He stated in a report of that date to Bill's GP, Dr Bhardwaj, that the diagnosis lay between Waldenstrom's macroglobulinaemia, low grade lymphoma with paraproteinaemia and IgM myeloma. He stated that the first of these diagnoses was the most likely. His report then observed that this likely diagnosis meant that Bill had a "median survival" of around five years and was incurable. He foreshadowed treatment by chemotherapy. He made arrangements for further medical tests to confirm this diagnosis to be conducted on 7 January 2011. 47 Bill's written evidence was that Dr Barr told him that he had a form of blood cancer. 48 Bill says that the following day, 23 December 2010, he told Minniti that he had blood cancer. That he had said this to Minniti was admitted by both respondents in their defences prior to their amendment at trial when, by leave, those admissions were withdrawn. This allegation was denied in Minniti's written evidence. Bill also alleges that Minniti told him not to tell anyone that he had blood cancer and especially not to tell his wife, Natalie Minniti. This part of the alleged conversation was always denied by the respondents in their defences. 49 On about 20 January 2011, Bill was given confirmation that he would need chemotherapy treatment for his cancer. 50 According to Bill, from 23 December 2010 to 3 February 2011, Minniti placed pressure on him to resign from his employment. 51 Bill was at work on 15 January 2011 when his right leg flared up again. The following Monday, 17 January 2011, after telling Minniti he would not be in as he needed to see his doctor, he went to see Dr Bhardwaj. He was prescribed medication and given a 3 day medical certificate. This was extended on 19 January to 21 January 2011. 52 The applicant makes the following further allegations. On either 19 or 21 January 2011, at the workshop, Minniti sought to persuade Bill to resign, telling him that he would pay him all the money he owed him. He said to him that if he did not want to write it out he would get his wife Natalie to do this for him and he could sign it. Bill responded by telling Minniti that he was not going to resign and when Minniti insisted that he resign, Bill again refused and told Minniti that he could sack him, but he was not resigning. On Monday, 24 January 2011, Minniti again phoned Bill and demanded his resignation. Minniti denies all of these allegations. I believe Bill's evidence in these respects for reasons which will become apparent. 53 Prior to Monday, 31 January 2011, Bill received an application form for a disability support pension from Centrelink, by post. On 31 January 2011, he again saw Dr Bhardwaj and obtained from him a certificate for the disability support pension application. On 2 February 2011, Bill phoned Minniti and told him he was applying for this pension and asked him to get some documents in support of this application which he said he would collect the following day. He explained to Minniti what documents he needed. He then faxed him a copy of page 23 of the Centrelink form. 54 Bill and Minniti met at Minniti's office in February 2011. What occurred at this meeting is critical to the resolution of this case. On 3 February 2011, on Bill's evidence, and on 10 February 2011 according to Minniti, Bill and Minniti argued when Bill attended Minniti's office to get the documents required by Centrelink. 55 Bill says he was dismissed at the end of this argument. Minniti says that Bill resigned. There is no letter of resignation. Bill never went back to work after this. Again, I accept Bill's evidence for the reasons set out below. 56 During that day and the following day, Minniti sent Bill three SMS text messages, asserting that he had resigned. I will refer to these in more detail below. 57 On 4 February 2011, Bill went to Centrelink to explain why he did not have the required documents. 58 On 7 February 2011, Dr Bhardwaj gave Bill another medical certificate covering the period from 4 February to 4 March 2011. Three days later, on 10 February 2011, Bill faxed a written demand to AJR Nominees stating, amongst other things, that he had not resigned. 59 On about 3 March 2011, Bill received two letters from AJR Nominees by registered mail. The first is a photocopy letter dated 14 February 2011, alleging that he resigned on 10 February 2011 "in the presence of witnesses", and that his resignation was accepted. He says that he had not received the original of this letter. The other is dated 27 February 2011, and states that Bill had not responded to the letter dated 14 February and had still not confirmed his resignation in writing. The genuineness of the first letter and the truth of the contents of each is in issue. Again, I will deal with these letters in more detail later. 60 The applicant's primary case is that the nature of the adverse action taken by AJR Nominees against Bill was dismissal. The applicant contends that in terms of s 386 of the Act, the employment of Bill was terminated on AJR Nominee's initiative on 3 February 2011. Because the employment relationship was terminated, Bill ceased to be an "employee" on that date and was no longer entitled to take paid personal leave. 61 AJR Nominees paid Bill for the personal leave he took from 17 January to 3 February 2011. 62 On 25 February 2011, Bill completed a FWO Complaint Form in which he claimed for unpaid personal leave and annual leave. 63 In March 2011, Bill commenced chemotherapy and he continued to provide medical certificates to AJR Nominees to cover his absence until 31 October 2011. He was on a disability pension from Centrelink during this time. 64 Bill received payment of $788 for annual leave on 20 January 2012, being a total payout of $1204 less $416 tax.

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Consideration 65 The applicant, before relying on the presumption that AJR Nominees dismissed Bill because he was temporarily absent from work because of illness, and that it dismissed Bill to prevent him from exercising his workplace right, must first prove that the AJR Nominees dismissed Bill. 66 The thrust of the applicant's case is that by the time of the crucial meeting on 3 February 2011, Minniti was aware that Bill had substantial accrued and accumulated personal leave and knew that he had been diagnosed with a form of blood cancer. There had been a flow of medical certificates, covering Bill's absence from work for periods of increasing duration. Minniti wanted Bill to resign so that he would not have to pay him in relation to this personal leave entitlement. When Bill refused to resign, Minniti was angry that his plan had been thwarted. He terminated Bill's employment and then sent texts and correspondence to Bill to make it look as if Bill had in fact resigned in order to try to avoid AJR Nominee's obligation to pay these personal leave entitlements. The applicant says that the texts and correspondence are self-serving in character and should not be regarded as truth of their contents. The respondents deny all these allegations. 67 Bill, in his affidavit affirmed 11 January 2011, admitted that he called Minniti a "cockhead" during the period from 24 December 2010 to 13 January 2011. In cross-examination, Bill conceded that he had called Minniti a "cockhead" on more than one occasion. However, he was adamant that he did not swear at Minniti during the final meeting with him on 3 February 2011. Bill did not attempt to shy away from this conduct. 68 I find that Bill told Minniti on a number of occasions when the matter of his resignation was raised by Minniti, that he was entitled to sick leave. This was a reference to what in the Act is called personal leave. 69 I accept his evidence that despite the pressure coming against him from Minniti he did not resign because he thought that if he did AJR Nominees would not pay him what he was owed including personal leave entitlements. 70 As I have mentioned, Dr Barr's diagnosis on 22 December 2010 was that Waldenstrom's macroglobulinaemia was the most likely diagnosis, but that bone marrow examination was necessary to confirm the diagnosis and this was arranged for 7 January 2011. The diagnosis of macroglobulinaemia was later confirmed. 71 I find that the following day, 23 December 2010, Bill was asked by Minniti as to what was wrong with him and Bill told Minniti he had blood cancer. I do not regard Minniti as a witness of truth generally and specifically reject his evidence that Bill did not tell him on 23 December 2010 that he had blood cancer. 72 The history of the pleadings is relevant to my assessment of Minniti's credit on this issue. 73 Paragraph 14 of the Amended Statement of Claim dated 31 May 2012 alleged: On 23 December 2010, Bill informed Minniti that he had been diagnosed with blood cancer. Minniti told Bill not to tell Natalie Minniti or the other workers. Particulars The information was provided in a conversation between Bill and Minniti at Hi-Lite Automotive at around midday. 74 In response to this allegation, the joint Defence of the Respondents dated 19 July 2012, signed by Minniti, stated at [14]: The Respondents admit that the Applicant told him that he had blood cancer but the Second Respondent did not tell him not to tell Natalie. 75 An Amended Defence of AJR Nominees was filed on 31 August 2012. It was signed by Mr Carmelo Grasso, a solicitor. Paragraph 13 of this Amended Defence is to the same effect as [14] of the Defence set out above, but is worded differently. Paragraph 13 of the Amended Defence pleads: The First Respondent admits that the worker told the Second Respondent that he had blood cancer but the Second Respondent did not tell him not to tell Natalie, the manager of the First Respondent company. 76 A separate Amended Defence was also filed on behalf of Minniti on 31 August 2012, para 14 of which pleads to the allegation in [14] of the Amended Statement of Claim in terms: The Second Respondent admits that the Applicant told him that he had blood cancer but the Second Respondent did not tell him not to tell Natalie. This is the same pleading as in [14] of the original joint Defence. 77 The difference in wording in [13] in the Amended Defence of AJR Nominees demonstrates that the terms of [14] of the joint Defence were not simply copied into this amended defence. Paragraph 13 of this Amended Defence was, I find, the result of conscious drafting pursuant to instructions given by Minniti. 78 The respondents, in their outline of written opening submissions in the very first paragraph, stated that they relied on the Amended Defence of Minniti filed 31 August 2012. 79 Notwithstanding the above pleadings and submissions, Minniti, for the first time, in his affidavit sworn on 29 November 2012, denied that Bill had told him that he had been diagnosed with blood cancer while he was working for him. He stated in this affidavit that Bill only ever told him his symptoms, that he was sick, lethargic and tired. I do not believe this evidence given by him. 80 At trial, the respondents applied for leave to withdraw the admissions in the amended defences. The explanation given in evidence by Minniti in the application for leave was that he did not find out about Bill's blood cancer until after Bill had ceased working for AJR Nominees. 81 The applicant did not oppose the grant of leave to withdraw the admissions. However, this was on the basis that the matter would be the subject of comment in later submissions. 82 The relevant admissions made in the several iterations of the defences of the respondents were quite specific in relation to Minniti being told by Bill on 23 December 2010 that he had blood cancer. This plea was revisited in the amendment to the defence of AJR Nominees. The admission, restated, nonetheless remained. Its content was adopted by counsel in the respondents' opening written submissions. In these circumstances, I reject Minniti's explanation that he intended only to admit that he had learnt about the blood cancer at some later time after Bill had left the employ of AJR Nominees. 83 Moreover, there was no rational reason for Bill not to tell Minniti that he had been diagnosed with blood cancer. Counsel for the respondents, in his closing submissions acknowledged, correctly in my view, that the evidence supported a conclusion that Bill, as at 22 December 2010, believed that he had a form of blood cancer. Bill's evidence was that he had told two workmates this the very same day. This was not challenged in cross-examination. However, there is a reason for Minniti to belatedly disavow that he was so informed by Bill. The reason concerns money. It was because of the seriousness of Bill's diagnosis that the prospect of AJR Nominees being liable to pay Bill substantial personal leave entitlements arose. Bill would need to have been replaced with another paid employee. Minniti did not want AJR Nominees to have to pay this personal leave to Bill. He did not want Bill to exercise his workplace right to receive such payments. This was the reason for AJR Nominees, as I will find, dismissing Bill. 84 Moreover, I accept Bill's evidence that either on 17 or 21 January 2011, after the bone marrow test, he wrote down for Natalie Minniti the name of his disease: Waldenstrom's macroglobulinaemia, and suggested that she could "Google it". This evidence was not challenged in cross-examination. To the contrary, it seems to have been accepted as a fact by counsel for AJR Nominees when this matter was raised during cross-examination.

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The Bassendean Bowling Club 85 Bill went to the Bassendean Bowling Club on the evening of 19 January 2011. He says that he did not play bowls but was standing around smoking and drinking. Minniti, in his oral evidence, said that Bill was playing bowls. However, he did not mention this in his written evidence. He said only that Bill "was standing on the edge of the bowling green, drinking a beer and had a cigarette in his hand". Whilst there, Minniti phoned him and questioned him as to why he was at bowls. Minniti told him he should be home in bed and that if he were well enough to go to bowls he was well enough to work. He then repeated his demand that Bill resign. Bill told him he would not resign. Minniti denies that he made this demand. I do not believe him. 86 At [17] of his affidavit, Minniti testified concerning the events of that evening that "I did not make contact with him that night". Bill was cross-examined as to whether Minniti telephoned him that night. It was put to him by counsel for the respondents, presumably on instructions, that no such call was made. However, this was contradicted by Minniti's telephone records which showed that Minniti telephoned Bill at 8.01 pm on 19 January 2011, when there was a conversation for 1 minute and 37 seconds. Furthermore, at the commencement of his examination-in-chief, Minniti said: "when John Bill said that I rang him that night when I saw him at the bowling club, [it] could be a possibility that I did". 87 I find that Minniti went to the Bassendean Bowling Club on the evening of 19 January 2011 to check up on Bill after trying to visit him at his home earlier that evening, but discovered from Bill's brother that Bill had gone to the bowling club. I find that Bill was not playing bowls and that Minniti rang him that same evening. I accept Bill's evidence in preference to that of Minniti as to what occurred. In particular, I find that Minniti made demands to Bill that he should resign. These demands were unwarranted and were coercive in nature. Minniti's reasons for doing were flagrant self interest. He did not want Bill to exercise any entitlement to accrued and accumulated personal paid leave.

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3 February 2011 meeting 90 Although in his written evidence Minniti asserts that the meeting at which he alleges Bill resigned was 10 February 2011, he was far from clear in his oral evidence that this was so and accepted he may have been incorrect. His counsel, in closing, conceded that the evidence pointed to the meeting being on 3 February 2011. I find that it was. Conversely, I find that there was no meeting between Bill and Minniti on 10 February 2011. 91 Bill's evidence is that he went to see Minniti that day in order to collect documents to give to Centrelink. He had a conversation with Minniti in his office which was off the reception area. The door was closed. According to Bill, only he and Minniti were in the office. Minniti agrees with this. Bill says that only Mrs Minniti was outside her husband's office in the reception area. As Minniti would have it, not only was his wife in the reception area but so too was his son Adrian and a customer, Mr Antonio Casella. 92 Minniti's evidence is that Bill had taken sick (personal) leave from 17 January 2011, and he requested that Bill provide some confirmation in writing as to what was happening in regard to his sick leave. During his cross-examination he expanded this, saying that he asked Bill to put in writing when he thought he would be coming back to work and as to what was wrong with him. He then testified that Bill refused this request, but that he explained to Bill that this written confirmation would benefit them both. He said that Bill became upset, swore at and insulted him and resigned of his own initiative. 93 In support of this Minniti explained that none of the medical certificates attached to Dr Bhardwaj's affidavit stated what illness Bill had, stating merely that he would or had been unfit to continue his usual occupation for the period. He also points out, correctly, that there was, in relation to Bill, no confirmed diagnosis of "blood cancer" until 7 February 2011. This ignores the fact that Dr Barr told Bill on 22 December 2010 that he had cancer and, as I have found, that Bill told Minniti of this the following day. It matters not that this diagnosis was confirmed only later. 94 According to Bill's affidavit evidence, which I accept, the conversation began in the following way: Mr Minniti: "Have you started your chemotherapy treatment?" [Bill]: "No, I have to wait until the infection in my leg clears up". Mr Minniti: "Oh, I don't believe there is anything wrong with you". 95 The status of Bill's then treatment regime is confirmed by his general practitioner's clinical notes. Dr Bhardwaj's notes of his consultation on 21 January 2011 refers to Bill "commencing chemo" after he had taken some further medication. 96 Bill's evidence then was that Minniti said "I don't believe there is anything wrong with you". That Minniti was capable of saying such a thing to Bill is supported by the fact that some two weeks earlier, on 19 January 2011, when Minniti had seen Bill at the Bassendean Bowling Club at which time admitted his view was "[t]o my eyes he did not look sick at all. He did not look lethargic". 97 The meeting on 3 February 2011 ended badly. According to Bill, Minniti yelled at him "[y]ou're a fucking smart little cunt and if you don't get out of here I'm going to throw you out". Bill thought that Minniti was going to strike him or physically throw him out of the office. 98 Minniti, in his written evidence, concedes that he told Bill "get the fuck out of here". Later, in cross-examination, he extended this to "[w]ell, get the fuck out of here, because you're a smart little cunt". This extended version is very close to what Bill gave in evidence. 99 Minniti says this was in response to Bill calling him a "cockhead" and a "slow learner". Bill's evidence is that he never called Minniti a "slow learner" to his face and that he had called him a "cockhead" on previous occasions but not on this occasion. 100 It was put to Bill in cross-examination many times that he had resigned, but he remained adamant that he had not done so and that he had no reason to do so. He knew he was entitled to a period of paid sick (personal) leave if he did not resign and on a number of occasions he told Minniti as much. The records kept by Mrs Minniti showed that Bill was owed over 500 hours of sick (personal) leave as at 3 February 2011. I find it probable that Minniti knew this to be the case. This is particularly so, given his ready access to the records kept by his wife. The question of sick (personal) leave was specifically raised with him between 24 December 2010 and 13 January 2011. It was, as I have found, raised by Bill on a number of occasions. 101 Bill had received advice in respect of his employment position prior to 3 February 2011, and specifically, that he should not resign. There was, as I have found, no rational reason for him to do so. Conversely, as a result of this advice there was a very good reason for him not to resign. 102 I accept Bill's version of what occurred at the meeting on 3 February 2011 in preference to that of Minniti. Minniti was cynical as to whether Bill was sick at all. He was angry because he thought, I infer, that Bill was attempting, wrongly, to take advantage of him. Minniti's intemperate and insulting language, which he admitted he employed, lends credence to this. My view as to his credit concerning this conversation is informed also by other evidence and conclusions I have reached as to Minniti's credit, and explained elsewhere in these reasons.

[14]

Casella's evidence 103 Mr Antonio Casella swore an affidavit on 3 December 2012. He testified as follows. His car had been at Hi-Lite's for repair of some minor damage. He attended Hi-Lite in February 2011 to collect his vehicle and at the front office he met the receptionist, an older woman "with whom I am not familiar". She asked him to wait because Minniti was in his office, and that she would let Minniti know that he was there. He took a seat in the waiting area. He overheard an argument from Minniti's office 2-3 metres away but the words were unintelligible although one of the voices was that of Minniti. Two or three minutes later a male person exited the office. He recognised him as someone who worked at Hi-Lite although he did not know his name. Minniti followed him. They were still both speaking but he could not recall their exact words except that this unknown employee turned to Minniti, threw up his hands and said words to the effect "[y]ou are a fucking cockhead and I am glad I am resigning". Minniti then told this man to "fuck off" and that man then left through the back door of the front office. His best recollection was that he did not hear Minniti use the word "resign" or "quit". He said "the other man was the only one to use these words". 104 I do not accept Mr Casella's evidence. Indeed, I do not accept his evidence that he was present at the offices of AJR Nominees on 3 February 2011. I find that Minniti lied when he told the Court that Bill said to him "[y]ou can have my notice. I'm going to leave …" or that he said any words to the effect that he was voluntarily resigning. I find that Casella lied on behalf of his friend and business associate, Minniti, in relation to the same matter. He first portrayed his relationship with Minniti as merely a business one. He then agreed that he was the "godfather" to Minniti's son, Justin. Minniti gave evidence that he had known Casella for about 8 years. Casella, in cross-examination, at first, said he had known Minniti for four years but later conceded it may have been eight years. Minniti and Casella did work for each other on a "knock for knock" basis with no money changing hands and no invoices issued. 105 Casella conceded he had not read the affidavit prepared for him closely. I pointed out to him that at [6] of his affidavit dated 3 December 2012, he had referred to Mrs Minniti as a woman "with whom I am not familiar". He agreed that his affidavit in this respect was incorrect as he had known Mrs Minniti for many years. He was not able to explain why it was that he thought that the events of that day happened on a Thursday in February 2011, as opposed to any other day of the week. 106 He was uncertain as to the words which were used at the alleged confrontation on 3 February 2011 between Minniti and another person who was not identified, but who I infer was intended to refer to Bill. He said at [9] in his affidavit that he could not recall the exact words spoken outside Minniti's office by the employee except words to the effect "… I am glad I am resigning". Yet at [11] he swore that the employee had used the words "resign" and "quit". He also said in his written evidence at [10] that Minniti told the man, in the reception area to "fuck off". However, Minniti said at [33] that whilst still in his office he told Bill "… to get the fuck out of here". As I mentioned, it was only in his oral evidence that he said he also used the additional swear words. However, in either case he was referring to what he had said in his office. Casella on his own evidence accepts he could not hear what was said by Minniti or the other person whilst in Minniti's office. Minniti does not state that he swore at Bill at all after the two of them left the office and were in the reception area. Rather, at [35] of his affidavit, he said that he could not recall the substantive content but that Bill was still calling him a cockhead and saying words to the effect "I don't want to work here. I quit". 107 The evidence of Minniti and Casella is inconsistent on this important matter of what was said in the reception area. Moreover, whilst Minniti, in his written evidence, states that one of his other employees, Travis Abreu, was in the reception area at the time he and Bill came out of his office, he makes no mention of Casella being present there when these disputed events occurred. That is surprising if indeed Casella was there. Nor for that matter does Minniti's written evidence mention that his son Adrian was present. Rather, the assertion that each was present was made by Minniti in cross-examination. Further, during his cross-examination, he said that he thought that his wife was also in the reception area. However, he did not mention his employee Travis Abreu being there. The conflicts between his written and oral evidence are stark and suggest that much of his oral evidence was recent invention. I find that none of Casella, Minniti's son Adrian or Abreu were present at the offices of AJR Nominees on 3 February 2011.

[16]

The letters 113 Exhibit C includes an envelope containing two letters sent by Minniti to Bill by registered post on 2 March 2011. 114 These letters were sent subsequent to Bill, on 25 February 2011, telling Mrs Minniti that he was about to lodge a complaint form with the Fair Work Ombudsman and this could involve penalties for AJR Nominees. 115 I find that the letters in Exhibit C, like the text messages, were self-serving documents by Minniti seeking to support his fabrication that Bill had resigned. 116 I find that the letter dated 14 February 2011 was not received by Bill until it came attached to the letter dated 27 February 2011. The two letters were collected by him at the post office on 4 March 2011. 117 I do not accept Minniti's explanation that the letter dated 14 February 2011 was somehow 'lost in the mail'. The letter dated 14 February 2011 refers in two places to the alleged verbal resignation having taken place on 10 February 2011. That is the wrong date. The meeting occurred on 3 February 2012. 118 In fact what happened on 10 February 2011 was that Bill faxed to AJR Nominees a hand written letter of demand and the medical certificate dated 7 February 2011. The fax imprint on the medical certificate appears at the version of that document at annexure PM-6 to Minniti's affidavit. The fax confirmation document discloses the recipient's number as belonging to AJR Nominees. Bill stated expressly in this letter that he had not resigned, no doubt in response to the text messages he had received which asserted, in effect, that he had resigned. 119 Had the letter dated 14 February 2011 been prepared on or about that date, it would have been obvious that the correct date was not 10 February 2011 but 3 February 2011. I find that it was prepared at the same time as the letter of 27 February and that only a copy of it was sent to Bill, attached to the original of the 27 February letter. 120 Minniti, in cross-examination, tried to explain this away as a mistake made by "one of the girls", and that he signed the document without checking it. I reject this evidence. I find that Minniti was the author of both letters as part of a self serving effort to bolster his claim that Bill had resigned knowing full well that he had not and knowing that Bill was about to lodge a complaint with the Fair Work Ombudsman.

[18]

Jones v Dunkel 123 The rule in Jones v Dunkel (1959) 101 CLR 298 was conveniently summarised by the Full Federal Court in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [79], as follows: It is accepted that where a party fails, without explanation, to call a witness who that party might have been expected to call and whose evidence might have elucidated the matter in dispute, then the inference may be drawn that the evidence of the absent witness would not have assisted the party that failed to call that witness: Jones v Dunkel at 308, 312 and 320-321. By itself that inference is frequently somewhat barren, for knowing that the evidence of a witness would not have assisted tells one nothing about what the witness's evidence affirmatively would have been. Often more directly useful is the allied principle that in such a case the trier of fact may more confidently draw any inference unfavourable to the party that failed to call that witness if that witness appears to be in a position to cast light on whether the inference should be drawn: Jones v Dunkel at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. Neither inference is mandatory and, generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal. (Original emphasis.) 124 Natalie Minniti was a material witness. She was a director of AJR Nominees and is Minniti's wife. She ought be regarded as in the "camp" of the respondents. There was evidence that she witnessed many of the disputed conversations, including the end of the critical meeting on 3 February 2011, and received from Bill the scientific name for his disease on a piece of paper. She did not give evidence. In cross-examination, Minniti volunteered that she was unwell, but there was no statement from her; no medical evidence as to her condition; and no application for an adjournment to suit her state of health. The explanation for her absence that was volunteered by Minniti is not satisfactory. 125 Minniti stated under cross-examination, for the first time, that his son Adrian was present at his office when the meeting between Minniti and Bill occurred on what I have found was 3 February 2011. However, Adrian Minniti did not give evidence, and there was no explanation for that. 126 In the respondents' Outline of Opening Submissions dated 30 November 2012 at [8], Travis Abreu, an employee of AJR Nominees and said to have witnessed Bill's resignation on 3 February 2011, was nominated as a witness for the respondents. Minniti, in his written evidence, said Abreu was present at the "resignation" meeting in February 2011. No statement from him was filed. Counsel for the respondents on the first day of the trial said that it had been understood that he was coming to give evidence but that he had since advised that he would not be coming as he was "working away at the mines". This is not a satisfactory explanation for his absence. 127 In my view, a Jones v Dunkel inference may be drawn in respect of the failure by AJR Nominees and Minniti to call the above witnesses. Accordingly, I infer that their evidence would not have assisted the respondents, and further, it enables me, more confidently, to come to the conclusions which I have concerning what actually occurred at the meeting between Bill and Minniti and AJR Nominees precisely on 3 February 2011.

[22]

Payment of accrued annual leave 133 Minniti gave evidence in cross-examination that he had not paid Bill's entitlements, in effect, because Ann Lucey, a Fair Work Inspector, told him not to. The only relevant entitlement was accrued annual leave. Bill's accrued annual leave was in fact paid on 20 January 2012. 134 In reply, Ann Lucey made a statement dated 5 December 2012, to the effect that, if Minniti had asked her whether he should pay, that she may, in line with her general practice, have said to him that he did not have to pay before the investigation was completed. 135 There is no record of such a conversation between Minniti and Ms Lucey, nor does Ms Lucey have a recollection of such a conversation. 136 However, she is able to state that if there was such a conversation it probably would have occurred in August 2011. 137 The Fair Work Ombudsman's investigation was completed on 19 October 2011, and Minniti immediately responded that he wished to dispute the outcome of the investigation. 138 One of the contraventions alleged is that AJR Nominees failed to pay Bill's accrued annual leave at the time required by the National Employment Standards, namely, "when the employment of an employee ends": s 90(2) of the Act. 139 The requirement to pay accrued annual leave in no way depends on whether Bill resigned or was dismissed. All that is needed is that the employment "ended". 140 Minniti's evidence of what he was told by Ms Lucey does not provide any defence for non-payment by AJR Nominees of accrued annual leave to Bill which I find that it failed to pay during the period from 3 February 2011 to August 2011. 141 At best, Minniti's evidence can only be an explanation for why he didn't pay between August 2011 and 19 October 2011. It follows additionally that it does not answer the fact that no payment was made after 19 October 2011 until 20 January 2012. 142 Accordingly, for these reasons, I find that AJR Nominees, by failing to make the necessary payments at the time Bill's employment ended, contrary to s 90(2) of the Act, thereby further contravened s 44(1) of the Act.

[23]

Coercion 143 The applicant relies on the following allegations in support of its claim of coercion by AJR Nominees under s 343(1)(a) of the Act: 1. On at least one day in early January 2011, Minniti told Bill in the workshop that he had to resign. Bill told Minniti that he would not resign because he had accumulated sick (personal) leave. 2. On the evening of 19 January 2011, Minniti telephoned Bill and told him that he had seen him at the bowls club and that if he was well enough for bowls he was well enough to work. Minniti again told Bill that he wanted Bill to resign and Bill again refused to do so. 3. On either 19 or 21 January 2011, Minniti telephoned Bill and told him that he had worked it out, and that Bill had to resign and that Minniti would pay Bill all he was owed. Minniti told Bill that if he didn't want to write out his resignation that Natalie Minniti would write it for him and he could sign it. Bill told Minniti that he would not resign as he had accumulated sick leave. 4. On 24 January 2011, Minniti telephoned Bill and again told him that he should resign. 5. In Minniti's office, Minniti asked Bill whether he had started chemotherapy yet. Bill said that he had not, has he had to wait for the infection in his leg to clear up. Minniti told Bill that he did not believe that there was anything wring with him. Bill stood up and left the office. As he did so, Minniti became agitated and yelled at Bill "[y]ou're a fucking smart little cunt and if you don't get out of here I'm going to throw you out". Bill thought that Minniti was going to strike him or physically throw him out of the office. 6. Shortly after leaving on 3 February 2011, 2 SMS text messages were sent to Bill from Minniti. On 4 February 2011, Bill received a third SMS text message from Minniti. 7. On 4 March 2011, Bill collected from the post office two letters in the same envelope which had been sent by registered post from Minniti. 144 These allegations, as I have already found, are established on the evidence. 145 The applicant submits, in effect, that this conduct was intended by AJR Nominees to coerce Bill not to exercise his workplace right, namely, his entitlement to accrued and accumulated paid personal leave. 146 I accept this submission and find that these established facts constitute a contravention by AJR Nominees of s 343(1)(a) of the Act.

Fair Work Ombudsman v AJR Nominees Pty Ltd

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