Kape v The Golden Mile Loopline Railway Society Inc

The key parts of the evidence 11 The affidavit evidence of Mr Lucas concerning the circumstances of Mr Kape's termination was to the effect that by the last quarter of 2015 the Society had received funding for phase 1 of a project to build a loopline railway to a lookout at the Super Pit Mine and then on to the museum in Kalgoorlie-Boulder. However, there was uncertainty as to whether the funding for phase 2 and 3 of the project would be forthcoming. In particular, in his affidavit Mr Lucas said (paras 25, 26, 45, 52-56): By October 2015, the number of hosted workers from the prison and social security programmes had dropped off significantly. There were zero prison workers and only four or five Work for the Dole people. This meant there was not much work for the applicant to do. There was enough work to keep the Leading Hands busy while we waited for ONRSR accreditation. The Leading Hands were more than capable of doing his work because the workload was so low. Workload for the applicant was low because, though we had received the Phase 1 funding, we did not have enough prison and Work for the Dole workers to do the work. We were also a little bit restricted with the work we could do while we were waiting for ONRSR accreditation. The Leading Hands were also performing many of the applicant's duties because he was refusing to undertake some tasks. … It was around this time that I thought there may be no need to maintain the Works Manager position because the work could be absorbed into other positions and [the Society] could make a saving without the role. … In late 2015, [the Society's] finances were in a bad way. The Phase 1 Loopline Project funding had come through, but we could not spend that money on anything except for the Loopline Project. The applicant's position was mostly for things that were not included in the Loopline Project. We were looking forward to building the railway, but would need expert help with that and could not maintain staffing levels in the meantime while we waited for accreditation. In the October 2015 financial report, year to date income was $552,420 and expenditure was $294,900 … Income included $400,000 for the Loopline Project, which we could not use for other expenses. This left very little for other projects we were pursuing, such as establishing a tram service. By the end of November 2015, there was only $114,619 in the bank for non-Loopline Project expenses … The November report was not available until shortly after we made the applicant's position redundant. We did not want to go lower than about $100,000 because then we would not be able to pay for unexpected expenses. After the Executive meeting on 1 December 2015, I formally evaluated the applicant's position and concluded that the duties could be redistributed. I prepared a matrix to set out where his duties would go … Administrative aspects of his work could be absorbed by the Accounts Officer, Debbie Short; day-to-day interaction with Work for the Dole and other groups would be undertaken by Team Leaders; general yard work undertaken by the applicant would also be performed by the Team Leaders. [The Society] also intended to try to hire someone with specialist experience in rail construction once ONRSR accreditation approved, to undertake those tasks. With these changes in place, there was no work for the applicant's position to perform. The applicant's pay was about $1,346.25 per week. Making his position redundant would have given [the Society] some breathing room in the short-term, and would have made room in the budget for a specialist person with rail construction experience to come on board and help out with Phase 2 once we got accreditation. The Executive had a conference call on 9 December 2015 … That is when the final decision was made to make the applicant's position redundant. There was also some discussion about making an ex gratia payment in the context of [the Society's] financial position. Members of the Executive wanted to give the applicant an extra amount of money because the decision was close to Christmas. 12 As to safety issues raised by Mr Kape, Mr Lucas said (paras 42 to 44): The applicant was critical of the task for purportedly safety reasons without giving any solutions. This frustrated me because it was part of his job to find solutions to safety issues not merely to raise the issues. I was not annoyed that the applicant was raising safety complaints. I was annoyed that the complaints had no substance. I welcomed people raising safety concerns when they were genuine. At this meeting, one of the employees, I cannot remember which one, raised an issue that one of the sets of chains did not have a safe working load tag, so we decided to make sure we did not use that chain. The job was not unsafe. It was finished, safely, without the applicant's participation. After the 13 November complaint, I also recall an incident where I asked the applicant to assist with building a fence in the Northern Yard on [the Society's] property. The applicant refused. I cannot remember the reasons he gave for refusing. This task was also completed without the applicant's assistance. We had to get a contractor in to do this job because we had to get the job done before Christmas. 13 The affidavit evidence of Mr Crook as to these matters was as follows (paras 19 to 35): [The Society's] changing needs Towards the end of 2015, Mr Lucas was working hard to get [the Society] accreditation from the Office of the National Railway Safety Regulator (ONRSR). This would allow [the Society] to move forward with Phase 2 and Phase 3, which involved rail construction. Those phases of the project required different skills. Towards the end of 2015, Phase 1 was almost complete and we were hopeful of receiving ONRSR accreditation in late-2015 or early-2016 … Against background, on 13 October 2015, at a Committee meeting, Mr Lucas raised 'staffing issues'. I was present at this meeting. These included various issues related to the applicant's performance in his position, and that [the Society] would have different requirements moving forward now that Phase 2 was about to commence. The issue was referred to the Executive for further review and consideration … Consideration of redundancy The Executive was a subcommittee of the general Committee of Management of [the Society], which dealt with more day-to-day management issues. I was on the Executive, along with Mr Lucas and four other Committee members: David O'Dwyer, Richelle Brooks, John Rees and Laurie Ayers. Formal minutes were not kept for these meetings. Following the Committee meeting on 13 October 2015, we were aware of some issues in relation to the applicant, and the changing needs of [the Society] given the near-completion of Phase 1. In December 2015, [the Society] were planning to commence Phase 2 construction of the railway at the start of 2016 … At an Executive meeting on 1 December 2015, we discussed the redundancy of the applicant's position. To the best of my recollection, we discussed the changing needs of [the Society] and its financial situation. I remember that I did not consider any complaints raised by the applicant as a part of the redundancy. I cannot remember whether we considered complaints received by Mr Lucas from Skill Hire and MAX Employment … I was not aware of any complaints made by the applicant. The financial sustainability of [the Society] and the changing nature of the role were my greatest concerns. [The Society's] finances were split into Loopline Project spending and other expenditure because we could only use the Grant money on the Loopline Project. At that stage, the most recent financial report was for the end of October 2015. These reports were circulated to all Committee members each month by Mr Lucas. They were created by David O'Dwyer, [the Society's] Treasurer … At the end of October 2015, we had income (year to date) of $552,420 and (year to date) expenses of $294,900. Income included the $400,000 Grant, which was tied to the Loopline Project. [The Society] were also trying to start a tram service to offer tourists a unique experience and take them around attractions in Kalgoorlie … This required a significant investment and did not leave much room in the budget for the applicant's position which cost about $70,000 per year. The applicant's position was not funded from the Loopline Project because his position was supposed to undertake other tasks for [the Society]. The Executive concluded that [the Society] was in an unsustainable financial position. Though we received the Phase 1 grant, that money could only be spent on the Loopline Project. At the 1 December Executive meeting, we decided to seriously explore making the applicant's position redundant. We asked Mr Lucas to get some further advice from Ms Lisa Ellery, [the Society's] solicitor. A teleconference of the Executive was arranged on 9 December 2015. I cannot remember who arranged this teleconference. We considered the advice received from Ms Ellery and decided to move forward with the redundancy. We made this decision based on demand for the Works Manager position, [the Society's] pivot toward rail construction, and [the Society's] financial position. We decided to make an ex gratia payment to the applicant because the decision came close to Christmas and we did not want to treat him harshly. I personally had no animosity towards him at that stage … I do not recall being made aware of the applicant's health and safety complaints or any complaint he made about discrepancies in his pay at any stage. From my personal perspective, I have nothing against people making health and safety complaints. I have been an employer in a range of different capacities over my working life, and safety is something I have always taken very seriously. On 11 December 2015, I attended a meeting with the applicant and Mr Lucas. At that meeting, Mr Lucas handed the applicant a letter terminating his employment by reason of redundancy, for the reasons outlined in that letter … 14 Mr Kape's evidence was that the termination arose because he had raised safety concerns. He said that none of the steps that might be expected to be taken if there was a genuine redundancy had been taken. In particular, there was no discussion with Mr Kape about the reasons for redundancy and there was no attempt to redeploy him or facilitate reemployment. He also complained about the summary way in which he was terminated. It is important to note as to these matters that they were advanced to support a claim based upon alleged adverse action. The claim was not articulated as a claim of unfair dismissal. 15 There was no dispute that occupational health and safety concerns had been raised by Mr Kape and that this had occurred on or about 13 November 2015. The case turned upon whether the primary judge should have accepted the evidence of Mr Lucas and Mr Crook to the effect that there was a consideration as to whether the services of a works manager were required in the particular circumstances faced by the Society at the time, particularly the uncertainty as to its ongoing funding, and whether that was the real reason for the termination of Mr Kape's employment. 16 The primary judge's reasons as to these matters were as follows (at [9]-[14]): The applicant contended that after he left others undertook his role and that it was distributed amongst other employees. The submission that activities undertaken by the applicant may have been in part undertaken by other employees after his departure does not identify any proper basis upon which the Court should reject the evidence of Mr Lucas and Mr Crook that the redundancy was one for financial reasons in respect of the viability of the project and was a genuine redundancy under s 389 of the Act and was not for reasons of the applicant raising complaints or for any other adverse action reason. The applicant contended that because the company had made a substantial profit that it must have had funds whereby it could have paid his salary and accordingly, it was profitable and that the redundancy was not genuine. It is apparent on the evidence that was given by Mr Crook that further employees were made redundant and that the viability of the project is one which has at this stage come to an end. The fact that the applicant may have been the first in a number of redundancies does not identify a basis upon which the Court should find that it was not a genuine redundancy. The fact that there was a profit made equally does not identify a basis upon which the Court should reject the evidence of Mr Lucas and Mr Crook in respect of the financial concerns that gave rise to the termination of the applicant and that the termination was not for any adverse reason. The respondent has discharged the onus and the Court finds that the termination was not because of any safety issue raised by the applicant or any job description issue. The applicant's other ground for contending that he must have been the subject of a non-genuine redundancy was to the effect that he had raised workplace occupational, health and safety issues and that to his mind they had not been addressed. It is apparent that there was a disagreement as to whether they had to be addressed. This is not a case where Mr Lucas accepted, on the applicant's own evidence, that there was a problem that had to be further addressed. Whilst the Court accepts that the applicant was not the subject of any serious challenge to his credit and the Court has accepted his evidence as to his beliefs, but does not accept that the respondent terminated the applicant on the grounds alleged by the applicant or that the applicant was bullied. The supporting documents do not support the applicant's case. There was no serious credit attack either on the evidence of Mr Crook and Mr Lucas and the Court accepts the evidence of the respondents as to the termination being a genuine redundancy for financial reasons only. The Court accepts that the respondent has discharged its onus under s 361 of the Act. In the taking of the action dismissing the applicant and making him redundant this was not by the respondents for a reason falling within the general protections provisions of Part 3-1 of the Act. The provisions on which the applicant relied, being ss 340, 341, 342, 343, 344 and 345 of the Act were not the subject of contravention by the respondents because the Court has accepted the respondent's evidence. No contravention of those provisions as alleged by the applicant is made out. The Court finds that the redundancy was a genuine redundancy within the meaning of s 389 of the Act. 17 I note at this point that those reasons concluded with the statement that the Court found that the redundancy was a genuine redundancy within the meaning of s 389 of the Fair Work Act. The reference to the redundancy being a genuine redundancy is somewhat confusing. There was no claim made under s 385 of the Fair Work Act. Rather, the claim was advanced as an adverse action claim. 18 For some time, Mr Kape sought reinstatement but, as I have noted, by the time of the proceedings in the Federal Circuit Court, the claim was advanced as a claim to compensation only. Therefore, it was not an instance where the Society had to prove that there was a case of genuine redundancy. The issue of redundancy arose because by operation of s 361 of the Fair Work Act, the reasons alleged by Mr Kape to be the reasons for his termination by way of adverse action were presumed to be the reasons for his termination, unless the Society proved otherwise. The position of the Society was that Mr Kape was terminated because he was made redundant. The question was whether the onus arising from the operation of s 361 had been discharged by the evidence advanced on behalf of the Society. 19 The notice of appeal raises five grounds. They are: 1. Grant leave to appeal against orders 1-2 & order 1a(i)(ii)(iii)(vi)(vii) made by Hon Judge Street on 19 June 2019. 2. Procedural injustice by the changing of judicial officers from Hon. Judge Lucev to Judge Hon Street. 3. Applied a wrong principle of law under a 'General Protection's' application under The Fair Work Act 2009 (Cth) Sect 361(1)(a)(b) (reverse onus). 4. Applied a wrong principle of law under a 'General Protections application under The Fair Work Act 2009 (Cth) Sect 340(1),341(1)(c)(ii)Sect 351(1) Sect 352. 5. I am a self-represented applicant and a special category visa holder under The Fair Work Act 2009 (Cth). 20 I note that these grounds of appeal reflect the nature of the application brought, namely an adverse action claim. 21 As to ground 1, leave is not required to bring the appeal, and it proceeds as a right. 22 As to ground 2, his Honour Judge Lucev was responsible for managing the case prior to the final hearing of Mr Kape's claim. The primary judge conducted the entirety of the final hearing, received the evidence, heard the witnesses being cross-examined and delivered reasons. There is no procedural injustice arising from the fact that the final hearing was not conducted by the case managing judge. Such a course is a relatively common occurrence. 23 As to ground 3, the primary judge referred expressly to the presumption under s 361 of the Fair Work Act in [8] of the reasons. The primary judge also found in terms that the Society had discharged the onus: see [11], [13]. Those findings are plainly a reference to the burden upon the Society to prove that the reasons alleged by Mr Kape were not the reasons for his dismissal. Therefore, the onus was applied by the primary judge. 24 As to ground 4, the wrong principle said to have been applied was not identified in the ground. Mr Kape was invited to explain the basis for ground 4. He stated it was a claim that there was a failure to apply the onus in determining each aspect of the adverse action claim. As I have said, the onus was applied. As to the particular evidence relevant to the onus, I will deal with that aspect later in these reasons. 25 As to ground 5, the fact that Mr Kape was self-represented and the holder of a visa were not matters that were to be taken into account in determining the substantive basis for his claims. They depended upon the reason for the termination of his employment and there was no suggestion that aspects of the visa that Mr Kape held were part of those reasons. 26 In short written submissions on the appeal, Mr Kape referred to four matters: (1) his Honour failed to allow and consider the appellant's affidavit affirmed 28 May 2019 as evidence; (2) the primary judge applied the wrong principle of law under a general protections application under the Fair Work Act provisions that have been referred to in the application brought by Mr Kape; (3) the primary judge failed to consider that Mr Kape was instantly terminated with no notice, no redundancy meeting allowing a support person present, nor reinstatement options. The primary judge considered the 'redundancy' before the events leading to the instant termination; and (4) the primary judge failed to consider affidavit and affirmed evidence of re-employment or reinstatement opportunities available after termination and erred at discharging the respondent's onus under s 361 of the Fair Work Act. 27 As to the first matter, the primary judge did refer to the evidence of Mr Kape in his affidavit of 28 May 2019: see [7]. In oral argument, Mr Kape said that the primary judge had failed to refer to the affidavit of Mr Sean Foreman, a person who had worked for the Society. The affidavit of Mr Foreman was annexed to the affidavit of Mr Kape. However, an objection to the affidavit was upheld by the primary judge on the basis that he was not available for cross-examination. For that reason, matters stated in Mr Kape's affidavit about Mr Foreman were not the subject of cross-examination and there was no error by the primary judge in not referring to that evidence. 28 As to other parts of the affidavit of Mr Kape, to the extent that the affidavit sought to characterise written communications between the parties in a particular way, that characterisation was not accepted by the primary judge. Otherwise, the primary judge found that there was no serious challenge to the evidence of Mr Kape and that the evidence as to his beliefs was accepted (see [12]). However, there were express findings by the primary judge to the effect that his Honour did not accept that the Society terminated Mr Kape on the grounds he alleged or that he was bullied. As to the reasons for termination, that was a finding that turned upon the evidence of Mr Crook and Mr Lucas (which evidence was accepted) and the inferences that might be drawn from that evidence. 29 On the appeal, an issue was raised by Mr Kape in relation to an alleged deed of settlement proposed by the letter. However, the letter itself did not propose a deed of settlement. Rather, it proposed signature by way of acceptance of the calculations and payment arrangements set out in the letter. 30 Therefore, to the extent that the affidavit evidence advanced by Mr Kape raised matters relevant to his application, those matters were addressed by the primary judge. Therefore, the first matter has not been made out. 31 Mr Kape confirmed in oral submissions that the second matter was concerned with the onus, and I have already addressed that aspect. 32 The third matter raised aspects of the events that might bear upon whether there was an unfair dismissal. However, the claim advanced by Mr Kape was not of that character, as I have explained. The question was whether there was adverse action. That was an issue that turned upon the evidence as to the reasons why the Society terminated Mr Kape. The primary judge dealt with that claim. 33 The fourth matter also concerns the presumption effected by s 361 of the Fair Work Act. I have already found that the presumption was applied by the primary judge. To the extent that the fourth matter raises other aspects, I deal with those separately later in these reasons. 34 In reply submissions and orally, Mr Kape raised a complaint about the finding by the primary judge to the effect that further employees had been made redundant. The finding by the primary judge in that regard concerned whether there was a real concern about the viability of the loopline project. Mr Kape said that it was wrong to find that Mr Lucas had been made redundant because the evidence was that he had resigned. However, the primary judge did not make a finding to the effect that Mr Lucas was one of the persons who had been made redundant. Rather, the finding was that further employees were made redundant. The finding was based on the evidence of Mr Crook. His evidence was given in the course of cross-examination by Mr Kape before the primary judge and it was to the following effect: … I don't see how you could have the foresight to make just my position redundant. If it was that facts then why wasn't other people made redundant?---Well, they were ultimately. Not at the time of my employment there wasn't?---No, that's - that's correct. But - but there were other redundancies that have since been made when Mr Lucas left us and Mr Bishop came. Mr Lucas was made redundant?---No. Mr Lucas resigned and we replaced him with Andrew Bishop. And then, after about six months, we - we came to the decision that we couldn't afford a general manager. So the committee decided to let Mr Bishop go under his own volition. And then subsequently a Work for the Dole manager, Stewart, left - was made redundant. So, sorry, what was his position?---He was - he worked for - he did - he was - - - Sorry, no. No, you said - you gave that a job description?---Who? That person you were just - Stewart?---They were - they were working with - - - Sorry, no, no. You gave a job description. You were going to call - you started calling him a manager?---Well, he - they - he oversaw the Work for the Dole guys. Thank you, Mr Crook. You've allocated - the Golden Mile Loopline executive board members have made me redundant but have also said it was down to financials, not performance-based. What's your interpretation of making someone redundant? That job description does not exist anymore, does it?---Correct. So then how can - how can you get the executive board making the decision to terminate a senior management position but then also, once that person is gone, filter that description down to others in the organisation, as in Mr Cracknell, as the other people that are left to be employed are the people that you've employed. You employed other people after my termination, didn't you?---Very few. Since you've ..... and they still - - -?---Yes but - but not - but not in the same role as a works manager that you were employed in. 35 Therefore, there is no merit in this aspect of the appeal because the reasons of the primary judge did not depend upon any finding to the effect that Mr Lucas had been made redundant. 36 Mr Kape also made oral submissions to the effect that the primary judge did not deal with the fact that his termination had been on the spot and there was no reason to justify dismissing him in that way. It is understandable that Mr Kape may take offence as to these aspects of his termination. However, the failure by the primary judge to refer to that aspect is explained by the nature of the claim being an adverse action claim and not an unfair dismissal claim. The main issue to be decided by the primary judge was whether the Society had discharged the onus to show that the reason why Mr Kape was terminated was not the reason that he alleged. The primary judge dealt with that aspect and accepted the evidence of Mr Lucas and Mr Crook. His Honour found that the occupational health and safety issues raised by Mr Kape were not part of the reason why he was terminated. On the evidence, the decision was made by the executive of the Society. It included a decision to pay Mr Kape an ex gratia amount because the decision came close to Christmas. The evidence of Mr Crook was to the effect that he did not recall being made aware of issues about health and safety complaints or complaints about discrepancies in Mr Kape's pay. The evidence of Mr Crook, which was accepted by the primary judge, was that the decision was based on the fact that there was insufficient demand for the works manager position and the financial position of the Society. I accept the submission for the Society on appeal that these matters are the matters that were referred to by the primary judge when making the finding at [12] of the reasons to the effect that the termination was a genuine redundancy for financial reasons only. Mr Kape has not advanced any basis upon which it might be concluded that those factual findings were made in error. They were findings that were open to the primary judge on the evidence. 37 The task for the primary judge was to determine the real reason for the termination: Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 at [28] (Gray and Bromberg JJ). The primary judge expressly accepted the evidence of the Society as to termination. Mr Kape advanced submissions to the effect that other aspects of the evidence about termination were not considered. However, the principal aspects of the evidence relating to the nature of the application were addressed in the reasons. The reasons were sufficient to serve their function of giving effect to the right of appeal: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [26]-[29]. They disclosed the basis for the decision, which required the adjudication of a confined factual issue. It was not necessary for the reasons to deal with every fact or all the details. They were required to deal only with the evidence that was critical on the particular application having regard to its nature: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. 38 For those reasons, I have concluded that the appeal must be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.