Premier Pet Pty Ltd trading as Bay Fish v Brown

The appeal 2 The appellant seeks orders setting aside the judgment of the Federal Magistrate, dismissing the application below, and requiring Mr Brown to pay its costs. The notice of appeal, filed by the appellant on 27 November 2012, sets out four somewhat lengthy and detailed grounds of appeal. 3 In summary, those grounds of appeal are as follows: 1. The Federal Magistrate failed to accord the appellant natural justice in relation to the basis upon which his Honour decided the case. In particular, the appellant claimed that the Court below erred in finding that Mr Brown sought relief on the basis of multiple grounds of alleged adverse action because of his exercise of two different workplace rights (namely the filing, and serving on Premier Pet of a Form F8 Notice of Dispute with Fair Work Australia (the "FWA Notice"), and Mr Brown's refusal to work unreasonable overtime). This error arose because, in reality, Mr Brown had only ever pursued one case of adverse action relating to Mr Brown's exercise of one workplace right (being the filing and serving of the FWA Notice) and to that extent the appellant did not have notice that Mr Brown intended to rely on a workplace right involving overtime. 2. The Federal Magistrate erred in applying the reverse onus of proof to the appellant under s 361 of the Fair Work Act in requiring the appellant to prove that the requirement to work overtime was reasonable, because the Court had not first required Mr Brown to first prove that the requirement of him to work overtime was unreasonable. 3. The Federal Magistrate erred when applying the test of reasonableness of the requirement to work overtime under s 62(3) of the Fair Work Act, by: finding that Mr Brown's interests in a family online sword-retailing business was a personal circumstance akin to family responsibilities when determining that his refusal to work overtime was reasonable; finding no evidence in respect of the operational needs of the business of the appellant that justified the overtime requirement, contrary to the uncontested affidavit evidence of Messrs Briggs and Patrick; finding that the overtime requirement was solely targeted by the appellant at addressing Mr Brown's conduct, when unchallenged affidavit evidence filed on behalf of Premier Pet was to the effect that the purpose of the overtime requirement was to achieve uniform rostering arrangements designed to achieve industrial harmony; finding that the current respondent's bankruptcy status and desire not to earn additional income of interest to the trustee in bankruptcy was a primary reason for the refusal to work overtime, but nonetheless failing to find that this was an unreasonable refusal; concluding that cl 24.5 of the Storage Services and Wholesale Award 2010 ("Award") (which authorises an employer to require an employee to perform paid overtime and penalty rate work on weekends and public holidays) was irrelevant for the purposes of s 62(3) of the Fair Work Act despite the fact that that section included, as a factor to be considered in determining reasonableness of overtime requirements, weekend and holiday penalty rate periods; and/or finding that it was of "considerable significance" that no evidence was led on the question of the number of overtime hours previously worked by the applicant below but finding that the onus of proving such matters lay on the respondent below. 4. The Federal Magistrate erred in concluding that reinstatement was practicable, by: finding that the appellant was based in multiple locations rather than a single location; finding that Mr Patrick and Mr Brown would have little contact since Mr Patrick worked in a managerial role, a finding at odds with the unchallenged evidence filed on behalf of Premier Pet; failing to consider the significance of Mr Brown's refusal to accept an offer of reinstatement requiring Mr Brown to perform the overtime in issue, which necessarily affects the practicability of reinstatement; and/or disregarding Mr Patrick's evidence as to the current situation of the appellant's business operations, despite that evidence being uncontested.

Notice of contention 4 On 29 January 2013 Mr Brown filed a notice of contention seeking to raise an additional basis upon which the decision of the Federal Magistrate should be affirmed, namely that in finding that the appellant had failed to discharge its onus under s 361 of the Fair Work Act and establish that the mandatory overtime hours were not unreasonable within the meaning of s 62 of the Fair Work Act, his Honour was also entitled to rely on the consideration that the respondent's contract of employment provided that any weekend work was voluntary or "self-rostered". The notice related to the letter of offer provided by the appellant to Mr Brown (annexed to the affidavit of Adam Richard Brown sworn 11 February 2013) which included the following terms: 8. The regular hours of work for your position are 7.30am to 4.30pm, Monday to Thursday, Friday 7.00am to 1.10pm totalling a minimum of 38 hours per week and overtime from time to time to complete the requirements of the position. Start and Finish times may be altered in the near future to accommodate the increased volume throughput. 9. Weekend work is available and is self rostered. 5 As it was clear that the appellant was in a position to deal with the issue raised by the respondent at the hearing, and because in my view it was in the interests of justice that all relevant issues be considered by the Court, I allowed the point of contention to be raised.

Relevant legislation 6 Before turning to the submissions of the parties, it is useful to outline the legislation relevant to this proceeding. 7 First, s 340(1) of the Fair Work Act provides: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not 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). 8 Second, s 361(1) provides: 361 Reason for action to be presumed unless proved otherwise (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. 9 Third, s 62 provides for maximum weekly hours of work and overtime, as follows: 62 Maximum weekly hours Maximum weekly hours of work (1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable: (a) for a full‑time employee - 38 hours; or (b) for an employee who is not a full‑time employee - the lesser of: (i) 38 hours; and (ii) the employee's ordinary hours of work in a week. Employee may refuse to work unreasonable additional hours (2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable. Determining whether additional hours are reasonable (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee's role, and the employee's level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under s 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under s 64; (j) any other relevant matter. Authorised leave or absence treated as hours worked (4) … 10 I also note cl 24.5 of the award which provides: 24.5 Penalty rates for weekends and public holidays (a) Saturdays (i) All time worked on a Saturday must be paid for at the rate of time and a half. (ii) An employee required to work overtime on a Saturday must be afforded at least three hours' work or must be paid for three hours at the appropriate rate, except where such overtime is worked immediately prior to or at the conclusion of ordinary hours of work. (b) Sundays (i) All time worked on a Sunday must be paid for at the rate of double time. (ii) An employee required to work overtime on a Sunday must be afforded at least four hours' work or must be paid for four hours at the appropriate rate, except where such overtime is worked immediately prior to or at the conclusion of ordinary hours of work. (c) Public holidays (i) All work performed on any of the holidays prescribed or substituted must be paid for at the rate of double time and a half. (ii) An employee required to work on a public holiday will be afforded at least four hours' work or be paid for four hours at the appropriate rate. 11 The appellant has not disputed before me before me (nor was it disputed in the Court below) that it had taken adverse action against Mr Brown by terminating his employment. Further, the appellant did not dispute that filing of an FWA Notice and a refusal to work unreasonable overtime constituted "workplace rights" for the purposes of s 340 of the Fair Work Act. A fundamental question raised by the appellant in this appeal, however, was whether in this case Mr Brown had actually claimed that the appellant had taken adverse action against him in relation to a workplace right concerning working unreasonable overtime.

Submissions of the parties 12 Counsel for the appellant submitted that each of the four grounds of appeal pointed to operative errors in his Honour's judgment. In summary: 1. The decision of his Honour revealed a failure to accord natural justice to the appellant. Specifically, the Court below decided the case in favour of Mr Brown on the basis of a cause of action not pleaded by Mr Brown, because the question of reasonableness of the requirement to work overtime was not raised until the hearing. 2. To establish that he had a workplace right pursuant to s 62(2) of the Fair Work Act, Mr Brown needed to prove that he had reasonably refused to work the overtime required by the appellant, or that the requirement to work overtime was unreasonable. The Court below incorrectly placed the onus on the appellant, rather than Mr Brown, to prove that the overtime was not unreasonable. 3. While each case must be considered on its own merits, the factors in this case which led to the Federal Magistrate's conclusion that the appellant's overtime requirements were unreasonable were significantly less convincing than those raised, for example, in Macpherson v Coal & Allied Mining Services Pty Ltd (No 2) [2009] FMCA 881. 4. The Court erred in finding that the detriment to Mr Brown from being required to work overtime outweighed the benefits to the appellant and its other employees from the new overtime roster. 5. The Court erred in finding that reinstatement was practicable, because contrary to the finding of the Court, the appellant does not operate two premises (Brisbane and Narangba) - in fact there is only one location at Narangba at which both Mr Patrick (the director of the appellant) and Mr Brown would be employed. 6. The Court ought not to have made a negative finding as to Mr Patrick's credibility when his evidence was not contested. 13 In his submissions, Counsel for Mr Brown argued that, in order to overturn the Federal Magistrate's decision, the Court would need to be satisfied that there was an error which was material to the decision below. The respondent further submitted in summary: 1. The appellant was fully aware at the commencement of the hearing below that the issue of refusal to work unreasonable overtime hours was a live issue. 2. A narrow or technical view should not be taken in considering whether or not a point was raised at trial. 3. The Federal Magistrate's approach to s 361 of the Fair Work Act was reasonable. 4. In assessing the evidence relating to reasonableness of the overtime work and balancing the factors set out in s 62(3) of the Fair Work Act, the Court below correctly placed the onus of establishing matters purely within the appellant's knowledge upon the appellant. 5. The Court below assessed whether the overtime requirements were reasonable in light of evidence given by Mr Brown as well as other evidence that emerged throughout the proceedings. 6. No error has been demonstrated in the Federal Magistrate's balancing of the factors under s 62(3) of the Fair Work Act. 7. The appellant cannot demonstrate any errors in the factual conclusions reached by the Court below, or the application of relevant legal principle, in determining that reinstatement was practicable.

Consideration 14 In the well-known decision of the High Court in House v R (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ at 504-505 explained relevant principles relating to interference by an appellate court with the exercise of a discretionary judgment at first instance. Specifically, their Honours observed as follows: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 15 In Norbis v Norbis (1986) 161 CLR 513 at 518 Mason and Deane JJ explained reference to the term "discretion" in House v R in the following manner: Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends. 16 Of further relevance in this context are observations of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384 where, in considering whether a decision was affected by an error of law such that appellate interference was warranted, their Honours said: For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. 17 In my view, the decision of the Federal Magistrate in the proceeding before me is not affected by any errors of law that are material to the decision below, nor is it affected by the type of errors to which the High Court adverted in House v R. It follows that I consider that the appeal ought to be dismissed. I have come to this view for the following reasons.

Ground 1: Natural justice 18 I am not satisfied that the Federal Magistrate failed to accord the appellant natural justice in deciding that adverse action was taken against Mr Brown because of his refusal to work unreasonable overtime. I have reached this conclusion in light of the following factors. 19 First, it is clear that the issues concerning whether Mr Brown refused to work overtime, and whether the overtime was reasonable, were "live" issues from the commencement of proceedings in the Court below. I note in particular that: In his "Form 2 - Claim under the Fair Work Act 2009", Mr Brown raised the question of reasonableness of the appellant's overtime requirements. In that form the following appears under "Part G - Contravention(s) alleged": 1. Application for general protections was lodged in relation to unlawful working conditions (formal rostered hours exceeding 38). 2. Hours after presenting F8 form to employer, I was dismissed (in contravention of Part 3-1 of the Act). 3. [sic] Reason for termination was 'exercising rights in relation to probation period'. 4. Probation lasts 3 months, I had been employed for 4+ months at time of dismissal. In his "Form F8 - Application for FWA to Deal with a General Protections Dispute", Mr Brown stated the alleged contraventions by the appellant of the Fair Work Act to be: 1. I have been told that the overtime T [sic] do for them is not enough, they are demanding I stay until all work is finished no matter how many hours it takes to complete. 2. I have to change from a voluntary weekend roster to a mandatory system or lose employment. In its "RESPONSE - General Federal Law" filed in the Federal Magistrates Court on 9 September 2011, the appellant noted, under "Grounds of opposition or further orders", that "The respondent says that the applicant was dismissed on 15 July 2011 because he unreasonably refused to work any overtime hours on weekends and public holidays". 20 Second, it is clear from the transcript of the proceeding before his Honour that early in the course of that hearing the Federal Magistrate clarified with Mr Brown that the critical issues in his claim were: whether he had provided a copy of the Form F8 to the respondent below before his dismissal; and his refusal to comply with the new overtime roster that the respondent below wished to implement (p 10 l 22-p 11 l 32). 21 I note that Premier Pet did not object to the second issue being raised at that time in the Court below, and later in the hearing accepted again that there was a live question concerning the existence of a workplace right reposing in Mr Brown in respect of his refusal to work overtime (for example, transcript p 49 l 30). 22 Third, as is also clear from the transcript of the hearing before his Honour, Counsel for the appellant cross-examined Mr Brown at length in relation to the reasons he refused to work overtime, and subsequently made submissions on that same topic (transcript pp 29-36 and 49-58). To that extent the appellant demonstrated a perfect awareness of the existence before the Court below of the disputed issue concerning whether Mr Brown had refused to work reasonable overtime, and the fact that Mr Brown was relying on this as a workplace right within the meaning of the Fair Work Act. 23 Fourth, the manner in which his Honour allowed the issue concerning refusal to work overtime to be addressed at the hearing is consistent with the approach embodied in s 42 of the Federal Magistrates Act 1999 (Cth) which provides that: In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted. 24 His Honour's approach was also consistent with the view adopted by Mason CJ and Wilson, Brennan and Dawson JJ in Water Board v Moustakas (1988) 180 CLR 491 at 497 that, in deciding whether or not a point was raised at trial, no narrow or technical view should be taken. Rather, it is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial. 25 Ground 1 is not substantiated.

Ground 2: Onus of proof 26 His Honour below discussed the requisite onus of proof in the proceedings at [22]-[26], [43] and [47]: [22] Section 62(2) provides that an employee may refuse to work additional hours beyond those referred to in s.62(1)(a) or (b) if they are unreasonable. In my view, s.62(2) creates an entitlement in an employee to refuse to work additional hours. That is, Mr Brown is entitled to the benefit of s.62(2) of the Fair Work Act. By refusing to participate in the involuntary non-trading day roster, Mr Brown has purported to exercise a workplace right, namely, his entitlement to refuse to work unreasonable hours, pursuant to s.62(2). [23] Having regard to the tests that were explained by Wilson FM in Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32, and the Federal Court decisions of Logan J in Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 and Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 it seems to me that Mr Brown has successfully invoked the provisions of s.361 of the Fair Work Act. That is to say, he has raised a sufficient prima facie case, to shift the onus to the respondent to show that it did not take the alleged adverse action against Mr Brown for a proscribed reason. [24] In the circumstances, the Act requires me to presume that the alleged adverse action was taken for the reason contended for by Mr Brown unless the respondent proves otherwise. It is, therefore, for the respondent to prove that it did not take the relevant action against Mr Brown - terminating his employment - for the reason contended for by him. [25] Mr Brown contends that his employment was terminated because he exercised his workplace right to refuse to work unreasonable additional hours. His employer says that he was terminated because he refused a proper direction from his employer to work reasonable additional hours, as his employer was entitled to request him to do, having regard to the provisions of s.62(1) of the Fair Work Act. [26] It seems to me that it is necessary for the respondent to demonstrate that the relevant adverse action was not taken against Mr Brown for the reason asserted by him. As part of that exercise it is for the respondent to demonstrate that the additional hours it required Mr Brown to work were not unreasonable. … [43] The second matter of considerable significance, it seems to me, is that there is no evidence that suggests that these additional hours, in the circumstances of this particular employee, are not unreasonable reasonable [sic]. That is to say, there is no evidence that having regard to the overtime that Mr Brown otherwise works on a regular basis, the imposition of further overtime on an involuntary basis is not unreasonable. There is no evidence before me about how much overtime Mr Brown worked from time to time, either specifically or on an average. Mr Brown made some submissions about that, but there is no evidence about it, and he suggested that he could tender his pay slips but he had no confidence in the accuracy of the pay slips. As matters transpired, they were not tendered and they did not form part of the evidence. But the onus is on the respondent. The respondent produces no evidence to demonstrate that the amount of overtime worked by Mr Brown in the circumstances means that the imposition of additional involuntary overtime is not unreasonable, particularly when that involuntary overtime falls on a weekend or a public holiday. … [47] In all of those circumstances. I am not satisfied that the employer has discharged the onus on it to demonstrate that it did not terminate Mr Brown's employment for the reasons that he asserts. The contravention is made out. 27 While there is minimal analysis in his Honour's reasons of whether Mr Brown was required to prove certain objective facts prior to the reversal of the onus of proof under s 361 of the Fair Work Act, I do not consider that any error that may have been present has affected the outcome of the decision. 28 His Honour specifically found that Mr Brown had demonstrated a sufficient prima facie case in respect of a requirement to work unreasonable overtime (at [23]). At the hearing before his Honour, Mr Brown gave evidence under cross-examination in relation to the appellant's requirement to work overtime, his personal circumstances and why he could not work the overtime hours required of him by the appellant (for example p 24 ll 1-5, 19-42, p 29, p 30 ll 1-13, p 31 ll 34-47, p 32, p 33 ll 1-20, p 34-37). His Honour was entitled to take this evidence into account in forming a view of whether Mr Brown had proven that he had a workplace right pursuant to s 62(2) of the Fair Work Act, namely that he had reasonably refused to work the overtime required by the appellant or that the requirement to work overtime was unreasonable. In my view, his Honour's decision was within the appropriate range of decisions that could have been made on the material before the Court. 29 the Federal Magistrate clearly concluded that the overtime requirement in relation to Mr Brown was unreasonable by giving weight to evidence given by Mr Brown at the hearing. Notwithstanding his Honour's comments regarding the lack of evidence advanced by the appellant concerning overtime in the industry or indeed in its particular workplace (in particular at [31], [32], [38] and [39]), I am not persuaded that in making those observations his Honour erred such that his decision should be overturned by this Court. 30 I do not consider that the second ground of appeal is substantiated.

Ground 3: Determination of reasonableness 31 The appellant claims that the justifications given by Mr Brown for his refusal to work overtime were less convincing than factors raised in Macpherson where the applicant had unsuccessfully argued that the overtime requirement in that case was unreasonable. Clearly, however, each case must be considered on its own facts, and I do not find that a comparison between the facts of the case before me and those in Macpherson is of particular assistance. 32 The Federal Magistrate considered, in detail at [27]-[46], the factors listed in s 62(3). There would need to be a material error in his Honour's reasoning before it would be appropriate for me to disturb the decision below. I do not identify any such error here. 33 For example, I note his Honour's observation at [31]-[33] that there was very little evidence about the needs of the workplace, including no evidence about the nature or extent of the work Mr Brown was employed to do, the work done by other employees, or the nature and extent of the enterprise, apart from general evidence contained in an affidavit of Mr Patrick sworn 18 October 2012. To that extent, his Honour concluded that it was impossible to come to any conclusion about the needs of the workplace within the meaning of s 62(3)(b) of the Fair Work Act (at [32]). Rather, his Honour found: Thus it seems that the rostering arrangements for the mandatory non-trading day roster were introduced not to deal with any particular problems in terms of the business, or the way in which the business was conducted, but rather to deal with, as paragraph 5 puts it, "Adam's conduct". 34 This finding was made in light of such material as was before the Court, including Mr Patrick's affidavit and the letter to Mr Brown advising of the changes to overtime rosters. 35 Second, his Honour specifically had regard to Mr Brown's personal circumstances (including his bankruptcy, and his assistance to his mother in respect of her online business) (at [30]). 36 Further, his Honour considered the terms of cl 24.5 of the Award and concluded that the Award was not relevant in determining the question of reasonableness in relation to overtime. 37 I am unable to identify any material error in the reasoning of his Honour that, in substance, any benefits to the appellant from the overtime requirement were not sufficient to outweigh the factors raised by Mr Brown in justifying his refusal to work the required overtime. 38 Ground 3 of the appeal is not substantiated.

Ground 4: Practicability of reinstatement 39 It is not in dispute that the Federal Magistrates Court is empowered to order reinstatement of Mr Brown (s 545 Fair Work Act). In concluding that reinstatement was an appropriate remedy, the Court below found that (at [49]-[60]): The employer in this case is a company rather than a personal respondent, and therefore a claim that the relationship between employer and employee has irretrievably broken down is not weighty. On the evidence before the Court his Honour was not satisfied that reinstatement was unfeasible. Further, the appellant did not demonstrate that the circumstances of its business were such that it was not practicable for reinstatement to be ordered. 40 The appellant strongly submitted before me that his Honour had misunderstood the structure of the appellant's business, and that in fact his Honour's belief that Mr Patrick and Mr Brown worked in different locations was incorrect. However given the Federal Magistrate's adoption of the principle that the tensions of litigation decrease with time (at [52]), and the evidence that Mr Patrick and Mr Brown did not work closely in any event (at [54]), I am not persuaded that, had this factual error been corrected, the Federal Magistrate would have come to a different conclusion. 41 Further, I am satisfied that his Honour's comments concerning Mr Patrick's evidence (at [56]-[59]) were open on the material before the Court. In any event his Honour's views in relation to that evidence did not in my view, form a prominent part of the reasons for decision. 42 I am not persuaded that I should disturb the Federal Magistrate's order for reinstatement.

Notice of contention 43 Finally, I note Mr Brown's point of contention that the Federal Magistrate was also entitled to rely, in finding that the overtime requirement was unreasonable, on Mr Brown's letter of offer which provided that weekend work was "self-rostered". As I have dismissed all four grounds of appeal, it is not necessary for me to consider this point of contention further.

Conclusion 44 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.