FWA – “workplace right” s.352 & “adverse action” – dismissal whilst on sick leave

 Hammond v Boutique Kitchens & Joinery Pty Ltd [2010] FMCA 622

INDUSTRIAL LAW – General protection claim involving dismissal – application for compensation and pecuniary penalty for contravention of the Fair Work Act 2009 (Cth) – whether breach by employer of s 340(1) Fair Work Act 2009 (Cth) – onus of proof.

Fair Work Act 2009, ss.352, 361, 539(2), 545, 546

Issues

The applicant brought an adverse action claim for compensation, reinstatement and pecuniary penalties alleging she was dismissed because she was temporarily absent whilst on sick leave. The applicant claimed her workplace right was pursuant to s.352 FWA.

Section 352 of the Act is in the following terms:

SECTION 352 TEMPORARY ABSENCE – ILLNESS OR INJURY

352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4 – 1)

The adverse action was the dismissal and if satisfied would reverse the onus of proof:

Section 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.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

Jarrett FM

His Honour preferred the evidence of the applicant, but nevertheless found for the respondent. The geneses of the claim flowed from the applicant being called into a meeting and to be warned about work performance:

12.

I accept the following account of the meeting as recounted by Ms Hammond in her trial affidavit:

  • 94. …I sat down and he placed a sheet of paper in front of me and said, “According to the Industrial Relations Act I have a neutral witness,” and gestured towards Jane (the other owners niece and daughter). I’m thinking aha and then I saw 1st Warning up the top and couldn’t believe I was seeing it. I then read the next two lines and went into shock. I said Matt if you think I am going to allow you to tarnish my good reputation like this you’re wrong. I then read the next few lines and said umm if people are discussing me and you are going to act accordingly in this fashion on those discussions I have a right to defend myself. I then asked who was in this management meeting he said himself, Paul Dent, Dominic and John Reido (He smirked as he said John Reido in a different tone). At this point I was in such a state that all I could say was “Matt I can’t deal with this right now, I’m going home on stress leave and I will phone after I’ve seen my doctor.” I didn’t read the rest of the warning letter.
  • (faithfully reproduced)

 

Later that day the applicant telephoned to say she had seen her doctor and was on sick leave for stress and had a medical certificate for a week. She also stated she had lodged an application for workers compensation.

Shortly thereafter she received a call:

19.

About 20 minutes later Mr Ackland-Snow called again. Ms Hammond records her recollection of the conversation as follows:

  • 99. Twenty minutes later Dominic rang again, I said hi Dominic, I’m not even sure what else he said now, but I just said to him I was unable to discuss anything right now and that I couldn’t even think straight. He then said well letting you know you’re fired and that I back Matt 100%. I said, “you can’t sack me because I said I was on stress leave”. He said, “yes I can,” I lost it then and said it leaves a lot to be desired as to what you are all up to and hung up on him. I rang him back 5 minutes later and I said, “can you please put it in writing?” He said yes he would. I went back to my doctor a little while after this.
  • (faithfully reproduced)

The crux of the matter was:

25.

The lynchpin of Ms Hammond’s case is the reason for her dismissal. At the conclusion of the trial before me, it was clearly Ms Hammond’s case that s.352 of the Act had been breached because her employment had been terminated when she was on sick leave, not because she was on sick leave. As I understood her case, she did not allege that she was dismissed because she was temporarily absent from work. Rather, she alleged that s.352 was breached because she was terminated when she was temporarily absent from work on sick leave.

His Honour called for submissions on s.361 and helpfully summarised the authorities on the area:

29.

Logan J explained the onus cast upon applicants in applications such as the one now before me in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:

  • 13. Subject to the operation of s 360 and s 361 of the Fair Work Act, [the applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

30.

The operation of s.361 of the Act was remarked upon by Tracey J in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 [18]-[35] where his Honour outlined the history of s.361 and its predecessors.

31.

Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 summarised the effect of s.361 as follows:

  • 10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]– [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.

32.

Such an approach is consistent with the approach outlined by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490. After tracing the history of provisions similar to s.361 and the approach by Courts to those provisions, his Honour summarised the approach thus:

  • 34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
  • a) The applicant proving the fact of employment and its termination;
  • b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
  • c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
  • d) In discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.

 

 

Conclusion

34.

Mr Kreis and Mr Ackland-Snow were not cross-examined about the reasons for Ms Hammond’s dismissal. The contest centred on the timing of the termination. That is consistent with Ms Hammond’s case at trial that she could not be terminated when on “sick leave”.

35.

I accept that in her second telephone conversation with Mr Ackland-Snow on 3 March, 2010 Ms Hammond said to him: “You can’t sack me because I told you I was on stress leave”. I also accept that he said: “Yes I can”. But I find that Ms Hammond’s statement did not mean that she could not be terminated because she was on sick leave. Given her understanding at the time, and the case that she presented at trial, I am satisfied that she meant that she could not be terminated when she was on sick leave. Her statement was underpinned by her understanding at the time that the respondent could not lawfully terminate any worker while they were on sick leave.

36.

Whilst Ms Hammond now argues that the reason for her dismissal was that she was on sick leave, the change in focus of her case appears to have come about because of my request for submissions about the effect of s.361 of the Act. It is a fundamentally different case to that pursued by her at trial.

37.

Ms Hammond’s case at trial did not raise or seek to prove that she was dismissed because or for the particular reason that she was on sick leave. The objective facts proved by her do not raise for consideration a case that she was dismissed because she was on sick leave. At best, the facts only permit of a finding that she was terminated when she was on sick leave.

38.

In my view, Ms Hammond has not proved sufficient facts to engage the operation of s.361 (1) of the Fair Work Act. Nor has she otherwise proved that the respondent’s termination of her employment was in contravention of s.352 of the Act.

39.

The application must be dismissed.

Brisbane Barrister – David Cormack

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