Fox, Andrew James v St Barbara Mines Ltd [1998] FCA 306

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - TERMINATION of employment - whether for prohibited reason - COMPLAINT against employer - RECOURSE TO COMPETENT ADMINISTRATIVE AUTHORITIES - whether SUMMARY DISMISSAL - COMPENSATION - PENALTY. Workplace Relations Act 1996 ss 170CH, 170CK, 170CM, 170CP, 170CR, 170CS, 170QG, 356(b). Workplace Agreement Act (W.A.) ANDREW JAMES FOX -v- ST BARBARA MINES LIMITED WAG 9 OF 1998 RD FARRELL JR PERTH 24 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 9 of 1998

BETWEEN: ANDREW JAMES FOX

Applicant

AND: ST BARBARA MINES LIMITED

Respondent

court: RD FARRELL

DATE OF ORDER: 24 MARCH 1998

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent pay to the applicant within 14 days the sums of: (a) $5,045.00 pursuant to Section 170CR(4) as compensation for the breach by the respondent of Section 170CM of the Workplace Relations Act 1996, (b) $28,000.00 pursuant to Section 170CR(1) as compensation for the breach by the respondent of Section 170CK, and (c) $10,000.00 pursuant to Section 170CR(1) and Section 356(b) as a penalty for the breach by the respondent of Section 170CK. 2. That the respondent pay the costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 9 of 1998

BETWEEN: ANDREW JAMES FOX

Applicant

AND: ST BARBARA MINES LIMITED

Respondent

court: RD FARRELL

DATE: 24 MARCH 1998

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT (Edited from Transcript) This is an application pursuant to Section 170CP of the Workplace Relations Act 1996 ("the Act") arising from the allegedly unlawful termination of the applicant, Mr Andrew Fox ("Mr Fox"), by the respondent, St Barbara Mines Limited ("the Company"). Mr Fox seeks compensation pursuant to Section 170CR(1) of the Act for the alleged breach by the Company of Section 170CK(2)(e) of the Act. Claims Section 170CK of the Act relevantly provides: "An employer must not terminate an employee's employment for any one or more of the following reasons or for reasons including any one or more of the followings reasons:... (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities." If the Court finds that a breach of that provision has been proved, then Section 170CR(1) sets out the orders available to the Court, which include: "(a) an order imposing on the employer a penalty of not more than $10,000; and (c) an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate." Mr Fox seeks orders from the Court both for the penalty and for compensation. Any order that the Court makes in relation to compensation under that subsection is limited by reference to Section 170CR(2) of the Act which refers the Court to subsections (8), (9) and (10) of Section 170CH of the Act. In brief, the effect of those subsections is to place a limit on the amount of compensation that can be awarded of either $32,000 or the total amount of remuneration received (other than remuneration received for any period of leave without full pay) by the employee for any period of employment with the employer during the period of 6 months immediately before the termination. Later in this decision I will consider which of those two limits is applicable to Mr Fox. Mr Fox also seeks compensation pursuant to Section 170CR(4) of the Act for alleged breach by the Company of Section 170CM of the Act. That section relevantly provides that an employer must not terminate an employee's employment unless the employee has either been given the required period of notice or the employee has been paid the required amount of compensation instead of notice. There is an exception where there is serious misconduct but no such conduct was alleged in these proceedings. Mr Fox had been employed by the Company since January 1991; ie for more than five years. Section 170CM(2) therefore prescribes that the relevant period of notice applicable to Mr Fox is at least four weeks. Mr Fox also seeks contractual damages based either upon: · the Company's alleged failure to give reasonable notice or pay wages in lieu thereof; or · the alleged breach by the Company of certain implied terms of the contract. Factual Background St Barbara Mines Limited operates a mine near Meekatharra, known as the Bluebird Mine. The mine employs about 350 people. Mr Fox was employed by the Company in January 1991. By 1997 Mr Fox was a driller in the Company's drilling and blasting section and was earning $21.75 per hour. He worked at least 10 hours per day and 13 days per fortnight, or 130 hours per fortnight. His base rate in earnings per fortnight was therefore usually about $2827.50 gross. However, after three fortnights' work he was entitled to a week's unpaid rest and recreation leave. Mr Fox and his wife lived in Perth and it was his practice to return there for that rest and recreation leave. He also was entitled to four weeks' paid annual leave per year. In late 1996 Mr Fox signed a document described as an "individual workplace agreement" ("the Agreement") which was registered under the Workplace Agreements Act (W.A.) and which came into effect on 30 December 1996 and was intended to run for a two year period, expiring on 30 December 1998. His hourly rate of $21.75 per hour was specified in the Agreement, as were his hours of work. Paragraph 4.1 - "Commuting" of the "Employee Benefits" clause of the Agreement provided for the following arrangements: "Bluebird Village residents - Company provided Fly-in, Fly-out of Perth. Meekatharra residents - Travel assistance of $200.00 paid into your Travel assistance account at every due Rest and Recreation week. Bluebird Village residents domiciled in Geraldton - Travel assistance of $200.00 paid into your Travel assistance account at every due Rest and Recreation week. Travel assistance must be used in accordance with Company policy. The Company will determine which of travel assistance or fly in, fly out applies after considering your personal circumstances." Mr Fox was a resident of the mining camp, which I understand to be Bluebird Village, during the six-week periods in which he worked between rest and recreation leave. He therefore received the benefit of the fly-in, fly-out arrangement. Meekatharra is some 750 kilometres, or a seven-hour drive, from Perth. Clause 5 - "Tenure", of the Agreement makes provision, among other things, for termination of the contract of employment: "...by providing, in writing one week's notice of intention to terminate or by the payment or forfeiture of the salary applicable to the period of notice as the case may be. This period may be varied to accommodate the statutory obligations on the parties." It seems to me that Section 170CM of the Act would be such a statutory obligation. It was suggested by Counsel for Mr Fox that clause 5, properly construed, would not apply to Mr Fox because he was a permanent employee and clause 5 should be read as applying only to those employees who embarked upon a probation period during the term of the Agreement. I am not convinced that that is the manner in which the contract should be interpreted but I will deal with that, if it proves necessary, later in my decision. Clause 11 of the Agreement provided for Dispute resolution procedures: "On occasions an employee may disagree with decisions made by the Company. Should a grievance or dispute arise between the Company and yourself, the parties shall confer in good faith with a view to resolving the matter on site in the following manner: (i) The matter should be brought to the attention of your immediate supervisor/manager who shall endeavour to resolve the matter for you, calling upon whatever assistance they require in order to do so. (ii) If not settled within a time-frame agreed by the parties (or 48 hours) it may be brought to the attention of your superintendent or department manager. (iii) Should the matter remain unresolved within the time-frame agreed (or another 48 hours) it may be brought to the attention of the group operations manager or the human resources manager, whichever is appropriate. (iv) Should there be no resolution of the matter within a further agreed time-frame (or a further 48 hours) either party shall have the right to have the matter referred to an independent arbitrator agreed to by both parties. If agreement on the arbitrator cannot be reached, the arbitrator will be a person nominated by the chief commissioner (or authorised delegate) of the West Australian Industrial Relations Commission. The cost of arbitration will be determined by the independent arbitrator. (v) Both the Company and the employee undertake to accept the decision resulting from arbitration as final and binding for the purposes of this agreement subject to the appeal rights available under the Workplace Agreements Act 1993. It is a condition of this agreement that all work will continue as required whilst the issue is being resolved." In July 1997, Mr Colin Ross Atkins ("Mr Atkins") assumed the position of Executive Chairman of the Company. At around that time, Mr Fox was given the opportunity to act as relieving leading hand whenever the usual leading hand was absent on leave. After Mr Fox had acted as leading hand on an occasional basis for about three months, the usual leading hand tendered his resignation while on rest and recreation leave. Mr Fox, who was acting as leading hand at the time, was asked by his immediate supervisor, Mr Robin Burns, to take on the position of leading hand. He accepted that request. On 21 October 1997, Mr Atkins issued a memorandum to all managers in the following terms: "The last charter flights using National Jet Systems will take place on Thursday, 30 October 1997. Travel allowances are also cancelled with effect from that date. Thereafter employees are advised to make their own private travel arrangements for trips to/from Perth. Please also note that St Barbara Mines will not be chartering an aircraft to transport employees to/from Perth for the Christmas break." Mr Fox was unhappy to be advised of what he considered to be a unilateral change in his terms of employment. He availed himself of the dispute resolution procedure provided for under the Agreement. It appears that employees other than Mr Fox also complained about the change to the fly-in, fly-out arrangement and the change to the related travelling allowance entitlement. There were about 25 such complaints. In the days following, in accordance with the procedure, he forwarded memorandums to Mr Burns, his immediate supervisor, then to Mr Tooher, who was either the superintendent or department manager, and then to Mr George Hendrix Senior, the group operations manager. The memorandums were in similar terms, commencing as follows: "I wish to bring to your attention a dispute between myself and St Barbara Mines over the cancellation of fly-in/fly-out as stated in my workplace agreement. In doing this, I am following the dispute resolution procedure as laid out in my copy of the Santa Barbara Mines individual workplace agreement. He then refers to Mr Atkins' memorandum and continues: "This memorandum in my opinion contravenes my workplace agreement contract and I would like to have it rectified." Mr Fox concludes each memorandum by stating that if the matter had not been settled within the period prescribed in the dispute settlement procedure he would enact the next step in that procedure. In the course of Mr Atkins' evidence, he claimed to have discussed the matter with Mr Fox on an individual basis following the receipt by his immediate supervisor, Mr Burns, of Mr Fox's first memorandum. That proposition was not put to Mr Fox in the course of his evidence. In any event, Mr Atkins does not purport to have sought to settle the dispute other than by: · making it clear to Mr Fox that the Company's withdrawal of the fly-in, fly-out arrangement was not negotiable; and · explaining that Mr Atkins was seeking to cut costs because the mine was losing money. It is fair to say that Mr Fox inferred in any event that that was the reason for Mr Atkins' actions, though Mr Fox attributes his knowledge of that motivation to rumours which were circulating in the camp. Eventually, probably in early November, Mr Fox took the last step in the dispute resolution procedure by writing to the Chief Commissioner of the W.A. Industrial Relations Commission, bringing the Chief Commissioner's attention to the dispute between himself and the Company and seeking the Chief Commissioner's help in resolving the dispute. There was no evidence of any other employee bringing their complaint to this level of the dispute resolution procedure. Within two or three days of that letter being sent, Mr Fox received a phone call from Mr Atkins. He made notes of the content of that call soon after speaking with Mr Atkins. Mr Fox used those notes to refresh his memory during his evidence and they were tendered into evidence. Mr Fox recalls Mr Atkins telling him that, "Since you are the instigator, there is no fucking way you'll be leading hand." Mr Atkins went on to say that Mr Fox should "distance himself" from the Company. (This strikes me as being unusually euphemistic for Mr Atkins, based upon his frankness or bluntness in the course of his evidence in some respects). Mr Fox says he took this as being asked to resign and responded "No". He says that Mr Atkins went on to say that if Mr Fox continued then Mr Atkins would have to close the mine down and that 350 jobs would be "on the line". At about that time Mr Fox returned to Perth for a week's rest and recreation leave. On arriving in Perth, he contacted Mr Atkins' office with a view to asking him to reconsider the position with regard to his continuing as leading hand. Mr Atkins returned that call and told Mr Fox that he would not reconsider the position. When asked by Mr Fox if he still had a job, Mr Atkins replied, "Yes, but I might have to reconsider my position next week." Conveniently for Mr Fox, the matter went before the Registrar of the WA Industrial Relations Commission ("the Commission") for arbitration while he was still in Perth for his rest and recreation leave on 11 November 1997. The Registrar was the delegate of the chief commissioner for that purpose. The arbitration was attended by Mr Atkins, by Mr Gardiner the Company secretary, by Mr Fox, his solicitor, and his wife. The Registrar's reasons for decision form part of the evidence. The Registrar concluded, after making various findings of fact, that he formed the view that the Agreement had a provision requiring the Company to provide a fly-in, fly-out service from the Bluebird mine site to and from Perth at Company expense. He therefore formally advised the parties that his decision was that the meaning and effect of clause 4.1, "Commuting" in the Agreement was that the Company should provide a fly-in, fly-out arrangement at its expense. Mr Atkins confirmed in his evidence that he advised Mr Fox in the course of those proceedings that he would be reviewing the employment of those 25 employees who had complained about the proposed changes. He also advised Mr Fox that he would need to see him when he returned to work at the site. In the course of Mr Atkins' evidence, he also recalled telling Mr Fox at some point: "I'm not going to make your bed and feed you 21 times a week when I am fighting you in court." Mr Atkins wasn't sure when this statement was made; however, the content of the final meeting between Mr Atkins and Mr Fox is clear and it would appear that it was not made at that time. It must therefore have been made at an earlier time; that is, either during one of these two phone calls or, I think less likely, in the course of the proceedings at the Commission. Mr Fox and his wife travelled back to the mine site on 12 November 1997 and Mr Fox resumed work on 13 November 1997. He did not see Mr Atkins again until Sunday, 16 November 1997, when he attended a meeting arranged by Mr Atkins in the Company boardroom at Meekatharra. In the course of that meeting, Mr Atkins terminated Mr Fox's employment. Mr Fox then packed up his things and returned to Perth the same day. Section 170CM I will deal first with the issue of notice relating to Section 170CM of the Act. The discussion between Mr Atkins and Mr Fox on 16 November 1997 was not the subject of dispute in terms of what was said. It is clear from a consideration of what was said at that meeting that in the course of that meeting Mr Atkins: · terminated Mr Fox's employment; · told Mr Fox that he wanted him out of the camp that night; · offered Mr Fox a seat on his aircraft which, it was clear from the evidence, was leaving that night, and · participated in a discussion of the practicalities of preparing Mr Fox's termination pay that day, with Mr Atkins maintaining that it was not practical and that the termination pay would be available in due course. Notwithstanding the agreed content of the discussion, Mr Atkins claimed in his evidence that he expected that Mr Fox would nevertheless continue to work out his notice. In my view that interpretation of the conversation is so implausible as to be fanciful. Mr Atkins' readiness to assert such a proposition has led me to view his credibility on other issues with some caution. Given what was said during the conversation, Mr Fox was entitled to regard himself as having been summarily dismissed. There were no grounds for such a summary dismissal. Accordingly, I regard the Company as having been required under Section 170CM of the Act to pay Mr Fox four weeks' pay instead of notice. In that regard, Section 170CM(4) of the Act is relevant. It provides that: "the required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have been liable to pay to the employee because of the employment continuing during that period." The Company in fact paid 40 hours' pay in lieu of notice to Mr Fox. Given that Mr Fox worked at least 10 hours per day and 13 days per fortnight, over the next four weeks he would have been expecting to work 260 hours at $21.75 per hour. That figure comes to $5655. Given that he was paid for 40 hours, the amount payable in relation to his hourly rate becomes 220 hours at $21.75, leaving $4785. At this point, it becomes necessary to consider whether or not the leading hand payment of $10 per day should be taken into account. Mr Atkins' evidence was that Mr Burns did not have the authority to appoint Mr Fox as leading hand and that any appointment as leading hand was required to be authorised by him. Mr Atkins expressed surprise that Mr Fox had ever been paid a leading hand allowance. Clearly, based upon the pay slips, Mr Fox had been receiving that allowance. Mr Atkins went on to say that, given the duties of any leading hand within Mr Fox's drilling team, it was not necessary or appropriate that any employee be engaged as leading hand. In any event, Mr Atkins asserted he would not have approved Mr Fox's appointment because he was not a suitable person to be a leading hand. It was put to him by Counsel for Mr Fox that another employee, Mr Phil Campbell, had in fact been appointed as leading hand in the relevant team instead of Mr Fox. Mr Atkins responded that he would be surprised if that were the case. Though he was unable to rule it out completely, he did not recall ever appointing Mr Campbell to that position. Mr Burns, Mr Fox's immediate supervisor, was not called to give evidence. I was advised from the bar table that he was not called because he is presently working in Meekatharra. Given that Mr Burns' evidence is not available and therefore cannot assist either of the parties who might have called him, I am left to assess the evidence of Mr Atkins as against the evidence of Mr Fox. I accept that Mr Fox honestly believed himself to have been appointed leading hand. It seems to me that, potentially, the Company could have established the position either in relation to the authority of Mr Burns or as to whether any leading hands were appointed to replace Mr Fox by the production of additional documentation. So, on the evidence before me I find that Mr Fox was validly appointed as leading hand. I further find that if he had not taken the Agreement to arbitration then it is likely that he would have continued to hold the position without Mr Atkins' intervention. That being the case, a further amount of $260 must be added reflecting the 26 days that Mr Fox would have worked during that four-week period, therefore the total amount to be paid pursuant to the breach of the notice provision is $5045. Section 170CK - Whether Breached Turning then to the claim for breach of Section 170CK, the onus in this matter is upon the employer, pursuant to Section 170CQ of the Act. It is also to be noted that the words of the provision are such that the prohibited reason need not be the only reason but that the provision can have been breached even when the prohibited reason is only one of many reasons for the dismissal. On the evidence before me, I am well satisfied that there has been a breach of Section 170CK(2)(e). I think it is fair to say that the evidence is overwhelming and that much of it was provided by Mr Atkins' own testimony. There are numerous instances in the evidence that can be identified. Before I make specific reference to the evidence I will observe that the Company's case was that the "real" reason for Mr Fox's dismissal was his refusal to accept the proposed change to his working conditions. Even so, it was clear on the evidence that there were about 25 people who complained about the proposed change to their entitlements. However, as at 16 November 1997, Mr Fox was the only one of them who had sought to pursue the dispute resolution procedure to the final step of bringing the matter to arbitration before the WA Industrial Relations Commission. Mr Fox was dismissed. All of the other complainants, Mr Atkins advised us, are still working. It seems then that the manifestation of the refusal to accept the proposed change which led to the termination was the bringing of the matter to the attention of the Chief Commissioner of the WA Industrial Relations Commission. I am satisfied that the step of bringing the matter to the attention of the Industrial Relations Commission constituted the filing of a complaint or the recourse to relevant administrative authorities such that paragraph (e) of Section 170CK subsection (2) applies. I note that there were no submissions to the contrary. I have already referred to the fact that, even in the course of the Commission's proceedings, Mr Atkins made it clear that he would be reviewing the employment of all those who had complained. I also note that the reason given for the termination on the employment separation certificate was "causing unrest". It suffices to say, given that the onus is on the employer in this matter, that the Company has fallen far short of persuading me that the complaint was not one of the reasons for the termination. Section 170CK - Compensation Turning then to the assessment of compensation, I must first assess the loss sustained by Mr Fox. To some extent that loss has been actually sustained as at the date of hearing. Allowing for the fact that I have already awarded compensation in lieu of notice, in the period after that notice would have expired to the present date significant loss of remuneration has already been sustained. I have taken into account that the amount of that loss has been reduced to the extent of $88 which was earned by Mr Fox as a casual employee. Mr Fox made considerable efforts to mitigate that loss. He gave evidence of having applied for numerous jobs in the period since his termination. He did not begin receiving unemployment benefits until the beginning of January. From that point on he made a record of his attempts to seek employment and in the time between the beginning of January and his successfully obtaining employment at the beginning of February he made some 85 applications for employment. He gave evidence of also applying for employment before going on unemployment benefits, though he did not record those applications. I am satisfied on the evidence before me that his attempts to mitigate his loss throughout that period were sufficient. The employment that he was successful in obtaining was casual employment. It therefore does not offer the security of employment that his previous employment at the Company offered. Nor, because it is casual, does it provide the accrued entitlements, such as sick leave and annual leave, that his permanent employment with the Company had provided. Notwithstanding that, the rate of pay is also considerably lower, being some $500 per fortnight less than what he was earning at the Company. Prior to commencing his employment with the Company, Mr Fox was involved in catering as a chef for catering firms contracting to mining companies. It was suggested by the Company that Mr Fox should have applied for work in that field. Mr Fox says he did not do so. It is not self‑evident to me that a job in those circumstances would be more remunerative than the job he succeeded in obtaining and so I do not regard his not having applied for a job in that area as relevant to or as amounting to a failure to mitigate. Given the relative lack of security in his new job and its relative lack of remuneration, it is fair to say that, as well as an actual loss to date, Mr Fox is very likely to suffer a continuing loss after the date of this hearing. I have placed considerable weight upon that fact in determining an amount for compensation. Finally, Mr Fox gave evidence of the distress which he suffered as a result of the fact of his termination and the manner in which it was carried out. That distress and the stress flowing from the termination, on the evidence of Mr Fox, also manifested itself in a medical condition of a digestive nature. I have taken that evidence into account in the assessment of compensation, though I have placed greater weight on the factors relating to loss of remuneration. In assessing compensation I have also had regard to what would have happened had there not been an unlawful termination. Mr Fox had a long and settled history with the Company, having been employed since 1991. There is no reason to believe that his employment would not have continued had he not complained. Indeed, he made reference in his evidence to his intention with his wife to move to Meekatharra permanently in the foreseeable future had he not been dismissed. There is no reason, therefore, to discount the amount of compensation on that ground. Having taken all those matters into account, I will award compensation for the breach of Section 170CK in the amount of $28,000. I have done some calculations as to the limit applicable to the matter. Not taking into account the leading hand allowance, Mr Fox received $2827.50 per fortnight. That corresponds to $8482.50 per seven-week cycle, given that there is one week's unpaid rest and recreation. That amounts to an average of $1211.78 per week. Multiplying that figure by 26 indicates a six-month limit of about $31,506. Adding the leading hand component that would raise it somewhat, but it is more than $28,000 in any event.