Ruiz v Queensland Property Investments Pty Ltd (ACN 009 661 027) [2005] FCA 54

FEDERAL COURT OF AUSTRALIA

Ruiz v Queensland Property Investments Pty Ltd (ACN 009 661 027) [2005] FCA 54 ENRIQUE RUIZ v QUEENSLAND PROPERTY INVESTMENTS PTY LTD (ACN 009 661 027)

V 249 of 2003

RYAN J

8 FEBRUARY 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 249 of 2003

BETWEEN: ENRIQUE RUIZ

Applicant

AND: QUEENSLAND PROPERTY INVESTMENTS PTY LTD (ACN 009 661 027)

Respondent

JUDGE: RYAN J

DATE OF ORDER: 8 FEBRUARY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 1. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 249 of 2003

BETWEEN: ENRIQUE RUIZ

Applicant

AND: QUEENSLAND PROPERTY INVESTMENTS PTY LTD (ACN 009 661 027)

Respondent

JUDGE: RYAN J

DATE: 8 FEBRUARY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an amended application for relief arising from the respondent's refusal to employ the applicant for a proscribed reason in contravention of s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) ("the Act"). The applicant claims an order pursuant to s 298U(a) imposing a penalty on the respondent and an order pursuant to s 298U(c) that the respondent pay to the applicant compensation of such amount that the Court thinks appropriate.

Background 2 On or about 10 May 1999 the applicant became an employee of Newskills Limited ("Newskills"), which is a provider of employment training. Newskills arranged for the applicant to receive "on the job" training at the respondent's Safeway Hume Distribution Centre ("the Hume DC") as a warehouse trainee with a view to his eventually being engaged as a long-term employee of the respondent. Pursuant to a trainee agreement with Newskills, the applicant's employment, while working at the Hume DC, was to be governed by, in addition to the trainee agreement, the Queensland Property Investments Pty Ltd Hume Distribution Agreement 1999 ("the EBA"). 3 There exists between Newskills and the respondent a Memorandum of Understanding ("Memorandum") governing the relationship between the two parties to the Memorandum which deals with, amongst other matters, trainees provided by Newskills to the respondent. Clause 2.4 of the Memorandum provides; 'Upon completion of their traineeship, Trainees will be assessed by QPI as to their suitability for permanent employment. If adjudged as suitable, and the offer is accepted, the trainee shall transfer to QPI's payroll at no additional costs.' 4 From the time when he commenced employment with Newskills, the applicant was a member of the National Union of Workers ("the NUW"). In about February 2001 he was elected as one of the two shift delegates representing NUW members on afternoon shift at the Hume DC. The other shift delegate was Paul Pirotta. At about the same time, the applicant was elected Occupational Health and Safety Representative for the afternoon shift pursuant to the Occupational Health and Safety Act 1985 (Vic). 5 Between March 2000 and March 2002 the applicant was warned or counselled in accordance with the EBA on a number of occasions. As in force from 31 August 2001, cl 24.1 of the EBA provided as follows for a General Performance and Rehabilitation Program ("GPRP"); '24.1 The Programme This programme is designed to be a process for ensuring an employee's satisfactory job performance. The intent of this process is to approach individuals with job performance problems in a mature, non-threatening manner. The focus is on ensuring the individual knows the expected standards, why they exist and understands how to meet those standards during a future review period. The review periods will be based on calendar time, with any absences extending the review period, by the cumulative total of the time absences. 24.2 The Process The manager, upon deciding an employee may need to enter the programme will inform the employee. The employee may elect to have an employee representative with them, during the GPRP steps. The process will be: Step 1: Written counselling and training. Step 2: Written reminder of performance standards and action plan. Step 3: Final Counselling Step 1: Written counselling and training: Instructing the individual of the expected standards required and soliciting feed back to ensure it is understood. The manager will provide whatever information or training the individual needs. An individual will remain on Step 1 of the programme for a period of 3 months. If after the expiry of that period of time no performance problems are encountered the individual will be removed from the programme. If performance problems are encountered during the 3-month review period, the employee will then proceed to the next step. Step 2: Written reminder of performance standards and action plan. During this discussion, the individual will be advised performance is not satisfactory and advised of expected standards. Discussions will take place with the manager emphasising the seriousness of the matter. Further emphasis is on "why" the standard exists, the individual's failure to meet the standard and gaining the individual's agreement to solve the problem(s). An action plan is devised to eliminate the gap between actual and desired performance. The action plan is documented in a written reminder letter. The individual will remain on Step 2 of the programme for a period of 6 months. If after the expiry of that period of time no performance problems are encountered, the individual will be removed from the programme. If performance problem(s) are encountered during this 6-month review period then the individual will proceed to the next step. Step 3: Final Counselling If the previous steps fail to produce the appropriate changes, the individual is to be given a final counselling to document an action plan and will stipulate that any further performance problems within a 9-month period of review may result in termination of employment. If at the expiry of that period of time no performance problems are encountered the individual will be removed from the programme. (*the review periods mentioned above relate to worked time only)' 6 The warning or counselling of the applicant was undertaken mainly by the applicant's supervisor, Bernie Ward, in respect of dangerous driving of a forklift, twice attending work without safety boots and twice taking excessive sick leave. In addition to those matters, a number of other incidents occurred resulting in the applicant's having been counselled or placed on the GPRP.