Federal Court of Australia

Kodari Securities Pty Ltd v Tran [2020] FCAFC 164

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appeal be dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal challenges two factual findings which underpinned the conclusions of the primary judge that the appellants, Kodari Securities Pty Ltd, Michael Kodari and George Kodari, took adverse action against an employee of Kodari Securities, Steven Tran, because he had exercised or sought to exercise a workplace right. For convenience, we will call each of the Kodaris by his first name. No discourtesy is intended.

The proceeding below

2    In the proceeding below, Mr Tran alleged that Kodari Securities took adverse action against him, contrary to s 340 of the Fair Work Act 2009 (Cth), by terminating his contract of employment because he exercised, or proposed to exercise, a workplace right, namely his right to seek legal advice before signing a new contract. George and Michael were said to have been involved in the alleged contravention of s 340 within the meaning of s 550 of the Act. He also alleged that Kodari Securities contravened s 343 of the Act because George and Michael threatened to take action against him with intent to coerce him not to exercise that right. Separately, Mr Tran also alleged that George and Michael contravened s 343.

3    It should be noted that s 361 provides that if, in an application in relation to a contravention of Pt 3-1, in which ss 340 and 343 appear, it is alleged that a person took action for a prohibited reason or with a particular intent and taking that action for that reason or with that intent would constitute a contravention of that Part, it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise.

4    In addition or in the alternative, Mr Tran alleged that Kodari Securities repudiated or breached his contract by failing to give him reasonable notice of termination.

5    At the trial the allegation that George was involved in the adverse action was not pressed, nor was the claim that Michael was involved in the alleged coercion. The primary judge upheld both claims under the Fair Work Act and made orders requiring Kodari Securities, Michael (by reason of involvement in the adverse action), and George (by reason of his involvement in the coercion) to pay Mr Tran penalties and compensation.

The relevant factual background

6    Kodari Securities is a family-owned investment services firm. Since December 2010 the sole shareholder and director has been Yashar Kodari, known as Michael. Michael is George’s son. George was employed or retained by Kodari Securities at the time of the events the subject of the proceedings.

7    Mr Tran is a martial arts champion who worked as a bodyguard since about 1989 and has held senior security positions in the Philippines and Australia. Between 2009 and 2015 he operated his own business providing security services. He holds an Advanced Diploma in Security Risk Management and a Diploma in Business Management.

8    Kodari Securities employed Mr Tran from May 2016 until November 2016, pursuant to an oral contract. His annual salary was $150,000, plus superannuation, and he was provided with a company car, first a Mercedes S-Class, then a 2015 Maserati. Part of his job involved driving the vehicle to pick up and drop off Michael. Between May and October 2016 Mr Tran was involved in establishing an internal administrative structure for the company. He was given the title of Chief Operations Officer. His role, subject to Michael’s direction, was to manage everything in the business that did not amount to financial securities trading. That included obtaining legal advice; setting up an accounting team to assist with ongoing compliance issues concerning wages, superannuation and record-keeping; hiring a marketing consultant to boost Michael’s image and the image of the company; engaging an IT contractor to implement security procedures and protect the business against cyber-attacks; implementing a recruitment system; and setting up a system to improve conditions at the workplace, including work health and safety, and curtail staff turnover.

9    Mr Tran’s employment came to an abrupt end on 11 November 2016.

10    In the period leading up to that fateful event, Mr Tran had a discussion with Michael about implementing new employment contracts for all of the company’s employees. On behalf of Kodari Securities, he engaged two lawyers from HWL Ebsworth to prepare two types of employment contracts, one for award employees and the other for non-award employees.

11    Late in the afternoon of 11 November 2016, with no prior notice, Mr Tran was told that George wanted to see him in the boardroom.

12    In the boardroom George presented Mr Tran with a new contract. Mr Tran recognised it as a contract in the same form he had issued to staff during the week. He told George it was “for normal staff, not for me”. Mr Tran was not happy, either with the terms of the contract or, as the primary judge put it, “its applicability to him and the position he had occupied”. Although Mr Tran’s salary would not change, his status was reduced. He would no longer be employed as Chief Operations Officer, reporting directly to Michael. Rather, his new title would be “Risk Manager” and he would be reporting to George. His “key responsibilities” were listed (without alteration) as:

•    Write and submit reports to George Kodari in all matters of importance

•    Manage Risk Internally and report to George Kodari

•    Assist George Kodari in all aspects of the business that is necessary

13    No mention was made of a company car.

14    The contract included a 12-month probationary period beginning on the commencement date. The commencement date was recorded as 19 June 2016, but that date was crossed out and, beside it, apparently in the hand of one of the Kodaris, appeared: “02/05/2016, May 2, 2016”. Either way, the contract purported to vary the terms and conditions of employment, not just prospectively but also retrospectively.

15    With the exception of the change in his title and the fact that he would be reporting to George, it appears that none of these matters was raised with Mr Tran before or during the meeting and he refused to sign the contract. While the evidence given by Michael was to the effect that he had some concerns about a recent increase in the company’s expenses and that he could no longer trust Mr Tran, no-one suggested that these concerns were raised with Mr Tran before his employment came to an end or that he was provided with any explanation for the changes to the terms and conditions of his employment.

16    In his first affidavit Mr Tran stated:

[39]    I was feeling very nervous and uncomfortable about the contract, especially considering how I was recently being treated. It was also clear that there were lots of details in there that I couldn't be across on such short notice. Although I had been handing these out earlier in the week to other employees (since this was a contract designed for normal employees), I wasn't across all the details of the contents and would not be comfortable signing it without having at least an opportunity to read it through. I was also conscious this version was probably tweaked by Justin Le Blond who had recently promised, when winking, to make it a lot stronger. I said:

Me: “I will take it to a lawyer to review.”

[40]    George Kodari’s face changed, his voice became angry and he raised his voice when he said:

GK: “It's your contract!”

[42]    George Kodari was yelling at me at this point:

GK:    “I will not pay you if you don’t sign it now. If you don’t sign now, it shows you are not loyal”.

[44]    At some point, George Kodari said to me:

GK:    “What value do you bring to the company when we pay you $150,000, car, no fringe benefits tax, nearly $200,000?”

17    Soon afterwards, Michael entered the boardroom and at some point Mr Tran signed the contract. The effect of his evidence was that he only did so because he felt under enormous pressure from both George and Michael. He later regretted his action and tore the contract in half.

18    Mr Tran left the building in the company Maserati.

19    There followed an exchange of text messages after which the police turned up at Mr Tran’s home and demanded the return of the Maserati and other property belonging to Kodari Securities. The first text message came from Michael at 8.28pm. It reads:

Hi Steven, I refer to our meeting this afternoon. It is unfortunate that you have decided to no longer be an employee of kodari securities and have resigned. I accept your resignation. You will not be required to attend/return to work on Monday. We will make payment of all outstanding wages/entitlements early next week. Formal written notification of the cessation of your employment will also be provided at the same time. You will need to return your mobile telephone, laptop and the company car by no later than 9:00 am on Monday, 14 November 2016. Best wishes for your future endeavours.

20    The response from Mr Tran, which the primary judge found had been sent shortly afterwards, reads:

Michael, as you and Mr Kodari truthfully know, I did not resign in our meeting this evening. You will recall I left the meeting saying I will come back into the office on Monday to sign the contract after I have reviewed it but you refused to give me a copy of the contract after I had torn up the earlier copy. This is a malicious text from you to falsely orchestrate my resignation which did not occur. You and Mr Kodari both tried to force me against my will to sign an unjust and unfair employment contract which I had not read and even after I had made it clear that I would like to seek legal advice. My solicitor will be in contact to resolve the issues. Please do not contact me again. Our solicitors can address all communications between us from this evening onwards. Best wishes to you. Steven Tran.

The dispute below

21    The circumstances in which Mr Tran came to lose his job with Kodari Securities were hotly contested at trial. As indicated above, the effect of Mr Tran’s evidence was that he was pressured into signing the contract against his better judgment. The Kodaris denied that they had exerted any pressure. Mr Tran claimed that he had been dismissed. The appellants claimed he had resigned. In the alternative, the appellants contended that Mr Tran would have been dismissed within a very short time after the 11 November meeting because he had misappropriated $3,816.01 of funds belonging to Kodari Securities to pay for the servicing of his own car.

22    There were disputes about other matters too.

23    One dispute related to the evidence given by Mr Tran set out at [16] above. George denied saying the things attributed to him and also denied shouting at Mr Tran, but the primary judge did not find his denials credible or convincing.

24    Another dispute related to the question of whether the witness named on the contract (Michael Wayne) had signed it before Mr Tran had, as Mr Tran testified, or afterwards, in Mr Tran’s presence, as Michael testified. Michael’s evidence was that he had called Mr Wayne into the boardroom to witness Mr Tran’s signature. George, who was in the boardroom at all relevant times, made no mention of Mr Wayne in his affidavit, although under cross-examination he supported his son’s account. No evidence was adduced from Mr Wayne and no explanation was given for his absence. The primary judge acceded to an invitation from Mr Tran’s counsel to infer that he was not called because his evidence would not have assisted the appellants and accepted Mr Tran’s account, based on the reasoning process described by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at 227.

25    The most important conflict in the evidence, as his Honour put it, concerned Mr Tran’s evidence that he needed to take the new contract to a lawyer. That evidence is discussed in detail below as it goes to the heart of the appeal.

26    The appellants submitted that Mr Tran was untruthful on two important matters going to the heart of the claim, including, relevantly, his evidence about what was done at the meeting with a second copy of the contract which was said to have been printed after the first copy was ripped up.

The decision of the primary judge

27    The primary judge found that, at the meeting in the boardroom on 11 November 2016, Mr Tran said that he wanted to seek legal advice before signing the proposed new contract. He also found that George told Mr Tran that “[i]f you don’t sign it now, you will not be working here”. His Honour found that this was “an unconscionable threat to take action directed towards Mr Tran because he wanted to exercise his workplace right to seek legal advice about the effect of the new contract on his existing contract and that George made the threat with intent to coerce Mr Tran into signing the new contract. His Honour held that the presumption that the action was taken for a prohibited reason was not rebutted by the bare denials in the Kodaris’ affidavits.

28    The primary judge also found that Mr Tran did not resign from his employment at the meeting, as the appellants maintained. Rather, his Honour found that his employment was terminated after he left the meeting because he had sought to exercise his workplace right to seek legal advice about the new contract. The effect of his Honour’s findings is that, by arranging for the police to contact Mr Tran after he had sent the text message reasserting his workplace right to obtain legal advice about the new contract and retrieve its property, Kodari Securities had repudiated his contract of employment and, by returning the Maserati with its keys and three mobile phone handsets, Mr Tran had accepted the repudiation.

29    The primary judge rejected the appellants’ alternative case because he was not satisfied that there was any impropriety of the kind alleged. Rather, his Honour accepted Mr Tran’s evidence that there was an arrangement by which sometimes Mr Tran paid for things for Kodari Securities and was reimbursed and sometimes, including in the instance giving rise to the allegation, Kodari Securities paid for things for Mr Tran and was reimbursed. His Honour concluded that this claim and the allegations concerning mobile phones were no more than ex post facto justifications for the conduct that took place on 11 November 2016 in the event that that amounted to termination of employment without a proper basis.

The appeal

30    Two grounds of appeal were pleaded. Ground 1 alleged that the primary judge erred in finding that Kodari Securities terminated Mr Tran’s employment (the first finding) and should have found that he had resigned. Ground 2 alleged that his Honour erred in finding that during the meeting on 11 November 2016 Mr Tran had said that he wanted to obtain legal advice and thereby exercised or sought to exercise a workplace right (the second finding). As the case was argued, however, the only issue was whether the primary judge fell into appealable error with respect to the second finding. The appellants informed the Court that the outcome of that ground determined the fate of the appeal. No challenge is made to the findings concerning the appellants’ alleged justifications for termination or to the finding that the appellants had not rebutted the statutory presumptions.

31    No appeal is brought from the penalty or compensation orders, but Mr Tran lodged a cross-appeal against the order for compensation for economic loss.

The appellants’ submissions

32    The appellants’ argument, in a nutshell, was outlined in paragraph 3 of their written submissions as follows:

The fundamental problem with Mr Tran's assertion that he sought to exercise a workplace right was that the objective evidence was inconsistent with him having taken a copy of the proposed written contract (torn or otherwise) in order to seek legal advice. The only evidence of a copy of the contract in existence was the torn copy retained by the appellants and tendered by them. There was nothing for Mr Tran to seek legal advice about following the conclusion of the meeting. Further he had already decided that the terms of the new proposed written contract were unacceptable which is why he tore it up. This fundamental problem was not adequately addressed by his Honour.

33    The critical issue on the appeal, they submitted, was whether this conduct, having regard to the whole of the evidence, was consistent with a finding that Mr Tran was proposing to seek legal advice in relation to the contract, regardless of whether it was torn. The appellants contended it was not. They argued that the primary judge could not be satisfied to the requisite standard either that Mr Tran was terminated or that Mr Tran said that he needed to take the contract to a lawyer.

34    In support of their argument the appellants relied on inconsistencies in Mr Tran’s evidence. They pointed out that in his first affidavit Mr Tran gave the following account. After he had torn up the contract, George told Michael to print another copy. Michael left the boardroom, printed another copy and put the copy in front of him to sign. Mr Tran then said to them: “I will take the contract home with me, actually read it properly, and get back to you on Monday”. In cross-examination, however, Mr Tran said that he could not recall Michael bringing in a fresh copy of the new contract and that the evidence to that effect in his affidavit was incorrect. Later he said that he could recall an additional copy being brought into the room but did not recall what happened to it. Mr Tran adhered to the evidence he had given in his affidavit that, as he left the meeting, he said: “I just want to read it and consider it. I’m not resigning. I will speak to you on Monday”. The appellants submitted that this evidence did not make sense if Mr Tran did not have a copy of the contract or Michael had refused him a copy (as he asserted in his text to Michael the evening after the meeting). They argued that Mr Tran tried to correct his evidence by saying he was referring to the ripped-up contact. The appellants submitted that Mr Tran’s statement at [66] of his first affidavit that George had said to him “[i]f you don’t sign it now, you will not be working here” also made no sense as Mr Tran had already signed and torn up the employment contract. They asked rhetorically: “If Michael refused to provide Mr Tran with a copy of the contract what was he actually asking him to sign?”

35    The appellants also pointed to an exchange during cross-examination in which Mr Tran said that he was too scared to take the torn copy and did not do so out of “respect”. The appellants submitted that this evidence was inconsistent with the statement in his text message to Michael that he had left the meeting saying he would return to the office the following Monday to sign the contract after he had reviewed it but “you refused to give me a copy of the contract after I had torn up the earlier copy”.

36    The appellant submitted that Mr Tran’s evidence was “unreliable and inconsistent” and “should have cast significant doubt over [his credibility]”, where the evidence related to “a matter that [was] critical to the claim”. The appellants submitted that it was for Mr Tran to establish that he said the words “I need to take it to my lawyer” and/or “I just need my lawyer to have a look at it” and cited a passage from Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [13] in which Logan J observed that proceedings of this kind, while “civil in character … are nonetheless penal” and referred to s 140(2) of the Evidence Act 1995 (Cth) and the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

37    The appellants submitted that the primary judge’s finding at ([56]) that “[Mr Tran’s evidence] is consistent with Mr Tran wanting to take an unsigned reprinted copy if he was given it, but being willing to make do with the torn up copy if not” was inconsistent with the objective evidence. They asserted that “[t]he simple fact on the uncontroverted evidence is that there was no contract taken by Mr Tran for the purposes of obtaining legal advice contrary to the self-serving text message sent by Mr Tran”. They contended that the primary judge had “failed to resolve this tension in the evidence correctly”.

38    The appellants also took issue with the primary judge’s finding at [51], where his Honour said:

Mr Tran then ripped up the contract which he had just signed, but he said that he did not do this in an aggressive manner. In my view, it was not an irrational response for Mr Tran to rip up the signed new contract in the face of not getting answers to his questions, and therefore not wanting to be bound by the new contract. The undisputed fact of having ripped up the new contract aligns better with his account of the lead up to this event. On Mr Tran’s version of events, Mr Kodari and George Kodari obfuscated about what the change to his employment contract would mean, and pressure was being placed on him to sign. This is more plausible than the accounts given by Mr Kodari and George Kodari of a spontaneous and unexplained event. It also better aligns with the instructions that Mr Kodari gave to George Kodari to secure the signing of the new contract by Mr Tran.

(Emphasis added.)

39    The description of the accounts of Michael and George, emphasised above, was said to be inaccurate. The appellants described their evidence in the following way:

The evidence of Michael was that Mr Tran ripped up his contract after resigning from his employment. Mr Michael Kodari said that after signing the contract in the presence of himself, George and Michael Wayne, Mr Tran become agitated and made a telephone call from his mobile telephone and began speaking in a language that he did not understand. Mr Tran then raised his voice and said words to the effect of “I have no position at KOSEC anymore. It’s clear I have no position, I resign”. It was after saying these words that Mr Tran tore up the contract.

Mr George Kodari’s evidence was that Mr Tran said “[t]here is no position here for me anymore” and ripped up his contract saying “I resign” and immediately departed the premises of Kodari Securities. Mr Tran then said to George “that it is for normal employees, not me”.

40    The appellants submitted that the tearing up of the contract was not a “spontaneous and unexplained event” but the “physical manifestation of Mr Tran’s resignation after he decided that the new position was not acceptable to him”. They argued that leaving the premises without a copy of the contract was not consistent with the act of someone genuinely seeking legal advice. They submitted that the primary judge did not consider this “inherent inconsistency”.

The relevant principles

41    It is convenient to begin with the relevant principles.

42    The appeal is in the nature of a rehearing, not a new hearing, and therefore the appellants must show that the primary judge fell into error: Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[22] (Allsop J, Drummond J and Mansfield J agreeing at [1] and [2] respectively). In such an appeal a court is required to conduct “a real review” of the trial and the trial judge’s reasons: Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ). As Allsop J observed in Branir at [28], appellate judges are required to make up their own minds, but they do not go about this task as if they are sitting on the trial. Weight must be given to the views of, and advantages enjoyed by, the trial judge. Thus,

[I]f a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

43    What constitutes an error will depend, however, not only on the evidence, but also on the nature of the findings and conclusions of the trial judge: Branir at [24].

44    The appellants relied on Warren v Coombes (1979) 142 CLR 531 at 551 where Gibbs ACJ, Jacobs and Murphy JJ said in relation to an appeal by way of rehearing:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

45    Warren v Coombes, however, was concerned with whether the trial judge erred in drawing an inference from established facts. This case, in contrast, is concerned with whether the trial judge erred in making findings based on the credibility of a witness. As McHugh J observed in Fox v Percy at [88], “[t]he distinction between the two classes of case is fundamental and almost always decisive”. The principles that apply to an appeal in the latter class were outlined in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) and Devries v Australian National Railways Commission (1993) 177 CLR 472 (Brennan, Gaudron and McHugh JJ). They were reinforced in a number of subsequent High Court judgments, most recently by Nettle and Gordon JJ in Queensland v Masson [2020] HCA 28; 94 ALJR 785 at [119]. In Devries at 479 Brennan, Gaudron and McHugh JJ said:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact … If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” … or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” …

46    These principles were not called into question by the majority of the bench in Fox v Percy.

47    In Lee v Lee (2019) 266 CLR 129 at [55] Bell, Gageler, Nettle and Edelman JJ observed that appellate restraint with respect to interfering with findings of fact which are likely to have been affected by impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence extends to findings of secondary facts based on a combination of those impressions and other inferences from primary facts.

Were the relevant findings affected by appealable error?

48    There are several difficulties with the appellants’ arguments.

49    First, while the fact that Mr Tran had torn up the contract was incontrovertible and uncontested, little else of the critical evidence was.

50    Second, the primary judge was well aware of s 140(2) of the Evidence Act and the principles in Briginshaw and referred to them at [24] of his reasons.

51    Third, the primary judge’s findings on the critical issues were undoubtedly affected by his impressions of the witnesses. In the following paragraphs, his Honour said:

25    With the above in mind, the basis for preferring the account of Mr Tran or the account of either George Kodari or Mr Kodari as to a particular fact in issue was in places quite difficult to ascertain, with the determination ultimately being more about the reliability of conflicting recollections and assertions as to what took place, than to do with honesty. While I was concerned about the honesty and truthfulness of aspects of the evidence of George Kodari and Mr Kodari, that did not rise above a sense of unease. There ended up being little substantive basis for concluding that either George Kodari or Mr Kodari was deliberately giving evidence known by them to be false. I did not have any such concerns about Mr Tran, although limited aspects of his evidence ended up being unreliable, albeit on points that ultimately did not matter.

26    I gave considerable weight to such things as support from contemporaneous records, a general sense of whether an account given was, or was likely to be, comprehensive, and the sequence and logic of events, including the action and reactions of the participants. This included the candour and responsiveness of the three witnesses who gave evidence – Mr Tran, George Kodari and Mr Kodari – which was important in assessing the credibility and reliability of each of them. I paid close attention to what was, and was not, in each of their affidavits, and observed closely how each gave evidence, mostly in cross-examination. The following was based on notes made during the cross-examination, after court each day, and immediately after the hearing concluded. Overall, in part based on evanescent impression, and in part for the reasons detailed below, I found Mr Tran to be a more credible and reliable witness on the key issues in dispute than either George Kodari or Mr Kodari.

52    The primary judge considered that George’s account of the relevant events did not read as a complete account and was “reflective of an incomplete recollection of what took place”. His Honour observed that the affidavit was finalised some 18 months after the events in question and that there was no evidence that George took any notes either at or around the time they took place. His Honour remarked:

What is missing is a sense of any substantial reaction to a senior employee ripping up a contract that he had just signed, and unexpectedly resigning. His affidavit bears the hallmarks of a much later reconstruction of what took place. My impression of George Kodari as a somewhat garrulous witness was that he would have been unlikely to have said and done so little in response to what he alleged Mr Tran said and did.

53    Similarly, the primary judge considered that Michael’s account read like an incomplete summary. His Honour observed that his affidavit was dated 26 June 2018, nearly 20 months after the key events and there was no suggestion that Michael had taken contemporaneous notes. His Honour considered that Michael’s affidavit was also “reflective of an incomplete recollection of what took place”. He went on to say:

Again, what is missing is any substantial reaction to a senior employee unexpectedly resigning before ripping up a signed contract. Mr Kodari was not a witness who gave the impression of being a person would be a passive or minimalist contributor to a significant conversation or event. I did not find it credible that he would have said and done so little in response to what he alleged Mr Tran said and did.

54    On the other hand, his Honour observed (at [35]) that the account in Mr Tran’s affidavit was considerably more detailed than the Kodaris’. While his Honour acknowledged that the affidavit was not affirmed until 2 March 2018, he noted that the originating application, which contained “key aspects of the account”, was filed on 3 March 2017 (within four months of the critical events). His Honour considered that Mr Tran’s affidavit “reflected a reasonably clear recollection at the time it was prepared” but that the cross-examination revealed that his memory was not as clear by the time of trial. His Honour also observed that Mr Tran’s affidavit was largely unchallenged, except on the topic of reprinting the contract after it had been torn up and on events preceding the meeting.

55    In oral argument the appellants attacked these remarks. They argued that it was not open to the primary judge to find that the affidavit reflected a reasonably clear recollection of the events at the time it was prepared, contending that “the written form of an affidavit provides no insight into the strength of the recollection, of the clarity of the recollection of a deponent”.

56    This argument must be rejected. The level of detail in the affidavits of the witnesses was a factor the primary judge was entitled to take into account in determining who to believe when their accounts differed. Statements in an affidavit about past events can provide an insight into the strength of the deponent’s recollection at the time they are made. Of course, cross-examination which exposes inconsistencies or other flaws in the deponent’s evidence can establish that those statements were dishonest. But that is not inevitably so. There may be alternative explanations. Having seen and heard Mr Tran, the primary judge concluded that he was an honest witness whose recollection about certain matters was poorer by the time of the trial. That is an unremarkable conclusion. It is trite to observe that, with the passage of time, memories fade. The appellants have not established that his Honour’s conclusion should be disturbed.

57    The appellants also argued that it was not open to the primary judge to say: “Well, a witness has made an affidavit. A witness believes this to be true, therefore it shows a clear and valuable – clear, strong and valuable recollection which can be set up to bolster the witness’s ultimate credibility, notwithstanding that under cross-examination, the same could not be said of the strength and clarity and value of his recollections”.

58    This argument must be rejected, too. It misrepresents his Honour’s reasoning process.

59    Fourth, the appellants’ submissions take his Honour’s remarks out of context. What is more, they pass over what his Honour said at [46]–[47]:

46    The more important conflict is as to whether Mr Tran said that he needed to take the new contract to a lawyer, as he recounted in his text message reply to Mr Kodari soon after 8.30 pm on the night of, and after, the meeting. There is little doubt that the motivation in getting Mr Tran to sign the new contract was not to improve his position, but rather to clarify and improve the position of Kodari Securities, especially when regard is had to a new probation period. That is a commercially legitimate stance for Kodari Securities to take via both Mr Kodari and George Kodari, even though the new contract on its face did appear to be reducing the scope of Mr Tran’s role. Employment contracts are able to change over time, as the interests and bargaining positions of one side or the other improve or worsen. The party set to be worse off may not wish to lose the contractual position already held. In these circumstance[s], Mr Tran would have been prudent in wanting to obtain legal advice before changing from the existing contract to the new contract.

47    Jessup J pointed out in Murrihy v Betezy.com.au Pty Ltd [2014] FCA 908; 238 IR 307 at [142] that “[p]erhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.” That observation extends to the right to obtain legal advice about employment contracts more generally, as Mr Tran asserts he wanted to do, knowing as he did that Kodari Securities had the benefit of such advice in preparing two template contracts. Overall, and in all the circumstances, I accept that Mr Tran did say to George Kodari that he needed to take the new contract to a lawyer.

60    There is nothing implausible about this finding, let alone glaringly improbable. Nor is it inconsistent with compelling inferences. And the reasoning process is entirely logical.

61    His Honour then referred to Mr Tran’s evidence that, when Michael joined the meeting, he asked him what was going on and Mr Tran told Michael that he was treating him unfairly and had embarrassed him in front of staff and “Open Market”. His Honour noted Mr Tran’s evidence that Michael did not reply and that George then insisted he “sign now”, adding “we trust you, you are like family”. His Honour observed that Michael did not deny that he had made references to Mr Tran being like family and said that he accepted Mr Tran’s account, commenting that it was something neither Michael nor George would necessarily have remembered.

62    His Honour was acutely aware of the inconsistencies in Mr Tran’s evidence. He addressed the subject expressly at [54]–[55]:

54    Mr Tran deposed to placing the keys to the Maserati on the table, that George Kodari told Mr Kodari to print another copy of the new contract, and that this reprinted copy was put in front of him. This aspect of Mr Tran’s evidence did not survive well under cross-examination. But rather than this ultimately counting against him, I perceived him as doing his best to give an honest account of his current recollection of what had taken place. He said in cross-examination that he could not recall Mr Kodari bringing a fresh copy of the new contract into the room. After the luncheon adjournment, he said in further cross-examination that he now recalled the additional copy being brought in, but could not recall what happened to it.

55    Mr Tran deposed to Mr Kodari yelling and screaming and pacing the room and to George Kodari as staring him down. It was suggested to him in cross-examination that this had not occurred, but he held his ground. I am unable to reach a concluded view that this was a reliable account, as opposed to an emotional over-reaction to what was taking place. However, I accept that the act of Mr Tran tearing up the contract was not well-received, that both Mr Kodari and George Kodari remained determined to have him sign the contract, and that neither of them was as calm or sanguine about this as their evidence would suggest. Mr Tran said that he decided to leave, and said “I will take the contract home with me, actually read it properly, and get back to you on Monday”.

(Emphasis added.)

63    The appellants were critical of his Honour’s conclusions about Mr Tran’s credibility, particularly at [54], complaining that his Honour put to one side “the failure of Mr Tran’s evidence in this regard”, and found that his “difficulties” during cross-examination “somehow inured” in support of his credit rather than detracted from it. But his Honour’s conclusions were open on the evidence. This is a classic situation in which the trial judge had a distinct advantage over the appellate court.

64    Ultimately, however, his Honour considered that the inconsistencies were of no moment. At [56] he said:

Mr Tran was cross-examined to the effect that it did not make sense to say [that he would take the contract home with him, read it properly and get back to him on Monday] if Mr Kodari was refusing to give him a further copy of the contract. Mr Tran said this was a reference to the ripped up contract (which was reassembled and put into evidence as the only version of the contract before the Court, such that it remained both able to be read, and able to be reassembled). However, this is seemingly at odds with his text message later that night, reproduced at [18] above, wherein he said “You will recall I left the meeting saying I will come back into the office on Monday to sign the contract after I have reviewed it but you refused to give me a copy of the contract after I had torn up the earlier copy.” However, despite this, I did not find this evidence as inherently implausible, even if it is not entirely clear as to which copy was being referred to at each point in time. It is consistent with Mr Tran wanting to take an unsigned reprinted copy if he was given it, but being willing to make do with the torn up copy if not. The significance of the reprinting of the new contract falls away once it is appreciated that no opportunity to obtain legal advice was going to be permitted and he was not going to be able to take any copy of the contract with him. It follows that I do not accept the arguments advanced on behalf of the respondents that Mr Tran was untruthful about what was done with the second copy of the new contract.

(Emphasis added.)

65    Having reviewed the evidence and the reasons, we are not persuaded that his Honour fell into appealable error. His Honour’s findings on the question of whether Mr Tran said that he needed or wanted to take the contract to a lawyer were not inconsistent with undisputed facts or contrary to uncontroverted evidence or compelling inferences. Nor are they glaringly improbable. Having seen and heard the witnesses give evidence, the primary judge enjoyed an obvious advantage over this Court. We do not consider that his Honour misused that advantage. In any case, we are not persuaded that his Honour came to the wrong conclusion. The Court was advised by counsel that it was not in contest at the trial that Mr Tran had been given no notice that the appellants were about to alter his existing contract to his detriment. In these circumstances it is highly likely that he would have needed and wanted legal advice and that he would have informed his employer accordingly.

66    It follows that the appeal should be dismissed.

The cross-appeal

67    The cross-appeal should also be dismissed.

68    The primary judge ordered, in effect, that Kodari Securities and Michael were jointly and severally liable to pay Mr Tran $75,000 gross as compensation for economic loss in relation to the adverse action claim.

69    The cross-appeal was based on an alleged inconsistency between findings made by the primary judge at [78] and [81].

70    At [78] his Honour held that it was more probable than not that, if his employment had not been terminated, Mr Tran would have been employed for a further period of about six months. At [81] his Honour determined that a reasonable period of notice would have been six months.

71    Neither finding is challenged. Rather, Mr Tran submitted that, where there was no finding (and no basis to find) that, at the end of the six month period mentioned in [78], Mr Tran would have been summarily dismissed or would have left his employment voluntarily without giving notice to his employer, the primary judge should have found that at that point either Kodari Securities or Mr Tran would have given notice in accordance with the notice period mentioned in [81]. In these circumstances, Mr Tran argued, the proper assessment of his economic loss would have been 12 months’ remuneration, namely $150,000, rather than six months at $75,000, as his Honour had ordered.

72    Mr Tran’s contention is based on a misconception.

73    The assessment at [78] related to the amount of compensation for economic loss for the contraventions of the Fair Work Act. The reference to six months’ notice in [81] related to the alternative claim for breach of contract. As his Honour observed at [80], since Mr Tran had succeeded on his adverse action claim, there was strictly no need to deal with the alternative claim. It could only be relevant in the event that his Honour’s conclusions with respect to the adverse action claim were overturned on appeal and this Court were to find that Kodari Securities was not entitled to summarily dismiss him. His Honour’s conclusion — that a reasonable period of notice was six months — was not challenged. The fact that the period of notice coincides with the period of compensation is neither here nor there.

Orders

74    Orders will be made dismissing both the appeal and the cross-appeal. Section 570 of the Fair Work Act constrains the Court’s ability to award costs and both sides eschewed a claim for costs. There will therefore be no order as to costs.

Associate:

Dated:    1 October 2020

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